law-right-to-jury-trial

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).

CONSTITUTIONAL RIGHT TO TRIAL BY JURY IN TEXAS - LIMITATIONS AND
EXCEPTIONS

“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 Co unty Civil C our t 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.[3] 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, br each 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,[3] 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 [1 4th Dist.] Dec. 18, 2008)(Hedges)
(Tex.App- Houston [1 4th Dist.] Dec. 18, 2008)(Hedges)(arbitration mandamus denied)(arbitration,
nonsignatories, jury w aiver, 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 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

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