702 S.E.2d 573
Va.2010Background
- Whitaker, a longshoreman, sued Heinrich Schepers in Portsmouth Circuit Court for damages from injuries.
- Whitaker sought $74,000 to prevent removal to federal court; removal occurred late and the case was remanded.
- The circuit court denied Whitaker's motion to amend the ad damnum to exceed $75,000, finding bad faith in the $74,000 figure.
- First trial proceeded without a jury based on the circuit court's ruling; verdict entered for $74,000.
- On remand, Heinrich moved to strike a jury demand; Whitaker argued remand gave him right to a jury on damages.
- The circuit court held Whitaker’s waiver was limited to the first trial; a jury trial was conducted on remand, resulting in $5,000,000 for Whitaker, which the Supreme Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Whitaker's waiver of a jury was limited to the first trial. | Whitaker contends waiver covered only the initial trial per record. | Heinrich argues waiver was ongoing for subsequent proceedings upon remand. | Waiver was limited to the first trial. |
| Whether Whitaker was entitled to a jury trial on remand for damages. | Remand on damages restored the jury trial right for damages. | Waiver persisted and barred a jury on remand. | Whitaker was entitled to a jury on remand for damages. |
| Whether Heinrich waived its right to challenge the jury on remand or the issues on appeal. | No waiver by Whitaker; court remand authority preserved jury right. | Waiver doctrine should bar renewed jury demand. | Waiver was limited and Whitaker could demand a jury on remand. |
Key Cases Cited
- Weidman v. Babcock, 241 Va. 40 (1991) (waiver requires knowledge and intent; essential elements of waiver)
- May v. Martin, 205 Va. 397 (1964) (waiver characterized by voluntary choice and intent to relinquish rights)
- Chawla v. BurgerBusters, Inc., 255 Va. 616 (1998) (clear and unmistakable proof required for implied waiver)
- Mitchell v. Commonwealth, 30 Va. App. 520 (1999) (limited waiver governs the period to which it applies)
- Wilson v. Carpenter, 91 Va. 183 (1895) (waiver must plainly appear with knowledge of rights)