[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as 

Estate of Tomlinson v. Mega Pool Warehouse, Inc., Slip Opinion No. 2024-Ohio-1065.]

 

NOTICE

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published.

SLIP OPINION NO. 2024-OHIO-1065

ESTATE OF TOMLINSON, APPELLEE, v. MEGA POOL WAREHOUSE, INC., ET AL.,

APPELLANTS.

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as Estate of Tomlinson v. Mega Pool Warehouse, Inc., Slip 

Opinion No. 2024-Ohio-1065.]

Civil law—Civ.R. 38—Civil-jury-trial demands—Trial court’s local rule did not 

require each party seeking a jury trial to pay a jury deposit—Under 

Civ.R. 38(D), a party may not unilaterally withdraw a jury demand—Court 

of appeals’ judgment reversed and cause remanded to trial court.

(No. 2023-0230—Submitted November 14, 2023—Decided March 26, 2024.)

APPEAL from the Court of Appeals for Delaware County,

No. 22 CAE 03 0020, 2023-Ohio-229.

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DETERS, J.

{¶ 1} Katherine Tomlinson1filed a complaint in the Delaware County Court 

of Common Pleas against Mega Pool Warehouse, Inc., and its president, Stephen 

Gold (collectively, “Mega Pool”), regarding the installation of a swimming pool 

and a deck. She included with her complaint a jury demand, and she later paid a 

$500 jury deposit, which was required by a local rule of the trial court.

{¶ 2} Eventually, Tomlinson withdrew her request for a jury trial; but Mega 

Pool still wanted a jury trial. The trial court determined that Mega Pool had waived 

its right to a jury trial because it had not paid a $500 jury deposit under the local 

rule, and the Fifth District Court of Appeals affirmed that judgment. But those

courts’ interpretation of the local rule conflicts with Civ.R. 38(D). Under Civ.R. 

38(D), once a jury demand has been perfected under Civ.R. 38, it can be withdrawn 

only upon consent of all the parties. Mega Pool never consented to the withdrawal 

of the jury demand, so the trial court erred when it denied Mega Pool’s request for 

a jury trial. We therefore reverse the judgment of the Fifth District.

I. BACKGROUND

{¶ 3} In June 2018, Tomlinson filed a lawsuit against Mega Pool regarding 

the installation of a swimming pool and a deck. In her complaint, Tomlinson 

alleged breach of contract, breach of warranty, negligent workmanship, and 

violations of the Consumer Sales Practices Act, R.C. 1345.01 et seq. The specifics 

of Tomlinson’s claims are not relevant to this appeal. What is relevant is that 

Tomlinson included with her complaint a jury demand and that, in July 2019, she 

paid a $500 jury deposit as required by Loc.R. 25.04 of the Delaware County Court 

of Common Pleas. Mega Pool did not separately request a jury trial or pay a jury

deposit.

1. Tomlinson died while this matter was pending, and her estate was substituted as the plaintiff. The 

appellee here is thus the Estate of Katherine Tomlinson, which is referred to herein as “Tomlinson.”
January Term, 2024

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{¶ 4} The trial was rescheduled several times. A magistrate of the trial court 

held a teleconference with the parties on March 24, 2020. At that time, the 

magistrate told the parties that because of the COVID-19 pandemic, the jury trial 

then scheduled for May 5, 2020, would have to be rescheduled. The trial was 

rescheduled for September 8, 2020.

{¶ 5} The magistrate held another teleconference with the parties on July 

20, 2020, after which the magistrate issued an entry stating that “the [m]agistrate 

discussed with the parties whether there had been any movement toward settlement, 

as well as whether a jury trial was still necessary or whether the matter could be 

resolved by a bench trial.” Regarding the jury-trial issue, counsel for Mega Pool 

expressed that Mega Pool wanted a jury trial. But Mega Pool had not paid a jury 

deposit. The magistrate told the parties that because of the pandemic, it was 

unlikely that a jury trial could be held on September 8, as criminal jury trials would 

be given scheduling priority. The magistrate suggested that if the parties agreed, it 

might be possible to conduct a bench trial on September 8. According to the 

magistrate’s entry, Tomlinson’s counsel “indicated [that Tomlinson] would be open 

to this idea” but Mega Pool’s counsel wanted to discuss the issue with Mega Pool. 

The magistrate rescheduled the jury trial for January 26, 2021. Additionally, the 

magistrate ordered “the parties [to] notify the Court on or before August 3, 2020 

whether they would be willing to waive jury trial and conduct a bench trial on 

September 8, 2020.” (Boldface and underlining deleted.)

