Weng Ong v. Lorenzo Brown ( 2024 )

Affirmed and Opinion Filed October 28, 2024
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-01050-CV
WENG ONG, Appellant
V.
LORENZO BROWN, Appellee
On Appeal from the County Court at Law No. 1
Dallas County, Texas
Trial Court Cause No. CC-20-00039-A
MEMORANDUM OPINION
Before Justices Nowell, Miskel, and Kennedy
Opinion by Justice Miskel
Weng Ong appeals a take-nothing judgment rendered against her following a
bench trial. In one issue, Ong seeks reversal because she contends the court
improperly denied her a jury trial. We affirm.
I. Background
Ong owns a home in Dallas. She arranged to place a 40-foot shipping
container next to her home to store her personal belongings. However, she
mistakenly had the shipping container placed on an adjacent lot that she does not
own. During the period at issue in this case, Trojan Gold Investments, LLC (“Trojan
1
Gold”) owned the adjacent lot. Lorenzo Brown, the appellee, is one of the owners
of the company. He is also a licensed Texas attorney.
Brown, on behalf of Trojan Gold, sent a letter to Ong that asked her to move
the shipping container from Trojan Gold’s lot. Ong contacted a third party to move
the shipping container. However, it was winter, and the ground was too wet to move
the container at that time. Ong told Brown that she would soon leave the country to
visit her hometown, and she would have the container moved when she returned.
However, upon her return, she discovered that her shipping container was gone.
During the relevant period, Ong also signed a contract to purchase the adjacent
lot, but she changed her mind. Ong asked Brown to release her earnest money, but
he declined to do so.
Ong sued Brown in the Justice of the Peace Court.1 She alleged that
Brown (i) unlawfully removed the shipping container filled with her household
contents and (ii) refused to return her earnest money after she decided not to
purchase the adjacent lot. Brown denied Ong’s allegations. Ong requested and
received a jury trial, and the jury found in favor of Brown.
Ong then appealed her case to the County Court at Law No. 1 of Dallas
County, where her case was subject to a trial de novo. See TEX. CIV. PRAC. & REM.
CODE ANN. § 51.001(a); TEX. R. CIV. P. 506.3. This time, Brown demanded a jury
1
Ong also sued a second defendant, Foday Saidu Fofanah, but she subsequently non-suited Fofanah
from her case.
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trial and paid the jury fee. The county court called the case to trial on September 12,
2022. Both parties appeared pro se. The county court noted that the case was set
for a jury trial and asked the parties the following questions:
[The COURT]: Do the parties wish to waive a jury to try the case before
the Court?
MR. BROWN: Yes.
***
THE COURT: And Ms. Ong, do you wish to try this case without
a jury?
MS. ONG: No.
THE COURT: No? You want a jury?
MS. ONG: No, without jury. I have Jury Trial.
THE COURT: Okay. Then we will try this as a Bench Trial.
And before we start your trial, I want to arrange the next case, which
does want the jury, so I will get back to you in five or ten minutes.
MR. BROWN: Okay.
(Break taken).
Ong then proceeded to try her case before the county court without a jury.
Following the trial, the county court rendered a take-nothing judgment against her.
The judgment states that “[the] parties agreed to waive their jury request and the case
proceeded to trial before the bench.” Ong then perfected this appeal.
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II. Ong Waived Her Right to a Jury Trial.
In her sole issue, Ong contends that the county court abused its discretion in
depriving her of a jury trial even though, in her view, she affirmatively stated that
she would not waive a jury. Based on the record before us, we conclude that the
county court did not abuse its discretion in interpreting Ong’s statements as a jury
waiver and that Ong failed to preserve this issue for appeal by not ensuring that the
court was aware of her request for a jury trial.
A. Applicable Law
To obtain a jury trial, a party must make a written request no less than thirty
days before the date set for trial and pay the jury fee. Brockie v. Webb, 244 S.W.3d
905, 908 (Tex. App.—Dallas 2008, pet. denied); TEX. R. CIV. P. 216. A party who
perfects its right to a jury trial may still waive this right by failing to act, such as by
failing to object to the trial court going forward with a bench trial or by failing to
indicate in any way that the party intends to stand on its perfected right. Breitling
Oil and Gas Corp. v. Petroleum Newspapers of Alaska, LLC, No. 05–14–00299–
CV, 2015 WL 1519667, at *5 (Tex. App. Dallas—Apr. 1, 2015, pet. denied) (mem.
op.). If a trial court indicates that it will proceed with a bench trial in a case where
a jury demand was timely perfected, a demanding party that still wishes to have a
jury trial must ensure that the court is aware of the demand. Browder v. Moree,
659 S.W.3d 421, 423 (Tex. 2022) (per curiam).
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The party who requested the jury trial may not “withdraw the cause from the
jury docket over the objection of the parties adversely interested.” TEX. R. CIV.
P. 220. However, Rule 220 “requires that some affirmative action be taken by all
parties to insure themselves a jury trial. Thus, until an objection is registered to the
withdrawal of a case from the jury docket, the non-demanding party has no right to
have the case remain on that docket.” Green v. W.E. Grace Mfg. Co., 422 S.W.2d
723, 726 (Tex. 1968). Therefore, “when one party has perfected the right to a jury
trial, any other party waives the benefit of the perfected right by failing to object to
the case being withdrawn from the jury docket.” Sunwest Reliance Acquisitions
Grp,, Inc. v. Provident Nat’l Assur. Co., 875 S.W.2d 385, 388 (Tex. App.––Dallas
1993, no writ); see also In re Hammond, 155 S.W.3d 222, 227 n.2 (Tex. App.—El
Paso 2004, orig. proceeding) (holding that party waived her right to jury trial under
TEX. R. CIV. P. 220 by proceeding to try case with no objection to the absence of a
jury); Lambert v. Coachmen Indus. of Tex., Inc., 761 S.W.2d 82, 85 (Tex. App.—
Houston [14th Dist.] 1988, writ denied) (“[W]aiver of a jury trial may be shown by
mere acquiescence to the withdrawal of a jury request by the opposing party.”).
