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Littleton v. Wal-Mart Stores12/6/1999
9 and La.R.S. 1:4. And in doing so, the majority introduces a legal technicality into the statute that deprived Wal-Mart of its fundamental right to have its case decided by a jury of its peers.
The legislature must have intended the phrase, "thirty days prior to trial," to mean exactly what it says; otherwise, it could have easily written it as the majority suggests, "prior to the first fixing for trial." Statutes are to be construed as written and their words are to be given their generally prevailing meaning.
Black's Law Dictionary defines "trial" to mean:
A judicial examination and determination of issues between parties to action, whether they be issues of law or of fact, before a court that has jurisdiction. (Emphasis added.) Reading the statute with its clear meaning, as stated in Black's, would not lead to absurd consequences nor prejudice either party, as a party would still have a minimum of thirty days to prepare for a jury trial no matter when that trial would occur.
In the case sub judice, on July 30, 1997, the trial court signed an order, setting the cash deposit at $3,000.00 and ordered that it be posted thirty days before trial, which was scheduled for August 18-22, 1997. Wal-Mart did not make the $3,000.00 deposit until August 11, 1997 - too late to be entitled to a jury trial if there had been an adjudication of the issues on August 18-22. However, there was no trial on that date, as the parties agreed to a continuance, and the trial was, ultimately, rescheduled for May 11.
When the parties agreed to this continuance, the only question concerning Wal-Mart's right to a jury trial should have been whether more than thirty days would pass between the time it had made the deposit for costs and the trial. It would have. Thus, Wal-Mart met the statutory requirements and should have been given a jury trial to decide quantum at the May 11, 1998 trial.
The majority writes that " continuance of the date of the trial did not commence another "window of opportunity for Wal-Mart," citing, with a See generally citation, Broussard v. Wal-Mart Stores, Inc. Even though Broussard is introduced with a See generally introductory signal, in my opinion, the case is so distinguishable from this case that it is entitled to no weight for the proposition for which the majority uses it as authority. Broussard concerned the application of La.Code Civ.P. art. 1733(C), which relates to the right to request a jury trial from the date of the last pleading filed when that pleading addresses an issue triable by jury, and which, incidentally, permits more than one "window of opportunity" to request a jury trial.
I find no legal support for the majority's holding in the instant case. Further, not only is the straight forward construction, which I have offered, true to the law of statutory interpretation in the Civil Code and the Revised Statutes, but it also follows Tenpenny v. Ringuet, which holds that the right to a jury trial is fundamental and that every presumption against a waiver, loss, or forfeiture of the right to a jury trial should be indulged by the courts.
I acknowledge that my Dissent is inconsistent with my earlier vote to deny Wal-Mart's supervisory writ, which challenged the trial court's decision to grant the Littletons' motion to strike the jury. Since that time, I have had the opportunity for further thought. If I had to vote on the writ application today, I would vote differently than I did.
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