{¶ 6} On July 28, 2020, the magistrate emailed the parties to let them know 

that the court could “go forward with a trial on September 8 with a visiting judge.” 

The magistrate told the parties, “It is the Court’s understanding that because [Mega 

Pool] has not made a timely jury deposit as required by local rule, this would be a 

bench trial; however, if [Tomlinson] does not object to a late jury deposit, we could 

hold a jury trial on [September 8].”
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{¶ 7} Mega Pool filed a “Motion to Maintain January 26, 2021 Jury Trial,”

arguing that it had not waived its right to a jury trial and that Tomlinson could not 

withdraw her jury demand without its consent. Mega Pool also requested that the 

court maintain the January 26, 2021 jury-trial date rather than proceed with a trial 

on September 8, 2020. Tomlinson opposed Mega Pool’s motion, explaining that

“[p]rior to the September 24, 2019, trial date, [she] intended to try her case to a 

jury, and at that time she submitted a jury deposit in compliance with the local rules

[but she] no longer wishes to exercise her right to a jury trial, and intends to seek a 

refund of that deposit.” In Tomlinson’s view, because Mega Pool had not paid the 

jury deposit required by Loc.R. 25.04, it had waived its right to a jury trial. 

Tomlinson also objected to Mega Pool’s request to continue the trial date to 

January 26, 2021. In denying Mega Pool’s motion, the court explained that because 

Mega Pool had not paid a jury deposit under the local rule, it had waived its right 

to a jury trial. The court also denied Mega Pool’s request to continue the trial date.

{¶ 8} The case was tried to the bench on September 8 and 9, 2020. The trial 

court entered verdicts in favor of Tomlinson on her claims for breach of contract, 

breach of warranty, and violations of the Consumer Sales Practices Act and 

awarded Tomlinson damages and attorney fees. After the trial court denied Mega 

Pool’s motion for a new trial, Mega Pool appealed to the Fifth District Court of 

Appeals.

{¶ 9} On appeal to the Fifth District, Mega Pool challenged the applicability 

of the Consumer Sales Practices Act to the case, challenged the awards of costs and 

attorney fees under the Consumer Sales Practices Act, and argued that the trial court

had denied its right to a jury trial. The court of appeals affirmed the trial court’s 

judgment in part and reversed it in part. 2023-Ohio-229, 206 N.E.3d 853, ¶ 48. 

Relevant here, it concluded that the trial court had not erred in denying Mega Pool’s 

motion for a jury trial. Id. at ¶ 41-47. The court of appeals agreed with the trial 

court that Mega Pool was not permitted to “ ‘piggyback’ ” on Tomlinson’s jury 
January Term, 2024

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deposit and was required to pay its own deposit to invoke its right to a jury trial. 

Id. at ¶ 46.

{¶ 10} Mega Pool appealed to this court, and we accepted its appeal on one

proposition of law: “A civil litigant’s constitutional right to a jury trial is violated 

where a trial court’s local rule permits a party to withdraw a demand for a jury trial 

without consent of the parties.” See 170 Ohio St.3d 1428, 2023-Ohio-1665, 209 

N.E.3d 713.

II. ANALYSIS

{¶ 11} Mega Pool contends that it was deprived of its right to a jury trial 

because Loc.R. 25.04 of the Delaware County Court of Common Pleas permitted 

Tomlinson to unilaterally withdraw her jury demand. But the language of 

Loc.R. 25.04 itself does not address withdrawal of a jury demand. Instead, the 

lower courts interpreted the rule to require payment of a jury deposit by each party 

seeking a jury trial and to allow unilateral withdrawal of a jury demand. That

interpretation is not supported by the language of the rule and conflicts with 

Civ.R. 38.

A. Civil-jury-trial demands

{¶ 12} To invoke the right to a jury trial, the party seeking a jury trial must 

serve a jury demand on the other party or parties “not later than [14] days after the 

service of the last pleading directed to such issue.” Civ.R. 38(B). For parties to a 

case in the Delaware County Court of Common Pleas, Loc.R. 25.04 imposes an

additional requirement: “If a party is seeking a jury trial in a civil case, the party 

must submit a $500 jury deposit to the clerk of courts at least 60 days prior to the 

scheduled trial date. If the case is resolved after the jury has been assembled, the 

deposit will be retained by the court. Failure to make the jury deposit will be 

deemed as a waiver of the jury.” We have held that a local rule requiring a jury 

deposit is “a moderate and reasonable regulation of the right of trial by jury, and is 
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not an impairment of that right.” Walters v. Griffith, 38 Ohio St.2d 132, 133, 311 

N.E.2d 14 (1974).

