                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                    March 21, 2001 Session

         BRIAN ELKINS v. REX A. BERRY and WILLIAM A. BOLIN

                     An Appeal from the Circuit Court for Carroll County
                             No. 3848 Julian P. Guinn, Judge



                    No. W2000-01143-COA-R3-CV - Filed March 15, 2002


This case involves the right to a trial by jury. The plaintiff sued the defendants for injuries he
sustained in an automobile collision that was allegedly caused by the defendants’ negligence. In the
plaintiff’s complaint, he demanded a jury trial. The defendants also demanded a jury trial in their
answers. On the eve of trial, unbeknownst to the defendants, the plaintiff withdrew his jury demand.
On the morning of trial, the defendants appeared but were unrepresented by counsel. The trial court
proceeded with a bench trial, and entered a judgment in favor of the plaintiff. The defendants now
appeal, claiming, inter alia, that they were denied their right to a jury trial. We affirm, finding that
the defendants’ participation in the bench trial, without objection, constituted a waiver of their right
to a jury trial under Rules 38.05 and 39.01 of the Tennessee Rules of Civil Procedure.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed

HOLLY K. LILLARD, J., delivered the opinion of the court, in which ALAN E. HIGHERS, J., and DAVID
R. FARMER , J., joined.

Benjamin S. Dempsey, Huntingdon, Tennessee, for the appellants, Rex. A Berry and William A.
Bolin.

Charles L. Hicks, Camden, Tennessee, for the appellee, Brian W. Elkins.


                                              OPINION

       This case involves the right to a trial by jury. On December 20, 1997, at approximately 3
o’clock a.m., plaintiff/appellee Brian W. Elkins ("Elkins"), as an officer of the Tennessee Wildlife
Resource Agency ("TWRA"), saw defendants/appellants Rex A. Berry ("Berry") and William A.
Bolin ("Bolin") illegally spotlighting deer in Carroll County, Tennessee.1 Berry was driving a truck
owned by Bolin in which Bolin was the passenger. Several TWRA officers began to pursue Berry
and Bolin by helicoptor, and other officers erected a roadblock to prevent the defendants' flight from
arrest. Berry and Bolin turned and drove away from the officers' roadblock. Elkins had been
pursuing Berry and Bolin, and when they turned around to avoid the roadblock, they drove toward
Elkins’s truck. Elkins had brought his truck to a stop with his blue lights engaged in an attempt to
block the defendants' escape. The truck driven by Berry collided with Elkins’s truck, resulting in
Elkins sustaining personal injuries. Berry and Bolin subsequently pled guilty to spotlighting deer,
hunting deer from a motor vehicle, and hunting or killing big game during closed season.
Additionally, Berry pled guilty to reckless endangerment and evading arrest.

        On December 8, 1998, Elkins filed the instant lawsuit against Berry and Bolin, claiming
compensatory and punitive damages resulting from the auto accident.2 In his complaint, Elkins
demanded a jury. On January 18, 1999, C. Timothy Crocker, an attorney, entered an appearance and
filed an answer on behalf of Berry, in which he did not demand a jury. Fred McLean, an attorney,
entered an appearance and filed an answer on behalf of Elkins' uninsured motorist carrier, State Farm
Mutual Automobile Insurance Company ("State Farm"), in which he demanded a jury. Bolin did
not retain his own counsel and did not file an answer. Elkins then filed a motion for a default
judgment against Bolin. On November 17, 1999, attorney McLean filed an answer on Bolin’s
behalf, in which he demanded a jury.

        On November 17, 1999, the trial judge granted Crocker's motion to withdraw as counsel of
record for Berry. At that time, the trial court advised Berry and Bolin that they were entitled to
retain lawyers to represent them if they so chose. The trial court informed the parties that the trial
date was set for January 11, 2000, and told Berry and Bolin that if they wanted their own counsel
they would have to make arrangements prior to that date.

