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The Florida Bar
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The Florida Bar Journal
November, 2012 Volume 86, No. 9
Florida Appellate Rules Should Allow for Interlocutory Appeal of Decisions to Deny Jury Trial

by Mark Miller

Page 30

The right of trial by jury shall be secure to all and remain inviolate.1

In [s]uits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any [c]ourt of the United States, than according to the rules of the common law.2

Until 1998, the majority of intermediate appellate courts in Florida protected the right to trial by jury in a civil case involving a claim at law by way of common law certiorari.3 That is, if a lower court denied a proper demand for jury trial, the aggrieved party could petition the appellate court for certiorari relief before the case went to bench trial.4 The Third District Court of Appeal explained the reasoning behind that protection in Spring v. Ronel Refining, Inc., 421 So. 2d 46, 47 (Fla. 3d DCA 1982), disapproved of by Jaye v. Royal Saxon, Inc., 720 So. 2d 214 (Fla. 1998) (emphasis added):

[T]he denial of the right to jury trial is more than the denial of a constitutional right; it is the denial of a fundamental right recognized prior to the adoption of a written constitution. The right to select the peers to which one’s cause will be submitted is unique and indispensable to the adversary system. For this reason, we deem certiorari to be the appropriate remedy in this instance[.]

The Florida Supreme Court, however, removed that protection in Jaye v. Royal Saxon, Inc., 720 So. 2d 214 (Fla. 1998). Jaye held that a litigant in Florida’s state courts must wait until after the wrongfully scheduled bench trial takes place and the court enters judgment before the litigant can appeal this issue. Respectfully, I suggest the Florida Supreme Court erred when it decided Jaye, and that the law of Florida should allow for interlocutory review of a trial court’s decision to deny a right to jury trial. First, I will discuss why courts have previously protected the right, and how we reached a point where the Florida Supreme Court disallowed immediate certiorari petition as a remedy in this circumstance. Then, I will explain that the court should correct the error by amending the appellate rules to allow for interlocutory review of the decision to deny a right to jury trial.5

Denial of Right to Jury Trial a Departure from the Essential Requirements of the Law
The Florida Supreme Court has held that questions as to the right to a jury trial should be resolved, if at all possible, in favor of the party seeking the jury trial, for that right is fundamentally guaranteed by the U.S. and Florida constitutions.6 The question of entitlement to jury trial arises in some cases where no right to jury trial had previously existed but an amended pleading injects new claims to which a party is entitled to a jury trial based on newly discovered facts in the case. In such a case, the time for filing a demand for a jury trial is revived although the party making the demand may have waived the right to a jury trial at the time of the initial pleading.7 In this case, the civil rules allow for the party to amend the pleading so as to make a demand for that trial by jury.8

Until relatively recently, the Florida appellate courts held that denying the right to a jury trial in this circumstance was a departure from the essential requirements of the law.9 For example, in Hobbs v. Florida First National Bank of Jacksonville, 480 So. 2d 153, 155 (Fla. 1st DCA 1985), the trial court granted the defendant leave to amend its affirmative defenses. In doing so, the defendant pled affirmative defenses sounding in law and demanded a jury trial.10 The trial court struck the jury demand; the defendant took a petition for writ of certiorari to the First District Court of Appeal; and the First District quashed that order, holding that once a party is allowed to file new pleadings that inject new issues into a case, “the time for filing a demand for jury trial is revived.”11 Both the Second12 and Third13 district courts of appeal agreed with the First District that this type of lower-court error was remediable via petition for writ of certiorari, or even mandamus,14 because a trial court that denied a properly due right to jury trial departed from the essential requirements of the law.

Supreme Court in Jaye Eliminates Certiorari Review
In Jaye, the Florida Supreme Court reviewed the Fourth District Court of Appeal’s decision to refuse to entertain a petition for writ of certiorari — based on lack of jurisdiction — regarding the denial of a claimed right to jury trial.15 The Supreme Court agreed with the Fourth District and rejected the considered opinions of the First, Second, and Third district courts.16 The court held that a litigant who had been denied his or her right to trial by jury did not suffer irreparable harm; rather, he or she only suffered a harm that the appellate court could remedy later upon appeal of the final order following the bench trial.17 Therefore, a petition for writ of certiorari did not allow for review of an order denying the constitutional right to trial by jury.18

The Jaye court did not support its holding in detail. Initially, the court reiterated the Appellate Committee notes to Florida Rule of Appellate Procedure 9.130 that state this extraordinary writ would only be available on “rare” occasions.19 The court then pointed out that the writ should not be used “to circumvent the interlocutory appeal rule which authorizes appeal from only a few types of non-final orders.”20 Although both these principles are undoubtedly true, neither principle necessarily or even logically21 applies to the petition arising from a denial of the right to trial by jury.

