Bullock v. Howard

WRIGHT, Retired Appellate Judge. Keith A. Howard, G. Houston Howard II, Hal Ray Howard, George P. Howard, Donald W. Schulz, and Alice E. Schulz (Howard plaintiffs) filed a complaint against Donald E. Bullock in the Coosa County Circuit Court, seeking a declaratory judgment of their rights to use an easement across Bullock’s real property. Bullock answered, asserting various affirmative defenses. Thereafter, the Howard plaintiffs amended their complaint, asserting that they owned an easement by prescription, implication, or adverse possession. Bullock answered. Bullock filed a motion to allow the filing of a counterclaim, along with a counterclaim demanding a jury trial. A notation on the case action summary sheet states that the trial court took Bullock’s motion under consideration. Subsequently, the parties filed numerous pleadings that are not relevant to this appeal. Following oral proceedings, the trial court entered an order, finding, among other things, that the Howard plaintiffs owned an easement by prescription across Bullock’s real property. Bullock appeals, raising one issue: Whether the trial court erred in denying his constitutional right to a jury trial. This case is before this court pursuant to § 12-2-7(6), Ala.Code 1975. Although Bullock made a jury demand in his counterclaim, he proceeded with the non-jury trial without objection. “Waiver of a jury demand may arise from ‘any conduct or acquiescence inconsistent with an intent to insist upon [a] jury trial.’” Holman v. Alabama Farm Bureau Mutual Casualty Ins. Co., 476 So.2d 107, 108 (Ala.1985) (quoting Ingram v. Omelet Shoppe, Inc., 388 So.2d 190, 195 (Ala.1980)). Bullock’s “conduct or acquiescence” in participating in the non-jury trial without requesting a ruling on his jury demand, or without objecting to the lack of a jury, is inconsistent with an intent to insist upon a jury trial. Therefore, we conclude that Bullock’s contention that the trial court denied him his constitutional right to a jury trial is without merit. The judgment of the trial court is due to be affirmed. The foregoing opinion was prepared by Retired Appellate Judge L. Charles Wright while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e), Ala.Code 1975. AFFIRMED. All the judges concur.