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AJ

Anthony J. Horky

Tue, Jun 14, 2011 7:07 PM

Hello, fellow committee members. Any feedback on the following questions would be much appreciated.

Party wants to file an unlawful detainer action pursuant to Chapter 82, Fla. Stat., but avoid a jury trial. Would seeking possession only, not possession and damages, prevent a defendant from getting a trial by jury? Is it a jury trial by default in unlawful detainer actions or only if the plaintiff demands trial by jury in its pleadings?

Thank you.

Regards,

Anthony J. Horky, Esq.
Mombach, Boyle & Hardin, P.A.
500 East Broward Boulevard
Suite 1950 Broward Financial Centre
Ft. Lauderdale, Florida 33394
Telephone: 954.467.2200 ext. 225
Facsimile: 954.467.2210
E-Mail: ahorky@mbhlawyer.com mailto:ahorky@mbhlawyer.com
Website: www.mbhlawyer.com http://www.mbhlawyer.com/

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Hello, fellow committee members. Any feedback on the following questions would be much appreciated. Party wants to file an unlawful detainer action pursuant to Chapter 82, Fla. Stat., but avoid a jury trial. Would seeking possession only, not possession and damages, prevent a defendant from getting a trial by jury? Is it a jury trial by default in unlawful detainer actions or only if the plaintiff demands trial by jury in its pleadings? Thank you. Regards, Anthony J. Horky, Esq. Mombach, Boyle & Hardin, P.A. 500 East Broward Boulevard Suite 1950 Broward Financial Centre Ft. Lauderdale, Florida 33394 Telephone: 954.467.2200 ext. 225 Facsimile: 954.467.2210 E-Mail: ahorky@mbhlawyer.com<mailto:ahorky@mbhlawyer.com> Website: www.mbhlawyer.com<http://www.mbhlawyer.com/> CONFIDENTIALITY NOTICE: Unless otherwise stated, the information in this email transmission is privileged and confidential. If you are not the intended recipient, nor the employee or agent responsible for delivering it to the intended recipient, you are hereby notified that any dissemination or copying of this transmission (including any attachments) is strictly prohibited. If you have received this email in error, please notify the sender by email reply. Thank you. Internal Revenue Service regulations require that certain types of written advice include a disclaimer. To the extent the preceding message contains advice relating to a Federal tax issue, unless expressly stated otherwise the advice is not intended or written to be used, and it cannot be used by the recipient or any other taxpayer, for the purpose of avoiding Federal tax penalties, and was not written to support the promotion or marketing of any transaction or matter discussed herein. IRS CIRCULAR 230 NOTICE: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor.

MF

Manuel Farach

Tue, Jun 14, 2011 10:56 PM

You stumped me. The section requiring jury trial was repealed, but certain sections of the statute speak of a jury rendering a verdict. Here's the case which speaks of the repeal of the jury requirement (which gives you a good argument that a jury trial is not necessary). However, either side can ask for jury.

District Court of Appeal of Florida, First District.

Lawton Wesley PITTMAN, Appellant,
v.
Leon G. HASELWOOD and Joy Gay Haselwood, his wife, Appellee.

No. J-445.

Sept. 10, 1968.
Rehearing Denied Oct. 9, 1968.

Unlawful detainer proceeding. The Circuit Court, Clay County, Roger J. Waybright, J., found for plaintiffs and defendant appealed. The District Court of Appeal, Rawls, Acting C.J., held that where order setting unlawful detainer for trial did not state that trial would be by jury and defendant's counsel came from another community and stated that he had not anticipated jury trial and had not hired local counsel which he would have done had he known trial would be to jury, ordering jury trial and refusal to grant defendant's motion for continuance was an abuse of discretion.

Reversed.

West Headnotes

[1] http://web2.westlaw.com/result/%0a%09%09%09%09%09%09#B11968138789 KeyCite Citing References for this Headnote http://web2.westlaw.com/KCNotes/default.wl?db=FL-CS&mt=Westlaw&sequencenum=1&locatestring=HD(502)%2cCL(H%2cO)%2cDC(A%2cL%2cO%2cD%2cG)%2cDT(E%2cD%2cC%2cM)&serialnum=1968138789&method=WIN&cfid=1&rp=%2fKCNotes%2fdefault.wl&eq=search&rlti=1&query=bench+judge+trial+in+unlawful+detainer&vr=2.0&fn=_top&service=Search&rlt=CLID_QRYRLT0585495017146&sv=Split&n=13&pbc=12CCA1C3&rs=WLW11.04

Trial judge may in his sound judicial discretion order jury trial in unlawful detainer proceeding even though same was never requested by either party. 30 F.S.A. Rules of Civil Procedure, rule 1.430 http://web2.westlaw.com/find/default.wl?tc=-1&docname=FLSTRCPR1.430&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.04&db=1000006&tf=-1&findtype=L&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3&ordoc=1968138789 ; F.S.A. § 82.09 http://web2.westlaw.com/find/default.wl?tc=-1&docname=FLSTS82.09&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.04&db=1000006&tf=-1&findtype=L&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3&ordoc=1968138789 .

[2] http://web2.westlaw.com/result/%0a%09%09%09%09%09%09#B21968138789 KeyCite Citing References for this Headnote http://web2.westlaw.com/KCNotes/default.wl?db=FL-CS&mt=Westlaw&sequencenum=2&locatestring=HD(501)%2cCL(H%2cO)%2cDC(A%2cL%2cO%2cD%2cG)%2cDT(E%2cD%2cC%2cM)&serialnum=1968138789&method=WIN&cfid=1&rp=%2fKCNotes%2fdefault.wl&eq=search&rlti=1&query=bench+judge+trial+in+unlawful+detainer&vr=2.0&fn=_top&service=Search&rlt=CLID_QRYRLT0585495017146&sv=Split&n=13&pbc=12CCA1C3&rs=WLW11.04

http://web2.westlaw.com/digest/default.aspx?docname=307A&rp=%2fdigest%2fdefault.aspx&sv=Split&cmd=KEY&rs=WLW11.04&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3 307A http://web2.westlaw.com/digest/default.aspx?docname=307A&rp=%2fdigest%2fdefault.aspx&sv=Split&cmd=KEY&rs=WLW11.04&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3 Pretrial Procedure
http://web2.westlaw.com/digest/default.aspx?docname=307AIV&rp=%2fdigest%2fdefault.aspx&sv=Split&cmd=KEY&rs=WLW11.04&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3 307AIV http://web2.westlaw.com/digest/default.aspx?docname=307AIV&rp=%2fdigest%2fdefault.aspx&sv=Split&cmd=KEY&rs=WLW11.04&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3 Continuance
http://web2.westlaw.com/digest/default.aspx?docname=307Ak719&rp=%2fdigest%2fdefault.aspx&sv=Split&cmd=KEY&rs=WLW11.04&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3 307Ak719 http://web2.westlaw.com/digest/default.aspx?docname=307Ak719&rp=%2fdigest%2fdefault.aspx&sv=Split&cmd=KEY&rs=WLW11.04&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3 k. Surprise. Most Cited Cases http://web2.westlaw.com/digest/default.aspx?docname=307Ak719&rp=%2fdigest%2fdefault.aspx&sv=Split&cmd=MCC&rs=WLW11.04&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3
(Formerly 94k29 Continuance)

Where order setting unlawful detainer for trial did not state that trial would be by jury and defendant's counsel came from another community and stated that he had not anticipated jury trial and had not hired local counsel which he would have done had he known trial would be to jury, ordering jury trial and refusal to grant defendant's motion for continuance was an abuse of discretion. 30 F.S.A. Rules of Civil Procedure, rule 1.430 http://web2.westlaw.com/find/default.wl?tc=-1&docname=FLSTRCPR1.430&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.04&db=1000006&tf=-1&findtype=L&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3&ordoc=1968138789 ; F.S.A. § 82.09 http://web2.westlaw.com/find/default.wl?tc=-1&docname=FLSTS82.09&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.04&db=1000006&tf=-1&findtype=L&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3&ordoc=1968138789 .

*43 Greene, Greene, Kennelly & Stockton, Jacksonville, for appellant.

Eugene Loftin, Jacksonville, for appellees.

RAWLS, Acting Chief Judge.

Defendant, Lawton Wesley Pittman, has appealed from an adverse jury verdict and judgment entered thereon in an unlawful detainer action.

The Haselwoods brought this action on May 15, 1967, in Clay County, seeking possession*44 of their real property unlawfully detained by Pittman who defended and counterclaimed on the grounds of an oral agreement to use the property if he improved same, which he did by erecting buildings of a value exceeding $8,000.00.

