Thomas v Radioshack Corp. (pdf) (Tex.App.- Houston [1st Dist.] Mar. 4, 2010)(Radack)
request for jury trial, motion for continuance properly denied, motion was procedurally inadequate)
Chief Justice Radack    
Before Chief Justice Radack, Justices Alcala and Higley    
01-08-00400-CV  Arva Thomas v. Radioshack Corporation d/b/a Radioshack #8002 and Danica Reyes,
Employee in her Official and Individual Capacity    
Appeal from 11th District Court of Harris County  
Trial Court Judge:
Hon. Mark Davidson   


After the trial court rendered a take-nothing judgment in favor of appellees, Radioshack Corporation and
Danica Reyes, appellant, Arva Thomas, filed this appeal contending that the trial court erred in denying her
(1) request for a jury trial and (2) motion for continuance.  

We affirm.


Thomas’s case was called for trial on July 5, 2007.  It is undisputed that Thomas had neither requested a
jury trial, nor paid a jury fee, prior to the day of trial.  Thomas requested a jury trial in open court, which the
trial court denied.  Alternatively, Thomas requested a motion for continuance, which the trial court also
denied.  The case was then tried, with Thomas refusing to prosecute her case further.  After Thomas put on
no evidence, Radioshack and Reyes moved for a judgment in their favor.  The trial court rendered judgment
that Thomas take nothing on her claims against Radioshack and Reyes.  This appeal followed.


In her first issue on appeal, Thomas contends the trial court erred in denying her request for a jury trial.  We
review a trial court’s refusal to grant a jury trial under an abuse-of-discretion standard.  Mercedes-Benz
Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996).  Rule 216(a) of the Texas Rules of Civil Procedure
states that “[n]o jury trial shall be had in any civil court, unless a written request for a jury trial is filed with the
clerk of the court a reasonable time before the date set for trial of the cause on the non-jury docket, but not
less than thirty days in advance.” Tex.R. Civ. P. 216(a).   Here, Thomas’s request for a jury was made on the
day of trial, not at least thirty days in advance as required by Rule 216(a).

Nevertheless, Thomas argues that she is constitutionally entitled to a jury trial, and that this Court should
conduct a de novo review of the trial court’s denial of a jury trial.  While Thomas may have a constitutional
right to a jury trial, such a right can be waived by failing to comply with Rule 216(a).  See In re Prudential Ins.
Co., 148 S.W.3d 124, 130 (Tex. 2004) (stating that jury trial can be waived if prerequisites of rule 216 not
met).  By not filing her request for a jury trial in a timely manner, Thomas has waived her right to a jury.  

We see no need to depart from the abuse-of-discretion standard.

We overrule issue one.


In issue two, Thomas contends the trial court erred in denying her motion for continuance.  We review the
grant or denial of a motion for continuance for an abuse of discretion. Villegas v. Carter, 711 S.W.2d 624,
626 (Tex. 1986). We will not overrule the trial court’s decision unless the trial court acted unreasonably or in
an arbitrary manner “without reference to any guiding rules and principles.” Beaumont Bank, N.A. v. Buller,
806 S.W.2d 223, 226 (Tex. 1991) (quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42
(Tex. 1985)).

Texas Rule of Civil Procedure 251 provides: “No application for a continuance shall be heard before the
defendant files his defense, nor shall any continuance be granted except for sufficient cause supported by
affidavit, or by consent of the parties, or by operation of law.” Tex R. Civ. P.  251. If a continuance motion
does not comply with Rule 251, we will presume the trial court did not abuse its discretion in denying the
motion. Villegas, 711 S.W.2d at 626; In re Estate of Alexander, 250 S.W.3d 461, 463 (Tex. App.—Waco
2008, pet. denied); Phifer v. Nacogdoches County Cent. Appraisal Dist., 45 S.W.3d 159, 173 (Tex. App.—
Tyler 2000, pet. denied).

Thomas’s oral motion for continuance does not comply with the requirements of Rule 251. See In re Estate
of Alexander, 250 S.W.3d at 463 (concluding oral request for a continuance did not comply with Rule 251);
Phifer, 45 S.W.3d at 173 (same).  Because Thomas did not comply with the requirements of Rule 251, we
cannot say the trial court abused its discretion in denying her request for a continuance. See In re Estate of
Alexander, 250 S.W.3d at 463; Phifer, 45 S.W.3d at 173.

Furthermore, in this case, counsel for both sides were present and ready for trial and discovery had been
completed.  There is no record from the proceedings before the trial court to show upon what grounds a
motion for continuance should have been granted.  Thomas cites no authority to support her argument that
a motion for continuance must be granted when a party neglects to make a timely request for a jury trial and
then moves for a continuance to do so on the day of trial.

We overrule Thomas’s second issue on appeal.


We affirm the judgment of the trial court.

Sherry Radack

                                                           Chief Justice

Panel consists of Chief Justice Radack and Justices Alcala and Higley.