Focusing on the case before it, the court ignored the question of whether the trial court departed from the essential requirements of the law when it denied the litigant in Jaye the trial by jury. Instead, the court turned to the question of whether the trial court’s decision irreparably harmed the litigant because that “is a condition precedent to invoking a district court’s certiorari jurisdiction.”22 The court described the three proffered proofs of irreparable harm:

(1) The substantial injury caused when aggrieved parties must “show their hand” in a preliminary nonjury trial;

(2) a situation in which the age of the parties and witnesses affects whether a second trial is feasible; and

(3) the time, effort, and expense of trying a case twice.23

After listing the purported harms, the court rejected all three out of hand, with no analysis: “We reject these arguments because we do not find these contentions to be of the nature which demonstrates irreparable harm.”24

Jaye Decided Incorrectly
With that sentence, the court overturned the jurisprudence of three district courts of appeal, all of which had concluded that the denial of the constitutional right to jury trial caused irreparable harm worthy of interlocutory review. With due respect to the Supreme Court, its decision that these harms are not irreparable is predicated on nothing more than the court’s ipse dixit.

First, the Supreme Court’s rejection of the argument that it is irreparable harm to force a party to “show their hand” in a bench trial is perhaps the most puzzling. The court’s dicta that losing this privilege is not an irreparable harm conflicts with the decisions of the courts finding that “cat out of the bag” discovery orders do allow for certiorari review.25 If a party is compelled to try a case to the court when the law requires a trial by jury, the trial strategy will be “let out of the bag” in a manner no different from other circumstances in which certiorari lies, because to do otherwise is to let the “cat out of the bag.”26

Second, forcing a litigant to spend money on a trial that is incorrectly taking place as a matter of law, not to mention forcing the already overburdened courts to hear the bench trial despite the later need to retry the case to a jury, also amounts to irreparable injury. Requiring the litigants and the judicial system to go through a bench trial where the essential requirements of the law will ultimately require a jury trial taxes a system of justice that is already overburdened with too many costs and too many cases.27 As the U.S. Supreme Court explained nearly a century ago in issuing a writ of mandamus in order to protect the right to trial by jury: “If we are right, the order was wrong and deprived the plaintiff of her right to a trial by jury. It is an order that should be dealt with now, before the plaintiff is put to the difficulties and the [c]ourts to the inconvenience that would be raised by a severance that ultimately must be held to have been required under a mistake.”28 Perhaps when Jaye was decided in 1998, the court deemed the costs of litigation insubstantial. But in 2012, in the middle of the “Great Recession,” the courts should pay more attention to the bottom line for litigants and the state. Allowing an early appeal of a decision to deny a right to jury trial will save money — for the parties, the courts, and ultimately the people of Florida.

Third, in a case in which there are both claims in equity and in law, the bench trial may irreparably take away the claims at law, depending on the trial court’s rulings. The lower court decisions regarding the equitable claims may moot the relief requested in the claims at law — that can irreparably harm a litigant.29

The Jaye court may have decided the question differently if it had inventoried the constitutional rights that the writ of common law certiorari protects before dispensing with this protection as to the right to jury trial. The availability of writ of common law certiorari protects freedom of speech,30 due process,31 the right to freedom of religious expression,32 and protects a criminal defendant when the state may have violated his or her Fourth and Fifth amendment rights.33 Removing this common law certiorari protection for the right to jury trial arguably relegates this constitutional guarantee to second-class constitutional status. And since Jaye is now the law of the state, there is no reasonable way to force the Supreme Court to revisit the Jaye decision vis-à-vis the certiorari process.34 The only alternative is to amend the appellate rules to explicitly allow for interlocutory appeal.