The only question is whether the lower court abused its discretion in ordering a jury trial and in denying defendant's motion for a continuance. Under the circumstances of this case we find that it did.

The order setting the cause for trial did not state that a jury trial would be held. Neither party had demanded a jury trial at any time. On the day set for trial, the Judge began impaneling a jury. Defendant's counsel objected on the grounds that he came from Jacksonville to Green Cove Springs, where the trial was to be held; he had not anticipated a jury trial; had he known, he would have prepared his case differently and would have employed local counsel to assist in the selection of the jury; and that both parties had waived jury trial under Rule 1.430, Florida Rules of Civil Procedure http://web2.westlaw.com/find/default.wl?tc=-1&docname=FLSTRCPR1.430&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.04&db=1000006&tf=-1&findtype=L&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3&ordoc=1968138789 , 30 F.S.A. When the trial judge ordered a jury trial, defendant moved for a 15-day continuance in order to obtain local counsel. This motion was likewise denied.

Appellees rely upon Section 82.09, Florida Statutes 1965 http://web2.westlaw.com/find/default.wl?tc=-1&docname=FLSTS82.09&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.04&db=1000006&tf=-1&findtype=L&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3&ordoc=1968138789 , F.S.A. which provides that certain unlawfuldetainer actions 'shall be tried by a jury of six.' They concede that this section was repealed on June 26, 1967, over two months before entry of the order setting this cause for trial, but they contend that ordering the jury trial was within the trial court's discretion.

Rule 1.430 http://web2.westlaw.com/find/default.wl?tc=-1&docname=FLSTRCPR1.430&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.04&db=1000006&tf=-1&findtype=L&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3&ordoc=1968138789 (formerly Rule 2.1) was construed by this Court in Bittner v. Walsh,[FN1] http://web2.westlaw.com/result/%0a%09%09%09%09%09%09#B00111968138789 an action of ejectment, in which we held that the circuit judge did not abuse his discretion in denying appellants' oral request for a trial by jury when made at the time for trial because the appellee had not prepared for a jury trial and had not employed local counsel. In rendering that decision this Court followed the rule set forth by the Supreme Court in Shores v. Murphy.[FN2] http://web2.westlaw.com/result/%0a%09%09%09%09%09%09#B00221968138789 There jury trial was waived by both parties, but when the docket was sounded several days before the date of trial, the parties were advised by the lower court that the case would be tried before a jury. The Supreme Court held that even though the parties had waived jury trial, a trial judge may still exercise his sound judicial discretion by ordering a trial by jury Subject to the limitation that the discretion must not be abused to the injury of the parties-litigant.

FN1. http://web2.westlaw.com/result/%0a%09%09%09%09%09%09#F00111968138789 Bittner v. Walsh, 132 So.2d 799 (Fla.App.1st 1961) http://web2.westlaw.com/find/default.wl?serialnum=1961133096&tc=-1&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.04&db=735&tf=-1&findtype=Y&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3&ordoc=1968138789 .

FN2. http://web2.westlaw.com/result/%0a%09%09%09%09%09%09#F00221968138789 Shores v. Murphy, 88 So.2d 294 (Fla.1956) http://web2.westlaw.com/find/default.wl?serialnum=1956130013&tc=-1&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.04&db=735&tf=-1&findtype=Y&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3&ordoc=1968138789 .

In an earlier case, Wood v. Warriner,[FN3] http://web2.westlaw.com/result/%0a%09%09%09%09%09%09#B00331968138789 the Supreme Court held that where both parties waived jury trial under the rule, but on the day of trial plaintiff demanded a jury, and defendant did not apply for a continuance, the court did not abuse its discretion in granting same.

FN3. http://web2.westlaw.com/result/%0a%09%09%09%09%09%09#F00331968138789 Wood v. Warriner, 62 So.2d 728 (Fla.1953) http://web2.westlaw.com/find/default.wl?serialnum=1953114587&tc=-1&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.04&db=735&tf=-1&findtype=Y&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3&ordoc=1968138789 .

[1] http://web2.westlaw.com/result/%0a%09%09%09%09%09%09#F11968138789 http://web2.westlaw.com/KCNotes/default.wl?db=FL-CS&mt=Westlaw&locatestring=HD(502)%2cCL(H%2cO)%2cDC(A%2cL%2cO%2cD%2cG)%2cDT(E%2cD%2cC%2cM)&serialnum=1968138789&method=WIN&cfid=1&rp=%2fKCNotes%2fdefault.wl&eq=search&rlti=1&query=bench+judge+trial+in+unlawful+detainer&vr=2.0&fn=_top&service=Search&rlt=CLID_QRYRLT0585495017146&sv=Split&n=13&pbc=12CCA1C3&rs=WLW11.04 [2] http://web2.westlaw.com/result/%0a%09%09%09%09%09%09#F21968138789 http://web2.westlaw.com/KCNotes/default.wl?db=FL-CS&mt=Westlaw&locatestring=HD(501)%2cCL(H%2cO)%2cDC(A%2cL%2cO%2cD%2cG)%2cDT(E%2cD%2cC%2cM)&serialnum=1968138789&method=WIN&cfid=1&rp=%2fKCNotes%2fdefault.wl&eq=search&rlti=1&query=bench+judge+trial+in+unlawful+detainer&vr=2.0&fn=_top&service=Search&rlt=CLID_QRYRLT0585495017146&sv=Split&n=13&pbc=12CCA1C3&rs=WLW11.04 Thus, a trial judge may in his sound judicial discretion order a jury trial even though same was never requested by either party. In defense of the trial judge, we note that he was not the judge who entered the order setting the date of the trial; he anticipated a jury trial; veniremen had been called and there was no other case for them to hear on that date; and the court had planned to clear its calendar the following week. However, under the circumstances in this case where the order was entered on the day of the trial without prior notice to the parties, and the same came as a surprise to one of the parties who was unprepared for a jury trial, we find that there was an abuse of discretion, and the request for a continuance should have been granted.

*45 The judgment appealed is quashed, and the cause is remanded without prejudice to the trial court to order a jury trial after reasonable notice to the parties.

Reversed.

JOHNSON and SPECTOR, JJ., concur.

Fla.App. 1968.
Pittman v. Haselwood,
214 So.2d 43

END OF DOCUMENT

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(c) 201

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony J. Horky
Sent: Tuesday, June 14, 2011 3:07 PM
To: Landlord/Tenant Committee (landten@lists.flabarrpptl.org)
Subject: [RPPTL LandTen] Jury trial in unlawful detainer action

Hello, fellow committee members. Any feedback on the following questions would be much appreciated.

Party wants to file an unlawful detainer action pursuant to Chapter 82, Fla. Stat., but avoid a jury trial. Would seeking possession only, not possession and damages, prevent a defendant from getting a trial by jury? Is it a jury trial by default in unlawful detainer actions or only if the plaintiff demands trial by jury in its pleadings?

Thank you.

Regards,

Anthony J. Horky, Esq.

Mombach, Boyle & Hardin, P.A.

500 East Broward Boulevard

Suite 1950 Broward Financial Centre

Ft. Lauderdale, Florida 33394

Telephone: 954.467.2200 ext. 225

Facsimile: 954.467.2210

E-Mail: ahorky@mbhlawyer.com mailto:ahorky@mbhlawyer.com

Website: www.mbhlawyer.com http://www.mbhlawyer.com/

CONFIDENTIALITY NOTICE: Unless otherwise stated, the information in this email transmission is privileged and confidential. If you are not the intended recipient, nor the employee or agent responsible for delivering it to the intended recipient, you are hereby notified that any dissemination or copying of this transmission (including any attachments) is strictly prohibited. If you have received this email in error, please notify the sender by email reply. Thank you.

Internal Revenue Service regulations require that certain types of written advice include a disclaimer. To the extent the preceding message contains advice relating to a Federal tax issue, unless expressly stated otherwise the advice is not intended or written to be used, and it cannot be used by the recipient or any other taxpayer, for the purpose of avoiding Federal tax penalties, and was not written to support the promotion or marketing of any transaction or matter discussed herein.

IRS CIRCULAR 230 NOTICE: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor.