       Prior to trial, Elkins reached a settlement with State Farm. Consequently, attorney McLean
was no longer obligated to remain in the case. On January 10, 2000, the day before trial, Elkins filed
a waiver of his original jury demand and moved to proceed with a bench trial on the following day.
A copy of that waiver was sent to attorneys Crocker and McLean, but not to Berry and Bolin
personally. Thus, Berry and Bolin had no notice of Elkins' jury waiver prior to the morning of trial.




         1
          “Spotlighting,” as that term is used in this case, involve s shining artificial light, such as car head lights, into
the eyes of a deer at n ight, causing the deer to freeze and making it an easy targ et for a hun ter. See State v. Barker, 457
N.E.2d 3 12, 312-13 (Ohio 198 3).

         2
           Elkins claimed that he suffered from, among other thing s, persistent pain, stiffness and weak ness in his arm s,
and numbn ess and tingling in his fingers and wrists. He also claimed that he suffered from pain and stiffness in his neck
and mu scle spasm s in his b ack. He su bm itted ev idence that he sustained a 5% perm anent ph ysical imp airm ent to his
bod y as a wh ole.

                                                             -2-
         The case was called to be heard as scheduled on the morning of January 11, 2000. McLean,
of course, did not appear. Berry and Bolin personally appeared, but they apparently had counted on
attorney McLean to represent their interests and had not retained their own attorneys.3 When
questioned by the trial court regarding legal representation, the defendants responded that they had
none. At that point, noting that the defendants had been given ample opportunity to retain counsel,
the trial judge proceeded with the bench trial. According to the Statement of the Evidence in the
appellate record, the defendants waived their right to testify, and failed to put on any proof. The
Statement of the Evidence did not refer to any discussion of the defendants’ demand for a jury trial,
or any objection by the defendants to a bench trial.

        At the conclusion of the bench trial, the trial court found “by clear and convincing proof
beyond a reasonable doubt” that both defendants had engaged in illegal activities and that they
intentionally drove their truck into Elkins’ truck while evading arrest. The trial court found that
Elkins had sustained permanent injuries as a result of the collision, and awarded Elkins $25,000
against both defendants and an additional $15,000 in punitive damages against Berry, the driver of
the truck.

        On February 18, 2000, Berry and Bolin, now represented by counsel, filed motions for a
rehearing, reconsideration, or a new trial. Berry and Bolin asserted, among other things, that
“[p]laintiff’s unilateral waiver of a jury trial the day before trial, without notice and consent of
defendant[s] impermissibly denied defendant[s their] right to a jury trial.” The motions were denied.
The defendants now appeal.

         On appeal, the defendants raise a number of issues pertaining to the propriety of the trial
court’s findings and legal conclusions. Initially, the defendants argue that they were denied due
process and denied assistance of counsel because they were not notified of the insurance company’s
pre-trial settlement. They reason that, had they been notified that the insurance company’s attorney
would not be present, they would have retained separate counsel.4 Further, they claim that they were
denied their right to a jury trial because of the plaintiff’s unilateral waiver of a jury. Finally, they
argue that, had they been allowed to proceed before a jury, the proof would have been sufficient such
that a jury could have found that the collision was the result of negligent and not intentional conduct,
and that the evidence does not support a finding of punitive damages.




         3
            At this point, Berry and Bolin learn ed that M cLe an w ould not b e app earing to represe nt their interests in the
trial. One can imagine that, upon learning this, Berry and Bolin looked like the proverbial “deer caught in the
headligh ts.”

         4
           The defendants also argue that defendant Berry’s former attorney, Tim Crocker, “unjustifiably” failed to
appear at trial and that they d id not receive prior n otice that Cro cker w ould n ot be pre sent. The record plainly reflects,
how ever, that the trial court granted Crocker’s motion to withdraw from the case, and that a copy of the order was sent
to both Berry and Bolin. The defendants do not offer any evidence that they w ere unaw are of the trial court’s order.
Therefo re, we reject any claim pertaining to Cro cker’s failure to ap pear at trial.

