IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

November 14, 2002 Session

GWENETH J. FREELS v. EVELYN JONES

Direct Appeal from the Chancery Court for Morgan County

No. 01-67 Hon. Frank V. Williams, III., Judge

FILED JANUARY 13, 2003

No. E2002-00895-COA-R3-CV 

Defendant demanded a jury in Answer but the Trial Judge ruled defendant waived right to a jury

trial. On appeal, we Affirm.

Tenn. R. App. P.3 Appeal as of Right; Judgment of the Chancery Court Affirmed.

HERSCHELPICKENS FRANKS,J., delivered the opinion of the court, in which HOUSTON M.GODDARD,

P.J., and CHARLES D. SUSANO, JR., J., joined.

Billy P. Sams, Oak Ridge, Tennessee, for Appellant.

J. Polk Cooley, Rockwood, Tennessee, for Appellee.

OPINION

In this action defendant filed an Answer denying the allegations contained in the

Complaint and asked for a trial by jury on all issues.

The Judgment entered recites that the Trial Judge heard the evidence and then ruled

on the issues and entered Judgment. Defendant then filed a Motion for a New Trial, alleging that

she had asked for a jury trial in her Answer, but was denied the same over her objection. The Court

denied the Motion and stated defendant had waived her demand for a jury.

Defendant argues that she asked for a trial by jury, but admits that she participated
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in the trial without a jury. She argues, however, that this does not constitute a waiver of her right

to a jury trial. We have no transcript of the evidentiary hearing, nor a record of the proceeding on

the Motion.

Tenn. R. Civ. P. 38 provides that a party has a right to trial by jury, but that right can

be waived by the failure to demand a jury or with both parties’ consent. We have previously held

that a waiver of a jury demand can occur by implication, such as where a party fails to appear at trial,

where a party puts improper issues before the jury causing a mistrial, or where a party allows a nonjury trial to proceed without objection. Beal v. Doe, 987 S.W.2d 41 (Tenn. Ct. App. 1998); Davis

v. Ballard, 946 S.W.2d 816 (Tenn. Ct. App. 1996); Dabora, Inc. v. Kline, 884 S.W.2d 475 (Tenn.

Ct. App. 1994); Elkins v. Berry, 2002 Tenn. App. Lexis 190 (Tenn. Ct. App. March 15, 2002). 

The Elkins case is controlling authority. It involved a party who demanded a jury trial

but then allowed the trial to proceed without a jury, which the Court found to constitute a waiver of

the demand. Elkins quoted from White v. McGinnis, 903 F.2d 699 (9th Cir.1990), to the effect that

"a party's vigorous participation in a bench trial, without so much as a mention of a jury, cannot be

presumed the result of mere inadvertence, but can only be ascribed to knowledgeable relinquishment

of the prior jury demand." 

In this case, defendant was represented by counsel at trial, and no transcript or

statement of the evidence was filed, such that there is no proof to establish that the defendant

objected to proceeding to trial without a jury. The Trial Court found that defendant had waived her

right to a jury trial, and absent any transcript of evidence to show otherwise, this Court must presume

that the evidence would support the Trial Court’s ruling. See Turner v. Turner, 739 S.W.2d 779

(Tenn. Ct. App. 1986). Also see In re Linville, 2000 Tenn. App. Lexis 787 (Tenn. Ct. App. Dec. 7,

2000). Based upon the state of this record and the authority cited, we affirm the Trial Court’s ruling

that the defendant waived her right to a trial by jury.

The cause is remanded with the cost of the appeal assessed to Evelyn Jones.

_________________________

HERSCHEL PICKENS FRANKS, J.