Richman Greer P.A.
Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar
Richman Greer P.A.
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You stumped me. The section requiring jury trial was repealed, but certain sections of the statute speak of a jury rendering a verdict. Here's the case which speaks of the repeal of the jury requirement (which gives you a good argument that a jury trial is not necessary). However, either side can ask for jury. District Court of Appeal of Florida, First District. Lawton Wesley PITTMAN, Appellant, v. Leon G. HASELWOOD and Joy Gay Haselwood, his wife, Appellee. No. J-445. Sept. 10, 1968. Rehearing Denied Oct. 9, 1968. Unlawful detainer proceeding. The Circuit Court, Clay County, Roger J. Waybright, J., found for plaintiffs and defendant appealed. The District Court of Appeal, Rawls, Acting C.J., held that where order setting unlawful detainer for trial did not state that trial would be by jury and defendant's counsel came from another community and stated that he had not anticipated jury trial and had not hired local counsel which he would have done had he known trial would be to jury, ordering jury trial and refusal to grant defendant's motion for continuance was an abuse of discretion. Reversed. West Headnotes [1] <http://web2.westlaw.com/result/%0a%09%09%09%09%09%09#B11968138789> KeyCite Citing References for this Headnote <http://web2.westlaw.com/KCNotes/default.wl?db=FL-CS&mt=Westlaw&sequencenum=1&locatestring=HD(502)%2cCL(H%2cO)%2cDC(A%2cL%2cO%2cD%2cG)%2cDT(E%2cD%2cC%2cM)&serialnum=1968138789&method=WIN&cfid=1&rp=%2fKCNotes%2fdefault.wl&eq=search&rlti=1&query=bench+judge+trial+in+unlawful+detainer&vr=2.0&fn=_top&service=Search&rlt=CLID_QRYRLT0585495017146&sv=Split&n=13&pbc=12CCA1C3&rs=WLW11.04> <http://web2.westlaw.com/digest/default.aspx?docname=230&rp=%2fdigest%2fdefault.aspx&sv=Split&cmd=KEY&rs=WLW11.04&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3> 230 <http://web2.westlaw.com/digest/default.aspx?docname=230&rp=%2fdigest%2fdefault.aspx&sv=Split&cmd=KEY&rs=WLW11.04&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3> Jury <http://web2.westlaw.com/digest/default.aspx?docname=230II&rp=%2fdigest%2fdefault.aspx&sv=Split&cmd=KEY&rs=WLW11.04&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3> 230II <http://web2.westlaw.com/digest/default.aspx?docname=230II&rp=%2fdigest%2fdefault.aspx&sv=Split&cmd=KEY&rs=WLW11.04&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3> Right to Trial by Jury <http://web2.westlaw.com/digest/default.aspx?docname=230k25&rp=%2fdigest%2fdefault.aspx&sv=Split&cmd=KEY&rs=WLW11.04&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3> 230k25 <http://web2.westlaw.com/digest/default.aspx?docname=230k25&rp=%2fdigest%2fdefault.aspx&sv=Split&cmd=KEY&rs=WLW11.04&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3> Demand for Jury <http://web2.westlaw.com/digest/default.aspx?docname=230k25(2)&rp=%2fdigest%2fdefault.aspx&sv=Split&cmd=KEY&rs=WLW11.04&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3> 230k25(2) <http://web2.westlaw.com/digest/default.aspx?docname=230k25(2)&rp=%2fdigest%2fdefault.aspx&sv=Split&cmd=KEY&rs=WLW11.04&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3> k. Necessity for Demand. Most Cited Cases <http://web2.westlaw.com/digest/default.aspx?docname=230k25(2)&rp=%2fdigest%2fdefault.aspx&sv=Split&cmd=MCC&rs=WLW11.04&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3> Trial judge may in his sound judicial discretion order jury trial in unlawful detainer proceeding even though same was never requested by either party. 30 F.S.A. Rules of Civil Procedure, rule 1.430 <http://web2.westlaw.com/find/default.wl?tc=-1&docname=FLSTRCPR1.430&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.04&db=1000006&tf=-1&findtype=L&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3&ordoc=1968138789> ; F.S.A. § 82.09 <http://web2.westlaw.com/find/default.wl?tc=-1&docname=FLSTS82.09&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.04&db=1000006&tf=-1&findtype=L&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3&ordoc=1968138789> . [2] <http://web2.westlaw.com/result/%0a%09%09%09%09%09%09#B21968138789> KeyCite Citing References for this Headnote <http://web2.westlaw.com/KCNotes/default.wl?db=FL-CS&mt=Westlaw&sequencenum=2&locatestring=HD(501)%2cCL(H%2cO)%2cDC(A%2cL%2cO%2cD%2cG)%2cDT(E%2cD%2cC%2cM)&serialnum=1968138789&method=WIN&cfid=1&rp=%2fKCNotes%2fdefault.wl&eq=search&rlti=1&query=bench+judge+trial+in+unlawful+detainer&vr=2.0&fn=_top&service=Search&rlt=CLID_QRYRLT0585495017146&sv=Split&n=13&pbc=12CCA1C3&rs=WLW11.04> <http://web2.westlaw.com/digest/default.aspx?docname=307A&rp=%2fdigest%2fdefault.aspx&sv=Split&cmd=KEY&rs=WLW11.04&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3> 307A <http://web2.westlaw.com/digest/default.aspx?docname=307A&rp=%2fdigest%2fdefault.aspx&sv=Split&cmd=KEY&rs=WLW11.04&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3> Pretrial Procedure <http://web2.westlaw.com/digest/default.aspx?docname=307AIV&rp=%2fdigest%2fdefault.aspx&sv=Split&cmd=KEY&rs=WLW11.04&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3> 307AIV <http://web2.westlaw.com/digest/default.aspx?docname=307AIV&rp=%2fdigest%2fdefault.aspx&sv=Split&cmd=KEY&rs=WLW11.04&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3> Continuance <http://web2.westlaw.com/digest/default.aspx?docname=307Ak719&rp=%2fdigest%2fdefault.aspx&sv=Split&cmd=KEY&rs=WLW11.04&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3> 307Ak719 <http://web2.westlaw.com/digest/default.aspx?docname=307Ak719&rp=%2fdigest%2fdefault.aspx&sv=Split&cmd=KEY&rs=WLW11.04&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3> k. Surprise. Most Cited Cases <http://web2.westlaw.com/digest/default.aspx?docname=307Ak719&rp=%2fdigest%2fdefault.aspx&sv=Split&cmd=MCC&rs=WLW11.04&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3> (Formerly 94k29 Continuance) Where order setting unlawful detainer for trial did not state that trial would be by jury and defendant's counsel came from another community and stated that he had not anticipated jury trial and had not hired local counsel which he would have done had he known trial would be to jury, ordering jury trial and refusal to grant defendant's motion for continuance was an abuse of discretion. 30 F.S.A. Rules of Civil Procedure, rule 1.430 <http://web2.westlaw.com/find/default.wl?tc=-1&docname=FLSTRCPR1.430&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.04&db=1000006&tf=-1&findtype=L&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3&ordoc=1968138789> ; F.S.A. § 82.09 <http://web2.westlaw.com/find/default.wl?tc=-1&docname=FLSTS82.09&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.04&db=1000006&tf=-1&findtype=L&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3&ordoc=1968138789> . *43 Greene, Greene, Kennelly & Stockton, Jacksonville, for appellant. Eugene Loftin, Jacksonville, for appellees. RAWLS, Acting Chief Judge. Defendant, Lawton Wesley Pittman, has appealed from an adverse jury verdict and judgment entered thereon in an unlawful detainer action. The Haselwoods brought this action on May 15, 1967, in Clay County, seeking possession*44 of their real property unlawfully detained by Pittman who defended and counterclaimed on the grounds of an oral agreement to use the property if he improved same, which he did by erecting buildings of a value exceeding $8,000.00. The only question is whether the lower court abused its discretion in ordering a jury trial and in denying defendant's motion for a continuance. Under the circumstances of this case we find that it did. The order setting the cause for trial did not state that a jury trial would be held. Neither party had demanded a jury trial at any time. On the day set for trial, the Judge began impaneling a jury. Defendant's counsel objected on the grounds that he came from Jacksonville to Green Cove Springs, where the trial was to be held; he had not anticipated a jury trial; had he known, he would have prepared his case differently and would have employed local counsel to assist in the selection of the jury; and that both parties had waived jury trial under Rule 1.430, Florida Rules of Civil Procedure <http://web2.westlaw.com/find/default.wl?tc=-1&docname=FLSTRCPR1.430&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.04&db=1000006&tf=-1&findtype=L&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3&ordoc=1968138789> , 30 F.S.A. When the trial judge ordered a jury trial, defendant moved for a 15-day continuance in order to obtain local counsel. This motion was likewise denied. Appellees rely upon Section 82.09, Florida Statutes 1965 <http://web2.westlaw.com/find/default.wl?tc=-1&docname=FLSTS82.09&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.04&db=1000006&tf=-1&findtype=L&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3&ordoc=1968138789> , F.S.A. which provides that certain unlawfuldetainer actions 'shall be tried by a jury of six.' They concede that this section was repealed on June 26, 1967, over two months before entry of the order setting this cause for trial, but they contend that ordering the jury trial was within the trial court's discretion. Rule 1.430 <http://web2.westlaw.com/find/default.wl?tc=-1&docname=FLSTRCPR1.430&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.04&db=1000006&tf=-1&findtype=L&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3&ordoc=1968138789> (formerly Rule 2.1) was construed by this Court in Bittner v. Walsh,[FN1] <http://web2.westlaw.com/result/%0a%09%09%09%09%09%09#B00111968138789> an action of ejectment, in which we held that the circuit judge did not abuse his discretion in denying appellants' oral request for a trial by jury when made at the time for trial because the appellee had not prepared for a jury trial and had not employed local counsel. In rendering that decision this Court followed the rule set forth by the Supreme Court in Shores v. Murphy.