                                                              -3-
       We review the findings of fact by the trial court de novo on the record, accompanied by a
presumption of the correctness of the findings, unless the preponderance of the evidence is
otherwise. Tenn. R. App. P. 13(d). Conclusions of law require a de novo review, with no
presumption of correctness. See State v. Levandowski, 955 S.W.2d 603, 604 (Tenn. 1997); Ridings
v. Ralph M. Parsons Co., 914 S.W.2d 79, 80 (Tenn. 1996).

        We consider first the argument that Berry and Bolin were denied their right to a jury trial.
Since the effective date of the Tennessee Rules of Civil Procedure, January 1, 1971, Rules 38.05 and
39.01 govern the requirements for a withdrawal, waiver, or abandonment of a previously filed jury
demand. See Caudill v. Mrs. Grissom’s Salads, Inc., 541 S.W.2d 101, 104 (Tenn. 1976). Rule
38.05 provides in pertinent part:

       38.05. Waiver – A demand for trial by jury as herein provided may not be
       withdrawn without the consent of all parties as to whom issues have been joined.

Rule 39.01 provides in pertinent part:

       39.01. By Jury – When a trial by jury has been demanded as provided in Rule 38,
       the action shall be designated upon the docket as a jury action. The trial of all issues
       so demanded shall be by jury, unless . . . the parties or their attorneys of record, by
       written stipulation filed with the court or by oral stipulation made in open court and
       entered in the record, consent to trial by the court sitting without a jury . . . .

(Emphasis added). The Advisory Commission Comments to this rule state that Rule 39.01 “is
consistent with prior practice.” Tenn. R. Civ. P. 39.01 advisory commission cmts. (citing Tenn.
Code Ann. § 20-1206, in which consent of all parties was required for waiver of jury demand).
Rules 38.05 and 39.01 are identical to their federal counterparts.

        Rule 38.05 restates the long-standing common law rule in Tennessee that once a jury trial
has been properly demanded, such a demand cannot be withdrawn without the consent of all the
parties. See Russell v. Hackett, 230 S.W.2d 191, 192 (Tenn. 1950). One authority has explained
the reason for such a rule:

       [W]here one party makes [a jury] demand, there is ordinarily no necessity for the
       other to do so. Accordingly, a party wishing to avoid a jury trial might, if permitted
       to do so, trap his opponent by initially demanding a jury, then, after the time has
       elapsed for his opponent to make a similar demand, withdrawing his request. In
       order to meet this possibility, statutes or rules have been enacted in a number of
       jurisdictions requiring that a party who had demanded a jury trial may not withdraw
       such a demand without the consent of the opposing party.

H. D. Warren, Annotation, Rule or Statute Requiring Opposing Party’s Consent to Withdrawal
of Demand for Jury Trial, 90 A.L.R.2d 1162 (2001).

                                                 -4-
        Tennessee courts have held that consent of the parties can be either express or implied. See
Beal v. Doe, 987 S.W.2d 41, 47 (Tenn. Ct. App. 1998); Davis v. Ballard, 946 S.W.2d 816, 816
(Tenn. Ct. App. 1996). Some Tennessee courts have concluded, based on Rule 38.05, that if a
defendant fails to appear at trial, he has by implication consented to the plaintiff’s waiver of a jury
demand. See Beal, 987 S.W.2d at 47; Davis, 946 S.W.2d at 816. Similarly, other courts have held
that simply allowing a non-jury trial to proceed without objection is sufficient to imply the party’s
consent. See Russell, 230 S.W.2d at 192; see also Front v. Lane, 443 N.E.2d 95, 97 (Ind. Ct. App.
1982) (finding that defendant consented to plaintiff’s waiver of the jury by failing to object at trial
and acquiescing in the non-jury trial). It must be noted that Tennessee’s Rule 39.05, like its federal
counterpart, adds a specific requirement that consent to the waiver of a jury trial must be by written
stipulation “or by oral stipulation made in open court and entered in the record.” Rule 39.05
(emphasis added). However, neither the Tennessee courts nor the federal courts have strictly adhered
to the requirement that oral stipulations be “entered in the record.”

