law-jury-trial-right | jury waiver | waiver of right to jury trial via arbitration agreement | waiver by failure to
demand jury trial and pay jury fee in a timely manner |
The right of trial by jury shall remain inviolate. The Legislature shall pass such laws as may be
needed to regulate the same, and to maintain its purity and efficiency. Tex. Const. art. I, § 15
To obtain a jury trial, a party must generally make a written request no less than thirty days before
the date set for trial and pay the jury fee. TEX.R. CIV. P. 216. By the terms of rule 216, a party may
waive its right to a jury if the party makes the request after the case is certified for trial and less
than 30 days before trial. See Wright v. Brooks, 773 S.W.2d 649, 651 (Tex.App.-San Antonio
1989, writ denied).
Williams v. Williams, 19 S.W.3d 544, 546 (Tex.App.-Fort Worth 2000, pet. denied) (holding not an
abuse of discretion to deny jury request made on first day of hearing).
The denial of a party’s constitutional right to trial by jury constitutes reversible error. See McDaniel
v. Yarbrough, 898 S.W.2d 251, 253 (Tex. 1995); see also Wittie v. Skees, 786 S.W.2d 464, 465
(Tex. App.—Houston [14th Dist.] 1990, writ denied) (timely and appropriate jury demand entitles
party to absolute right to a jury trial). A denied jury request is harmless error only if the record
shows that no material issues of fact exist and an instructed verdict would have been justified.
Halsell v. Dehoyos, 810 S.W.2d 371, 372 (Tex. 1991).
BUT RIGHTS CAN BE WAIVED: ARBITRATION AND WAIVER OF JURY TRIAL
When a party agrees to have a dispute resolved through arbitration rather than a judicial proceeding, that
party has waived its right to a jury trial. Massey v. Galvan, 822 S.W.2d 309, 318 (Tex. App.—Houston
[14th Dist.] 1992, writ denied) (holding appellants could not claim they were entitled to jury trial after they
submitted to arbitration and arbitrators made an award appellants felt was in error).
CONSTITUTIONAL RIGHT TO TRIAL BY JURY IN TEXAS - LIMITATIONS AND
“The right to a jury trial is one of our most precious rights, holding a sacred place in English and American
history.” General Motors Corp. v. Gayle, 951 S.W.2d 469, 476 (Tex. 1997). Under article one, section 15
of the Texas Constitution, “[t]he right to trial by jury shall remain inviolate” and we closely scrutinize any
denial of this important right to a litigant. See Tex Const. art. I, § 15; City of Garland, 969 S.W.2d 548, 558
(Tex. App.—Dallas 1988), aff’d, 22 S.W. 3d 351 (Tex. 2000). The denial of the constitutional right to a jury
trial constitutes reversible error. McDaniel v. Yarborough, 898 S.W.2d 251, 253 (Tex. 1995).
In this case, the trial court heard evidence of attorneys’ fees without a jury present as fact finder and
entered judgment on its own finding as to the amount of reasonable and necessary fees in this case. To
determine whether the trial court erred by denying the Property Owners their right to a jury trial on the
issue of attorneys’ fees, we must first determine whether the statute authorizing the trial court to award of
attorneys’ fees permits a jury trial on the issue.
Here, the statute authorizing attorneys’ fees is the Declaratory Judgment Act which provides in pertinent
part that: “In any proceeding under this chapter, the court may award costs and reasonable and necessary
attorneys’ fees as are equitable and just.” Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (Vernon 2008). On
the face of this provision, it would appear that the trial court, not the jury, determines the amount of
attorneys’ fees in declaratory judgment actions. However, the Texas Supreme Court has held that, while
this statute vests the trial court with the discretion to determine whether to award attorneys’ fees, the
amount of the attorneys’ fees is a question of fact for the jury to decide. City of Garland, 22 S.W3d at 367–
68. Accordingly, we hold that the Property Owners had a right to a jury trial on the issue of the amount of
reasonable and necessary attorneys’ fees to be awarded.
Next we determine whether the trial court impermissibly deprived the Property Owners of this right.
Contrary to the arguments of C.I.A. and Bridlewood, the Property Owners’ failure to designate an expert
witness on attorneys’ fees to contradict Mr. Bone’s testimony did not deprive the Property Owners of their
right to have the amount of attorneys’ fees decided by the jury as fact finder. Mr. Bone is an interested
witness on the issue of the amount of attorneys’ fees to be awarded to his clients and, as Texas courts
have long held, “[i]t is the general rule that the testimony of an interested witness, . . . , though not
contradicted, does no more than raise a fact issue to be determined by the [fact-finder].” See Ragsdale v.
Progressive Voters League, 801 S.W.2d 880, 882 (Tex. 1990) (citing Cochran Wool Growers Central
Storage Co., 166 S.W.2d 904, 908 (Tex. 1942)). A jury, as fact finder, could choose to believe all, some,
or none of Mr. Bone’s testimony in deciding the amount of attorneys’ fees to be awarded.
In this case, the record reflects that the Property Owners requested a jury trial, paid the jury fee and, at
the time of trial, a prospective jury panel was waiting outside the courtroom. The record also reflects that
before the trial court heard the evidence on attorneys’ fees, the Property Owners disputed the veracity of
the testimony to be presented regarding the $18,000 allegedly incurred by counsel for C.I.A. and
Bridlewood, and that they continued to insist on their right to a jury to hear the evidence about to be
presented, to the point of being admonished by the bailiff to stop interrupting the judge.