{¶ 13} There is no question that Tomlinson properly invoked her right to a 

jury trial. She complied with both Civ.R. 38(B) and Loc.R. 25.04. She included 

with her complaint a jury demand, and as required by Civ.R. 38(B), the caption of 

the complaint stated, “JURY DEMAND ENDORSED HEREON” (boldface, 

capitalization, and underlining sic). The question is what was the legal effect of 

her decision to withdraw her demand for a jury trial. Both the trial court and the 

court of appeals determined that Tomlinson was permitted to unilaterally withdraw 

her jury demand because Mega Pool had not paid a $500 jury deposit as required 

by Loc.R. 25.04.

B. Loc.R. 25.04 does not require each party seeking a jury trial to pay a jury 

deposit

{¶ 14} Tomlinson maintains that the issue in this case is not whether she 

was legally permitted to unilaterally withdraw her jury demand but whether Mega 

Pool was required to pay its own jury deposit to invoke its right to a jury trial. In 

her view, once she withdrew her jury deposit, no jury demand remained, because 

Mega Pool had not paid a $500 jury deposit. The trial court and the court of appeals 

agreed with that contention, concluding that if Mega Pool had wanted a jury trial, 

it should have paid its own deposit. See 2023-Ohio-229, 206 N.E.3d 853, at ¶ 46.

{¶ 15} For Tomlinson’s contention to be correct, we would have to read 

Loc.R. 25.04 to mean that each party to a case who wants to invoke its right to a 

jury trial must pay a jury deposit. But Loc.R. 25.04 refers to “a party [who] is 

seeking a jury trial” and “the party [who] must submit a $500 jury deposit.” 

(Emphasis added.) To find a requirement in the rule that each party seeking a jury 

trial must pay a jury deposit would add language to the rule that is not there. Once 

a party perfects a jury demand, the right to a jury trial is secured for all the parties.
January Term, 2024

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C. A party may not unilaterally withdraw a jury demand

{¶ 16} The lower courts’ conclusion not only wrongly reads Loc.R. 25.04 

to require each party seeking a jury trial to pay a jury deposit but also would allow 

a party to unilaterally withdraw a jury demand. That conclusion conflicts with 

Civ.R. 38(D), which provides that “[a] demand for trial by jury made [under Civ.R. 

38] may not be withdrawn without the consent of the parties.” See also 

Civ.R. 39(A).

{¶ 17} During oral argument, counsel for Tomlinson maintained that 

Tomlinson did not unilaterally withdraw her jury demand but instead simply 

withdrew her jury deposit. That claim, however, is not borne out by the record. No 

request to withdraw Tomlinson’s jury deposit was filed. And according to the trialcourt docket, the deposit was not refunded to Tomlinson until January 10, 2022—

three days after the trial court entered final judgment in the case. True, no 

withdrawal of Tomlinson’s jury demand was filed. Rather, she stated in her 

memorandum in response to Mega Pool’s motion to maintain the January 26, 2021 

jury-trial date that she no longer wished to exercise her right to a jury trial. It 

appears that the trial court treated this as Tomlinson’s withdrawal of her jury 

demand. And allowing that withdrawal without Mega Pool’s consent violated 

Civ.R. 38(D).

III. CONCLUSION

{¶ 18} Once Tomlinson filed a jury demand and paid the jury deposit 

required by the trial court’s local rule, she could not withdraw the demand without 

Mega Pool’s consent. Mega Pool was not required to pay an additional jury deposit. 

We therefore reverse the judgment of the Fifth District Court of Appeals and 

remand the case to the trial court for further proceedings.

Judgment reversed

and cause remanded to the trial court.
SUPREME COURT OF OHIO

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KENNEDY, C.J., and FISCHER, DEWINE, DONNELLY, STEWART, and 

BRUNNER, JJ., concur.

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Hahn, Loeser & Parks, L.L.P., Marc J. Kessler, Michael R. Reed, and Elisé

K. Yarnell, for appellee.

Young & Alexander Co., L.P.A., Jonathon L. Beck, Natalie M. E. Wais, 

and Anthony V. Graber, for appellants.

Janson & Riesen, L.L.C., and Kent D. Riesen, urging reversal for amicus 

curiae, Ohio Association of Civil Trial Attorneys.

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