### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Novem ber 14, 200 2 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 Judg e rule d defendant waived right to a jury trial. On appeal, we Affi

rm.
Tenn. R. App. P.3 Appe al as of Right ; Judgme nt of the Cha

ncery Court Affirm

ed.

H ERSCHEL P ICKENS F RANKS , J., delivered the opinion of the court, in which H O US TON M. G ODDARD , P.J., and C HARLES D. S USANO , J R ., J., joined.
Billy P. Sams, Oa

k Ridge, Tenness ee, for

Appellan t. J. Polk Cooley, Rockwood, Tennessee, for Appe llee.

OPINION

In this action defendant filed an Answer deny ing the allegations contained in the Complaint a

nd asked for a tri al by

jury on all issue s. The Judgment entered recites that the Trial Judge hear d 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 de ni ed th e M ot io n a nd st at ed de fe nd an t h ad wa iv ed he r d em an d f or a j ur y.

De fendant

argues that she asked for a tria l by jury , but admits that she participated-2-

in the trial

without a j ury . She arg

ues, howe

ver, tha t this does n ot co nstitute a waiver of her right to a jury trial. We have

no transcript of

the evidentiary he aring, nor a record of the pr oceeding on the Motion. Tenn. R. Civ. P. 38 provides that a party has a rig ht to trial by jury , but that right can be waivedby t

he failu re to dem and a jur

y or with both pa

rties’ consent. We have pr eviously held that a waiver of a jury de

mand can occur by

implication, such as where a party fails to a ppear a t trial, where a party puts improper issues before the jury

causing a mistrial, or where aparty allows a nonjury trial to proceed

without objection. Beal v. Doe , 987 S.W.2d 4 1 (Tenn. Ct. App. 19 98); Davis v. Ballard

, 946 S.W.2d 816 (Tenn. Ct . App. 199 6); Dabora, Inc. v. Kline , 884 S.W.2d 475 (Tenn. Ct. App. 19 94); Elkins v. Berry , 2002 Tenn. App. Lexis 190 (Tenn. Ct. App. March 15, 2002).

The Elkins case is c ontrolling authority . It in

volved a p arty

who demanded a jury

trial butthen allowed the trial

to proce ed withou

t a jury , which the Court fo und to con stitute

a waiver of the demand. Elkins quoted fr om White v. McGin nis , 903 F.2d 699 (9th Cir.1990), to the effect that "a party' s vigorous particip ation in a bench trial, without so much as a mention of a jury , cannot be presumedthe result of mere inadvertence, but can only be ascribed

to knowledgeable relinquishment of the prior j ury demand."

In this case, defendant was represente d by counsel at trial, a nd no transcript or statem ent of the evidence was filed, such that there is no proof to establish that the def endant objectedto proceeding to trial without a jury . The Trial Court found that defendant had waived her right to ajury trial, an d absent a

ny t ranscr ipt of evid ence to s how other

wise, this Court must p

resume that the evidence would su pport the Trial Court’s ruling. See Turner v. Turner , 739 S.W.2d 779 (Tenn. Ct. App. 1986). Also see In re Linv ille , 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 th at th e d ef

en da nt wa iv ed he r r ig ht to a t ri al by j ur y. The cau se is rema

nded with the cost o f the app eal asse ssed to Eve lyn Jones.

_________________________ H ERSCHEL P ICKENS F RANKS , J.