in the Interest of D.K.J.J. AKA D.K.J.J., D.K.D.J. AKA D.K.D.J., D.D.J., Jr., D.Q.D.J., D.K.J.J., AKA B.B.B. Minor Children v. Department of Family and Protective Services ( 2019 )

Opinion issued June 13, 2019
In The
Court of Appeals
For The
First District of Texas
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NO. 01-18-01081-CV
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IN THE INTEREST OF D.K.J.J., D.K.D.J., D.D.J., JR., D.Q.D.J., D.K.J.J.,
AKA B.B.B., Minor Children
On Appeal from the 314th District Court
Harris County, Texas
Trial Court Case No. 2017-05317J
CONCURRING AND DISSENTING OPINION
The mother complains that the trial court erred in denying her a jury trial. I
agree and thus dissent as to the termination of her parental rights. The father does
not raise his right to trial by jury on appeal. I thus concur in the majority’s analysis
as to the sufficiency of the evidence supporting the termination of his parental rights.
See Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993) (per curiam) (courts of
appeals cannot reverse trial court judgment for reasons not raised by party).
BACKGROUND
The trial court appointed the Department of Family and Protective Services as
temporary managing conservator of the children on November 9, 2017. Absent
extraordinary circumstances, the court was required to commence the trial on the
merits by November 12, 2018. See TEX. FAM. CODE § 263.401(a), (b).
In August 2018, the trial court set this case for trial on October 30, 2018. Both
parents filed a request for a jury trial on October 1. They paid the jury fee the same
day.
Three days later, the trial court held a hearing on the parents’ jury request. The
hearing was very brief. Excluding the cover page, appearances of counsel, index,
and court reporter’s certificate, the transcript is just five pages. The trial court stated
that it would not consider the state of its jury-trial docket in ruling on the parents’
jury request. Instead, the court continued, “this is simply a question of whether or
not the request was timely filed.” It concluded, “I’m gonna find that it’s not timely
filed and that request is denied.”
The parties tried the case to the bench as scheduled. Before trial commenced,
both parents reasserted their request for trial by jury, which the trial court again
denied. The trial was completed in a single day.
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DISCUSSION
Standard of Review
We review a trial court’s denial of a jury request for abuse of discretion.
Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996);
Barkhausen v. Craycom, Inc., 178 S.W.3d 413, 417 (Tex. App.—Houston [1st Dist.]
2005, pet. denied). We examine the entire record. Rhyne, 925 S.W.2d at 666;
Barkhausen, 178 S.W.3d at 417. If the record shows that the trial court’s decision
was arbitrary, unreasonable, or without reference to guiding principles, then it
abused its discretion. Rhyne, 925 S.W.2d at 666; Barkhausen, 178 S.W.3d at 417.
The trial court has no discretion in deciding what the law is or in applying the
law to the facts. Pressley v. Casar, 567 S.W.3d 327, 333 (Tex. 2019). The trial court
therefore also abuses its discretion if it fails to correctly analyze or apply the law. In
re Dawson, 550 S.W.3d 625, 628 (Tex. 2018) (per curiam).
Right to Trial by Jury
When the Department seeks to terminate parental rights, the parents are
entitled to a trial by jury, if they timely request one. See TEX. FAM. CODE § 105.002.
To be timely, parents generally must file a jury request “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. Strict compliance with the 30-day deadline imposed
by the rules of civil procedure, however, is not always required. See Gen. Motors
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Corp. v. Gayle, 951 S.W.2d 469, 476–77 (Tex. 1997). The right to a jury trial is a
constitutional one. TEX. CONST. art. I, § 15; id. art. V, § 10. The Supreme Court has
described it as “one of our most precious rights, holding ‘a sacred place in English
and American history.’” Gayle, 951 S.W.2d at 476 (quoting White v. White, 196
S.W. 508, 512 (Tex. 1917)). Thus, when a jury request is untimely made, the request
should be granted “if it can be done without interfering with the court’s docket,
delaying the trial, or injuring the opposing party.” Id. We “closely scrutinize any
denial of this important right to a litigant.” Ogu v. C.I.A. Servs., No. 01-07-00933-
CV, 2009 WL 41462, at *3 (Tex. App.—Houston [1st Dist.] Jan. 8, 2009, no pet.)
(mem. op.); see also In re J.C., 108 S.W.3d 914, 917 (Tex. App.—Texarkana 2003,
no pet.) (denial of right to jury trial is “very serious matter” subject to “utmost
scrutiny”).
