Error in granting a jury trial? Seek a writ.
Preserving errors in jury selection

Erroneous denial of a jury trial? Seek a writ.

In the last post, we saw that a party aggrieved by the erroneous granting of a jury trial must seek immediate appellate review by applying for a supervisory writ; otherwise the court of appeal will deem the issue waived. Does the same rule apply to the erroneous denial of a jury trial? You bet it does. The cases so holding are legion. Here are just a few:

A similar rule has been applied when a party, following a bench trial, complained on appeal that the case should have been reassigned to a different judge. In Powell v. Powell, 684 So. 2d 1084 (La. App. 2 Cir. 1996), the plaintiff argued that the trial court erred in failing to reassign a custody-modification matter to the judge who rendered the original custody order. The court of appeal found the scenario

akin to that of a litigant who fails to immediately appeal or seek supervisory writs from the trial courts disposition of a request for jury trial. In such situations, absent compelling circumstances, the litigant will be deemed to have waived the right to appeal that issue after a trial on the merits. [Id. at 1086.]

The court refused to allow the plaintiff “to abide by the trial court's ruling, try the case before that particular trial judge and then, after an adverse judgment, complain that the case should have been tried before a different judge.” Id. The court concluded that a party seeking appellate review of an order like this must do so before the hearing. Id. 

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