Amend Rule 9.130 to Allow for Interlocutory Appeal
Rule 9.130(a) allows a litigant to appeal certain types of nonfinal orders before final order from the circuit court to the district court of appeal. The Florida Supreme Court has exclusive authority to establish the types of nonfinal orders appealable under this rule.35 The present rule replaced former Rule 4.2, which read in pertinent part:

Appeals may be prosecuted in accordance with this rule from interlocutory orders in civil actions . . . relating to venue or jurisdiction over the person and from orders granting partial summary judgment on liability in civil actions and from decisions.... This rule shall not be construed as limiting or affecting the power of the district courts of appeal or the circuit courts in reviewing any appropriate interlocutory order by common law certiorari.

The court replaced Rule 4.2 with the present rule in 1977. A few of the nonfinal orders appealable under the current rule were also protected under Rule 4.2. For example, both rules allowed for appeal from nonfinal orders concerning venue36 or jurisdiction over the person.37 But over the years, the number of nonfinal orders appealable pursuant to Rule 9.130 has grown, with each addition having its own idiosyncratic reason for inclusion as an appealable nonfinal order, each likely worth its own article.

Neither the drafters of old Rule 4.2 nor the drafters of Rule 9.130 in 1977 saw fit to protect the right to jury trial by way of interlocutory appeal — there was no need. There existed no need to protect the right in that way, because, as old Rule 4.2 read, “[t]his rule shall not be construed as limiting or affecting the power of the [district courts] . . . in reviewing any appropriate interlocutory order by common law certiorari.” And as we have seen, at the time of Rule 4.2 and the enactment of Rule 9.130, the denial of a right to jury trial was protected by common law certiorari.38

Since the Jaye court eliminated certiorari as the path to interlocutory appeal of the denial of a right to jury trial in 1998, the Florida Supreme Court has revisited Rule 9.130 twice, but did not use those opportunities to amend the rule so as to allow an interlocutory appeal of the denial of a right to jury trial. It is time the court does so, and a simple review of present-day Rule 9.130 shows why.

Rule 9.130 protects the right to immediately appeal a variety of nonfinal orders, but none of the appealable orders address issues protected by both the U.S. Constitution and the Florida Constitution as the right to trial by jury is protected. The rule protects interests no more important than the right to jury trial, and some of the interests protected are arguably less important.39

Of the various nonfinal orders to which Rule 9.130 applies, the most analogous is the right to appeal an order that decides entitlement to arbitration, which the Florida Supreme Court added to Rule 9.130 in 1984.40 Sending a case to arbitration ultimately allows for an arbitrator — rather than a judge or jury — to decide the case. That decision is of such moment for the case that the Florida Supreme Court allows the parties immediately to appeal the decision on entitlement to arbitration, whether granted or denied.41 The court allows this interlocutory appeal of the arbitration decision ostensibly at least in part because to appeal the decision after the case has proceeded to its terminus in arbitration (or in court if the trial court denies the motion) would waste time and money.42 That rationale carries equal force when applied to the decision to grant or deny the right to trial by jury. But unlike the entitlement to arbitration, the federal and state constitutions protect the right to a civil jury trial. Protecting arbitration by way of interlocutory appeal, but not the right to jury trial, is a wrong that the Florida Supreme Court should make right.

Conclusion
To be sure, “[t]he thrust of [R]ule 9.130 is to restrict the number of appealable nonfinal orders.”43 After Jaye, however, there would seem to be few if any other more important rights worthy of protection via Rule 9.130 than the right to trial by jury in a civil case. The Supreme Court should revisit Rule 9.310 and amend the rule so as to allow a party to appeal the nonfinal order that determines the right to a jury trial.


1 Fla. Const. art. I, §22,

2 U.S. Const. Amend. VII.

3 Johnson Eng’g, Inc. v. Pate, 563 So. 2d 1122 (Fla. 2d DCA 1990), disapproved of by Jaye v. Royal Saxon, Inc., 720 So. 2d 214 (Fla. 1998); Quality Coffee Serv., Inc. v. Tallahassee Coca-Cola Bottling Co., 474 So. 2d 427 (Fla. 1st DCA 1985), disapproved of by Jaye v. Royal Saxon, Inc., 720 So. 2d 214 (Fla. 1998); and Spring, 421 So. 2d at 46.

