FILED

January 28, 1999

Cecil Crowson, Jr.

Appellate C ourt

Clerk

 IN THE COURT OF APPEALS

AT KNOXVILLE

FIRST CITIZENS BANK OF CLEVELAND, ) BRADLEY CHANCERY

 ) C. A. NO. 03A01-9806-CH-00203

 )

 Plaintiff/Counter-defendant/ )

Appellee )

 )

 )

vs. )

 )

 )

CAROL CROSS ) HON. EARL HENLEY

 ) CHANCELLOR

 Defendant/Counter-Plaintiff/ )

Third-Party Plaintiff/ )

Appellant )

 )

and )

 )

MARYLAND ASSURANCE COMPANY OF )

AMERICA, )

 )

 Defendant )

 )

vs. )

 )

 )

LARRY McSPADDEN, Individually and )

employee/agent for First Citizens )

Bank of Cleveland, )

 )

 Third-Party Defendant/Appellee ) REVERSED AND REMANDED

RICHARD A. FISHER, Logan, Thompson, Miller, Bilbo, Thompson &

Fisher, P.C., Cleveland, for Appellant, Carol Cross.

ROGER E. JENNE, Jenne, Scott & Jenne, Cleveland, for First Citizens

Bank of Cleveland and Larry McSpadden.

MICHAEL P. MILLS, Mills & Cooper, Nashville, for Maryland Assurance

Company of America.
2

O P I N I O N

McMurray, J.

I n its simplest terms, this case originated as a suit on

promissory notes executed by the defendant, Cross (Cross), in favor

of the plaintiff, First Citizens Bank of Cleveland (the bank) and

secured by deeds of trust on real property owned by Cross.

Collateral issues relate to the liability of the defendant,

Maryland Assurance Company of America (Maryland) for monies alleged

t o be due under a policy of insurance insuring the properties which

were subje c t to the deeds of trust. To the complaint, the

defendant, Cross, responded with an answer, counterclaim and thirdparty complaint and therein demanded a jury to try the issues

joined. The counterclaim and third-party complaint (against Larry

McSpadden) alleged, among other things, that the bank through its

agents and employees agreed with Cross that it would notify the

insurance company that the loans to Cross were to be increased and

that additional insurance would be required. Cross further alleges

that Larry McSpadden, individually and as empl oyee /agent for the

bank, agreed to handle the matter with the insurance company. In

short, no additional insurance was p rocured. The property in

question was destroyed by fire and the insurance proceeds were

insufficient to pay th e ind ebtedness owed by Cross to the bank. 

Notwithstanding the demand for a jury trial by Cross, the
3

Chancellor denied a trial by jury and tried the case at a bench

trial. A monetary judgment based on the original complaint was

entered against Cross in the aggregate of $85,948.85 inc ludi n g

attorney's fees. All other actions were dismissed.

The app ella nt has presented several issues for our consideration and review. However, since we find the issue relating

t o the court's denial of a jury trial to be dispositive of this

appeal, all other issues are pretermitted. Specifically, we find

that the denial of a jury trial was error. Accordingly we reverse

the judgment of the trial court and remand the case to the trial

court for further proceedings in accordance with prevailing law and

procedural requirements.

Rule 38 of the Tennessee Rules of Civil Procedure provides in

pertinent part as follows:

38.01 Right Preserved. — The right of trial by jury as

declared by the Constitution or exi stin g laws of the

s tate of Tennessee shall be preserved to the par tie s

inviolate.

38.02 Demand. — Any party may demand a trial by jury of

any issue triable of right by jury by demanding the same

i n an y pleading specified in Rule 7.01 or by endorsin g

the demand upon such pleading when it is filed, or by

written demand filed with the clerk, with notice to all
1

Rule 7.01 Tenn. R. Civ. Pro. specifies the following pleadings: Complaint,

answer, reply to a counterclaim, an answer to a cross-claim, a third-party complaint

and a third-party answer.

4

parties, wit hin fifteen (15) days after the service of

the last pleading raising an issue of fact. 1

Cross endorsed a jury demand on her answer, counterclaim and

third-party complaint. The trial court entered an order denying a

jury trial on the following grounds:

Upon consideratio n of the record and argument of

counsel, the court is of the opinion that defendant's

failure to note her demand for a jury, upon the face of

h e r responsive pleading in which same was reques ted ,

pursuant to Local Rule 2.02, deprives her of a right to

a jury trial in this case. Further, the court finds that

the issues in this case are not appropriate for a jury

trial.

The court fa iled to ma ke known in its order why the issues

raised in the pleadings "are not appropriate for a jury trial." It

appears from the record that he may have concluded that the trial

o f the case required a "complicated accounting" and thus was not

within the purview of a right to trial by jury in a chancery

action.

Tennessee Code Annotated Section 21-1-103 provides as follows:

Right to trial by jury. — Either party to a suit in

chancery is entitled, upon application, to a jury to try

and determine any material fact in dispute, save in cases
5

involving complicated accounting, as to such accounting ,

and those elsewhere excepted by law or by provisions of

this Code, and all the issues of fact in any proper cases

shall be submitted to one (1) jury. (Emphasis added).