B. Standard of Review
We review a trial court’s denial of a jury trial for an abuse of discretion.
Mercedes–Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996); see also
In re Marriage of Harrison, 557 S.W.3d 99, 135–36 (Tex App.—Houston [14th
Dist.] 2018, pet. denied) (reviewing denial of a jury under Tex. R. Civ. P. 220 for an
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abuse of discretion). In conducting our review, we examine the entire record.
Mercedes–Benz, 925 S.W.2d 664 at 666. We only find an abuse of discretion when
the trial court’s decision is arbitrary, unreasonable, and without reference to guiding
principles. Id.C. The County Court Did Not Abuse Its Discretion by Interpreting Ong’s
Statements as a Jury Waiver.
As discussed above, shortly before trial, the county court asked both parties if
they wished to waive a jury. Although Brown, the party who had perfected a jury
trial, agreed to a waiver, the county court could not remove the case from the jury
docket if Ong objected. See TEX. R. CIV. P. 220. The county court asked Ong if she
wished to try the case without a jury, and she answered, “No.” The county court
again asked, “No? You want a jury?” to which Ong responded, “No, without jury. I
have Jury Trial.” The county court then remarked, “Okay. Then we will try this as
a Bench Trial.” Before opening statements, the county court also remarked, “[t]his
case was set for a Jury Trial. Both parties have waived that jury on the record and
so we will -- will proceed with a Trial Before the Court.” (emphasis added). Ong
did not disagree with the court’s remarks or otherwise object to the withdrawal of
the cause from the jury docket.
In her response to the county court’s questions, Ong’s statement was
ambiguous as to whether she intended to waive a jury trial. Based on the record
before us, we cannot say that the county court acted arbitrarily, unreasonably, or
without reference to guiding principles when it interpreted Ong’s statement as
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waiving a jury trial. Accordingly, the county court did not abuse is discretion by
proceeding with a bench trial. See Mercedes–Benz, 925 S.W.2d at 666; In re
Harrison, 557 S.W.3d at 135.
Ong also contends that the county court “took advantage of her poor English
skills and the fact that she was pro se as a way to unilaterally change the case from
a Jury Trial to Bench Trial.” The record contains no evidence that the county court
was aware that Ong did not wish to waive a jury. 2 Ong had previously participated
in a jury trial in the justice court, so she knew that jurors are present during a jury
trial, yet Ong did not say anything to correct the court’s misunderstanding when she
observed that no jurors were seated in the county court. Although Ong appeared pro
se at trial, she is bound by the same procedural standards as parties represented by
attorneys. See Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex. 1978).
D. Ong Failed to Preserve this Issue by Failing to Ensure the Court was
Aware of Her Demand.
Although Ong alleges she did not intend to waive a jury trial, the county
court’s remarks on the record reflect that it misunderstood Ong’s statements as
agreeing to such a waiver. Ong made no attempt to clear up the county court’s
misunderstanding. Instead, she proceeded to try her case before the county court
2
Ong additionally asks us to take judicial notice of a “current other case pending on appeal” in which
a different county court at law judge allegedly proceeded to a bench trial without giving her proper notice.
However, Ong has not supplied the necessary information for this Court to take judicial notice of such other
case, see TEX. R. EVID. 201, nor does she explain how the county court’s actions in the other case
demonstrate that the county court in this case was aware that Ong did not wish to waive a jury. Accordingly,
we decline to take judicial notice of the “other case.”
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without raising this issue again. As a prerequisite to presenting a complaint for
review on appeal, the record must demonstrate that the complaint was made to the
trial court by a timely request, objection, or motion. TEX. R. APP. P. 33.1(a);
Breitling Oil, 2015 WL 1519667, at *5. The right to a jury trial may be waived by
a party’s failure to act, such as a failure to object to the trial court going forward with
a bench trial or a failure to indicate in any way that the party intends to stand on its
perfected right to a jury trial. Id.Based on the record, we conclude that Ong waived her right to a jury trial. In
re Hammond, 155 S.W.3d at 227 n.2; Lambert, 761 S.W.2d at 85. She also waived
her right to complain about it on appeal. See Sunwest Reliance Acquisitions Grp.,
875 S.W.2d at 388 (“[A] party may also waive by inaction the right to complain on
appeal that the trial court deprived it of its perfected right [to a jury trial].”).
We overrule Ong’s sole issue.
III. Conclusion
The county court did not err by denying Ong a jury trial.
We affirm the county court’s judgment.
/Emily Miskel/
221050f.p05 EMILY A. MISKEL
JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
WENG ONG, Appellant On Appeal from the County Court at
Law No. 1, Dallas County, Texas
No. 05-22-01050-CV V. Trial Court Cause No. CC-20-00039-
A.
LORENZO BROWN, Appellee Opinion delivered by Justice Miskel.
Justices Nowell and Kennedy
participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
Judgment entered this 28th day of October, 2024.
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