4 Hobbs v. Fla. First Nat. Bank of Jacksonville, 480 So. 2d 153, 155 (Fla. 1st DCA 1985) (“[t]he denial of a right to jury trial of issues traditionally triable by a jury as a matter of right, which is protected by the clear mandate of the Florida Constitution, is a departure from the essential requirements of the law warranting the issuance of a writ of common law certiorari”) (internal footnote omitted).

5 Judge Chris Altenbernd & Jamie Marcario, Certiorari Review of Nonfinal Orders: Trying on a Functional Certiorari Wardrobe, Part II, 86 Fla. B. J. 14 (March 2012) (discussing the larger topic of the common law writ of certiorari and meaningful appellate review). In this article, I focus on just the right to trial by jury and appellate review of a nonfinal order that denies the right to trial by jury. I am indebted to Judge Altenbernd and Mr. Marcario for their article.

6 Hollywood, Inc. v. City of Hollywood, 321 So. 2d 65, 71 (Fla. 1975) (citing U.S. Const. Amends. VII, XIV, and Fla. Const. art. I, §22).

7 See Hollywood, Inc., 321 So. 2d at 72 (citing Leopold v. Richard Bertram & Co., 276 So. 2d 225 (Fla. 3d DCA 1973), and Moretto v. Sussman, 274 So. 2d 259 (Fla. 4th DCA 1973)); Shuffler v. Bascom Palmer Eye Institute, 478 So. 2d 418, 419 (Fla. 3d DCA 1985); Adler v. Seligman of Fla., Inc., 492 So. 2d 730, 734 (Fla. 4th DCA 1986).

8 See Fla. R. Civ. P. 1.430(b) (“Any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other party a demand therefor in writing…not later than 10 days after the service of the last pleading directed to such issue.”).

9 See note 4.

10 Hobbs, 480 So. 2d at 155.

11 Id.

12 See Johnson Eng’g, Inc., 563 So. 2d at 1122.

13 Spring v. Ronel Refining, Inc., 421 So. 2d 46 (Fla. 3d DCA 1982) (disapproved by Jaye).

14 In Sarasota-Manatee Airport Authority v. Alderman, 238 So. 2d 678 (Fla. 2d DCA 1970), the Second District Court of Appeal concluded that mandamus — not certiorari — may lie “to compel submission to a jury of those issues to which a party has the historic, constitutional right to judgment by his peers[.]” Id. at 679 (citation omitted). A reasonable reading of Jaye, however, would lead one to conclude that Jaye impliedly overruled Alderman. If the Jaye court intended to continue to allow for interlocutory challenge to orders that denied the right to jury trial but simply wanted the challenge labeled a petition for mandamus rather than certiorari, then the Jaye court should have said so.

15 Jaye, 720 So. 2d at 214.

16 The Fifth District Court of Appeal had held that certiorari was not available for order passing on the jury trial question; however, that court had not explained its rationale for that decision. See, e.g., Tucker v. Rudnianyn, 517 So. 2d 785 (Fla. 5th DCA 1988); Laing v. Fidelity Broadcasting Corp., 436 So. 2d 959 (Fla. 5th DCA 1983).

17 Jaye, 720 So. 2d at 215-16.

18 Id.

19 Id. at 215 fn. 1.

20 Id. at 215 (citation omitted).

21 See Altenbernd & Marcario, Certiorari Review of Nonfinal Orders: Trying on a Functional Certiorari Wardrobe, Part II, 86 Fla. B. J. at 14 (“Additionally, you don’t understand why Jaye proclaims that certiorari review should not be used to circumvent the rule allowing for only limited interlocutory appeals when there is no such rule to address your client’s jury trial issue.”).

22 Jaye, 720 So. 2d at 215.

23 Id.

24 Id.

25 See, e.g., Am. Home Assur. Co. v. Vreeland, 973 So. 2d 668, 671 (Fla. 2d DCA 2008) (“Disclosure of ‘cat out of the bag material’ such as material that constitutes work product, trade secrets, or is otherwise protected by privilege may cause irreparable injury if disclosed.”).

