WAIVER OF RIGHT TO TRIAL BY JURY | JURY WAIVER
Whether a party has contractually waived its right to a jury trial is a question of law that we review de novo. See
Prudential Ins. Co., 148 S.W.3d at 135; In re Wells Fargo Bank Minn. N.A., 115 S.W.3d 600, 605 (Tex. App.-
Houston [14th Dist.] 2003, orig. proceeding [mand. denied]).we hold that, when a valid contractual
jury waiver applies to a signatory corporation, the waiver also extends to nonsignatories
that seek to invoke the waiver as agents of the corporation.
Before a contractual jury waiver will be enforced, it must be shown to have been a
voluntary and knowing act "done with sufficient awareness of the relevant circumstances
and likely consequences." Brady, 397 U.S. at 748, quoted in Prudential Ins. Co., 148
S.W.3d at 132. Where agency is undisputed, we may infer the parties' intent that their
jury waiver include the acts of their agents and employees. See Merrill Lynch, 235
S.W.3d at 189; Tracinda, 502 F.3d at 224, 225. However, a plaintiff's mere allegations of
agency, by themselves, do not raise such an inference.
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)
[W]e hold that the trial court did not abuse its discretion by declining to extend the jury waiver on the basis of
allegations alone. 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 nonsignatories.
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
Lofton v. Dyer (Tex.App.- Houston [1st Dist.] May 15, 2008)(Hanks) (real estate law, trespass to try title, adverse
possession, right to trial by jury waived, motion for continuance denied)
AFFIRM TC JUDGMENT: Opinion by Justice Hanks
Before Justices Nuchia, Hanks and Higley
01-07-00184-CV Percy Lofton, Jr., Conal Lofton, James Lofton, Lonnie E. Turner, Carol S. Lofton Fowler, Delilah
A. Lofton, and Horace Lofton v. Eddie Dyer
Appeal from 278th District Court of Grimes County
Trial Court Judge: Hon. Kenneth Keeling
Denial of Jury Trial
Hayes v. Wells Fargo Bank (Tex.App.- Houston [1st Dist.] Oct. 18, 2007)(Radack)
(business law, debt, suit for default under promissory note, balloon payment, right to jury trial waived by failure to
timely pay jury fee)
AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack
Before Chief Justice Radack, Justices Alcala and Bland
01-06-00720-CV Leroy Hayes, Jr. v. Wells Fargo Bank, N.A.
Appeal from 280th District Court of Harris County (Hon. Tony Lindsay)
Hayes contends that the trial court erred by denying his request for a jury trial. Though the Texas Constitution
guarantees a right to trial by jury, Tex. Const. art. I, § 15, the Constitution further provides that "[N]o jury shall be
empaneled in any civil case unless demanded by a party to the case, and a jury fee be paid by the party
demanding a jury, for such sum, and with such exceptions as may be prescribed by the Legislature." Tex. Const.
art. V, § 10. We review denial of a demand for a jury trial for abuse of discretion. Monroe v. Alternatives in
Motion, No. 01-05-01187-CV, 01-05-01188-CV, 2007 WL 529295, at *10 (Tex. App.--Houston [1st Dist.] Feb. 22,
2007, no pet. h.) (citing Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996)).
A party who seeks a jury trial must request a jury and pay the jury fee at "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 trial
court does not abuse its discretion by denying a trial by jury when there is no timely request or payment of a jury
fee. Huddle v. Huddle, 696 S.W.2d 895, 895 (Tex. 1985); Martin v. Black, 909 S.W.2d 192, 197 (Tex.
App.--Houston [14th Dist.] 1995, writ denied). An untimely jury demand should be granted, however, if granting
the request will not (1) interfere with the court's docket, (2) delay the trial, or (3) injure the opposing party. See
Gen. Motors Corp. v. Gayle, 951 S.W.2d 469, 476 (Tex. 1997); Barkhausen v. Craycom, Inc., 178 S.W.3d 413,
418 (Tex. App.--Houston [1st Dist.] 2005, pet. denied).
Hayes stated on the record in this case that he believed he requested a jury trial and paid the jury fee when he
filed suit, but he could not produce a receipt showing that he had paid the jury fee. Counsel for the bank stated
that he never received a written request for jury trial. After learning from the court coordinator that no jury fee
had been paid, Hayes paid the fee on the Friday before the Monday that trial began.
When the trial court ruled that no jury would be empaneled because Hayes did not timely pay the fee, Hayes did
not attempt to demonstrate that granting the request for jury trial would not interfere with the court's docket,
delay the trial, or injure the opposing party. The trial court, however, specified that, "it would certainly interrupt
the Court's docket to try and put this case now on a jury docket." Accordingly, we hold that the trial court did not
abuse its discretion by denying Hayes's request for a jury trial. See Gen. Motors Corp., 951 S.W.2d at 476;
Barkhausen, 178 S.W.3d at 418.
We overrule the portion of Hayes's issue (e) that challenges denial of a jury trial.
Patterson v. Patterson (Tex.App. - Houston [14th Dist.] May 13, 2008)(Anderson)
(divorce, pro se, waiver of jury trial, local rules, attorney's fees)
AFFIRMED: Opinion by Justice Anderson
14-07-00487-CV Richard Steven Patterson v. Gwendolyn Elizabeth Patterson
Appeal from 247th District Court of Harris County
Trial Court Judge: Judge Bonnie Crane Hellums