 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Littleton v. Wal-Mart Stores12/6/1999
the Thirty-Fifth Judicial District Court required that "all orders for a jury trial shall be presented to the Judge." Wal-Mart had sufficient time to file an order with the court to set the amount and date of the cash deposit to insure timely compliance with the mandates of Article 1734.1(A). Wal-Mart's failure to insure that the procedural mandates of Article 1734.1(A) were complied with was fatal to its claim for a jury trial. It cannot blame the trial court for the late signing of the order when the court was not timely presented with an order. See King v. Aetna Life & Cas., 552 So.2d 73 (La.App. 3 Cir. 1989), writ denied, 556 So.2d 1264 (La.1990) and Manuel v. Shell Oil Co., 94-590 (La.App. 5 Cir. 10/18/95); 664 So.2d 470, writ denied, 96-0141 (La. 3/8/96); 669 So.2d 397, in which the courts held that the trial court was correct in denying the requested jury trial due to the parties' failure to comply with the procedural requirements for perfecting a jury trial. The law is clear that the cash deposit must be filed 30 days prior to trial.
Once Wal-Mart lost its right to a trial by jury, the right could not be revived by the continuance of the trial date to a later date. In Kimball v. Allstate Ins. Co., 97-2885, 97-2956 (La. 4/14/98); 712 So.2d 46, the supreme court stated that "the right to a jury trial in a civil case is not fundamental" and that the legislature can provide limitations upon one's ability to obtain a jury trial provided the limiting law does not violate any constitutional provision. Article 1734 was recognized as one of those non-violative limitations.
When Wal-Mart failed to timely make the cash deposit, the right to a jury trial was lost. A continuance of the date of the trial did not commence another "window of opportunity" for Wal-Mart. See generally Broussard v. Wal-Mart Stores, Inc., 96-513 (La.App. 3 Cir. 11/6/96); 682 So.2d 894, writ granted, judgment vacated, and remanded on other grounds, 96-2931 (La. 11/7/97); 703 So.2d 29.
Wal-Mart also complains that it had no notice that the previously filed cash deposit had been depleted. That fact makes no difference to this case. At the hearing on the motion to strike the jury trial, the trial court indicated that if it had been within its authority it would have given the defendant "time to re-post the bond." But it was the untimely filing of the cash deposit, and not the deficiency of the deposit, that caused Wal-Mart to lose its right to a jury trial. As this court pointed out in our earlier ruling on the writ taken by Wal- Mart, Wal-Mart admitted that the cash deposit was filed late. We therefore adhere to the earlier ruling of this court that the trial court did not err in holding that the cash deposit was not timely filed as required by Article 1734(A).
For the reasons set forth in this opinion, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Wal-Mart Stores, Inc.
AFFIRMED.
WOODARD, J., DISSENTS AND ASSIGNS WRITTEN REASONS.
PICKET, J., DISSENTS.
WOODARD, J., Dissenting.
I respectfully Dissent from the part of the majority's opinion which affirms the trial court's decision to strike Wal Mart's jury trial demand.
Essentially, by its ruling, the majority rewrites that part of La.Code Civ.P. art. 1734.1(A) which designates the time limit for making the deposit for costs. The legislature wrote that the time period: "shall be no later than thirty days prior to trial." By its ruling, the majority changes the statute to read, "shall be no later than thirty days prior to [the first fixing for] trial." Reading into a statute that which is not there is contrary to La.Civ.Code art.
Page 1 2 3 4 5 6 Louisiana Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|