Our Supreme Court in Greene County Union Bank v. Miller , 75

S.W.2d 49 (Tenn. App. 1934) enunciated some o f the factors to be

considered in determining whether the case in question involved a

complicated accounting. The court stated:

I f it is a case for complicated accounting, such

party has no right to demand or have a t rial by ju ry.

T h e foundation of jurisdiction in equity in a case o f

complicated accounts is based upon the inadequacy of the

legal remedy, as where there is an embarrassment in

making proof, the necessity of discovery, or the production of books and papers, or where it would be

difficult, if not impossible, for a jury to unravel the

numerous transactions involved, and justice could not be

done except by employi n g the methods of investigation

peculiar to courts of equity.

Id. at 52

We are of the opinion that the case under consideration does

not fall within that class of cases requiring such a complicated

accounting as contemplated by G r een e . Further, it would appear

from a reading of the statute above cited, a party has a right to

a jury trial on issues other than those relating to a complicated

accounting. In any event , this ca se does not fall within the

exception in the statute relating to complicated accounting.
6

W e will next turn our attention to the denial of a jury trial

because Cross failed to comply with Local Rule 2.02. In Brown v.

Daly , 884 S.W.2d 121 (Tenn. App. 1994), this court reiterated the

principles set out in Craven v. Dunlap , No. 02A01-9202-CH-00027,

1993 WL 137584 (Tenn. App. May 3, 1993):

... In Craven , the issue involved Rule 21(a) of the

Shelby Chancery Court which requires a party requesting

a jury to endorse on the face of the pleading the words

"JURY DEMANDED." Plaintiffs in that case failed to comply

with that rule, and consequently, a jury pan el was not

summoned for the day of trial. The trial was reset, and

the chan cell or agreed not to overrule plaintiffs' jury

demand if plaintiffs wo u l d pay the other litigants'

partial legal expenses incurred during t he delay in

summoning a jury. When they refused to do so, the court

denied plaintiffs' jury demand on the ground tha t they

failed to comply with Local Rule 21(a ). This court

reversed on appeal, stating:

 no rule of court is ever effective to abro gate

or modify a substantive rule of law. The Tennessee

Rules of Civil Procedure are "laws" of this state.

The trial c ourt c ould not limit by rule the means

provided by general law for exercising the right to

trial by jury. 

Craven , No. 02A01-9202-00027, at 5 (citations omitted).

Tennessee Code Annotated § 16-2-511 and Rule 18 of

the Rules of the Supreme {S.W.2d 124} Court vest in the

trial courts the power to adopt local rules. However, the

Tennessee Rules of Civil Procedure are laws of this state

and no rule of court is ever effective to modify or

abrogate a law. See Tennessee Dept. of Human Resources v.

Vaughn , 595 S.W.2d 62, 63 (Tenn. 1980). In light of our

holding in Craven , this court is of the opinion that

Shelby County Chancery Court Rule 21 is null and void ab

initio to the full extent that it conflicts with the

inviolate right to trial by jury as provided by T.R.C.P.

38. We are of the opinion that the chancellor erred in

denying plaintiffs' demand for a jury. ...
7

Brown , at 123 & 124.

W e concur in the opinion in Craven as reiterated in Brown . We

therefore hold that the chancellor erred in denying the defendant's

jury demand in this case. Accordingly, we reverse the judgment of

the trial court and remand the case for a trial by jury in

accord ance with prevailing law. Costs are assessed to the

appellees.

________________________________

 Don T. McMurray, Judge

CONCUR:

________________________________

Herschel P. Franks, Judge

________________________________

Charles D. Susano, Jr., Judge
 IN THE COURT OF APPEALS

AT KNOXVILLE

FIRST CITIZENS BANK OF CLEVELAND, ) BRADLEY CHANCERY

 ) C. A. NO. 03A01-9806-CH-00203

 )

 Plaintiff/Counter-defendant/ )

Appellee )

 )

 )

vs. )

 )

 )

CAROL CROSS ) HON. EARL HENLEY

 ) CHANCELLOR

 Defendant/Counter-Plaintiff/ )

Third-Party Plaintiff/ )

Appellant )

 )

and )

 )

MARYLAND ASSURANCE COMPANY OF )

AMERICA, )

 )

 Defendant )

 )

vs. )

 )

 )

LARRY McSPADDEN, Individually and )

employee/agent for First Citizens )

Bank of Cleveland, )

 )

 Third-Party Defendant/Appellee ) REVERSED AMD REMANDED

JUDGMENT

This appeal came on to be heard upon the record fr om th e

Chancery Court of Bradley County, briefs and argument of counsel.

Upon consideration thereof, this Court is of the opinion that there

was reversible error in the trial court.
2

W e reverse the judgment of the trial court and remand the case

for a trial by jury in accordance with prevailing law. Costs are

assessed to the appellees.

PER CURIAM