26 A review of both federal and state case law indicates that in 1827, the New York Supreme Court issued the first reported decision using the expression “let the cat out of the bag.” See Jackson, ex. dem. Hooker v. Mather, 7 Cow. 301 (N.Y. 1827). Etymologists do not agree on why this unusual expression developed. See Barbara Mikkelson, Let the Cat Out of the Bag, http://www.snopes.com/language/phrases/catbag.asp.

27 See In re Simons, 247 U.S. 231, 239 (1918).

28 Id.

29 See, e.g., Sarasota-Manatee Airport Auth., 238 So. 2d at 679-80; First Nat’l Bank of Waukesha v. Warren, 796 F.2d 999, 1001-06 (7th Cir. 1986).

30 Clear Channel Communications, Inc. v. Murray, 636 So. 2d 818 (Fla. 1st DCA 1994) (certiorari review of allegedly invalid prior restraint in violation of right of free speech).

31 Rho-Sigma, Inc. v. Int’l Control & Lower Measurements Corp., 691 So. 2d 16 (Fla. 3d DCA 1997) (certiorari review of denial of due process).

32 Joseph v. State, 642 So. 2d 613 (Fla. 4th DCA 1994) (certiorari review of infringement on First amendment right of freedom to express religion at trial).

33 Wyche v. State, 536 So. 2d 272 (Fla. 2d DCA 1989) (reviewing a petition for writ of certiorari from a defendant who claimed that a subpoena violated his Fourth and Fifth Amendment rights).

34 The author attempted to obtain Florida Supreme Court review by asking the Second District Court of Appeal to submit the question to the Florida Supreme Court as one of great public importance. The court refused to do so. See Butler v. Whitney Nat’l Bank, N.A., 49 So. 3d 753 (Fla. 2d DCA 2010).

35 See R.J.B. v. State, 408 So. 2d 1048, 1050 (Fla. 1982).

36 Fla. R. App. P. 9.130(a)(3)(A).

37 Fla. R. App. P. 9.130(a)(3)(C)(i).

38 See, e.g., Sarasota-Manatee Airport Auth., 238 So. 2d at 679-80 (“This case illustrates how a basic right such as trial by jury can be litigated almost ancillary to the lesser problem of the appealability of an interlocutory order. We see no constitutional barrier to the grant of common law certiorari under our Florida Constitution.”).

39 See Fla. R. App. P. 9.130(a)(3)(A) (venue); Fla. R. App. P. 9.130(a)(3)(C)(vi) (certification of class); Fla. R. App. P. 9.130(a)(3)(C)(viii) (government has inordinately burdened real property).

40 The Florida Bar Re: Rules of Appellate Procedure, 463 So. 2d 1114 (Fla. 1984).

41 Fla. R. App. P. 9.130(a)(3)(C)(iv).

42 See, e.g., Bertero v. Superior Court of Los Angeles County, 216 Cal. App. 2d 213, 222, 30 Cal. Rptr. 719 (Cal. Ct. App. 1963), disapproved on other grounds, Saint Agnes Medical Center v. PacifiCare of California, 31 Cal. 4th 1187, 1199, 82 P.3d 727 (2003) (“If the parties should now proceed to arbitrate, an appeal from the order or judgment made vacating or confirming the award would not be an adequate remedy. The parties would be put to the unnecessary delay and expense of an arbitration, further court proceedings, and an appeal, after which they would be required to start over.”).

43 A.G. Edwards & Sons, Inc. v. Wilson, 523 So. 2d 1150, 1151 (Fla. 2d DCA 1987) (citation omitted).


Mark Miller, of the Appellate Law Office of Mark Miller, P.A., in Stuart, graduated in 1996 with honors from the University of Florida College of Law. After graduation, he clerked for Judge Henry Lee Adams, Jr., of the U.S. District Court for the Middle District of Florida in Jacksonville, and Judge Emerson R. Thompson of the Fifth District Court of Appeal in Daytona Beach. He focuses his solo practice on civil and criminal appeals in both state and federal court.

This column is submitted on behalf of the Appellate Practice Section, Jack R. Reiter, chair; Brandon Christian, editor, and Chris McAdams and Kristi Rothell, assistant editors.

[Revised: 10-29-2012]