Analysis
The mother filed her jury request and paid the jury fee 29 days before trial.
She thus missed the 30-day deadline for filing her request. Even so, the trial court
should have granted her request if it could do so “without interfering with the court’s
docket, delaying the trial, or injuring the opposing party.” Gayle, 951 S.W.2d at 476.
Instead, the trial court simply concluded that the request was untimely and denied it
on that basis alone. When the Department’s counsel tried to urge that the court’s
jury-trial docket could not accommodate the mother’s request, the trial court
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interjected that this circumstance “wouldn’t be something that I would use to decide
this particular issue.” This is a clear abuse of discretion because the court’s ability
to accommodate the late request without interference to its docket and without delay
of trial are two of the considerations that the court must consider. See id. The trial
court cannot do what it did, which is deny the jury request merely because it was
made a day late. See id. The trial court made its decision without reference to guiding
principles. It had no discretion to misapply the law.
Nothing in the record shows that this brief trial could not have been tried to a
jury without interfering with the court’s docket or delaying trial. Nor does the record
show that the Department would have been injured by the mother’s delay in filing
her jury request if the trial court had granted it. Cf. In re D.R., 177 S.W.3d 574, 580
(Tex. App.—Houston [1st Dist.] 2005, pet. denied) (in case in which conservatorship
as to one child was tried to jury but conservatorship as to two others were tried to
bench, jury request not made until charge conference caused unfair surprise as ad
litem had done voir dire, opened, and cross-examined witnesses with understanding
that these two cases would be submitted to court for decision); Universal Printing
Co. v. Premier Victorian Homes, 73 S.W.3d 283, 287, 294–95 (Tex. App.—Houston
[1st Dist.] 2001, pet. denied) (affirming denial of jury request and holding that trial
court did not err in crediting opposing counsel’s claim that movant’s late payment
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of jury fee 15 days before five-day bench trial in suit involving claims for civil
conspiracy, nuisance, and trespass caused unfair surprise).
The majority faults the mother for failing to adequately brief this issue. The
mother’s briefing of her right to a jury trial is lackluster. But she clearly raises the
issue. She identifies the correct standard of review, noting that the trial court has
discretion as to untimely requests. She complains that her request should have been
granted given that it “was made within hours of the 30-day deadline.” And her
statement of the case and statement of facts identify where in the record we may find
the trial court’s adverse rulings.
Under the circumstances, the mother’s brief suffices to preserve for review
the issue of her right to a jury trial. The law concerning this issue is well-settled, the
relevant portion of the trial record is quite limited and easily reviewed, and the trial
court’s error is manifest on the face of the record. While better briefing would have
been helpful and appreciated, we must construe appellate briefs “reasonably, yet
liberally,” and we “should reach [the] merits” on appeal “whenever reasonably
possible.” Tanner v. Black, 464 S.W.3d 23, 29 (Tex. App.—Houston [1st Dist.]
2015, no pet.) (relying on Perry v. Cohen, 272 S.W.3d 585, 588 (Tex. 2008)).
Harmless Error
The majority further concludes that any error in denying the mother a trial by
jury was harmless and thus not a basis for reversal. The majority is mistaken.
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The erroneous denial of a jury request is harmless if and 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) (per curiam); see
also Taylor v. Taylor, 63 S.W.3d 93, 101 (Tex. App.—Waco 2001, no pet.) (reversal
required unless record shows no material fact dispute and instructed verdict proper).
The Department does not contend that no material issues of fact existed for
resolution by a factfinder and that the trial court would have been justified in
terminating the mother’s parental rights as a matter of law. The majority’s factual
sufficiency analysis shows that there were material fact disputes at trial. Thus, the
trial court’s error in denying the mother’s jury request was not harmless.
CONCLUSION
The remedy when a trial court errs in denying a jury request, and the error is
not harmless, is remand for a jury trial. Halsell, 810 S.W.2d at 372; Commerce &
Indus. Ins. Co. v. Ferguson-Stewart, 339 S.W.3d 744, 748–49 (Tex. App.—Houston
[1st Dist.] 2011, no pet.). On this record, the mother was entitled to try her case
before a jury. Because the majority does not give sufficient weight to her
constitutional right to a jury trial, I dissent.
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Gordon Goodman
Justice
Panel consists of Justices Keyes, Kelly, and Goodman.
Justice Goodman, concurring and dissenting
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