                     IN THE COURT OF APPEALS OF TENNESSEE
                          MIDDLE SECTION AT NASHVILLE
                   _______________________________________________
                                                                              FILED
THOMAS W. HARRISON,                                   )                           May 3, 1996
TERRY HARRISON, and        )
BRENDA HARRISON KENNAMORE, )                                            Cecil W. Crowson
                                                    )                  Appellate Court Clerk
               Plaintiffs/Appellees,          ) Giles Chancery No. 7581
                                                    )
v.                                                  ) C.A. No. 01A01-9505-CH-00192
                                                    )
EARL LAURSEN,                                       )
                                                    )
               Defendant/Appellant.           )


                APPEAL FROM GILES COUNTY CHANCERY COURT
                THE HONORABLE JIM T. HAMILTON, CHANCELLOR


Robert L. Holloway, Jr.
Columbia, Tennessee
Attorney for Appellant


M. Andrew Hoover
Jack B. Henry
Andrew Hoover & Attorneys
Pulaski, Tennessee
Attorneys for Appellees



                                REVERSED AND REMANDED




OPINION FILED: ____________________________




                                              WILLIAM H. WILLIAMS, SENIOR JUDGE

CONCUR:

CRAWFORD, P.J., W.S.

FARMER, J.
                                PRELIMINARY STATEMENT


       This is an appeal of a nonjury action in chancery form originally brought to rescind a contract

for the sale of real estate and for damages to real property. The complaint was filed on January 22,
1991. Four separate hearings have been held in this cause. The first hearing was held without

intervention of a jury. The second and third hearings were heard in the presence of a jury, and the

fourth hearing in this cause was held without a jury. Following the fourth trial in the Chancery Court

of Giles County, Tennessee, the chancellor entered a judgment against appellant for $22,279.59. The

defendant, Earl Laursen, timely filed a notice of appeal from the final order entered January 9, 1995.

The defendant, Delorita Laursen, did not perfect her appeal by filing a notice of appeal and is not

before this Court. See, e.g., Town of Carthage, Tennessee, et al. v. Smith County, Tennessee, No.

01-A-01-9308-CH-00391 (Tenn. App., March 8, 1995). The appeal by the defendant/appellant, Earl

Laursen, has been perfected and is properly before this Court. The appellant contends that the trial

court erred in not having a jury hear the fourth case and in assessing damages to the real property.

We reverse and remand for reasons that will hereinafter be shown.



                                              ISSUES

       The issues of the appellant are as follows:

        1. Whether the trial court committed error in granting appellees’ motion to allow the trial
court to determine the issues without the intervention of a jury.

        2. Whether the evidence presented was sufficient to warrant the award of damages granted
by the trial court for the diminution of value to the property and the loss of rental value of the
pastures.


                                    STATEMENT OF FACTS

       Plaintiffs/Appellees, Terry William Harrison, Thomas W. Harrison, and Brenda Harrison

Kennamore, (hereinafter “appellees”), owned 128 acres of real property in Giles County, Tennessee.

The property included 85 acres of pasture land, fences, and a two-story, seven-room farmhouse. The

defendant/appellant, Earl Laursen (hereinafter “appellant”), purchased the property from appellees

in January, 1988. The appellant purchased the property for $1,000 per acre for a total purchase price

of $128,000. The purchase price was to be paid as follows: $5,500 as earnest money was to be

applied to the purchase price, appellant was to assume the $86,797.67 mortgage loan, and the

remaining balance of $35,702.32 was to be paid to appellees with eight percent (8%) interest. The

appellant took possession of the land in March, 1988. After having made regular payments for over

two years, appellant stopped making payments in August, 1990. On November 7, 1990, appellees

declared the contract breached and entered and took possession.


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       Appellees filed a complaint in the Chancery Court of Giles County on January 22, 1991

requesting that the January, 1988 contract between the parties be rescinded, that all mortgage

payments made by appellant be forfeited, and that appellant be required to pay for damages to the

land. The appellant and spouse filed an answer and counter-complaint in which they demanded,

inter alia, a jury trial. A trial was held without a jury on April 11, 1991 (hereinafter “first trial”).

