This memorandum opinion was not selected for publi cation in the New Mexico Reports. Please see 1 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 2 also note that this electronic memorandum opinion may contain computer-generated errors or other 3 deviations from the official paper version file d by the Court of Appeals and does not include the 4 filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 ERNEST DURAN and LUELLA 7 DURAN, Husband and Wife, 8 Third-Party Plaintiffs/Appellants, 9

v. NO. 30,067 10 CARISBROOK, INC., a New Mexico 11 corporation, 12 Third-Party Defendant/Appellee. 13 APPEAL FROM THE DISTRICT COURT OF COLFAX COUNTY 14 Sam B. Sanchez, District Judge 15 De Stefano Law Firm, P.C. 16 Richard De Stefano 17 Taos, NM 18 for Appellants 19 Alsup Law Office 20 Gary D. Alsup 21 Clayton, NM 22 for Appellee 23 MEMORANDUM OPINION 24 FRY, Judge. 252 In this property dispute, Third-party Pl aintiffs Ernest and Luella Duran relied 1 on a jury demand filed by a third-party de fendant, who was dismissed from the case 2 on the day that the trial was to begin beforea jury. The district court advised the 3 Durans and the remaining thir d-party defendant that the issues between them would 4 proceed to a bench trial because the onl y party who had demanded a jury was no 5 longer in the case. Relying on Juneau v. Intel Corp. , 2006-NMSC-002, ¶ 31, 139 6 N.M. 12, 127 P.3d 548, we conclude that the district court abused its discretion in 7 denying the Durans a jury trial and reverse. 8 BACKGROUND 9 This case arose from a dispute between adjoining property owners, Dan and 10 Colleen Johnson, who owned Lot 9 of the re levant subdivision, and the Durans, who 11 owned Lot 8. The Johnsons sued the Durans, seeking an injunction and damages for 12 trespass. The Durans filed an answer, a counterclaim seeking to quiet title, and a 13 third-party complaint against Carisbrook, Inc ., which was the grantor of both lots, and 14 against Sam Minor and Minor Constructi on (collectively, Minor), who was the 15 contractor who installed the Durans’ septic system. In the third-party complaint, the 16 Durans asserted claims against Carisb rook for quiet title, indemnity, and damages, 17 while they asserted claims for indemnityand damages against Minor. Only Minor 18 timely filed a jury demand. 193 The parties and the district court preparedthe case as one to be tried to a jury, 1 as evidenced by the court’s scheduling order, in which it imposed deadlines for the 2 submission of jury instructions, and by the parties’ filing of requested jury 3 instructions. Shortly before trial, the Du rans and the Johnsons se ttled, and the district 4 court dismissed the Johnsons’ claims and the Durans’ counterclaims. Just days before 5 trial, the Durans settled with Minor, and the district court dismissed the claims against 6 Minor on the day the trial was scheduled to begin. 7 On the same day, potential jurors were assembled, and the remaining 8 parties—the Durans and Carisbrook—were rea dy to proceed to trial. The district 9 court announced to the parties’ attorneys that it was going to proceed with a bench 10 trial rather than a jury trial because only Minor had de manded a jury and Minor was 11 out of the case. The Durans’ attorney, Richard De Stefano, requested that they 12 proceed with a jury trial because everyone ha d prepared for a jury trial. De Stefano 13 argued that when a party reque sting a jury is no longer in a case, the case is tried to 14 a jury unless all of the remaining parties ag ree to a bench trial. Carisbrook’s attorney, 15 Gary Alsup, stated that he and De Stefano had discussed the matter, that it was clear 16 that the Durans wanted a jury trial, and that Alsup had invested some time in 17 preparing jury instructions, but that it wa s fine with Carisbrook if the case proceeded 18 without a jury. De Stefano suggested that there was a time period following the 194 departure of Minor during which the Durans should be allowed to request a jury. The 1 district court rejected this suggestion, stat ed that the Durans should have filed a jury 2 demand when they filed their answer, and ruled that the case would proceed as a 3 bench trial. 4 The case proceeded to trial, and the district court found in favor of Carisbrook. 5 The Durans filed the present appeal and make several arguments for reversal of the 6 district court’s judgment. We need not address all of their arguments because we 7 conclude that the district court abused its discretion when it denied the Durans’ 8 request for a jury trial. 9 DISCUSSION 10 The Durans argue that they were entitle d to rely on the jury demand filed by 11 Minor and that the district court’s sua sponte denial of a jury on the morning of the 12 trial was a misapplication of Rule 1- 038 NMRA that we should review de novo. 13 Carisbrook contends that the Durans were not entitled to rely on Minor’s demand and 14 that, consistent with Rule 1-039(A) NMR A, we should review the court’s denial of 15 their untimely request for a jury under an abuse-of-discretion standard. 16 We need not address the Durans’ argument that they were entitled to rely on 17 Minor’s jury demand. Assuming the Durans ’ request for a jury trial was not timely, 18 we conclude that the district court abusedits discretion in de nying the Durans’ request 195 for a jury trial after the court announced th at the case would pro ceed as a bench trial. 1 Where an untimely jury demand is made, th e governing rule is Rule 1-039(A), which 2 provides that “notwithstanding the failure of a party to demand a jury in an action in 3 which such a demand might have been madeof right, the court in its discretion upon 4 motion may order a trial by a jury of any or all issues.” See Juneau , 2006-NMSC-002, 5 ¶ 31 (stating that if a jury demand is not timely made, the appellatecourts review for 6 abuse of discretion.). 7 The Durans argue that if the standard of review is abuse of discretion, then the 8 district court abused its discretion when it denied the request for a jury trial minutes 9 before the anticipated jury trial was set to begin. We agree because we discern no 10 meaningful difference between the circum stances in the present case and those in 11 Juneau , where our Supreme Court held that th e denial of an untimely request for a 12 jury trial constituted an abuse of discretion. 2006-NMSC-002, ¶ 37. 13 In Juneau , the plaintiff filed a complain t under the Human Rights Act (HRA) 14 in state court, but he did not request a jury. Juneau , 2006-NMSC-002, ¶ 28. The 15 defendant removed the cas e to federal court. Id. The plaintiff then filed a separate 16 claim in federal court under Title VII of th e 1964 Civil Rights Act, in which he filed 17 a request for a jury. Juneau , 2006-NMSC-002, ¶ 29. The federal court consolidated 18 the two claims and placed them on the docket for a jury trial. Id. The federal court 196 then dismissed the Title VII claim and re manded the HRA complaint to state court. 1 Juneau , 2006-NMSC-002, ¶ 29