[FN2] <http://web2.westlaw.com/result/%0a%09%09%09%09%09%09#B00221968138789> There jury trial was waived by both parties, but when the docket was sounded several days before the date of trial, the parties were advised by the lower court that the case would be tried before a jury. The Supreme Court held that even though the parties had waived jury trial, a trial judge may still exercise his sound judicial discretion by ordering a trial by jury Subject to the limitation that the discretion must not be abused to the injury of the parties-litigant. FN1. <http://web2.westlaw.com/result/%0a%09%09%09%09%09%09#F00111968138789> Bittner v. Walsh, 132 So.2d 799 (Fla.App.1st 1961) <http://web2.westlaw.com/find/default.wl?serialnum=1961133096&tc=-1&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.04&db=735&tf=-1&findtype=Y&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3&ordoc=1968138789> . FN2. <http://web2.westlaw.com/result/%0a%09%09%09%09%09%09#F00221968138789> Shores v. Murphy, 88 So.2d 294 (Fla.1956) <http://web2.westlaw.com/find/default.wl?serialnum=1956130013&tc=-1&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.04&db=735&tf=-1&findtype=Y&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3&ordoc=1968138789> . In an earlier case, Wood v. Warriner,[FN3] <http://web2.westlaw.com/result/%0a%09%09%09%09%09%09#B00331968138789> the Supreme Court held that where both parties waived jury trial under the rule, but on the day of trial plaintiff demanded a jury, and defendant did not apply for a continuance, the court did not abuse its discretion in granting same. FN3. <http://web2.westlaw.com/result/%0a%09%09%09%09%09%09#F00331968138789> Wood v. Warriner, 62 So.2d 728 (Fla.1953) <http://web2.westlaw.com/find/default.wl?serialnum=1953114587&tc=-1&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.04&db=735&tf=-1&findtype=Y&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3&ordoc=1968138789> . [1] <http://web2.westlaw.com/result/%0a%09%09%09%09%09%09#F11968138789> <http://web2.westlaw.com/KCNotes/default.wl?db=FL-CS&mt=Westlaw&locatestring=HD(502)%2cCL(H%2cO)%2cDC(A%2cL%2cO%2cD%2cG)%2cDT(E%2cD%2cC%2cM)&serialnum=1968138789&method=WIN&cfid=1&rp=%2fKCNotes%2fdefault.wl&eq=search&rlti=1&query=bench+judge+trial+in+unlawful+detainer&vr=2.0&fn=_top&service=Search&rlt=CLID_QRYRLT0585495017146&sv=Split&n=13&pbc=12CCA1C3&rs=WLW11.04> [2] <http://web2.westlaw.com/result/%0a%09%09%09%09%09%09#F21968138789> <http://web2.westlaw.com/KCNotes/default.wl?db=FL-CS&mt=Westlaw&locatestring=HD(501)%2cCL(H%2cO)%2cDC(A%2cL%2cO%2cD%2cG)%2cDT(E%2cD%2cC%2cM)&serialnum=1968138789&method=WIN&cfid=1&rp=%2fKCNotes%2fdefault.wl&eq=search&rlti=1&query=bench+judge+trial+in+unlawful+detainer&vr=2.0&fn=_top&service=Search&rlt=CLID_QRYRLT0585495017146&sv=Split&n=13&pbc=12CCA1C3&rs=WLW11.04> Thus, a trial judge may in his sound judicial discretion order a jury trial even though same was never requested by either party. In defense of the trial judge, we note that he was not the judge who entered the order setting the date of the trial; he anticipated a jury trial; veniremen had been called and there was no other case for them to hear on that date; and the court had planned to clear its calendar the following week. However, under the circumstances in this case where the order was entered on the day of the trial without prior notice to the parties, and the same came as a surprise to one of the parties who was unprepared for a jury trial, we find that there was an abuse of discretion, and the request for a continuance should have been granted. *45 The judgment appealed is quashed, and the cause is remanded without prejudice to the trial court to order a jury trial after reasonable notice to the parties. Reversed. JOHNSON and SPECTOR, JJ., concur. Fla.App. 1968. Pittman v. Haselwood, 214 So.2d 43 END OF DOCUMENT <http://web2.westlaw.com/print/images.aspx?tc=38&imcnt=NRS-IMAGE&mt=Westlaw&imcxt=FL-CS&sn=0BDDD078389C4AF7B5A9311286BC82CE&returnto=CLID_RT18274135217146&cfid=1&impc=0&rlti=1&imcntsrc=NOVUS&imfrmt=application%2fpdf&imguid=I2D22A0801DD211B2B7C1CE00E204BD35&vr=2.0&fn=_top&rlt=CLID_QRYRLT0585495017146&sv=Split&n=13&pbc=12CCA1C3&it=0115&tf=44&rs=WLW11.04> West Reporter Image (PDF) <http://web2.westlaw.com/print/images.aspx?tc=38&imcnt=NRS-IMAGE&mt=Westlaw&imcxt=FL-CS&sn=0BDDD078389C4AF7B5A9311286BC82CE&returnto=CLID_RT18274135217146&cfid=1&impc=0&rlti=1&imcntsrc=NOVUS&imfrmt=application%2fpdf&imguid=I2D22A0801DD211B2B7C1CE00E204BD35&vr=2.0&fn=_top&rlt=CLID_QRYRLT0585495017146&sv=Split&n=13&pbc=12CCA1C3&it=0115&tf=44&rs=WLW11.04> Adobe Reader is required to view PDF images. <http://www.adobe.com/products/acrobat/readstep2.html> (c) 201 From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony J. Horky Sent: Tuesday, June 14, 2011 3:07 PM To: Landlord/Tenant Committee (landten@lists.flabarrpptl.org) Subject: [RPPTL LandTen] Jury trial in unlawful detainer action Hello, fellow committee members. Any feedback on the following questions would be much appreciated. Party wants to file an unlawful detainer action pursuant to Chapter 82, Fla. Stat., but avoid a jury trial. Would seeking possession only, not possession and damages, prevent a defendant from getting a trial by jury? Is it a jury trial by default in unlawful detainer actions or only if the plaintiff demands trial by jury in its pleadings? Thank you. Regards, Anthony J. Horky, Esq. Mombach, Boyle & Hardin, P.A. 500 East Broward Boulevard Suite 1950 Broward Financial Centre Ft. Lauderdale, Florida 33394 Telephone: 954.467.2200 ext. 225 Facsimile: 954.467.2210 E-Mail: ahorky@mbhlawyer.com <mailto:ahorky@mbhlawyer.com> Website: www.mbhlawyer.com <http://www.mbhlawyer.com/> CONFIDENTIALITY NOTICE: Unless otherwise stated, the information in this email transmission is privileged and confidential. If you are not the intended recipient, nor the employee or agent responsible for delivering it to the intended recipient, you are hereby notified that any dissemination or copying of this transmission (including any attachments) is strictly prohibited. If you have received this email in error, please notify the sender by email reply. Thank you. Internal Revenue Service regulations require that certain types of written advice include a disclaimer. To the extent the preceding message contains advice relating to a Federal tax issue, unless expressly stated otherwise the advice is not intended or written to be used, and it cannot be used by the recipient or any other taxpayer, for the purpose of avoiding Federal tax penalties, and was not written to support the promotion or marketing of any transaction or matter discussed herein. IRS CIRCULAR 230 NOTICE: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor. Richman Greer P.A. Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar Richman Greer P.A. One Clearlake Centre Suite 1504 250 Australian Avenue South West Palm Beach, Florida 33401 Office:561.803.3500 Fax: 561.820.1608 Direct:561.803.3501 Email:MFarach@richmangreer.com http://www.richmangreer.com/ To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. This message contains confidential information and is intended for landten@lists.flabarrpptl.org. If you are not landten@lists.flabarrpptl.org you are notified that disclosing, copying, distributing or taking any action in reliance on the contents of this information is strictly prohibited. E-mail transmission cannot be guaranteed to be secure or error-free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses. The sender (MFarach@richmangreer.com) therefore does not accept liability for any errors or omissions in the contents of this message, which arise as a result of e-mail transmission. If verification is required please request a hard-copy version.

