Post Mistrial Bench Submission Waives Jury Errors

Tierney v. Javaid, No. A147221 (D1d3 May 31, 2018)

A jury trial in a real estate dispute resulted in a hung jury, with the jury seemingly stuck on the question of whether Plaintiff had fully performed up to the time of Defendant’s breach. Instead of starting a new trial, Plaintiff asked the trial court to render a bench decision based on the trial record on his demand for specific performance. In doing do, he essentially submitted the factual issues that underlay his breach of contract claim to the court for decision. The court obliged, and issued a statement of decision denying specific performance because Plaintiff, had not, in fact, fully performed. 

On appeal, Plaintiff raises several issues with the way the trial court handled the hung jury. But by asking the court to render a decision, Plaintiff waived those challenges. If he wanted the jury to decide the issues, he should have taken a mistrial and re-tried the case.

Also, in deciding the specific performance issues, the court wasn’t bound by partial findings the jury made in an incomplete special verdict before they hung. While a completed special verdict binds the court on later factual questions that have already been decided by the jury, an incomplete special verdict is not really a verdict at all, so it doesn’t bind anyone.

Affirmed on this issue, but reversed on issues addressed in an unpublished part of the opinion.