 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
 2   Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please
 3   also note that this electronic memorandum opinion may contain computer-generated errors or other
 4   deviations from the official paper version filed by the Court of Appeals and does not include the
 5   filing date.
 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 ERNEST DURAN and LUELLA
 8 DURAN, Husband and Wife,

 9          Third-Party Plaintiffs/Appellants,

10 v.                                                           NO. 30,067

11 CARISBROOK, INC., a New Mexico
12 corporation,

13          Third-Party Defendant/Appellee.

14 APPEAL FROM THE DISTRICT COURT OF COLFAX COUNTY
15 Sam B. Sanchez, District Judge

16 De Stefano Law Firm, P.C.
17 Richard De Stefano
18 Taos, NM

19 for Appellants

20 Alsup Law Office
21 Gary D. Alsup
22 Clayton, NM

23 for Appellee

24                                 MEMORANDUM OPINION

25 FRY, Judge.
 1        In this property dispute, Third-party Plaintiffs Ernest and Luella Duran relied

 2 on a jury demand filed by a third-party defendant, who was dismissed from the case

 3 on the day that the trial was to begin before a jury. The district court advised the

 4 Durans and the remaining third-party defendant that the issues between them would

 5 proceed to a bench trial because the only party who had demanded a jury was no

 6 longer in the case. Relying on Juneau v. Intel Corp., 2006-NMSC-002, ¶ 31, 139

 7 N.M. 12, 127 P.3d 548, we conclude that the district court abused its discretion in

 8 denying the Durans a jury trial and reverse.

 9 BACKGROUND

10        This case arose from a dispute between adjoining property owners, Dan and

11 Colleen Johnson, who owned Lot 9 of the relevant subdivision, and the Durans, who

12 owned Lot 8. The Johnsons sued the Durans, seeking an injunction and damages for

13 trespass. The Durans filed an answer, a counterclaim seeking to quiet title, and a

14 third-party complaint against Carisbrook, Inc., which was the grantor of both lots, and

15 against Sam Minor and Minor Construction (collectively, Minor), who was the

16 contractor who installed the Durans’ septic system. In the third-party complaint, the

17 Durans asserted claims against Carisbrook for quiet title, indemnity, and damages,

18 while they asserted claims for indemnity and damages against Minor. Only Minor

19 timely filed a jury demand.


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 1        The parties and the district court prepared the case as one to be tried to a jury,

 2 as evidenced by the court’s scheduling order, in which it imposed deadlines for the

 3 submission of jury instructions, and by the parties’ filing of requested jury

 4 instructions. Shortly before trial, the Durans and the Johnsons settled, and the district

 5 court dismissed the Johnsons’ claims and the Durans’ counterclaims. Just days before

 6 trial, the Durans settled with Minor, and the district court dismissed the claims against

 7 Minor on the day the trial was scheduled to begin.

 8        On the same day, potential jurors were assembled, and the remaining

 9 parties—the Durans and Carisbrook—were ready to proceed to trial. The district

10 court announced to the parties’ attorneys that it was going to proceed with a bench

11 trial rather than a jury trial because only Minor had demanded a jury and Minor was

12 out of the case. The Durans’ attorney, Richard De Stefano, requested that they

13 proceed with a jury trial because everyone had prepared for a jury trial. De Stefano

14 argued that when a party requesting a jury is no longer in a case, the case is tried to

15 a jury unless all of the remaining parties agree to a bench trial. Carisbrook’s attorney,

16 Gary Alsup, stated that he and De Stefano had discussed the matter, that it was clear

17 that the Durans wanted a jury trial, and that Alsup had invested some time in

18 preparing jury instructions, but that it was fine with Carisbrook if the case proceeded

19 without a jury. De Stefano suggested that there was a time period following the


                                               3
 1 departure of Minor during which the Durans should be allowed to request a jury. The

 2 district court rejected this suggestion, stated that the Durans should have filed a jury

 3 demand when they filed their answer, and ruled that the case would proceed as a

 4 bench trial.

 5        The case proceeded to trial, and the district court found in favor of Carisbrook.

 6 The Durans filed the present appeal and make several arguments for reversal of the

 7 district court’s judgment. We need not address all of their arguments because we

 8 conclude that the district court abused its discretion when it denied the Durans’

 9 request for a jury trial.

10 DISCUSSION

11        The Durans argue that they were entitled to rely on the jury demand filed by

12 Minor and that the district court’s sua sponte denial of a jury on the morning of the

13 trial was a misapplication of Rule 1-038 NMRA that we should review de novo.

14 Carisbrook contends that the Durans were not entitled to rely on Minor’s demand and

15 that, consistent with Rule 1-039(A) NMRA, we should review the court’s denial of

16 their untimely request for a jury under an abuse-of-discretion standard.

17        We need not address the Durans’ argument that they were entitled to rely on

18 Minor’s jury demand. Assuming the Durans’ request for a jury trial was not timely,

19 we conclude that the district court abused its discretion in denying the Durans’ request


                                              4
 1 for a jury trial after the court announced that the case would proceed as a bench trial.

 2 Where an untimely jury demand is made, the governing rule is Rule 1-039(A), which

 3 provides that “notwithstanding the failure of a party to demand a jury in an action in

 4 which such a demand might have been made of right, the court in its discretion upon

 5 motion may order a trial by a jury of any or all issues.” See Juneau, 2006-NMSC-002,

 6 ¶ 31 (stating that if a jury demand is not timely made, the appellate courts review for

 7 abuse of discretion.).

