When this matter was scheduled for jury trial on February 27, 1997, several non-governmental defendants had been joined in the action, but had never been served. On February 20, 1997, the Orleans Parish School Board moved to vacate the jury trial, citing La.Rev.Stat. 13:5105, and the trial judge struck the jury trial.

The court of appeal erred in reinstating the jury trial on the basis that the Board had waived its rights under Section 5105. Perhaps the court of appeal was correct in observing that the Board would have waived its Section 5105 rights by not raising the prohibition until after the action was tried by jury. However, the Board raised the issue pretrial, and the trial judge, by striking the jury, apparently was satisfied that the timing of the motion to strike did not disrupt her docket.

Accordingly, the judgment of the court of appeal is set aside, and the judgment of the trial court striking the jury is reinstated.