Waiver of Jury Trial

"(a) Right preserved. The right of trial by jury as declared by the constitution or as given by statute shall be preserved to the parties.

(b) Demand. Any party may demand a trial by jury of any issue triable of right by a jury by paying the statutory jury fee and serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 14 days after the service of the last pleading directed to such issue. Such demand may be endorsed upon a pleading of the party.

(c) Same: specification of issues. In his demand a party may specify the issues which he wishes so tried; otherwise he shall be deemed to have demanded trial by jury for all the issues so triable. If he has demanded trial by jury for only some of the issues, any other party, within 14 days after service of the demand or such lesser time as the court may order, may serve a demand for trial by jury of any other or all of the issues of fact in the action.

(d) Waiver. The failure of a party to pay the statutory fee, to serve a demand as required by this rule and to file it as required by Rule 5(d) constitutes a waiver by him of trial by jury. A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties. (URCP 38)

In capital cases the right of trial by jury shall remain inviolate. In capital cases the jury shall consist of twelve persons, and in all other felony cases, the jury shall consist of no fewer than eight persons. In other cases, the Legislature shall establish the number of jurors by statute, but in no event shall a jury consist of fewer than four persons. In criminal cases the verdict shall be unanimous. In civil cases three-fourths of the jurors may find a verdict. A jury in civil cases shall be waived unless demanded. (Utah Const. Art. I § 10)

In Aspenwood, LLC v. C.A.T., LLC, 2003 UT App 28, ¶ 42, 73 P. 3d 947, the Utah Court of Appeals addressed the issue of an untimely demand for a jury trial and held that "the trial court did not abuse its discretion in determining that [the party] waived its right to a jury trial because, having notice that the trial was set before the bench, [it] failed to object until the eve of trial." However, courts are allowed to exercise discretion in ordering a jury trial even when there has been a waiver by failure to make a timely demand. Utah R. Civ. P. 39(b). See also James Mgf. Co. v. Wilson, 15 Utah 2d 210, 390 P.2nd 127 (1964). Rule 39(b) states, in pertinent part, that "notwithstanding the failure of a party to demand a jury in an action in which such a demand might have been made of right, the court in its discretion upon motion may order a trial by a jury of any or all issues." In Megadyne Medical Prods. V. Aaron Medical Indus., 170 F.R.D. 28 (D. Utah 1996), the court granted the Rule 39(b) request where the opposing party failed to show actual or real prejudice. In a more recent Utah Court of Appeals case, Pete v. Youngblood, 141 P.3d 629 (Utah Ct. App. 2006), the plaintiff had intended to file a jury demand within ten days but did not do so since she was in discussions with one of the defendants regarding dismissal of the claim. The plaintiff argued that these discussions created a justifiable excuse for failing to make a jury demand within ten days. The Utah Court of Appeals held that it would not overturn the lower court's decision to deny a jury trial where there was no abuse of discretion and "when the failure to make a timely jury demand results from nothing more than the mere inadvertence of the moving party." Youngblood at 640-41, quoting Nissan Motor Corp. in U.S.A. v. Burciaga, 982 F.2d 408, 409 (10th Cir. 1992). The Utah Court of Appeals reaffirmed that it is within the trial court's discretion to order or deny a trial by jury, and inadvertence of the moving party is not a compelling reason to order a jury trial.

There are no Utah cases on the issue of whether or not jury waiver clauses in a lease are enforceable. However, the common practice is to disclose such waivers in a conspicuous manner.