The trial court ordered the contract rescinded, all monies paid by appellant were forfeited, and

damages were awarded to appellees. On appeal, this Court modified the chancellor’s determination

and remanded the cause by order and opinion entered October 23, 1992. Specifically, this Court held

that the appellant was entitled to recover for amounts paid on the purchase price plus taxes.

Appellees were entitled to be compensated for the use of the land while it was in the appellant’s

possession. Also, if the land appreciated in value, appellant was entitled to the increase, and if the

land depreciated, appellees were entitled to the decrease. The cause was remanded to the trial court.



       In December, 1992, appellant moved for and was granted a jury trial on the remaining issues

in the cause. On May 17 and 18, 1993, appellant tried the case, pro se, before a jury (hereinafter

“second trial”). The jury returned a verdict which awarded appellant a judgment against appellees

for $10,558.46. Appellees filed a motion for additur to the value found by the jury of the decrease

of the land and for alternative relief. The trial court granted appellees’ motion and entered an order

granting additur in the amount of $24,000. Appellant objected to the additur, and the trial court

granted the request for a new trial in August, 1993. On May 4, 1994, another jury trial was

conducted (hereinafter “third trial”). The jury returned a verdict which awarded appellant a

judgment against appellees of $11,934.46. On June 2, 1994, appellees filed a motion for judgment

NOV (non obstante veredicto). In response, appellant filed on June 27, 1994 a motion for new trial

and for remittitur. On August 5, 1994, the trial court denied both motions but granted appellees a

new trial.

        On October 26, 1994, appellees, relying upon this Court’s prior opinion in the cause, filed

a motion seeking to have the trial court determine the issues without a jury. In our October 23, 1992

opinion, this Court stated, “Since the cause must be remanded, we think the trial judge should

determine this issue after giving each party a chance to offer proof.” On November 30, 1994, the

chancellor entered an order stating, “It is clear that the Court of Appeals intended for the trial court

                                                   2
to determine the issues without a jury.”

        The cause came on to be heard without a jury on December 5 and 6, 1994 (hereinafter “fourth

trial”). Appellant and spouse were not present at trial due to their being in California at the time, but

were ably represented by counsel at the hearing. The trial court found that appellant had complete

control of the property for 32 months, and during that time, the property depreciated in value

$40,000, that the loss in rental value for the farmhouse for that period was $8,800, and the total

rental value for the pastures for that time was $5,757.34. The trial court determined that appellees

were entitled to damages of $54,557.34. This amount was offset by the $32,277.75 that this Court

previously held that appellees owed appellant for the amounts paid on the purchase price plus taxes.

Therefore, after being given credit for mortgage payments and taxes, the trial court determined that

appellant owed appellees $22,279.59 plus costs for damages to the property. The trial court entered

the final order in this cause on January 9, 1995 and the appellant timely filed his notice of appeal on

February 8, 1995.

        This action was held without the intervention of a jury. Rule 13(d), T.R.A.P., requires this

Court to review the findings of fact by the trial court de novo upon the record, accompanied by a

presumption of the correctness of the findings. Unless the preponderance of the evidence is

otherwise, we must affirm the trial court absent error of law. At the conclusion of the trial, the

chancellor stated he was going to take the case under advisement and would notify the parties upon

entry of the judgment. The trial court in this case included its findings of fact and conclusions of

law in its final order. Thus, on appeal, this Court has been presented with the transcript of the

evidence, the technical record, exhibits, and the trial court’s final order entered in the cause.



                                            JURY TRIAL

        Appellant asserts that the trial court erred in granting appellees’ motion to hear the case

without the intervention of a jury. Appellant prayed for a jury in his answer to the complaint filed

on March 23, 1991. Apparently, the request for a jury was waived because the first trial was heard

in November, 1991 without a jury. The trial court’s ruling was appealed to the Middle Section of

this Court which issued an opinion on October 23, 1992. In remanding the cause on the issue of

damages, the Court stated, “Since the cause must be remanded, we think the trial judge should

determine this issue after giving each party a chance to offer proof.” The Court also stated in its

                                                   3
opinion, “However, since the cause is to be remanded we leave the question of a lien to the trial

judge after his finding as to the amounts owed by the respective parties.” On December 22, 1992,

two months after the cause had been remanded, the appellant filed his motion for jury trial in the trial

court. Although the motion was filed more than 15 days after the issuance of the mandate by this

Court, the trial court in its discretion granted the motion on February 17, 1993.

