concurring.
I concur in the result reached by my colleague writing for the majority. However, I feel constrained to add my interpretation of the rules to this muddled controversy.
Rule 39.02, Tennessee Rules of Civil Procedure, provides that “(i)ssues not demanded by trial by jury as provided in Rule 38 shall be tried by the court . . . .” As used in statutes, contracts, or the like, this word is generally imperative or mandatory, Black’s Law Dictionary, Fourth Edition, page 1541, citing numerous cases. In common parlance, the word shall is a word of command and one which denotes obligation.
It would appear then that when both parties waive the right to a jury trial the matter must be tried by the Court. It is not a matter of discretion, it is an obligation that falls upon the Court. The obligation of the judiciary to try the issues in lawsuits, as tough as that obligation sometimes is, cannot be shifted to the jury where a trial by the Court is specifically sought.
The second clause of Rule 39.02 is not applicable here, for that clause addresses itself to the situation where a party has neglected to demand a jury through inadvertence or neglect. This situation is totally different from that envisioned by this clause. The situation is also different from that in the case of Caudill v. Mrs. Grissom’s Salads, Inc., 541 S.W.2d 101 (Tenn.Sup.Ct.1976). In that case, the Plaintiff filed his complaint and demanded a jury. Prior to any responsive pleading, he filed an amendment deleting the last paragraph (which contained the jury demand) and inserting a new one, changing the amount of damages demanded. No reference to a jury demand was made in the amended complaint. The Defendants sought a jury trial. The Court overruled the Defendants’ motion for a trial by jury and heard the case without a jury. After a verdict in favor of the Plaintiff, the Court of Appeals, as in this case, wrote three separate opinions, and reversed and remanded the case for trial by jury. The Supreme Court, with one Justice dissenting, found an abuse of discretion by the trial judge and affirmed the action of the Court of Appeals. Justice Henry in his dissent found that the Defendants’ counsel had simply failed to correctly “read, analyze, digest, study and respond” to the amended complaint, and that there was no abuse of discretion by the trial judge in failing to order a jury trial. 541 S.W.2d 101 at 106, 107.
The distinction between that case and this case is obvious. In the Mrs. Grissom’s case, one party wanted a jury and the other did not. The issue revolved around the interpretation of the amended complaint. In this case, both parties have indicated by means of an agreed order that they wanted a bench trial. The very able and respected trial judge refused to sign the order and impaneled a jury.
The parties, through their counsel, should be free to pursue their trial strategy unfettered by the trial judge. Why both the land owner and the state did not want a jury trial in a condemnation case is a matter of conjecture. However, it is not a matter of concern to the Court. If they want a bench trial they are, under the rule, entitled to one.
For the reasons stated, I concur.