Summary
stating that party who fails to object to trial court ruling and proceeds to trial cannot later claim error in ruling on appeal
Summary of this case from Walsh v. Frank Cluba & Good Stuff, Inc.Opinion
No. 401-81
Opinion Filed April 5, 1983
1. Appeal and Error — Questions Considered on Appeal — Matter Not Briefed
Where defendant, who appeared pro se on appeal of a judgment rendered against him, failed to comply with the rules governing adequate briefing, in that he failed to state the case concisely, did not clearly delineate the issues presented for determination, and did not refer to any statutory or case law in support of his arguments, the supreme court would consider those issues which he appeared to have raised, notwithstanding the fact that it had in the past refused to review claims of error inadequately briefed. V.R.A.P. 28(a)(2), (3), (4).
2. Trial — Jury Trial Where One Is Not Required — Demand for Jury Trial
A party may demand a jury trial by serving on the other parties a demand in writing at any time after the commencement of the action, but no later than ten days after service of the last pleading; failure to serve such a demand constitutes a waiver of the right to jury trial. V.R.C.P. 38(b), (d).
3. Trial — Jury Trial Where One Is Not Required — Demand for Jury Trial
Where defendant failed to serve a timely demand for a jury trial as required by the rules of civil procedure and made no objection when the trial court ruled that, since defendant's attorney did not comply with the court's request that he draft a proposed order to amend his answer to include a request for a jury trial, defendant had waived his right to a jury trial, defendant could not claim on appeal that it was error to fail to allow him a jury trial. V.R.C.P. 38(b), (d).
4. Appeal and Error — Findings — Tests for Overturning
Findings of fact challenged on appeal are not to be set aside unless, taking the evidence in the light most favorable to the prevailing party and excluding the effects of modifying evidence, they are clearly erroneous. V.R.C.P. 52.
5. Trial — Questions for Trier — Conflicts in Evidence
When the evidence is conflicting, the credibility of the witnesses, the weight of the evidence and its persuasive effect are matters for the exclusive determination of the trier of fact, and although there may be inconsistencies or substantial evidence to the contrary, its determination must stand if supported by credible evidence. V.R.C.P. 52.
Appeal by defendant from a judgment rendered against him after a trial by court. Washington Superior Court, Costello, J., presiding. Affirmed.
Adams, Darby Laundon, Waterbury, for Plaintiff-Appellee.
Charles Degan, pro se, Moretown, Defendant-Appellant.
Present: Billings, C.J., Hill, Underwood, Peck and Gibson, JJ.
Defendant appeals from a judgment rendered against him after a trial by court. Although he appears pro se on appeal, he was represented by counsel at trial.
We note at the outset that defendant has failed to comply with the rules of this Court regarding the requisites of adequate briefing: he fails to state the case concisely, V.R.A.P. 28(a)(2); he does not clearly delineate the issues presented for our determination, V.R.A.P. 28(a)(3); nor does he refer to any statutory or case law in support of his arguments. V.R.A.P. 28(a)(4). We have in the past refused to review claims of error inadequately briefed. State v. Settle, 141 Vt. 58, 61, 442 A.2d 1314, 1315 (1982) (citing Quazzo v. Quazzo, 136 Vt. 107, 111, 386 A.2d 638, 641 (1978)). Nevertheless, bearing in mind defendant's pro se status on appeal, we reluctantly consider those issues which defendant appears to have raised: first, that he was denied his right to trial by jury, and second, that the court's findings are unsupported by the evidence.
V.R.C.P. 38(b) provides that a party may demand a jury trial by serving on the other parties a demand in writing at any time after the commencement of the action, but no later than ten days after service of the last pleading. V.R.C.P. 38(d) states that failure to serve such demand constitutes a waiver of the right to jury trial. See Hale v. Melendy, 139 Vt. 28, 30-31, 421 A.2d 1296, 1297 (1980). Although the attorneys for the parties below orally discussed the possibility of jury trial, defendant failed to serve a timely demand as required by the rules. Although defendant later filed a motion to amend his answer to include a request for jury trial, his attorney never complied with the trial court's request that he draft a proposed order to that effect. Upon such failure, the trial court determined that defendant had waived his right to a jury trial. Defendant made no objection to this ruling, proceeded to try the case to the court, and cannot now claim that it was error to fail to allow him a jury trial.
Defendant claims further error in that the findings were "one-sided" and based "almost exclusively on the testimony of the plaintiff and ignored defendant's testimony." Findings of fact challenged on appeal are not to be set aside unless, taking the evidence in the light most favorable to the prevailing party and excluding the effects of modifying evidence, they are clearly erroneous. V.R.C.P. 52; Dean v. Arena, 141 Vt. 647, 648, 450 A.2d 1143, 1145 (1982); Cliche v. Cliche, 140 Vt. 540, 541, 442 A.2d 60, 61 (1982). When the evidence is conflicting, the credibility of the witnesses, the weight of the evidence and its persuasive effect are matters for the exclusive determination of the trier of fact, Griffith v. Nielsen, 141 Vt. 423, 429, 449 A.2d 965, 968 (1982), and although there may be inconsistencies or substantial evidence to the contrary, its determination must stand if supported by credible evidence. Id. (citing Stamato v. Quazzo, 139 Vt. 155, 158, 423 A.2d 1201, 1203 (1980)). On this record there was ample evidence to support the trial court's findings, conclusions of law and judgment, and as such they will not be disturbed.
Affirmed.