AJ

Anthony J. Horky

Wed, Jun 15, 2011 1:49 PM

Greatly appreciated. Thank you Manuel.

Regards,

Anthony J. Horky, Esq.
Mombach, Boyle & Hardin, P.A.
500 East Broward Boulevard
Suite 1950 Broward Financial Centre
Ft. Lauderdale, Florida 33394
Telephone: 954.467.2200 ext. 225
Facsimile: 954.467.2210
E-Mail: ahorky@mbhlawyer.com mailto:ahorky@mbhlawyer.com
Website: www.mbhlawyer.com http://www.mbhlawyer.com/

CONFIDENTIALITY NOTICE: Unless otherwise stated, the information in this email transmission is privileged and confidential. If you are not the intended recipient, nor the employee or agent responsible for delivering it to the intended recipient, you are hereby notified that any dissemination or copying of this transmission (including any attachments) is strictly prohibited. If you have received this email in error, please notify the sender by email reply. Thank you.

Internal Revenue Service regulations require that certain types of written advice include a disclaimer. To the extent the preceding message contains advice relating to a Federal tax issue, unless expressly stated otherwise the advice is not intended or written to be used, and it cannot be used by the recipient or any other taxpayer, for the purpose of avoiding Federal tax penalties, and was not written to support the promotion or marketing of any transaction or matter discussed herein.

IRS CIRCULAR 230 NOTICE: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor.

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Manuel Farach
Sent: Tuesday, June 14, 2011 6:56 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Jury trial in unlawful detainer action

You stumped me. The section requiring jury trial was repealed, but certain sections of the statute speak of a jury rendering a verdict. Here's the case which speaks of the repeal of the jury requirement (which gives you a good argument that a jury trial is not necessary). However, either side can ask for jury.

District Court of Appeal of Florida, First District.
Lawton Wesley PITTMAN, Appellant,
v.
Leon G. HASELWOOD and Joy Gay Haselwood, his wife, Appellee.
No. J-445.
Sept. 10, 1968.
Rehearing Denied Oct. 9, 1968.
Unlawful detainer proceeding. The Circuit Court, Clay County, Roger J. Waybright, J., found for plaintiffs and defendant appealed. The District Court of Appeal, Rawls, Acting C.J., held that where order setting unlawful detainer for trial did not state that trial would be by jury and defendant's counsel came from another community and stated that he had not anticipated jury trial and had not hired local counsel which he would have done had he known trial would be to jury, ordering jury trial and refusal to grant defendant's motion for continuance was an abuse of discretion.

Reversed.

West Headnotes

[1]http://web2.westlaw.com/result/%0a%09%09%09%09%09%09#B11968138789 [cid:image005.gif@01CC2B41.892C4430] KeyCite Citing References for this Headnotehttp://web2.westlaw.com/KCNotes/default.wl?db=FL-CS&mt=Westlaw&sequencenum=1&locatestring=HD(502)%2cCL(H%2cO)%2cDC(A%2cL%2cO%2cD%2cG)%2cDT(E%2cD%2cC%2cM)&serialnum=1968138789&method=WIN&cfid=1&rp=%2fKCNotes%2fdefault.wl&eq=search&rlti=1&query=bench+judge+trial+in+unlawful+detainer&vr=2.0&fn=_top&service=Search&rlt=CLID_QRYRLT0585495017146&sv=Split&n=13&pbc=12CCA1C3&rs=WLW11.04

[2]http://web2.westlaw.com/result/%0a%09%09%09%09%09%09#B21968138789 [cid:image005.gif@01CC2B41.892C4430] KeyCite Citing References for this Headnotehttp://web2.westlaw.com/KCNotes/default.wl?db=FL-CS&mt=Westlaw&sequencenum=2&locatestring=HD(501)%2cCL(H%2cO)%2cDC(A%2cL%2cO%2cD%2cG)%2cDT(E%2cD%2cC%2cM)&serialnum=1968138789&method=WIN&cfid=1&rp=%2fKCNotes%2fdefault.wl&eq=search&rlti=1&query=bench+judge+trial+in+unlawful+detainer&vr=2.0&fn=_top&service=Search&rlt=CLID_QRYRLT0585495017146&sv=Split&n=13&pbc=12CCA1C3&rs=WLW11.04

[cid:image006.gif@01CC2B41.892C4430]http://web2.westlaw.com/digest/default.aspx?docname=307A&rp=%2fdigest%2fdefault.aspx&sv=Split&cmd=KEY&rs=WLW11.04&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3307Ahttp://web2.westlaw.com/digest/default.aspx?docname=307A&rp=%2fdigest%2fdefault.aspx&sv=Split&cmd=KEY&rs=WLW11.04&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3 Pretrial Procedure
[cid:image006.gif@01CC2B41.892C4430] http://web2.westlaw.com/digest/default.aspx?docname=307AIV&rp=%2fdigest%2fdefault.aspx&sv=Split&cmd=KEY&rs=WLW11.04&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3 307AIVhttp://web2.westlaw.com/digest/default.aspx?docname=307AIV&rp=%2fdigest%2fdefault.aspx&sv=Split&cmd=KEY&rs=WLW11.04&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3 Continuance
[cid:image006.gif@01CC2B41.892C4430] http://web2.westlaw.com/digest/default.aspx?docname=307Ak719&rp=%2fdigest%2fdefault.aspx&sv=Split&cmd=KEY&rs=WLW11.04&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3 307Ak719http://web2.westlaw.com/digest/default.aspx?docname=307Ak719&rp=%2fdigest%2fdefault.aspx&sv=Split&cmd=KEY&rs=WLW11.04&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3 k. Surprise. Most Cited Caseshttp://web2.westlaw.com/digest/default.aspx?docname=307Ak719&rp=%2fdigest%2fdefault.aspx&sv=Split&cmd=MCC&rs=WLW11.04&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3
(Formerly 94k29 Continuance)
Where order setting unlawful detainer for trial did not state that trial would be by jury and defendant's counsel came from another community and stated that he had not anticipated jury trial and had not hired local counsel which he would have done had he known trial would be to jury, ordering jury trial and refusal to grant defendant's motion for continuance was an abuse of discretion. 30 F.S.A. Rules of Civil Procedure, rule 1.430http://web2.westlaw.com/find/default.wl?tc=-1&docname=FLSTRCPR1.430&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.04&db=1000006&tf=-1&findtype=L&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3&ordoc=1968138789; F.S.A. § 82.09http://web2.westlaw.com/find/default.wl?tc=-1&docname=FLSTS82.09&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.04&db=1000006&tf=-1&findtype=L&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3&ordoc=1968138789.

*43 Greene, Greene, Kennelly & Stockton, Jacksonville, for appellant.

Eugene Loftin, Jacksonville, for appellees.
RAWLS, Acting Chief Judge.

Defendant, Lawton Wesley Pittman, has appealed from an adverse jury verdict and judgment entered thereon in an unlawful detainer action.

The Haselwoods brought this action on May 15, 1967, in Clay County, seeking possession*44 of their real property unlawfully detained by Pittman who defended and counterclaimed on the grounds of an oral agreement to use the property if he improved same, which he did by erecting buildings of a value exceeding $8,000.00.

The only question is whether the lower court abused its discretion in ordering a jury trial and in denying defendant's motion for a continuance. Under the circumstances of this case we find that it did.

The order setting the cause for trial did not state that a jury trial would be held. Neither party had demanded a jury trial at any time. On the day set for trial, the Judge began impaneling a jury. Defendant's counsel objected on the grounds that he came from Jacksonville to Green Cove Springs, where the trial was to be held; he had not anticipated a jury trial; had he known, he would have prepared his case differently and would have employed local counsel to assist in the selection of the jury; and that both parties had waived jury trial under Rule 1.430, Florida Rules of Civil Procedurehttp://web2.westlaw.com/find/default.wl?tc=-1&docname=FLSTRCPR1.430&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.04&db=1000006&tf=-1&findtype=L&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3&ordoc=1968138789, 30 F.S.A. When the trial judge ordered a jury trial, defendant moved for a 15-day continuance in order to obtain local counsel. This motion was likewise denied.

Appellees rely upon Section 82.09, Florida Statutes 1965http://web2.westlaw.com/find/default.wl?tc=-1&docname=FLSTS82.09&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.04&db=1000006&tf=-1&findtype=L&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3&ordoc=1968138789, F.S.A. which provides that certain unlawfuldetainer actions 'shall be tried by a jury of six.' They concede that this section was repealed on June 26, 1967, over two months before entry of the order setting this cause for trial, but they contend that ordering the jury trial was within the trial court's discretion.