Ogu v. Bridle Wood (Tex.App,- Houston [1st Dist.] Jan. 8, 2009)(Hanks)
(declaratory judgment, attorney's fees, jury trial)
REVERSE TRIAL COURT JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Hanks
Before Justices Jennings, Hanks and Bland
01-07-00933-CV Caroline Ogu and Oakey Ugboaja v. Bridle Wood, et al
Appeal from County Civil Court at Law No 4 of Harris County
LIMITATIONS ON THE RIGHT TO TRIAL BY JURY:
RIGHT TO JURY TRIAL AND SUMMARY JUDGMENT
Nor did the trial court deprive Sandhu of his right to a trial by jury when it granted the motion for summary
judgment. The Texas Constitution provides, "The right of trial by jury shall remain inviolate." Tex.
Const. art. I, §15. The right to a jury trial in civil cases is not absolute; rather, it is regulated by rules
specifying its availability. See Green v. W.E. Grace Mfg. Co., 422 S.W.2d 723, 725 (Tex. 1968). When a
party cannot show a material fact issue, there is nothing to submit to a jury, and the granting of summary
judgment to the opposing party does not violate the constitutional right to a jury trial. Querner Truck
Lines, Inc. v. Alta Verde Indus., Inc., 747 S.W.2d 464, 469 (Tex. App.- San Antonio 1988, no writ);
Carrabba v. Employers Cas. Co., 742 S.W.2d 709, 717 (Tex. App.- Houston [14th Dist.] 1987, no writ). In
issues two through four, we hold that Sandhu did not raise a material fact issue to preclude summary
judgment. Therefore, the trial court's granting of the motion for partial summary judgment did not violate
his constitutional right to a jury trial. Sandhu v. Pinglia Investments of Texas, LLC (Tex.App.- Houston
[14th Dist.] Jun. 25, 2009)(Seymore) (commercial real estate transaction: financing of purchase of
shopping center, breach of promissory note, summary judgment procedure, sufficiency of response to
PMSJ, affirmative defenses not properly asserted in response to Plaintiff's motion, proof of balance due
and damages in note suit, challenges to summary judgment evidence, affidavit conclusory)
Decision: TRIAL COURT'S JUDGMENT AFFIRMED: Opinion by Justice Charles Seymore
Panel members: Chief Justice Hedges, Justices Anderson and Seymore
14-08-00184-CV Raghbir Sandhu v. Pinglia Investments of Texas, LLC and Sumer Pinglia
Appeal from 164th District Court of Harris County
Right to Jury on Remand
The Texas Constitution guarantees the right to a trial by jury. Monroe v. Alternatives in Motion, 234 S.W.
3d 56, 69 (Tex. App.-Houston [1st Dist.] 2007, no pet.) (citing Tex. Const. art. I, '§10, 15). This right,
however, is not absolute in civil cases. Coleman v. Sadler, 608 S.W.2d 344, 346 (Tex. Civ. App.-Amarillo
1980, no writ). To secure the right to a jury in a civil case, a party must make a written request to the clerk
of the court and pay the jury fee. Tex. R. Civ. P. 216; In the Interest of M.M., 980 S.W.2d 699, 702 (Tex.
App.-San Antonio 1998, no pet.).
We conclude that the trial court abused its discretion by granting Carolyn’s motion to strike the case from
the jury docket. See In re Prudential Ins. Co., 148 S.W.3d at 139 (stating denial of trial by jury is
reviewable by mandamus). Further, because Woody stands to lose a substantial right, he does not
have an adequate remedy by appeal. See Rosenthal v. Ottis, 865 S.W.2d 525, 529 (Tex. App.-Corpus
Christi 1993, orig. proceeding) (stating adequate remedy by appeal does not exist for denial of jury trial).
We therefore conditionally grant Woody’s petition for writ of mandamus as it pertains to reinstatement of
the case on the jury docket. In Re Lesikar, NO. 14-09-00016-CV (Tex.App.- Houston [14th Dist.] May 7,
2009)(Guzman)(scope of remand, discovery mandamus denied)(segregation of attorney's fees required,
no fees for non-suited claims) (jury trial improperly denied)
Nonsignatories' Right to Jury Not Waived Via Agency Theory
In re Credit Suisse First Boston Mortgage Capital LLC (Tex.App- Houston [14th Dist.] Dec. 18, 2008)
(Hedges)(Tex.App- Houston [14th Dist.] Dec. 18, 2008)(Hedges)(arbitration mandamus denied)
(arbitration, nonsignatories, jury waiver, nonsignatories, agency theory, choice of law preemption, forum
preemption)(Because the right to a jury trial implicates constitutional guarantees, we will not lightly infer or
extend a contractual jury waiver absent proof that the parties intended it to include claims against
MOTION OR WRIT DENIED: Opinion by Chief Justice Hedges
Before Chief Justice Hedges, Justices Hudson and Boyce
14-08-00819-CV In Re: Credit Suisse First Boston Mortgage Capital, L.L.C. and Credit Suisse First
Boston, L.L.C.--Appeal from 165th District Court of Harris County
Trial Court Judge: Elizabeth Ray
TEXAS CAUSES OF ACTION ELEMENTS | HOUSTON CASE LAW | HOUSTON COURTS OF APPEALS |
TEXAS COURT OF APPEALS OPINIONS
HOUSTON OPINIONS HOME PAGE