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Littleton v. Wal-Mart Stores12/6/1999
unity Blood Center, 633 So.2d 252 (La.App. 1 Cir. 1993), writs denied, 93-3158, 93-3174 (La. 3/18/94); 634 So.2d 850, 851. Because this matter is now before a five-Judge court and one of the members of the original three-Judge panel was also a member of the panel which denied writs and now wishes to re-examine the issue, we deem it appropriate to address the merits of Wal-Mart's arguments concerning its right to a jury trial. For reasons which follow, a majority finds that this court's earlier denial of the writ application was the proper decision.
Wal-Mart made a timely request for a jury trial when it answered the Littletons' petition. On March 10, 1997, the trial court scheduled the jury trial for August 18-22, 1997. It was not until July 30, 1997, that the order was signed setting the cash deposit at $3,000 which was to be posted 30 days prior to trial. The cash deposit was then filed on Aug 11, 1997.
Louisiana Code of Civil Procedure 1734.1(A) (emphasis supplied) pertaining to a cash deposit for jury trials provides in pertinent part:
When the case has been set for trial, the court may order, in lieu of the bond required in Article 1734, a deposit for costs, which shall be a specific cash amount, and the court shall fix the time for making the deposit, which shall be no later than thirty days prior to trial. The deposit shall include sufficient funds for payment of all costs associated with a jury trial, including juror fees and expenses and charges of the jury commission, clerk of court, and sheriff. The required deposit shall not exceed three hundred dollars per day for each day the court estimates the trial will last. Notice of the fixing of the deposit shall be served on all parties. If the deposit is not timely made, any other party shall have an additional ten days to make the required deposit. Failure to post the cash deposit shall constitute a waiver of a trial by jury.
This provision was in effect when the deposit was made in this case.
The supreme court analyzed a different version of Article 1734.1 in Dept. of Transp. & Develop. v. Walker, 95-0185 (La. 6/30/95); 658 So.2d 190. The supreme court held that Article 1734.1(A) gave the trial court the discretion to choose any day from 30 days before trial to the morning of, but preceding, the trial to set as the date the cash deposit is due. Also, if the trial court failed to fix an exact date within 30 days prior to the start of the trial, the deposit of a specified sum on any day within 30 days prior to trial, including the morning of trial, would be timely.
Applying that analysis, Wal-Mart's filing of the cash deposit in this case would have been timely. However, the legislature amended Article 1734.1 in 1995 to read as it is quoted above. Prior to the amendment, Article 1734.1(A) (emphasis supplied) provided that "the court shall fix the time for making the deposit, which time shall be within thirty days prior to trial." Article 1734.1 as amended (emphasis provided) provides that the deposit be "no later than thirty days prior to trial." With this change, we regard the interpretation of Article 1734.1(A) by the supreme court in DOTD v. Walker, 658 So.2d 190, as no longer applying.
Due to the legislative change, the cash deposit must now be at least 30 days before the trial starts. Wal-Mart does not deny that the cash deposit was not made 30 days before the start of trial. The reason this happened was because an order to set the amount and date of the cash deposit was not filed with the court and therefore, not signed until July 24, 1997. This was not 30 days before the start of the trial. Wal-Mart had filed its answer in 1996. Rule X of the Rules of Court for
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