Rule 1.430http://web2.westlaw.com/find/default.wl?tc=-1&docname=FLSTRCPR1.430&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.04&db=1000006&tf=-1&findtype=L&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3&ordoc=1968138789 (formerly Rule 2.1) was construed by this Court in Bittner v. Walsh,[FN1]http://web2.westlaw.com/result/%0a%09%09%09%09%09%09#B00111968138789 an action of ejectment, in which we held that the circuit judge did not abuse his discretion in denying appellants' oral request for a trial by jury when made at the time for trial because the appellee had not prepared for a jury trial and had not employed local counsel. In rendering that decision this Court followed the rule set forth by the Supreme Court in Shores v. Murphy.[FN2]http://web2.westlaw.com/result/%0a%09%09%09%09%09%09#B00221968138789 There jury trial was waived by both parties, but when the docket was sounded several days before the date of trial, the parties were advised by the lower court that the case would be tried before a jury. The Supreme Court held that even though the parties had waived jury trial, a trial judge may still exercise his sound judicial discretion by ordering a trial by jury Subject to the limitation that the discretion must not be abused to the injury of the parties-litigant.

FN1.http://web2.westlaw.com/result/%0a%09%09%09%09%09%09#F00111968138789 Bittner v. Walsh, 132 So.2d 799 (Fla.App.1st 1961)http://web2.westlaw.com/find/default.wl?serialnum=1961133096&tc=-1&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.04&db=735&tf=-1&findtype=Y&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3&ordoc=1968138789.
FN2.http://web2.westlaw.com/result/%0a%09%09%09%09%09%09#F00221968138789 Shores v. Murphy, 88 So.2d 294 (Fla.1956)http://web2.westlaw.com/find/default.wl?serialnum=1956130013&tc=-1&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.04&db=735&tf=-1&findtype=Y&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3&ordoc=1968138789.
In an earlier case, Wood v. Warriner,[FN3]http://web2.westlaw.com/result/%0a%09%09%09%09%09%09#B00331968138789 the Supreme Court held that where both parties waived jury trial under the rule, but on the day of trial plaintiff demanded a jury, and defendant did not apply for a continuance, the court did not abuse its discretion in granting same.

FN3.http://web2.westlaw.com/result/%0a%09%09%09%09%09%09#F00331968138789 Wood v. Warriner, 62 So.2d 728 (Fla.1953)http://web2.westlaw.com/find/default.wl?serialnum=1953114587&tc=-1&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.04&db=735&tf=-1&findtype=Y&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3&ordoc=1968138789.
[1]http://web2.westlaw.com/result/%0a%09%09%09%09%09%09#F11968138789 [cid:image005.gif@01CC2B41.892C4430] http://web2.westlaw.com/KCNotes/default.wl?db=FL-CS&mt=Westlaw&locatestring=HD(502)%2cCL(H%2cO)%2cDC(A%2cL%2cO%2cD%2cG)%2cDT(E%2cD%2cC%2cM)&serialnum=1968138789&method=WIN&cfid=1&rp=%2fKCNotes%2fdefault.wl&eq=search&rlti=1&query=bench+judge+trial+in+unlawful+detainer&vr=2.0&fn=_top&service=Search&rlt=CLID_QRYRLT0585495017146&sv=Split&n=13&pbc=12CCA1C3&rs=WLW11.04 [2]http://web2.westlaw.com/result/%0a%09%09%09%09%09%09#F21968138789 [cid:image005.gif@01CC2B41.892C4430] http://web2.westlaw.com/KCNotes/default.wl?db=FL-CS&mt=Westlaw&locatestring=HD(501)%2cCL(H%2cO)%2cDC(A%2cL%2cO%2cD%2cG)%2cDT(E%2cD%2cC%2cM)&serialnum=1968138789&method=WIN&cfid=1&rp=%2fKCNotes%2fdefault.wl&eq=search&rlti=1&query=bench+judge+trial+in+unlawful+detainer&vr=2.0&fn=_top&service=Search&rlt=CLID_QRYRLT0585495017146&sv=Split&n=13&pbc=12CCA1C3&rs=WLW11.04 Thus, a trial judge may in his sound judicial discretion order a jury trial even though same was never requested by either party. In defense of the trial judge, we note that he was not the judge who entered the order setting the date of the trial; he anticipated a jury trial; veniremen had been called and there was no other case for them to hear on that date; and the court had planned to clear its calendar the following week. However, under the circumstances in this case where the order was entered on the day of the trial without prior notice to the parties, and the same came as a surprise to one of the parties who was unprepared for a jury trial, we find that there was an abuse of discretion, and the request for a continuance should have been granted.

*45 The judgment appealed is quashed, and the cause is remanded without prejudice to the trial court to order a jury trial after reasonable notice to the parties.

Reversed.

JOHNSON and SPECTOR, JJ., concur.

Fla.App. 1968.
Pittman v. Haselwood,
214 So.2d 43

END OF DOCUMENT

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(c) 201

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Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar

Richman Greer P.A.
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From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony J. Horky
Sent: Tuesday, June 14, 2011 3:07 PM
To: Landlord/Tenant Committee (landten@lists.flabarrpptl.org)
Subject: [RPPTL LandTen] Jury trial in unlawful detainer action

Hello, fellow committee members. Any feedback on the following questions would be much appreciated.

Party wants to file an unlawful detainer action pursuant to Chapter 82, Fla. Stat., but avoid a jury trial. Would seeking possession only, not possession and damages, prevent a defendant from getting a trial by jury? Is it a jury trial by default in unlawful detainer actions or only if the plaintiff demands trial by jury in its pleadings?

Thank you.

Regards,

Anthony J. Horky, Esq.
Mombach, Boyle & Hardin, P.A.
500 East Broward Boulevard
Suite 1950 Broward Financial Centre
Ft. Lauderdale, Florida 33394
Telephone: 954.467.2200 ext. 225
Facsimile: 954.467.2210
E-Mail: ahorky@mbhlawyer.com mailto:ahorky@mbhlawyer.com
Website: www.mbhlawyer.com http://www.mbhlawyer.com/

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Internal Revenue Service regulations require that certain types of written advice include a disclaimer. To the extent the preceding message contains advice relating to a Federal tax issue, unless expressly stated otherwise the advice is not intended or written to be used, and it cannot be used by the recipient or any other taxpayer, for the purpose of avoiding Federal tax penalties, and was not written to support the promotion or marketing of any transaction or matter discussed herein.

IRS CIRCULAR 230 NOTICE: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor.

