Vogel v. Grant

ELDRIDGE, Judge. We granted the petition for a writ of certiorari in this case to consider important procedural issues in connection with a jury trial demand in a District Court civil action. On February 24, 1981, Dr. Daniel Grant, a mechanical engineer, filed an action against Kenneth Vogel and Leonard Vogel, trading as Vogel Builders, in the District Court of Maryland, at the Silver Spring location of the court. Grant, represented by counsel, alleged that he had entered into a contract with the Vogels under which Grant was to render services, and that the Vogels had refused to pay him the agreed upon compensation.

Grant sought damages of $1,084.40. The Vogels were served on March 11, 1981. On March 17, 1981, the Vogels, then unrepresented by counsel, went to the Silver Spring location of the District Court and received the assistance of a court clerk in filing their response. At that time they prepared a counterclaim for a $100 deposit which they had allegedly given to Grant, a Notice of Intention to Defend and a handwritten “Please” form.

On the “Please” form, printed in ink, there were separately numbered requests for (1) a jury trial, (2) a postponement of the trial date and (3) a subpoena of Grant’s records. The form was signed by Kenneth Vogel and Leonard Vogel. There was no certificate of service signed by one of the Vogels, although in different handwriting and different color ink there was written across the form the following: “copy to TT’s atty. 3-27-81.” The record shows that both the Vogels and the District Court clerk mailed copies of the completed “Please” form, as well as the other documents, ⁶⁹³ to Grant’s attorney. Moreover, Grant’s attorney acknowledged receipt of the “Please” form. 1 The “Please’ form and other documents filled out by the Vogels were all formally filed on March 17, 1981, with a separate District Court docket entry for each of the Vogels’ requests.

In light of the jury trial demand, the docket indicates that the record in the case was transferred to the Circuit Court for Montgomery County on March 17th. 2 On March 31, 1981, the plaintiff Grant sent to the District Court, inter alia, a motion to strike the Vogels’ demand for a jury trial, and the motion was filed in the District Court on April 1, 1981. The motion asserted two grounds: (1) the demand for a jury trial was not a “separate writing” and therefore did not comply with Maryland District Rule 343; (2) the demand for jury trial did “not bear a certificate of service pursuant to Maryland District Rule 306.” A hearing on the motion to strike the jury trial demand was held in the District Court on May 13, 1981. After initially posing a question to the plaintiff’s counsel concerning whether the motion “is ... for me to decide or is [it] for the circuit court to decide,” the district judge went on to grant the motion on the grounds asserted by the plaintiff. When the judge indicated that the hearing was over, one of the defendants interrupted.

The colloquy was as follows: ⁶⁹⁵ District Court, requesting reconsideration of this decision on the ground that the court had granted permission “to refile our jury trial request” and that the refiling “was only five days after the hearing, only three of them working days,” was apparently not expressly ruled upon and was evidently treated as having been denied. ⁶⁹⁴ “DISTRICT JUDGE: All right gentlemen, that will take care of this matter. LEONARD VOGEL: Pardon me, Your Honor, are we permitted time to obtain counsel to refile? DISTRICT JUDGE: Well, you don’t have a trial date, do you? LEONARD VOGEL: No, Your Honor.

DISTRICT JUDGE: So you’ve got time. LEONARD VOGEL: Thank you. DISTRICT JUDGE: You've got time right now. LEONARD VOGEL: Thank you, Your Honor.” 3 Five days later, on May 18, 1981, the Vogels filed a paper setting forth another demand for a jury trial.

No other request was made on the same piece of paper, and a certificate of service, properly filled out and signed by Kenneth Vogel, was contained on the document. The District Court sua sponte “denied” the Vogels’ second jury trial demand on June 1, 1981, stating merely that it was “not timely filed.” 4 A June 9th letter from the Vogels to the ⁶⁹⁵ The case was tried in the District Court on March 9, 1982. On March 15, 1982, a judgment in favor of the plaintiff Grant for $1,084.40 plus costs was entered. On April 8, 1982, the Vogels, represented for the first time in the case by an attorney, filed an order of appeal to the Circuit Court for Montgomery County.

The Vogels’ contention on appeal was that they had been entitled to a jury trial and that, upon their demand for a jury trial, the District Court had been divested of jurisdiction. The circuit court did not reach the Vogels’ jury trial contention. Instead, it affirmed on the ground that, because “the denial of the jury trial by the District Court on May 13, 1981, and again on June 1, 1981, was immediately appealable, this appeal comes too late.” As previously indicated, this Court granted the Vogels’ petition for a writ of certiorari. We shall reverse and remand the case for a jury trial in the circuit court.

The Maryland Constitution, in Article 23 of the Declaration of Rights, guarantees a right to a jury trial in those types of civil cases to which the right historically attached and where the amount in controversy exceeds $500.00. Bringe v. Collins, 274 Md. 338, 346, 335 A.2d 670 , application for stay denied, 421 U.S. 983 , 95 S.Ct. 1986 , 44 L.Ed.2d 475 (1975). Consequently, as the instant case was a breach of contract action for money damages in excess of $500.00, the Vogels were entitled to a jury trial. ⁶⁹⁶ Maryland Code (1974, 1984 Repl.Vol.), § 4-402 of the Courts and Judicial Proceedings Article, sets forth certain exceptions to the subject matter jurisdiction of the District Court in civil cases. Subsection (e) of that section relates to a demand for a jury trial and the consequent effect upon the jurisdiction of the District Court.

