Court of Appeals hears challenge over whether missed deadline waived jury right in Holmes v. Clallam PUD

Division Two of the Washington Court of Appeals heard oral argument on July 15 over whether a party can be deemed to have impliedly waived its constitutional right to a jury when it lacked notice that a court-entered jury-demand deadline had passed. The case, Cody Holmes v. Clallam County Public Utility District (No. 62112-6), arose from a superior-court ruling that struck Holmes’s untimely jury demand.

Petitioner’s counsel, Ashley Berman, told the three-commissioner panel that the case presents a narrow legal question under article I, section 21 of the Washington Constitution and Civil Rule 38: if a party did not know a court-entered deadline existed, it cannot be said to have voluntarily and knowingly waived the right to a jury. “We submit, particularly given the important constitutional right at stake here, that the answer to that question must be no,” Berman said, arguing that implied waiver must be strictly construed and that the record shows Holmes did not have notice that the March 13 deadline was operative.

Respondent counsel Dave Worley told the court the litigation has been pending for five years and that petitioner never filed a jury demand during the time the case was in superior court. Worley said the parties agreed to stipulated case schedules on multiple occasions, that the court’s March 11 email confirmed receipt of the stipulated schedule, and that the combination of stipulations and the court notice constituted sufficient notice to perfect the jury demand under CR 38(b). “They not only agreed to the date, but were notified by the court that the court was scheduling future dates based on the stipulated case schedule,” Worley said.

The judges pressed both sides on key procedural facts. The panel asked whether a jury demand could have been made in the complaint or later and queried whether approval of a stipulated schedule by counsel is the same as knowledge that a court-entered deadline had become operative. Berman acknowledged that counsel approved the schedules for filing but emphasized that approval for filing is not the same as a clear, court-entered operative deadline that would give the party notice sufficient to waive a constitutional right.

Both sides invoked controlling civil rules and precedent. Berman pointed to case law requiring courts to examine what a party knew on the date it allegedly relinquished a right; Worley cited CR 38(b) and argued that the civil rules require serving, filing and paying for a jury demand before the deadline, and that failure to meet those steps results in waiver except in narrow circumstances.

Worley also raised the procedural posture and interlocutory-review standard, arguing that even if the trial court’s order were erroneous, the issue did not necessarily render further proceedings useless because the same remedies and evidence could be presented at trial. Petitioner’s counsel countered that, if the trial proceeds without a jury and the jury demand later is deemed timely, the case would require retrial before a jury, which is an argument favoring interlocutory review under RAP 2.3(b)(1).

At argument’s end the court took the matter under advisement and said a written ruling would issue as soon as possible. No ruling was announced at the hearing.