Greatly appreciated. Thank you Manuel. Regards, Anthony J. Horky, Esq. Mombach, Boyle & Hardin, P.A. 500 East Broward Boulevard Suite 1950 Broward Financial Centre Ft. Lauderdale, Florida 33394 Telephone: 954.467.2200 ext. 225 Facsimile: 954.467.2210 E-Mail: ahorky@mbhlawyer.com<mailto:ahorky@mbhlawyer.com> Website: www.mbhlawyer.com<http://www.mbhlawyer.com/> CONFIDENTIALITY NOTICE: Unless otherwise stated, the information in this email transmission is privileged and confidential. If you are not the intended recipient, nor the employee or agent responsible for delivering it to the intended recipient, you are hereby notified that any dissemination or copying of this transmission (including any attachments) is strictly prohibited. If you have received this email in error, please notify the sender by email reply. Thank you. Internal Revenue Service regulations require that certain types of written advice include a disclaimer. To the extent the preceding message contains advice relating to a Federal tax issue, unless expressly stated otherwise the advice is not intended or written to be used, and it cannot be used by the recipient or any other taxpayer, for the purpose of avoiding Federal tax penalties, and was not written to support the promotion or marketing of any transaction or matter discussed herein. IRS CIRCULAR 230 NOTICE: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor. ________________________________ From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Manuel Farach Sent: Tuesday, June 14, 2011 6:56 PM To: RPPTL Landlord Tenant Committee Subject: Re: [RPPTL LandTen] Jury trial in unlawful detainer action You stumped me. The section requiring jury trial was repealed, but certain sections of the statute speak of a jury rendering a verdict. Here's the case which speaks of the repeal of the jury requirement (which gives you a good argument that a jury trial is not necessary). However, either side can ask for jury. District Court of Appeal of Florida, First District. Lawton Wesley PITTMAN, Appellant, v. Leon G. HASELWOOD and Joy Gay Haselwood, his wife, Appellee. No. J-445. Sept. 10, 1968. Rehearing Denied Oct. 9, 1968. Unlawful detainer proceeding. The Circuit Court, Clay County, Roger J. Waybright, J., found for plaintiffs and defendant appealed. The District Court of Appeal, Rawls, Acting C.J., held that where order setting unlawful detainer for trial did not state that trial would be by jury and defendant's counsel came from another community and stated that he had not anticipated jury trial and had not hired local counsel which he would have done had he known trial would be to jury, ordering jury trial and refusal to grant defendant's motion for continuance was an abuse of discretion. Reversed. West Headnotes [1]<http://web2.westlaw.com/result/%0a%09%09%09%09%09%09#B11968138789> [cid:image005.gif@01CC2B41.892C4430] KeyCite Citing References for this Headnote<http://web2.westlaw.com/KCNotes/default.wl?db=FL-CS&mt=Westlaw&sequencenum=1&locatestring=HD(502)%2cCL(H%2cO)%2cDC(A%2cL%2cO%2cD%2cG)%2cDT(E%2cD%2cC%2cM)&serialnum=1968138789&method=WIN&cfid=1&rp=%2fKCNotes%2fdefault.wl&eq=search&rlti=1&query=bench+judge+trial+in+unlawful+detainer&vr=2.0&fn=_top&service=Search&rlt=CLID_QRYRLT0585495017146&sv=Split&n=13&pbc=12CCA1C3&rs=WLW11.04> [cid:image006.gif@01CC2B41.892C4430]<http://web2.westlaw.com/digest/default.aspx?docname=230&rp=%2fdigest%2fdefault.aspx&sv=Split&cmd=KEY&rs=WLW11.04&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3>230<http://web2.westlaw.com/digest/default.aspx?docname=230&rp=%2fdigest%2fdefault.aspx&sv=Split&cmd=KEY&rs=WLW11.04&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3> Jury [cid:image006.gif@01CC2B41.892C4430] <http://web2.westlaw.com/digest/default.aspx?docname=230II&rp=%2fdigest%2fdefault.aspx&sv=Split&cmd=KEY&rs=WLW11.04&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3> 230II<http://web2.westlaw.com/digest/default.aspx?docname=230II&rp=%2fdigest%2fdefault.aspx&sv=Split&cmd=KEY&rs=WLW11.04&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3> Right to Trial by Jury [cid:image006.gif@01CC2B41.892C4430] <http://web2.westlaw.com/digest/default.aspx?docname=230k25&rp=%2fdigest%2fdefault.aspx&sv=Split&cmd=KEY&rs=WLW11.04&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3> 230k25<http://web2.westlaw.com/digest/default.aspx?docname=230k25&rp=%2fdigest%2fdefault.aspx&sv=Split&cmd=KEY&rs=WLW11.04&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3> Demand for Jury [cid:image006.gif@01CC2B41.892C4430] <http://web2.westlaw.com/digest/default.aspx?docname=230k25(2)&rp=%2fdigest%2fdefault.aspx&sv=Split&cmd=KEY&rs=WLW11.04&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3> 230k25(2)<http://web2.westlaw.com/digest/default.aspx?docname=230k25(2)&rp=%2fdigest%2fdefault.aspx&sv=Split&cmd=KEY&rs=WLW11.04&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3> k. Necessity for Demand. Most Cited Cases<http://web2.westlaw.com/digest/default.aspx?docname=230k25(2)&rp=%2fdigest%2fdefault.aspx&sv=Split&cmd=MCC&rs=WLW11.04&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3> Trial judge may in his sound judicial discretion order jury trial in unlawful detainer proceeding even though same was never requested by either party. 30 F.S.A. Rules of Civil Procedure, rule 1.430<http://web2.westlaw.com/find/default.wl?tc=-1&docname=FLSTRCPR1.430&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.04&db=1000006&tf=-1&findtype=L&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3&ordoc=1968138789>; F.S.A. § 82.09<http://web2.westlaw.com/find/default.wl?tc=-1&docname=FLSTS82.09&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.04&db=1000006&tf=-1&findtype=L&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3&ordoc=1968138789>. [2]<http://web2.westlaw.com/result/%0a%09%09%09%09%09%09#B21968138789> [cid:image005.gif@01CC2B41.892C4430] KeyCite Citing References for this Headnote<http://web2.westlaw.com/KCNotes/default.wl?db=FL-CS&mt=Westlaw&sequencenum=2&locatestring=HD(501)%2cCL(H%2cO)%2cDC(A%2cL%2cO%2cD%2cG)%2cDT(E%2cD%2cC%2cM)&serialnum=1968138789&method=WIN&cfid=1&rp=%2fKCNotes%2fdefault.wl&eq=search&rlti=1&query=bench+judge+trial+in+unlawful+detainer&vr=2.0&fn=_top&service=Search&rlt=CLID_QRYRLT0585495017146&sv=Split&n=13&pbc=12CCA1C3&rs=WLW11.04> [cid:image006.gif@01CC2B41.892C4430]<http://web2.westlaw.com/digest/default.aspx?docname=307A&rp=%2fdigest%2fdefault.aspx&sv=Split&cmd=KEY&rs=WLW11.04&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3>307A<http://web2.westlaw.com/digest/default.aspx?docname=307A&rp=%2fdigest%2fdefault.aspx&sv=Split&cmd=KEY&rs=WLW11.04&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3> Pretrial Procedure [cid:image006.gif@01CC2B41.892C4430] <http://web2.westlaw.com/digest/default.aspx?docname=307AIV&rp=%2fdigest%2fdefault.aspx&sv=Split&cmd=KEY&rs=WLW11.04&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3> 307AIV<http://web2.westlaw.com/digest/default.aspx?docname=307AIV&rp=%2fdigest%2fdefault.aspx&sv=Split&cmd=KEY&rs=WLW11.04&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3> Continuance [cid:image006.gif@01CC2B41.892C4430] <http://web2.westlaw.com/digest/default.aspx?docname=307Ak719&rp=%2fdigest%2fdefault.aspx&sv=Split&cmd=KEY&rs=WLW11.04&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3> 307Ak719<http://web2.westlaw.com/digest/default.aspx?docname=307Ak719&rp=%2fdigest%2fdefault.aspx&sv=Split&cmd=KEY&rs=WLW11.04&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3> k. Surprise. Most Cited Cases<http://web2.westlaw.com/digest/default.aspx?docname=307Ak719&rp=%2fdigest%2fdefault.aspx&sv=Split&cmd=MCC&rs=WLW11.04&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3> (Formerly 94k29 Continuance) Where order setting unlawful detainer for trial did not state that trial would be by jury and defendant's counsel came from another community and stated that he had not anticipated jury trial and had not hired local counsel which he would have done had he known trial would be to jury, ordering jury trial and refusal to grant defendant's motion for continuance was an abuse of discretion. 