        For example, in Pilcher v. Moneymaker, No. 03A01-9710-CV-00482, 1998 Tenn. App.
LEXIS 665 (Tenn. Ct. App. 1998), involving injuries the plaintiff received from a bicycle accident,
both parties demanded a jury in their initial pleadings. For reasons not apparent in the opinion, the
case was tried in a bench trial. On appeal, the defendants retained new counsel and argued that the
trial court erroneously conducted a bench trial when neither party expressly waived their jury
demand. However, in the appeal, trial counsel for both parties had filed affidavits to the effect that
the demands had been, in fact, waived. The appellate court held that the post-trial affidavits satisfied
the “on the record” requirement of Rule 39.01. Pilcher, 1998 Tenn. App. LEXIS 665, at *7. The
court specifically stated that “we are not prepared to require strict adherence to the rule. To do so,
in our view, would be to exalt form over substance.” Id.

         In Sewell v. Jefferson County Fiscal Court, 863 F.2d 461 (6th Cir. 1988), a race and sex
discrimination case, the plaintiff initially demanded a jury trial. The case was scheduled for jury trial
on September 23, 1986. At the September 15, 1986 pretrial conference, the plaintiff’s attorney
requested a continuance. Thereafter, the trial court entered an order removing the case from the jury
docket and scheduling it for a bench trial on January 22, 1987. The plaintiff did not object. At trial,
the plaintiff asked the trial court to summon the jury. The trial court refused that request, referring
to the pretrial order. The trial court proceeded with a bench trial, and the plaintiff appealed. The
Sixth Circuit noted that the “on the record” rule had “been interpreted broadly so as to encompass
orders entered by the court and not objected to.” Sewell, 863 F.2d at 464 (quoting Lovelace v. Dall,
820 F.2d 223, 227 (7th Cir. 1987)). Thus, the court held that the trial court’s order setting the case
for a bench trial “constituted a ‘sufficient entry in the record to satisfy the requirements of Fed. R.
Civ. P. 39(a).’” Id. at 465 (quoting Fields Eng’g & Equip., Inc. v. Cargill, Inc., 651 F.2d 589, 592
(8th Cir. 1981)).

        In White v. McGinnis, 903 F.2d 699 (9th Cir. 1990) (en banc), the Ninth Circuit Court of
Appeals reviewed at length the issue of whether the failure to object to a bench trial, without more,
would be sufficient to establish consent “on the record” to the waiver of a jury demand. In that case,
the plaintiff had brought a §1983 action against the defendant corrections officer. The plaintiff


                                                  -5-
demanded a jury in his complaint. On August 6, 1985, the trial court notified the parties that the case
was set for a bench trial on January 21, 1986. The subsequent two-day bench trial ended in a
judgment for the defendant. During the trial, the plaintiff made no objection to the absence of a jury.
The plaintiff then appealed, claiming that he was denied a jury trial. In rejecting the plaintiff’s claim
on appeal, the Ninth Circuit overruled a previous case out of that circuit, Palmer v. United States,
652 F.2d 893 (9th Cir. 1981), which is procedurally identical to the case sub judice. The court in
Palmer purported to follow the “precise terms” of the federal counterpart of Tennessee Rule 39.01
in holding that, where the record was completely silent on the issue of a jury trial, “a party’s
acquiescence to the district court’s maintenance of a bench trial, without more, is insufficient to
establish a withdrawal of a jury demand.” Palmer, 652 F.2d at 896. In White, the en banc court
noted that more recent cases had criticized Palmer’s “literal approach” and had “rejected a
formalistic interpretation of the rules.” White, 903 F.2d at 701.

