                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT KNOXVILLE
                           November 14, 2002 Session

                    GWENETH J. FREELS v. EVELYN JONES

                Direct Appeal from the Chancery Court for Morgan County
                     No. 01-67    Hon. Frank V. Williams, III., Judge

                                  FILED JANUARY 13, 2003

                                No. E2002-00895-COA-R3-CV



Defendant demanded a jury in Answer but the Trial Judge ruled defendant waived right to a jury
trial. On appeal, we Affirm.


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


HERSCHEL PICKENS FRANKS , J., delivered the opinion of the court, in which HOUSTON M. GODDARD ,
P.J., and CHARLES D. SUSANO, JR., J., joined.


Billy P. Sams, Oak Ridge, Tennessee, for Appellant.

J. Polk Cooley, Rockwood, Tennessee, for Appellee.



                                            OPINION


             In this action defendant filed an Answer denying the allegations contained in the
Complaint and asked for a trial by jury on all issues.

               The Judgment entered recites that the Trial Judge heard the evidence and then ruled
on the issues and entered Judgment. Defendant then filed a Motion for a New Trial, alleging that
she had asked for a jury trial in her Answer, but was denied the same over her objection. The Court
denied the Motion and stated defendant had waived her demand for a jury.

               Defendant argues that she asked for a trial by jury, but admits that she participated
in the trial without a jury. She argues, however, that this does not constitute a waiver of her right
to a jury trial. We have no transcript of the evidentiary hearing, nor a record of the proceeding on
the Motion.

                 Tenn. R. Civ. P. 38 provides that a party has a right to trial by jury, but that right can
be waived by the failure to demand a jury or with both parties’ consent. We have previously held
that a waiver of a jury demand can occur by implication, such as where a party fails to appear at trial,
where a party puts improper issues before the jury causing a mistrial, or where a party allows a non-
jury trial to proceed without objection. Beal v. Doe, 987 S.W.2d 41 (Tenn. Ct. App. 1998); Davis
v. Ballard, 946 S.W.2d 816 (Tenn. Ct. App. 1996); Dabora, Inc. v. Kline, 884 S.W.2d 475 (Tenn.
Ct. App. 1994); Elkins v. Berry, 2002 Tenn. App. Lexis 190 (Tenn. Ct. App. March 15, 2002).

                The Elkins case is controlling authority. It involved a party who demanded a jury trial
but then allowed the trial to proceed without a jury, which the Court found to constitute a waiver of
the demand. Elkins quoted from White v. McGinnis, 903 F.2d 699 (9th Cir.1990), to the effect 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."

                  In this case, defendant was represented by counsel at trial, and no transcript or
statement of the evidence was filed, such that there is no proof to establish that the defendant
objected to proceeding to trial without a jury. The Trial Court found that defendant had waived her
right to a jury trial, and absent any transcript of evidence to show otherwise, this Court must presume
that the evidence would support the Trial Court’s ruling. See Turner v. Turner, 739 S.W.2d 779
(Tenn. Ct. App. 1986). Also see In re Linville, 2000 Tenn. App. Lexis 787 (Tenn. Ct. App. Dec. 7,
2000). Based upon the state of this record and the authority cited, we affirm the Trial Court’s ruling
that the defendant waived her right to a trial by jury.

                The cause is remanded with the cost of the appeal assessed to Evelyn Jones.




                                                         _________________________
                                                         HERSCHEL PICKENS FRANKS , J.




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