        The second trial was held in May, 1993 before a jury. After determining damages and

offsets, the jury returned a verdict in favor of the appellant. The trial court granted appellees’ motion

for additur and alternative relief, and subsequently, on August 26, 1993, the trial court granted

appellant a new trial. The third trial was held before a jury in May, 1994. The jury again returned

a verdict in favor of the appellant. Appellees filed a motion for judgment NOV, and appellant

moved for a new trial. On August 5, 1994, the trial court denied both motions, but granted appellees

a new trial because the jury had disregarded instructions in determining the decrease in value of the

land while in appellant’s possession.

        On October 26, 1994, appellees filed a motion in the trial court requesting that the trial court

determine the issues without the intervention of a jury. In support of their motion, appellees cited

the statements made by this Court in its October 23, 1992 opinion remanding the cause to the trial

court. Appellant did not consent, but filed no objection, and the trial court granted the motion by

order entered November 30, 1994. Thereafter, a hearing was conducted on December 5 and 6, 1994

without the intervention of a jury.

        The Tennessee Constitution does not guarantee the right of trial by jury in suits of an

equitable nature as there was no right to trial by jury in these cases in 1796. The Tennessee

Constitution Art. 1, § 6 preserves the right to a jury trial as it existed at the common law. State v.

Hartley, 790 S.W.2d 276, 277-78 (Tenn. 1990); Harbison v. Briggs Bros. Paint Mfg. Co., 354

S.W.2d 464, 467 (Tenn. 1962). Thus, there is no right to trial by jury in essentially equitable actions

unless the cause was triable by a jury when the Constitution of 1796 was adopted. Town of Smyrna

v. Ridley, 730 S.W.2d 318, 321 (Tenn. 1987). See also Sasser v. Averitt Express, Inc., 839 S.W.2d

422, 434 (Tenn. App. 1992). However, the right to a jury trial may be granted by statutes which

supplement the Constitutional right. Specifically, T.C.A. § 21-1-103 (1976) expressly states:

                Right to trial by jury. -- Either party to a suit in chancery is entitled,
                upon application, to a jury to try and determine any material fact in
                dispute, save in cases involving complicated accounting, as to such

                                                    4
                accounting, and those elsewhere excepted by law or by provision of
                this Code, and all the issues of fact in any proper cases shall be
                submitted to one (1) jury. T.C.A. § 21-1-103 (1976).



        The statutory right to a jury trial in Chancery Court is a long-standing tradition in Tennessee.

Except for a four-year period (1972-1976), the right continuously has been guaranteed by statute

since 1846. Smith Co. Educ. Ass’n. v. Anderson, 676 S.W.2d 328, 336 (Tenn. 1984); T.C.A. §

10574-80 (Williams 1934). The current statute as passed in 1976 is a verbatim reenactment of the

prior law. The legislature intended to restore the law as it existed prior to the enactment of the

present Rules of Civil Procedure. Senator Oehmig, the sponsor of the senate bill which became

Chapter 436 of the Public Acts of 1976, made the following remarks when the bill was before the

Senate on its third and final reading:


                In 1972 when we adopted Rules of Civil Procedure, there were
                certain code sections that were repealed and this was one of them and
                it was felt that the present rules do not cover this situation of jury
                trials in Chancery and this just puts back the old law into effect.
                (emphasis added).


See, e.g., Smith Co. Educ. Ass’n. v. Anderson, 676 S.W.2d 328, 337 (Tenn. 1984).

The legislature clearly intended to reestablish the previous law and give it broad right to trial by jury

in Chancery Court actions.

        In the instant case, appellant filed the Rule 38.02, T.R.C.P., motion for a jury trial on

December 22, 1992 which was clearly more than 15 days after entry of this Court’s October 23, 1992

mandate remanding the cause to the trial court. While the trial court was under no obligation to grant

the defaulting party’s motion since it was late filed, it nevertheless exercised its discretion under

Rule 39, T.R.A.P., and granted the motion for jury trial. Once the trial court granted the motion, the

right to jury trial vested. See, e.g., Silcox v. Smith Co., 487 S.W.2d 652, 658 (Tenn. App. 1972).