         In reaching its conclusion, the White court cited Reid Brothers Logging Co. v. Ketchikan
Pulp Co., 699 F.2d 1292 (9th Cir. 1983), in which the court allowed the plaintiff to waive a demand
for a jury over the objection of the defendant when it was obvious that the defendant’s intention was
to delay and frustrate the purposes of the federal rules. The White court also cited Pope v. Savings
Bank of Puget Sound, 850 F.2d 1345 (9th Cir. 1988), in which Palmer was distinguished and the
appellant’s conduct was found to evince “much more than silence.” Thus, in overruling Palmer, the
White court noted that “a party’s vigorous participation in a bench trial, without so much as a
mention of a jury, cannot be presumed the result of mere inadvertence, but can only be ascribed to
knowledgeable relinquishment of the prior jury demand.” White, 903 F.2d at 703; see also Lovelace
v. Dall, 820 F.2d 223, 227 (7th Cir. 1987) (holding that “it is unfair to permit a party to have a trial,
discover it has lost, and then raise the jury issue because it is unsatisfied with the result of the trial”).5

         Two Tennessee cases have held that a defendant’s failure to appear at trial waives his right
to a jury trial by implication, without addressing Rule 39.01. In Davis v. Ballard, the defendant
failed to appear at trial, so the plaintiff waived his prior jury demand and the court proceeded with
a bench trial. Davis, 946 S.W.2d at 816. In finding that the defendant was not denied his right to
a jury, the court adhered to the rule in Russell, in which the Tennessee Supreme Court held that the
failure to appear at trial constituted the waiver of a jury by implication. Davis, 946 S.W.2d at 816
(citing Russell, 230 S.W.2d at 192). Relying on Russell, the Davis court reasoned that “[o]ur


         5
            The dissent in White criticized the majority decision because it purportedly ignored the plain language of the
“on the record” requirement because, in its view, the rule “is susceptible to only one reading.” Id. at 705 (K ozinski, C.J.,
dissenting). Though the majority overruled Palmer’s interpretation of the rule as being “rigid” and “formalistic,” Judge
Kozinski would have used a straightforward application of the rule because it is specific and unambiguous. He stated
that he was “not unmindful that the result we reached in Palmer appears to be a triumph of form over substance.”
However, the dissent noted that the Supreme Court has repeatedly held the view that “in the long run, experience teaches
that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded
administration of the law.” Id. at 706 (quotations omitted). Judge Kozinski reasoned that “greater unfairness may be
visited upon a far large r number o f litigants when rules of procedure are given a creative interpretation in respo nse to
the apparent exigencies of a particular case. . . . The danger is particularly ac ute whe re, as here, the rule in que stion is
designed to safeguard the right to trial by jury.” Id.

                                                             -6-
present law requiring all parties to consent to waiver of a previous jury demand, Tenn. R. Civ. P.
38.05, is the same that existed when the Supreme Court decided Russell. Therefore, we must follow
the Supreme Court’s ruling in Russell.” Id.

         Following Davis, the court in Beal v. Doe, also held that a party can waive his right to a jury
trial by implication, and that such waiver is established when the party fails to appear at trial. Beal,
987 S.W.2d at 47-48. Similar to the instant case, the plaintiff and co-defendants who were
represented by counsel agreed on the morning of trial to waive their right to a jury trial. Id. at 43.
Counsel for the “empty chair” uninsured motorist had made a tactical decision not to be present at
trial, but assumed that, in his absence, a jury would be impaneled in accordance with his jury
demand. When counsel for the uninsured motorist received word that the case was proceeding as
a bench trial, he rushed to the courthouse to object to the matter proceeding without a jury. Id. at
45. He filed an affidavit explaining that he had notified the court that he would be absent and the
reasons therefor, and that the case had been designated as a jury case for two and one-half years. His
affidavit further stated that he had never received notice of any party’s request for a trial without a
jury and emphasized that he did not waive his jury demand. Id., 44-45. The Beal court adhered to
the rule in Davis and Russell, namely, that when a party fails to appear at trial, he effectively waives
his right to a jury trial. Beal, 987 S.W.2d at 49. The Beal court cited Rule 39.01, but did not discuss
whether the requirements of the Rule had been satisfied. Id. at 45.

