Let’s say the trial court denies your motion to strike a jury. Can you save this issue for appeal after final judgment? Probably not. Louisiana caselaw consistently holds that a litigant aggrieved by such a ruling must apply for a supervisory writ so that the issue can be reviewed and decided before trial. Failure to apply for a supervisory writ will be deemed a waiver of this issue on appeal. Two considerations are behind these rulings: judicial economy and avoidance of sandbagging.
A leading case on this point is Windham v. Security Insurance Co. of Hartford, 337 So. 2d 577 (La. App. 4 Cir. 1976). A defendant in Windham moved to recall an order granting a jury trial on several grounds. The trial court denied the motion, the case was tried before a jury, and the result was a judgment on a verdict in the plaintiff’s favor. On appeal, the defendant argued that the trial court erred in allowing the case to be tried by a jury. The court of appeal, citing “the interest of judicial economy and fairness,” held that the defendant waived its right to complain of this error by failing to seek immediate appellate review:
In the interest of judicial economy and fairness, we cannot allow the appellant to abide by the judgment dismissing the motion, try the case to the jury and then, after an adverse verdict and judgment, complain it should not have been tried to a jury. If the bank wished to complain about the ruling allowing jury trial, it should have done so prior to trial either by appeal or by an application for writs. Accordingly, we hold appellant has either acquiesced in that ruling or has effectively waived its right to so complain. [Id. at 579.]
Numerous cases have since followed Windham. A good example is Turner v. Regional Transit Authority, 498 So. 2d 777 (La. App. 4 Cir. 1986). In Turner, the court of appeal agreed that the trial court was “clearly wrong” in allowing the case to be tried by jury. Id. at 779. Nevertheless, the court of appeal held that the complaining party waived this issue by failing to apply for a supervisory writ:
Although the Trial Court was clearly wrong, when as in this case, there is ample time to apply for writs of review, we will not vacate the judgment and remand for a new trial. RTA declined to pursue the matter after the Trial Court erred in its ruling. If RTA wished to complain, it should have done so prior to trial either by appeal or by an application for writs. Windham v. Security Insurance Co. of Hartford, 337 So.2d 577 (La.App. 4th Cir. 1976). Therefore, we hold that when RTA did not avail itself of the right to seek supervisory writs, it waived its right to complain of the denial of its motion to strike the jury. [498 So. 2d at 779.]
The court went on to suggest that to entertain this issue on appeal would have countenanced sandbagging:
We cannot allow RTA to try the case to the jury and then after an adverse verdict and judgment, complain it should not have been tried to a jury. If RTA had been satisfied with the jury verdict, presumably it would not have raised the jury trial issue on appeal. RTA simply cannot sit and wait and hope for a favorable jury verdict, knowing that if the verdict is unfavorable, it will have an opportunity to have it nullified on appeal. [Id.]
See also Eddy v. Litton, 586 So. 2d 670, 672–73 (La. App. 2 Cir. 1991) (“A litigant in a civil case, who, absent compelling circumstances, fails to immediately appeal or seek supervisory writs from the trial court's disposition of a request for jury trial, will be deemed to have waived the right to appeal that issue after a trial on the merits.”).
Is there an exception to this rule? Perhaps. The Turner court noted that the complaining party had “ample time” to apply for a supervisory writ. In a similar vein, the Eddy court noted the absence of “compelling circumstances” to excuse the complaining party’s failure to apply for a supervisory writ. Nevertheless, both cases teach that, if it is at all possible to apply for a supervisory writ erroneously granting a jury trial, the aggrieved party must apply for the writ. Otherwise, the court of appeal will deem this error waived.
(Note that, when these cases were decided, orders like these could either be appealed or be the subject of a supervisory-writ application. See Eddy, 586 So. 2d at 673. Today, because of a 2005 amendment to La. Code Civ. P. art. 2083, an application for a supervisory writ is the only procedure available to seek review of a judgment erroneously granting or denying a jury trial.)