30 F.S.A. Rules of Civil Procedure, rule 1.430<http://web2.westlaw.com/find/default.wl?tc=-1&docname=FLSTRCPR1.430&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.04&db=1000006&tf=-1&findtype=L&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3&ordoc=1968138789>; F.S.A. § 82.09<http://web2.westlaw.com/find/default.wl?tc=-1&docname=FLSTS82.09&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.04&db=1000006&tf=-1&findtype=L&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3&ordoc=1968138789>. *43 Greene, Greene, Kennelly & Stockton, Jacksonville, for appellant. Eugene Loftin, Jacksonville, for appellees. RAWLS, Acting Chief Judge. Defendant, Lawton Wesley Pittman, has appealed from an adverse jury verdict and judgment entered thereon in an unlawful detainer action. The Haselwoods brought this action on May 15, 1967, in Clay County, seeking possession*44 of their real property unlawfully detained by Pittman who defended and counterclaimed on the grounds of an oral agreement to use the property if he improved same, which he did by erecting buildings of a value exceeding $8,000.00. The only question is whether the lower court abused its discretion in ordering a jury trial and in denying defendant's motion for a continuance. Under the circumstances of this case we find that it did. The order setting the cause for trial did not state that a jury trial would be held. Neither party had demanded a jury trial at any time. On the day set for trial, the Judge began impaneling a jury. Defendant's counsel objected on the grounds that he came from Jacksonville to Green Cove Springs, where the trial was to be held; he had not anticipated a jury trial; had he known, he would have prepared his case differently and would have employed local counsel to assist in the selection of the jury; and that both parties had waived jury trial under Rule 1.430, Florida Rules of Civil Procedure<http://web2.westlaw.com/find/default.wl?tc=-1&docname=FLSTRCPR1.430&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.04&db=1000006&tf=-1&findtype=L&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3&ordoc=1968138789>, 30 F.S.A. When the trial judge ordered a jury trial, defendant moved for a 15-day continuance in order to obtain local counsel. This motion was likewise denied. Appellees rely upon Section 82.09, Florida Statutes 1965<http://web2.westlaw.com/find/default.wl?tc=-1&docname=FLSTS82.09&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.04&db=1000006&tf=-1&findtype=L&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3&ordoc=1968138789>, F.S.A. which provides that certain unlawfuldetainer actions 'shall be tried by a jury of six.' They concede that this section was repealed on June 26, 1967, over two months before entry of the order setting this cause for trial, but they contend that ordering the jury trial was within the trial court's discretion. Rule 1.430<http://web2.westlaw.com/find/default.wl?tc=-1&docname=FLSTRCPR1.430&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.04&db=1000006&tf=-1&findtype=L&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3&ordoc=1968138789> (formerly Rule 2.1) was construed by this Court in Bittner v. Walsh,[FN1]<http://web2.westlaw.com/result/%0a%09%09%09%09%09%09#B00111968138789> an action of ejectment, in which we held that the circuit judge did not abuse his discretion in denying appellants' oral request for a trial by jury when made at the time for trial because the appellee had not prepared for a jury trial and had not employed local counsel. In rendering that decision this Court followed the rule set forth by the Supreme Court in Shores v. Murphy.[FN2]<http://web2.westlaw.com/result/%0a%09%09%09%09%09%09#B00221968138789> There jury trial was waived by both parties, but when the docket was sounded several days before the date of trial, the parties were advised by the lower court that the case would be tried before a jury. The Supreme Court held that even though the parties had waived jury trial, a trial judge may still exercise his sound judicial discretion by ordering a trial by jury Subject to the limitation that the discretion must not be abused to the injury of the parties-litigant. FN1.<http://web2.westlaw.com/result/%0a%09%09%09%09%09%09#F00111968138789> Bittner v. Walsh, 132 So.2d 799 (Fla.App.1st 1961)<http://web2.westlaw.com/find/default.wl?serialnum=1961133096&tc=-1&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.04&db=735&tf=-1&findtype=Y&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3&ordoc=1968138789>. FN2.<http://web2.westlaw.com/result/%0a%09%09%09%09%09%09#F00221968138789> Shores v. Murphy, 88 So.2d 294 (Fla.1956)<http://web2.westlaw.com/find/default.wl?serialnum=1956130013&tc=-1&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.04&db=735&tf=-1&findtype=Y&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3&ordoc=1968138789>. In an earlier case, Wood v. Warriner,[FN3]<http://web2.westlaw.com/result/%0a%09%09%09%09%09%09#B00331968138789> the Supreme Court held that where both parties waived jury trial under the rule, but on the day of trial plaintiff demanded a jury, and defendant did not apply for a continuance, the court did not abuse its discretion in granting same. FN3.<http://web2.westlaw.com/result/%0a%09%09%09%09%09%09#F00331968138789> Wood v. Warriner, 62 So.2d 728 (Fla.1953)<http://web2.westlaw.com/find/default.wl?serialnum=1953114587&tc=-1&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.04&db=735&tf=-1&findtype=Y&fn=_top&mt=Westlaw&vr=2.0&pbc=12CCA1C3&ordoc=1968138789>. [1]<http://web2.westlaw.com/result/%0a%09%09%09%09%09%09#F11968138789> [cid:image005.gif@01CC2B41.892C4430] <http://web2.westlaw.com/KCNotes/default.wl?db=FL-CS&mt=Westlaw&locatestring=HD(502)%2cCL(H%2cO)%2cDC(A%2cL%2cO%2cD%2cG)%2cDT(E%2cD%2cC%2cM)&serialnum=1968138789&method=WIN&cfid=1&rp=%2fKCNotes%2fdefault.wl&eq=search&rlti=1&query=bench+judge+trial+in+unlawful+detainer&vr=2.0&fn=_top&service=Search&rlt=CLID_QRYRLT0585495017146&sv=Split&n=13&pbc=12CCA1C3&rs=WLW11.04> [2]<http://web2.westlaw.com/result/%0a%09%09%09%09%09%09#F21968138789> [cid:image005.gif@01CC2B41.892C4430] <http://web2.westlaw.com/KCNotes/default.wl?db=FL-CS&mt=Westlaw&locatestring=HD(501)%2cCL(H%2cO)%2cDC(A%2cL%2cO%2cD%2cG)%2cDT(E%2cD%2cC%2cM)&serialnum=1968138789&method=WIN&cfid=1&rp=%2fKCNotes%2fdefault.wl&eq=search&rlti=1&query=bench+judge+trial+in+unlawful+detainer&vr=2.0&fn=_top&service=Search&rlt=CLID_QRYRLT0585495017146&sv=Split&n=13&pbc=12CCA1C3&rs=WLW11.04> Thus, a trial judge may in his sound judicial discretion order a jury trial even though same was never requested by either party. In defense of the trial judge, we note that he was not the judge who entered the order setting the date of the trial; he anticipated a jury trial; veniremen had been called and there was no other case for them to hear on that date; and the court had planned to clear its calendar the following week. However, under the circumstances in this case where the order was entered on the day of the trial without prior notice to the parties, and the same came as a surprise to one of the parties who was unprepared for a jury trial, we find that there was an abuse of discretion, and the request for a continuance should have been granted. *45 The judgment appealed is quashed, and the cause is remanded without prejudice to the trial court to order a jury trial after reasonable notice to the parties. Reversed. JOHNSON and SPECTOR, JJ., concur. Fla.App. 1968. Pittman v. Haselwood, 214 So.2d 43 END OF DOCUMENT [cid:image007.gif@01CC2B41.892C4430]<http://web2.westlaw.com/print/images.aspx?tc=38&imcnt=NRS-IMAGE&mt=Westlaw&imcxt=FL-CS&sn=0BDDD078389C4AF7B5A9311286BC82CE&returnto=CLID_RT18274135217146&cfid=1&impc=0&rlti=1&imcntsrc=NOVUS&imfrmt=application%2fpdf&imguid=I2D22A0801DD211B2B7C1CE00E204BD35&vr=2.0&fn=_top&rlt=CLID_QRYRLT0585495017146&sv=Split&n=13&pbc=12CCA1C3&it=0115&tf=44&rs=WLW11.04> West Reporter Image (PDF)<http://web2.westlaw.com/print/images.aspx?tc=38&imcnt=NRS-IMAGE&mt=Westlaw&imcxt=FL-CS&sn=0BDDD078389C4AF7B5A9311286BC82CE&returnto=CLID_RT18274135217146&cfid=1&impc=0&rlti=1&imcntsrc=NOVUS&imfrmt=application%2fpdf&imguid=I2D22A0801DD211B2B7C1CE00E204BD35&vr=2.0&fn=_top&rlt=CLID_QRYRLT0585495017146&sv=Split&n=13&pbc=12CCA1C3&it=0115&tf=44&rs=WLW11.04> Adobe Reader is required to view PDF images. [cid:image008.gif@01CC2B41.892C4430]<http://www.adobe.com/products/acrobat/readstep2.html> (c) 201 [http://www.richmangreer.com/emailsig/logo.gif] Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar Richman Greer P.A. One Clearlake Centre Suite 1504 250 Australian Avenue South West Palm Beach, Florida 33401 Office:561.803.3500 Fax: 561.820.1608 Direct:561.803.3501 Email:MFarach@richmangreer.com www.richmangreer.com<http://www.richmangreer.com/> [http://www.richmangreer.com/emailsig/meritas.gif] To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. This message contains confidential information and is intended for landten@lists.flabarrpptl.org. If you are not landten@lists.flabarrpptl.org you are notified that disclosing, copying, distributing or taking any action in reliance on the contents of this information is strictly prohibited. E-mail transmission cannot be guaranteed to be secure or error-free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses. The sender (MFarach@richmangreer.com) therefore does not accept liability for any errors or omissions in the contents of this message, which arise as a result of e-mail transmission. If verification is required please request a hard-copy version. From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony J. Horky Sent: Tuesday, June 14, 2011 3:07 PM To: Landlord/Tenant Committee (landten@lists.flabarrpptl.org) Subject: [RPPTL LandTen] Jury trial in unlawful detainer action Hello, fellow committee members. Any feedback on the following questions would be much appreciated. Party wants to file an unlawful detainer action pursuant to Chapter 82, Fla. Stat., but avoid a jury trial. Would seeking possession only, not possession and damages, prevent a defendant from getting a trial by jury? Is it a jury trial by default in unlawful detainer actions or only if the plaintiff demands trial by jury in its pleadings? Thank you. Regards, Anthony J. Horky, Esq. Mombach, Boyle & Hardin, P.A. 500 East Broward Boulevard Suite 1950 Broward Financial Centre Ft. 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