        In contrast, in State ex rel. Campbell County v. Elk View Land & Gravel, Inc., No. 03A01-
9808-CV-00247, 1999 Tenn. App. LEXIS 309 (Tenn. Ct. App. May 19, 1999), this Court reversed
and remanded a bench-trial decision based on the fact that the defendant did not clearly waive its
right to a jury trial. In that case, the trial court conducted a bench trial on the merits of the parties’
respective claims and thereafter issued a permanent injunction, despite the fact that the defendant
had demanded a jury trial. The appellate court found that the transcript of the hearing before the trial
judge indicated that there had been confusion regarding the breadth of the proceedings that had been
conducted by the trial court, and it was not clear from the record that Elk View had given up its
“important constitutionally-protected and statutorily-guaranteed right” to a jury trial. Elk View Land
& Gravel, 1999 Tenn. App. LEXIS 309, at *16.

        In this case, the record on appeal does not include a transcript of what happened in the trial
court below. Rather, the record on appeal contains a Statement of the Evidence submitted by the
plaintiff. As noted above, the Statement of the Evidence contains no indication that Berry and Bolin
objected to a trial without a jury; indeed, the Statement of the Evidence makes no reference to any
discussion of the jury demand. Under these circumstances, as in Russell and its progeny, the
defendants are deemed to have consented to a bench trial “on the record” under Rule 39.01. Though
Russell was decided prior to the effective date of Rule 39.01, the advisory commission comments
to Rule 39.01 state that the rule “is consistent with prior practice.” Moreover, we agree with the
observation in White that “[a] party’s vigorous participation in a bench trial, without so much as a
mention of a jury, cannot be presumed the result of mere inadvertence, but can only be ascribed to




                                                   -7-
knowledgeable relinquishment of the prior jury demand.” White, 903 F.2d at 703. Consequently,
we conclude that Berry and Bolin were not denied their constitutional right to a jury trial.6

        Furthermore, we reject the defendants’ assertion on appeal that they were denied the right to
counsel under the circumstances. The trial court advised the defendants on November 17, 1999, that
trial was scheduled to proceed on January 11, 2000, and that they could retain attorneys to represent
them if they so chose. They did not retain counsel, but instead chose to rely on the common-interest
insurance company’s representation by attorney McLean. McLean, however, owed no duty to the
defendants, having neither been retained by them nor indicating to them that he would protect their
interests. See Beal, 987 S.W.2d at 48-49 (recognizing that counsel for a co-defendant “first and
foremost” had a duty to represent his client, and that the client’s interests were best served by
waiving the jury demand). The fact that attorney McLean filed an answer on behalf of Bolin did not
confer upon McLean the duty to represent Bolin throughout the proceedings absent some agreement
between the parties. The record contains no evidence of such an agreement. We also reject the
defendants’ claim that the failure to notify them of their co-defendant’s settlement constituted a
denial of due process. See id. at 49 (concluding that the defendant’s failure to appear at trial
constituted a consent to waiver of a jury demand where “[t]he record does not disclose any
agreement among counsel not to withdraw their respective jury demands”). Thus, we affirm the trial
court’s decision in total.

      The decision of the trial court is affirmed. Costs are taxed to the appellants, Rex A. Berry
and William A. Bolin, and their sureties, for which execution may issue if necessary.




                                                                   ___________________________________
                                                                   HOLLY K. LILLARD, JUDGE




         6
          Based on o ur finding that the defenda nts w ere not denied their right to a jury trial, we do not consider whether
the proof wo uld h ave supp orted a con clusion oth er than that reach ed by the trial cou rt.

                                                            -8-