 8        The Durans argue that if the standard of review is abuse of discretion, then the

 9 district court abused its discretion when it denied the request for a jury trial minutes

10 before the anticipated jury trial was set to begin. We agree because we discern no

11 meaningful difference between the circumstances in the present case and those in

12 Juneau, where our Supreme Court held that the denial of an untimely request for a

13 jury trial constituted an abuse of discretion. 2006-NMSC-002, ¶ 37.

14        In Juneau, the plaintiff filed a complaint under the Human Rights Act (HRA)

15 in state court, but he did not request a jury. Juneau, 2006-NMSC-002, ¶ 28. The

16 defendant removed the case to federal court. Id. The plaintiff then filed a separate

17 claim in federal court under Title VII of the 1964 Civil Rights Act, in which he filed

18 a request for a jury. Juneau, 2006-NMSC-002, ¶ 29. The federal court consolidated

19 the two claims and placed them on the docket for a jury trial. Id. The federal court


                                              5
 1 then dismissed the Title VII claim and remanded the HRA complaint to state court.

 2 Juneau, 2006-NMSC-002, ¶ 29. The plaintiff filed a jury demand in state court about

 3 six weeks later, and the district court denied the request because it was untimely. Id.

 4        Our Supreme Court in Juneau stated that a district court facing an untimely jury

 5 demand should consider several factors before deciding whether to permit a jury trial.

 6 Id. ¶ 34. The Court noted that courts in other jurisdictions have considered whether

 7 the parties and the court had assumed that the case would be tried to a jury, “the

 8 reasons for the delay, whether the issues are suitable for a jury, whether granting the

 9 motion would result in disruption for the court or the opposing party, and whether the

10 opposing party would be prejudiced.” Id. ¶ 33. The Court went on to note that “it is

11 not just a question of whether [the p]laintiff had an ‘opportunity’ to request a jury[.]

12 Other factors, including the reason for the delay and whether prejudice will result,

13 must be considered in order to constitute the proper exercise of discretion.” Id. ¶ 34.

14        Assessing these factors in the Juneau case, the Court noted that there was no

15 real need for the plaintiff to file a jury demand because the defendant had removed the

16 case to federal court before it filed an answer, and the consolidation of the removed

17 case with the Title VII case in federal court resulted in a setting for a jury trial.

18 Juneau, 2006-NMSC-002, ¶ 35. “A jury demand would have been perfunctory and

19 unnecessary.” Id. Once the Title VII case was dismissed and the original HRA case


                                              6
 1 was remanded to state court, the plaintiff’s six-week delay in demanding a jury “[did]

 2 not seem unreasonable.” Juneau, 2006-NMSC-002, ¶ 36. The defendant was not

 3 prejudiced because it “appear[ed] to have been aware all along that a jury trial was not

 4 only anticipated but in fact scheduled, at least while the case remained in federal

 5 court.” Id.

 6        In conclusion, the Court in Juneau determined that, under the circumstances,

 7 the district court abused its discretion in denying the plaintiff’s admittedly untimely

 8 jury request, “given the fundamental importance of a jury trial in our jurisprudence.”

 9 Id. ¶ 37. The denial appeared “arbitrary and unfair to [the p]laintiff.” Id.

10        We discern no meaningful distinction between the circumstances in Juneau and

11 those in the present case. As in Juneau, the Durans did not file a timely jury demand,

12 and yet the parties and the court viewed the case as one that would be tried to a jury

13 from the time Minor filed his jury demand in July 2008 until the morning of trial on

14 June 15, 2009. In fact, the circumstances in this case are even more compelling than

15 those in Juneau because the potential jurors were assembled, the parties had submitted

16 requested jury instructions, and the attorneys were poised to select a jury when the

17 district court sua sponte informed them that it would be releasing the jurors and

18 conducting a bench trial. As a result, there would have been no prejudice to

19 Carisbrook to continue with the anticipated jury trial. Therefore, consistent with the


                                              7
 1 holding in Juneau, we conclude that the district court abused its discretion in denying

 2 the Durans’ request to continue with the anticipated jury trial.

 3        Carisbrook argues that if denial of the jury request was error, it was harmless

 4 error because the district court would have been required to direct a verdict in favor

 5 of Carisbrook if the case had been tried to a jury. We disagree.

 6        Rule 1-061 NMRA states the harmless error rule in the context of a civil case:

 7        No error or defect in any ruling or order or in anything done or omitted
 8        by the court or by any of the parties is ground for granting a new trial or
 9        for setting aside a verdict or for vacating, modifying or otherwise
10        disturbing a judgment or order, unless refusal to take such action appears
11        to the court inconsistent with substantial justice. The court at every stage
12        of the proceeding must disregard any error or defect in the proceeding
13        which does not affect the substantial rights of the parties.

14 We cannot say that the district court’s eleventh-hour denial of the Durans’ jury request

15 constituted harmless error, given our Supreme Court’s emphasis in Juneau on “the

16 fundamental importance of a jury trial in our jurisprudence.” Id. ¶ 37. And we cannot

17 say that Carisbrook would have been entitled to a directed verdict if the case had been

18 tried to a jury because it appears that the evidence presented was conflicting.

19 CONCLUSION

20        For the foregoing reasons, we reverse the district court’s judgment and remand

21 for a new trial before a jury.

22        IT IS SO ORDERED.


                                               8
1
2                            CYNTHIA A. FRY, Judge

3 WE CONCUR:


4
5 MICHAEL E. VIGIL, Judge


6
7 TIMOTHY L. GARCIA, Judge




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