While Rule 39.02, T.R.A.P., gives the trial court discretionary power to allow a trial by jury

regardless of previous default in demand for jury, the defaulting party does not have the right to a

jury trial after failure to make timely demand (emphasis ours). Likewise, the other party is not

entitled to a nonjury trial if the trial court exercises its discretion and allows a jury trial. Id. at 658.



        As previously noted, either party to an action in Chancery Court is entitled, upon timely

                                                     5
application, to a trial by jury to determine material facts in dispute, except in cases involving

complicated accounts and in other cases expressly accepted by law or statute. T.C.A. § 21-1-103

(1976); Town of Smyrna v. Ridley, supra (jury trial was properly denied as to question of amount

of forfeiture incurred, as this question involved a complicated accounting). Those cases in which

the right to a nonjury trial have been upheld have been limited to narrow exceptions. As noted in

Greene County Union Bank v. Miller, 75 S.W.2d 49, 52 (Tenn. App. 1934):


               . . . The question as to the absolute right of a party to a trial by jury is
               for the chancellor to determine from the pleadings, whether or not the
               case involves a complicated accounting. If it is a case for
               complicated accounting, such party has no right to demand or have
               a trial by jury. . . . No hard and fast rule can be laid down as to what
               constitutes such a complexity of accounts as to authorize a court of
               equity to assume jurisdiction; each case seems to stand upon its own
               facts. Id. at 52.


See also Southmoor, Inc. v. Baptist Mem. Hosp., 444 S.W.2d 716, 719 (Tenn. App. 1969).

       In Moore v. Mitchell, 329 S.W.2d 821 (Tenn. 1959), the Tennessee Supreme Court found

that the Code provisions declare that either party in chancery is entitled to a jury except in cases of

complicated accounts and “. . . those elsewhere excepted by law or by provisions of this Code. . . .”

T.C.A. § 21-1-103 (1976). Therefore, the limitation on the right to a jury trial applies only to those

cases expressly excepted by the Code, to those statutory exceptions not found in the Code, and to

those cases which by their very nature are inappropriate for submission to a jury. Moore, 329

S.W.2d at 823-24.

       It would appear that the recent cases interpreting T.C.A. § 21-1-103 have limited the

exceptions to the right to a jury trial and have expanded those situations in which a jury trial may

be had in chancery. The statute has been interpreted so as to authorize a trial by jury in matters of

an inherently equitable nature as well as in matters within the Chancery Court’s auxiliary

jurisdiction. Moore v. Mitchell, supra; Smith Co. Educ. Ass’n. v. Anderson, supra (the statutory

right to a jury trial in Chancery Court applies to matters of an inherently equitable nature, and the

jury’s verdict is not merely advisory).

       Examination of the pleadings reveals that the underlying case is not of such an inherently

equitable nature nor does it require an accounting as contemplated by the Code such that the right

to a jury trial should be denied under T.C.A. § 21-1-103.



                                                    6
       We are of the opinion that the instant appeal does not involve the complexity of accounts and

transactions that the Court contemplated in Greene nor does it involve “. . . myriad and complicated

day-by-day transactions . . . over a seven-year period . . .” as was the case in Arrants v. Sweetwater

Bank & Trust Co., 404 S.W.2d 253, 256 (Tenn. App. 1965). We note with increasing interest

regarding the instant case that after hearing the evidence presented, the juries in the second and third

trials returned the same verdict and awarded damages within $1,376.00 of one another. Thus, we

find that this case does not fall into the exceptions of T.C.A. § 21-1-103 and that the appellant is

entitled to a trial by jury upon remand.

        Appellees insist that this Court’s prior opinion in this cause directed the trial judge to make

certain determinations; therefore, the trial court was correct in denying appellant a jury trial.

Appellees’ argument is baseless. This Court’s opinion may not be read so narrowly as to justify the

denial of the appellant’s right to a jury trial for such was not contemplated. This Court does not

contemplate, anticipate, or speculate as to what procedural rights the party litigants will elect to

exercise upon remand of the cause to the trial court for other or additional proceedings. Those

matters address themselves to the discretion of the trial judge but are reviewable by this Court.

