Right to a jury trial in a civil case; MCR 2.508(B)(1); Waiver; MCR 2.508(D)(1); Effect of the parties’ failure to preserve their constitutional right to a jury trial; The trial court’s discretion to empanel a jury; Yon v All American Transp Co, Inc

The court held that “a trial court retains discretion to empanel a jury even in cases where the parties fail to properly preserve their constitutional right to a jury trial.” Thus, as the trial court’s grant of plaintiff’s motion to proceed without a jury was based on its mistaken belief that it lacked discretion to empanel one, the court reversed and remanded. While defendants argued “the trial court erroneously permitted plaintiff to unilaterally withdraw its jury demand[,]” the court found that “plaintiff never made an appropriate demand” as required by MCR 2.508(B)(1). It also rejected their alternative argument that they “independently preserved their right by filing their own demand for a jury trial.” While their demand satisfied two of the court rule’s three requirements, “the jury fee was not paid at the time that defendants’ reliance and demand was made. Therefore, under MCR 2.508(D)(1), [they] waived their right to a jury trial.” The court then turned to whether the trial court nonetheless had discretion to empanel a jury. The trial court concluded that, under Yon, it did not. The court rejected “the Yon Court’s suggestion that it is mandatory for the nondemanding party to make an inquiry into whether the jury fee has been paid.” Rather, the court held “that the fact that an inquiry is or is not made is a circumstance that may be considered by the [trial] court when it is weighing whether to exercise its discretion to empanel a jury when the right to a jury has not been properly demanded.” The court stated that the trial court on remand “can consider the ease by which the defects in plaintiff’s jury demand could have been discovered by defendants, including the fact that [they] could have contacted the court clerk to make an inquiry as to whether the jury fee had been paid. But it should also consider that those same defects should have been more apparent to plaintiff given that plaintiff was the party that did not file the demand on a separate document and did not timely pay the jury fee as required by MCR 2.508. [It] should also consider that defendants made an independent demand for a jury trial and that they, unlike plaintiff, eventually paid the jury fee. [It] may also consider any other facts” it finds relevant.