That section states in pertinent part: “§ 4-402. Exceptions. * * * * * * “(e) Jury trial. —(1) I a civil action in which the amount in controversy exceeds $500, exclusive of attorney’s fees if attorney’s fees are recoverable by law or contract, a party may demand a jury trial pursuant to the Maryland District Rules.. “(2) Except in a replevin action, if a party is entitled to and demands a jury trial, jurisdiction is transferred forthwith and the record of the proceeding shall be transmitted to the appropriate court____” Therefore, under the wording of the statute, when a party or parties are entitled to a jury trial, as were the Vogels, and they demand a jury trial, the demand itself divests the District Court of jurisdiction as a matter of law and immediately vests jurisdiction in the circuit court. As recently emphasized in Ruddy v. First Nat’l Bank., 48 Md.App. 681, 684 , 429 A.2d 550 , summarily affirmed, 291 Md. 275 , 434 A.2d 581 (1981), “it is the demand for a jury trial, in and of itself, which acts to divest the District Court of jurisdiction and simultaneously to confer jurisdiction upon the circuit court.” Accord, Prince Georges Prop. v. Rogers, 275 Md. 582, 585 , 341 A.2d 804 (1975). Cf.

Kawamura v. State, 299 Md. 276, 285, 297 , 473 A.2d 438 (1984); Thompson v. State, 278 Md. 41, 47 , 359 A.2d 203 (1976). Former Maryland District Rule 343, which was in effect when the present case was pending in the District Court and in the Circuit Court for Montgomery County, sets forth certain procedural requirements for the election of a jury trial. It provided in relevant part as follows: ⁶⁹⁷ “Rule 343. Election of Jury Trial. “a.

Right Waived Unless Elected. Trial by jury shall be waived unless elected as provided by this Rule. “b. Plaintiffs Time for Election. In an action over which the District Court has exclusive original jurisdiction, a plaintiff entitled to a jury trial may elect such trial only by a separate writing filed with his statement of claim, and the clerk shall thereupon transfer the action to the Circuit Court.” “c.

Defendant’s Time for Election. A defendant entitled to a jury trial, including a third-party defendant, may elect such trial only by a separate writing filed within the time prescribed for filing the notice required by M.D.R. 302 (Notice of Intention to Defend). A cross-defendant and a counter-defendant may make such election only by a writing filed within 21 days after service of the cross-claim or counter-claim against him.” Additional requirements were set forth in other rules, such as the proof of service requirement of former Maryland District Rule 306 a 2. 5 Nevertheless, the violation of one of these procedural requirements set forth in the rules does not ordinarily result in the District Court retaining jurisdiction over a case where the party was entitled to and demanded a jury trial. Instead, as the statute and cases make clear, when a party has a right to a jury trial and files a demand, jurisdiction over the case is immediately vested in the circuit court.

If another party believes that there was a procedural defect, which results in a waiver of the jury trial right, or which otherwise should deprive the ⁶⁹⁸ demandant of a jury trial, his recourse is to file a motion in the circuit court. If the movant’s procedural objection to the jury trial is well-taken, the circuit court will then remand the case to the District Court for a nonjury trial. 6 Nevertheless, as long as it is the type of case to which the jury trial right attaches and a jury trial is demanded, it is normally the circuit courts, and not the District Court, which have jurisdiction over a motion opposing a jury trial because of an alleged procedural defect. See Fallon v. Agency Rent-A-Car, 268 Md. 585 , 303 A.2d 387 (1973). 7 Fallon involved two District Court cases in which demands for jury trial were filed by the same party. Thereupon one of the other parties filed a motion in the circuit court complaining that one of the jury trial demands was untimely under former Maryland District Rule 343.

The circuit court, holding that both demands were untimely, remanded both of the cases to the District Court. On appeal this Court held that the jury trial demand in one case was timely, that the demand in the other case was filed late resulting in a waiver of the right to a jury trial, and “that the correct course of action” should have been for the circuit court to have retained jurisdiction over one case and ⁶⁹⁹ to have remanded the other case to the District Court. 268 Md. at 589 , 303 A.2d 387 . 8 Turning to the case at bar, it is clear that the District Court had no jurisdiction to entertain the plaintiff Grant’s motion to strike the Vogels’ March 17, 1981, demand for a jury trial. The motion to strike was not based upon the theory that there was no right to a jury trial in the case; moreover, there is no question concerning the Vogels’ entitlement to a jury trial under the Maryland Constitution. 9 Once the Vogels’ demand for a jury trial was filed on March 17th, the District Court lost jurisdiction over this case ⁷⁰⁰ (except for the clerical function of transmitting the record) and the Circuit Court for Montgomery County acquired jurisdiction. 10 In addition, the circuit court erred in refusing to consider the case on the theory that the order of appeal was untimely. It is true that, ordinarily, a timely order of appeal is necessary for jurisdiction to be vested in an appellate court.

But, because of the wording of § 4-402(e) of the Courts and Judicial Proceedings Article, in the