        A fortiorari, it is the duty, and indeed, the responsibility of this Court to furnish directions

to the trial judge and the parties as to what we hold must be determined upon remand of the cause

in order to obtain equity and justice. In so doing, this Court must be governed by the record before

the Court. The record on appeal in this case at that time shows that the trial was conducted by the

trial judge without a jury. As such, this Court, pro forma, directed the trial judge to make certain

findings upon remand. No issue of the right of trial by jury was before the Court. The transcript in

the instant appeal reveals that the trial court, by written order, granted the appellant’s demand for

jury trial after the remand by this Court. Once the trial court granted appellant’s motion, the right

to a jury trial vested and could only be waived by consent of the parties. See Rule 38.05, T.R.A.P.

This record does not reveal that the appellant consented to waive the trial by jury at any time.

Nevertheless, subsequently, the appellees moved the trial court to conduct the hearing without a jury,

pointing to the language of the Court in its opinion directing the trial judge to make certain

determinations. The trial court was so persuaded and thereupon entered an order to hear the cause

as a nonjury matter. While the appellant did not object to the appellees’ motion for determination

of the issues without intervention of the jury, under Tennessee case law, this omission is insufficient

                                                   7
to warrant consent to withdraw the demand for jury trial. Those cases which have addressed waiver

of a jury demand and which have declared there to be no right to a jury have all involved instances

in which the parties failed to object prior to entry of the final judgment (emphasis ours). Taylor v.

Wells, 69 S.W. 266 (Tenn. 1902); American Nat’l Bank v. Bradford, 188 S.W.2d 971, 978 (Tenn.

App. 1945); Potts v. Knox-Tenn. Rental, Inc., 467 S.W.2d 796, 798-99 (Tenn. App. 1970); Albin

v. Union Planters Nat’l Bank, 660 S.W.2d 784, 785 (Tenn. App. 1983). Such is not the case in the

instant matter. Appellant’s counsel made it plain to the trial court at the beginning of the trial when

he stated into the record:


                 MR. BROCKMAN: I’ve got one more motion briefly, Judge. Judge,
                 in respect to the jury trial, I know that Mr. Henry filed a motion to
                 hear this without a jury trial. The Court has considered the opinion
                 of the Court of Appeals and has read that. Now I came into this case
                 late. There was a lawyer before me, but at least it appears to me -- I
                 could be wrong. If I am I leave it to Mr. Henry and the Court to point
                 it out. But sometime after that decision it would appear that my
                 clients moved for a jury trial and it was granted, and now it’s being
                 rescinded, and based upon that I think my clients have asked for and
                 were granted a jury and were entitled to it. I’m asking the Court to
                 give us a jury.

                                                 ****

                 THE COURT: Well, I want this on the record, the Court was in error
                 when I granted them a jury trial. That was a mistake on my part. I
                 should have followed the direction of the Court of Appeals. I should
                 have denied that request and decided the case as I was instructed. I
                 correct that error. I’m going to overrule your motion. . . .


It is apparent that the appellant, through proper counsel, did not consent to withdraw or waive its

right to a jury trial.

        Under the particular facts and circumstances of this case, as heretofore pointed out, we are

constrained to reaffirm that which we said in Arrants v. Sweetwater Bank & Trust Co., supra, at 256,

regarding T.C.A. § 21-1-103, then T.C.A. § 21-1011:


                 It is recognized that, under the above statute, ‘the Chancellor may
                 refuse to submit issues that are of a complicated and intricate nature,
                 that is, such as the Chancellor himself, because of peculiar equitable
                 rules or other requirements, may determine. He may submit some
                 issues and reserve others. But this action is subject to review. He
                 must not thereby deprive a litigant of the right to have the substantial
                 disputes as to matters of fact passed upon by the jury.’ (emphasis
                 ours).




                                                    8
        Accordingly, we reverse the chancellor’s determination that the cause be heard without a jury

and remand the cause to the trial court for a hearing before a jury consistent with this Court’s opinion

of October 23, 1992. Because this cause is remanded for jury trial, it is not necessary that the Court

address appellant’s remaining issues. Costs on appeal are taxed to appellees for which let execution

issue, if necessary.



                                                _____________________________________________
                                                WILLIAM H. WILLIAMS, SENIOR JUDGE



CONCUR:



___________________________________
W. FRANK CRAWFORD, P.J., W.S.



___________________________________
DAVID R. FARMER, J.




                                                   9