. The plaintiff filed a jury demand in state court about 2 six weeks later, and the district court de nied the request because it was untimely. Id. 3 Our Supreme Court in Juneaustated that a district court facing an untimely jury 4 demand should consider several factors before deciding whether to permit a jury trial. 5 Id. ¶ 34. The Court noted that courts in other jurisdictions have considered whether 6 the parties and the court had assumed thatthe case would be tried to a jury, “the 7 reasons for the delay, whether the issues are suitable for a jury, whether granting the 8 motion would result in disruption for the c ourt or the opposing party, and whether the 9 opposing party would be prejudiced.” Id. ¶ 33. The Court went on to note that “it is 10 not just a question of whether [the p]lainti ff had an ‘opportunity’ to request a jury[.] 11 Other factors, including the reason for the delay and whether prejudice will result, 12 must be considered in order to constitu te the proper exercise of discretion.” Id. ¶ 34. 13 Assessing these factors in the Juneaucase, the Court notedthat there was no 14 real need for the plaintiff to file a jury demand because the defendant had removed the 15 case to federal court before it filed an an swer, and the consolid ation of the removed 16 case with the Title VII case in federal c ourt resulted in a setting for a jury trial. 17 Juneau , 2006-NMSC-002, ¶ 35. “Ajury demand would have been perfunctory and 18 unnecessary.” Id. Once the Title VII case was dismissed and the original HRA case 197 was remanded to state court, the plaintiff’s six-week delay in demanding a jury “[did] 1 not seem unreasonable.” Juneau , 2006-NMSC-002, ¶ 36. The defendant was not 2 prejudiced because it “appear[ed] to have b een aware all along that a jury trial was not 3 only anticipated but in fact scheduled, at least while the case remained in federal 4 court.” Id. 5 In conclusion, the Court in Juneaudetermined that, under the circumstances, 6 the district court abused its discretion indenying the plaintiff’s admittedly untimely 7 jury request, “given the fundamental importan ce of a jury trial inour jurisprudence.” 8 Id. ¶ 37. The denial appeared “arbitrary and unfair to [the p]laintiff.” Id. 9 We discern no meaningful distinction between the circumstances in Juneau and 10 those in the present case. As in Juneau , the Durans did not file a timely jury demand, 11 and yet the parties and the court viewed the case as one that would be tried to a jury 12 from the time Minor filed his jury demand in July 2008 until the morning of trial on 13 June 15, 2009. In fact, the circumstances in this case are even more compelling than 14 those in Juneaubecause the potential jurors were assembled, the parties had submitted 15 requested jury instructions, and the attorney s were poised to select a jury when the 16 district court sua sponte informed them th at it would be releasing the jurors and 17 conducting a bench trial. As a result, there would have been no prejudice to 18 Carisbrook to continue with the anticipated jury trial. Therefore, consistent with the 198 holding in Juneau , we conclude that the district c ourt abused its discretion in denying 1 the Durans’ request to continue with the anticipated jury trial. 2 Carisbrook argues that if denial of the jury request was error, it was harmless 3 error because the district court would have been required to direct a verdict in favor 4 of Carisbrook if the case had been tried to a jury. We disagree. 5 Rule 1-061 NMRA states the harmless erro r rule in the context of a civil case: 6 No error or defect in any ruling or order or in anything done or omitted 7 by the court or by any of the parties is ground for granting a new trial or 8 for setting aside a verdict or for vacating, modifying or otherwise 9 disturbing a judgment or order, unless refusal to take such action appears 10 to the court inconsistent with substan tial justice. The court at every stage 11 of the proceeding must disregard any error or defect in the proceeding 12 which does not affect the substantial rights of the parties. 13 We cannot say that the district court’s elev enth-hour denial of the Durans’ jury request 14 constituted harmless error, given our Supreme Court’s emphasis in Juneauon “the 15 fundamental importance of a jury trial in our jurisprudence.” Id. ¶ 37. And we cannot 16 say that Carisbrook would have been entitled toa directed verdict if the case had been 17 tried to a jury because it appears thatthe evidence presented was conflicting. 18 CONCLUSION 19 For the foregoing reasons, we reverse th e district court’s judgment and remand 20 for a new trial before a jury. 21 IT IS SO ORDERED. 229 1 CYNTHIA A. FRY, Judge 2 WE CONCUR: 3

4 MICHAEL E. VIGIL, Judge 5

6 TIMOTHY L. GARCIA, Judge 7