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Supreme Judicial Court of Maine.

Donna FERGUSON v. Arlen JACKSON, d/b/a A & J Motors.

Decided: December 30, 1997

Before WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, LIPEZ, and SAUFLEY, JJ. Donna Ferguson, Augusta, plaintiff pro se. Brian P. Winchester, Augusta, for defendant.

[¶ 1] Arlen Jackson, d/b/a A & J Motors, appeals from the judgment of the Superior Court (Kennebec County, Alexander, J.) dismissing his appeal from the judgment entered in a small claims action in the District Court (Augusta, MacMichael, J.) in favor of Donna Ferguson for $2,845.12 plus $35 costs.   Jackson contends that the court incorrectly interpreted his failure to pay the jury fee as a withdrawal of the request for a jury trial and that the court should have given him an opportunity to argue legal issues.   We affirm the judgment.

[¶ 2] Ferguson presented her claim for allegedly defective repairs to her 1989 GMC Jimmy in the small claims action.   In August 1996 the court entered a judgment against Jackson for $2,845.12 plus $35 costs.   After the court filed findings of fact, Jackson appealed and filed the affidavit required by M.R. Small Claims P. 11(d)(2) in support of his request for a jury trial.   On review of the affidavit, the Superior Court found the case in order for trial, directed the clerk to place it on the jury trial list on payment of the $300 jury fee, and ordered the parties to file a report of conference of counsel form within 10 days.

[¶ 3] The parties separately complied within 10 days, but Jackson failed to pay the $300 fee.   The clerk set the case for nonjury trial for February 4 to 27, 1997.   The record reflects that the case was called for trial on February 18, and on review of the file, the court dismissed the appeal.   The court treated the failure to pay the jury fee as a withdrawal of the request for a jury trial.   Pursuant to M.R. Civ. P. 80L(c)(4), on such a withdrawal “the appeal shall be dismissed or proceed on a material question of law.” 1  Jackson, however, had not raised a question of law, nor had he filed a transcript of the small claims hearing.   The rules protect Jackson's right to a jury trial, but do not provide for a second nonjury trial.   As a result, the rules require that the appeal be dismissed.

The entry is:

Judgment affirmed.


1.   M.R. Civ. P. 80L(c)(4) provides:(4) Jury Trial.   An action placed upon a jury trial list shall be tried by jury.   If the defendant withdraws the demand for jury trial in a writing filed with the clerk before the date on which the jury is to be empanelled, or if the court upon its own initiative at any time finds that no right to trial by jury of any issue exists under the Constitution or statutes of the State of Maine, the appeal shall be dismissed or proceed on a material question of law, as provided in paragraph (3) of this subdivision.

ROBERTS, Justice.

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