Opinion
No. 04-06-00387-CV.
Delivered and Filed: January 10, 2007.
Appeal from the 79th Judicial District Court, Jim Wells County, Texas Trial Court No. 02-12-40915 Honorable Richard C. Terrell , Judge Presiding.
Sitting: ALMA L. LÓPEZ, Chief Justice, PHYLIS J. SPEEDLIN, Justice, REBECCA SIMMONS, Justice.
MEMORANDUM OPINION
AFFIRMED
Benny Clegg appeals a judgment in a suit to quiet title asserting that the trial court abused its discretion in denying his request for a jury trial. We affirm the trial court's judgment.
The appellant's brief contains a single issue challenging the denial of the request for a jury trial. The appellees' brief contains a response to a second issue not raised in the appellant's brief regarding the trial court's failure to file findings of fact and conclusions of law which the appellant addresses in his reply brief. First, by failing to raise the issue in the appellant's brief, appellant has not properly assigned error for our review. Bechtel Corp. v. City of San Antonio, No. 04-04-00910-CV, 2006 WL 228689, at *4 (Tex.App. — San Antonio Feb. 1, 2006, no pet.); Puri v. Mansukhani, 973 S.W.2d 701, 707 (Tex.App.-Houston [14th Dist.] 1998, no pet.). Furthermore, while findings of fact are appropriate after a motion for new trial hearing to receive evidence, they are not required. Puri, 973 S.W.2d at 707.
Background
The appellees filed the underlying lawsuit on December 11, 2002. On April 18, 2005, by agreement of the parties, the case was set for a non-jury trial on February 15, 2006. On January 17, 2006, a new attorney made an appearance for Clegg. A jury demand was filed on the same day.
On January 23, 2006, notice was given that the case was set for a docket call on January 26, 2006. Clegg's attorney did not appear at the docket call hearing. At the hearing, the trial court noted that the case had been set for a non-jury trial by agreement of the parties more than ten months before the trial date. The trial court further noted that the demand for a jury trial was not absolute even if it was filed more than thirty days before the trial setting. The trial judge stated that he believed the jury demand was a delay tactic, but he would consider a motion for continuance if one was filed. No motion for continuance was filed.
On February 15, 2006, Clegg's attorney appeared for trial and stated that a jury trial was noticed and paid for more than thirty days prior to the trial setting, and Clegg was requesting a jury trial. The trial court noted that the lawsuit was filed in 2002. The trial court further stated that the jury demand was filed "just 32 days before the non-jury trial" setting which was set by the agreement of the parties "a long time ago." The trial court denied the demand for a jury trial.
Discussion
Rule 216 of the Texas Rules of Civil Procedure provides:
No jury trial shall be had in any civil suit, unless a written request for a jury trial is filed with the clerk of the court 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). A written request filed more than thirty days before the trial date is presumed timely; however, the presumption can be rebutted by showing a jury trial will: (1) injure the party; (2) disrupt the trial court's docket; or (3) impede the ordinary handling of the court's business. Crittenden v. Crittenden, 52 S.W.3d 768, 769-70 (Tex.App.-San Antonio 2001, pet. denied). After a case is set on the non-jury docket, the trial court has the discretion, irrespective of the presumption, to determine whether it will be removed from that docket and placed on the jury docket. See, e.g., Six Flags Over Texas, Inc. v. Parker, 759 S.W.2d 758, 760 (Tex.App.-Fort Worth 1988, no writ); Perfection Casting Corp. v. Aluminum Alloys, Inc., 733 S.W.2d 385, 386 (Tex.App.-San Antonio 1987, no writ); Olson v. Texas Commerce Bank, 715 S.W.2d 764, 767 (Tex.App.-Houston [1st Dist.] 1986, writ ref'd n.r.e.).
In this case, the lawsuit had been on file for more than three years, and the parties had agreed to the non-jury trial setting more than ten months before the trial date. See Six Flags Over Texas, Inc., 759 S.W.2d at 760 (noting case was pending almost two years). The jury demand was filed only thirty-two days before the trial date, and "any transfer to the jury docket would have disrupted the schedule of cases which had already been determined by the court." Id. Furthermore, there was no evidence that a jury was available at the time of trial. See Six Flags Over Texas, Inc., 759 S.W.2d at 760; Perfection Casting Corp., 733 S.W.2d at 386; Olson, 715 S.W.2d at 767. The trial judge, who was familiar with the history of the case, believed the jury demand was a delay tactic. Clegg's attorney did not appear at the docket call hearing and did not file a motion for continuance. Given these circumstances, the trial court did not abuse its discretion in denying Clegg's demand for a jury trial.
Conclusion
The trial court's judgment is affirmed.