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When defendant answered the complaint it alleged the dispute was subject to arbitration and asked for a jury trial. After four months of discovery, Defendant moved to compel arbitration. The trial court denied the motion ruling that Defendant could not withdraw its jury demand without Plaintiffs' consent. On appeal, the court found that Defendant could make alternative demands in its complaint without running afoul of Tenn. R. Civ. Pro. 38.05 because when the answer was filed it did not know whether the arbitration provision would be enforceable. Decided: August 30, 2006.
Note: Tenn. R. Civ. P. 38.05 provides: The failure of a party to make demand as required by this rule constitutes a waiver by the party of trial by jury. A demand for trial by jury as herein provided may not be withdrawn without the consent of all parties as to whom issues have been joined.
Opinion at: http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/063/SloanSOPN.pdf
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