Wilson v. Horsley (1999)

We explore each category of cases in turn. ¶28 Starting with the state cases, we note that the Washington Supreme Court has explained that, since a party waiving the right to a jury trial "likely does so without contemplating the possibility of a subsequent trial, the party does not intentionally 'waive' the right to trial by jury in the second trial." Wilson v. Horsley , 974 P.2d 316, 321-22 (Wash. 1999) (emphasis added); see also Tesky v. Tesky, 327 N.W.2d 706, 708-09 (Wis…

Id. at 513 . [¶15] In Wilson v. Horsley, 974 P.2d 316, 322 (Wash. 1999), the court held the declaration of a mistrial revived the party’s right to a jury trial.

See, e.g., MAR 7.1(b); MAR 7.2(b); MAR 8.2; Wilson v. Horsley, 137 Wash.2d 500, 506 , 974 P.2d 316 (1999) ("The question of what issues may be added to the trial de novo is governed by the Civil Rules."); Sorenson v. Dahlen, 136 Wash.App. 844, 851-52 , 149 P.3d 394 (2006), amended on recons., 136 Wash. App. at 859 , 149 P.3d 394 (2007); Stevens v. Gordon, 118 Wash.App. 43, 51 , 74 P.3d 653 (2003).

See, e.g., MAR 7.1(b); MAR 7.2(b); MAR 8.2; Wilson v. Horsley, 137 Wn.2d 500, 506 , 974 P.2d 316 (1999) (“The question of what issues may be added to the trial de novo is governed by the Civil Rules.”); Sorenson v. Dahlen, 136 Wn.

Under Washington Rule 15(a), leave to amend a pleading “shall be freely given when justice so requires.” CRLJ 15(a); see also Wilson v. Horsley, 137 Wash.2d 500 , 974 P.2d 316, 319 (1999) (discussing liberal amendment policy under the identically worded CR 15(a)).

See id. at 507 , 974 P.2d 316 .

See Wilson v. Horslev. 137 Wn.2d 500, 507 , 974 P.2d 316 (1999) (raising new issues on the eve of trial is considered unfair surprise); id. at 515 (Sanders, J., concurring in part/dissenting in part) (stating that an amendment should be allowed when it seeks only to assert a new legal theory based upon the same circumstances set forth in the original pleading); Herron, 108 Wn.2d at 165 ("The factors a court may consider in determining prejudice include undue delay and unfair…

App. 88, 92 , 645 P. 2d 1136 1982 ); see also Wilson v. Horsley, 137 Wn.2d 500, 507 , 974 P. 2d 316 ( 1999) ( request to amend on eve of trial supported denial of leave to amend).

See Wilson v. Horsley, 137 Wn.2d 500, 509 , 974 P.2d 316 (1999). ¶31 Under RCW 4.40.060, “[a]n issue of fact, in an action for the recovery of money only . . . shall be tried by a jury, unless a jury is waived.” And, there is a right to a jury trial where the civil action is purely legal in nature.

See Wilson v. Horsley, 137 Wn.2d 500, 505 , 974 P.2d 316 (1999); Turner v. Stime, 153 Wn.

See Wilson v. Horsley, 137 Wash.2d 500, 511 , 974 P.2d 316 (1999). [17] The Saldivars cite numerous decisions from other states supporting their argument that the right to a jury trial is "revived" by amending a pleading to include new issues or facts.

See Wilson v. Horsley, 137 Wn.2d 500, 511 , 974 P.2d 316 (1999).

See Wilson, 137 Wash.2d at 506 , 974 P.2d 316 (MAR 7.2(b) prohibits only reference to arbitration when considering merits and does not address consideration of procedural matters pending trial de novo).

See Wilson v. Horsley, 137 Wn.2d 500, 510 , 974 P.2d 316 (1999) (discussing waiver of right to jury trial).