Opinion
NO. 01-15-01011-CV
05-03-2016
LARRY COLEMAN HICKS, Appellant v. DAWN RENAE HICKS, Appellee
On Appeal from the 300th District Court Brazoria County, Texas
Trial Court Case No. 77123-F
MEMORANDUM OPINION
Appellant, Larry Coleman Hicks, challenges the trial court's final decree in his suit for divorce against appellee, Dawn Renae Hicks. In three issues, Larry contends that the trial court erred in denying his discovery motion, denying him a jury trial, and not providing him with adequate notice before signing its final decree.
We affirm.
Background
In his petition, Larry, seeking a divorce from Dawn, alleged that they had no children and their marriage had "become insupportable because of . . . adultery and conflicts of personalities that ha[d] destroyed the legitimate purpose of th[e] marriage and relationship and prevent[ed] any reasonable expectation of reconciliation." A copy of Dawn's answer or counter-petition for divorce, if any, is not included in the appellate record.
We note that the trial court's final decree states that Dawn "appeared . . . through pleadings and did not oppose the divorce."
Larry subsequently filed a "Motion for Discovery and Subpoena," seeking "necessary documentation to enable th[e] [trial] [c]ourt to adequately perform [its] duty" and allow him "to prepare for tr[ial] if it bec[ame] necessary"; "a subpoena for [Dawn's] text messages and emails" from the beginning of their marriage on November 15, 2011 to the present; and an order requiring Dawn "to disclose all cell phone numbers with the[] respective service providers and all email addresses [that she had] used" during their marriage. The trial court denied Larry's request for a hearing on his discovery motion, but the record does not indicate that the trial court actually ruled on the motion.
In its final decree, the trial court ordered Larry and Dawn divorced on the ground of insupportability, awarded each certain property, and ordered that each pay his or her own attorney's fees.
Notice
In his first issue, Larry argues that the trial court erred in not providing him "adequate notice" before it signed the Final Decree of Divorce because doing so denied him the "right to be heard" and "present evidence." Dawn argues that "prior notice" was not required because the divorce was "uncontested."
In its final decree, the trial court stated that Dawn "did not oppose the divorce." Larry also signed the final decree, stating that he "approved and consented" to "both [its] form and [its] substance."
Texas Rule of Civil Procedure 245 states:
The Court may set contested cases on written request of any party, or on the court's own motion, with reasonable notice of not less than forty-five days to the parties of a first setting for trial, or by agreement of the parties; provided, however, that when a case previously has been set for trial, the Court may reset said contested case to a later date on any reasonable notice to the parties or by agreement of the parties. Noncontested cases may be tried or disposed of at any time whether set or not, and may be set at any time for any other time.TEX. R. CIV. P. 245 (emphasis added). As we have previously explained, "rule 245 makes it clear that noncontested cases can be disposed of at any time," and although it "requires reasonable notice to the parties in contested cases," the rule "does not require the same notice for noncontested cases." Thorne v. Hansen, No. 01-02-00880-CV, 2003 WL 22511377, at *3 (Tex. App.—Houston [1st Dist.] Nov. 6, 2003, pet. denied) (mem. op.).
Larry asserts that "contested matters [were] raised" below; however, he does not discuss or provide detail as to what matters were "contested" in his suit for divorce. See TEX. R. APP. P. 38.1(i). And Larry admits that the trial court signed the "proposed divorce decree" that he submitted to the trial court. Further, the appellate record contains no evidence that Dawn contested the divorce; in fact, it indicates the opposite. See Long v. Comm'n for Lawyer Discipline, No. 14-11-00059-CV, 2012 WL 5333654, at *2-3 (Tex. App.—Houston [14th Dist.] Oct. 30, 2012, no pet.) (mem. op.) (case noncontested for purposes of rule 245 where clerk's record did not contain answer); Thorne, 2003 WL 22511377, at *3 (case noncontested where record did not show defendant filed answer); see also Salazar v. Tower, 683 S.W.2d 797, 800 (Tex. App.—Corpus Christi 1984, no writ) ("Appellant failed to timely file an answer; therefore, the noncontested suit pending against appellant at the time of the default judgment fell within the purview of and complied with the provision of Tex. R. Civ. P. 245 concerning noncontested cases.").
Finally, even if Larry was entitled to "reasonable notice" pursuant to rule 245, we must presume that a trial court will hear a case only when proper notice has been given to the parties. Campsey v. Campsey, 111 S.W.3d 767, 771 (Tex. App.—Fort Worth 2003, no pet.); Osborn v. Osborn, 961 S.W.2d 408, 411 (Tex. App.—Houston [1st Dist.] 1997, writ denied); Welborn-Hosler v. Hosler, 870 S.W.2d 323, 328 (Tex. App.—Houston [14th Dist.] 1994, no writ). Thus, when a party challenges a judgment based on lack of notice, he has the burden of proving a lack of notice with evidence. Campsey, 111 S.W.3d at 771-72; Blanco v. Bolanos, 20 S.W.3d 809, 811 (Tex. App.—El Paso 2000, no pet.); Welborn-Hosler, 870 S.W.2d at 328. A party cannot do this by merely making an allegation; rather, he must affirmatively establish a lack of notice. Campsey, 111 S.W.3d at 771-72; Blanco, 20 S.W.3d at 811; see also Welborn-Hosler, 870 S.W.2d at 328. Larry has not met that burden in this case.
Accordingly, we hold that the trial court did not err in signing the Final Decree of Divorce without providing Larry "adequate notice."
We overrule Larry's first issue.
Discovery Motion
In his second issue, Larry argues that the trial court erred in denying his discovery motion because "[t]he discovery denied by [the] trial court [went] to the very heart of [his] case" and would have provided the trial court with "valid documentation of the true value" of certain property and the "true amount of money in [Dawn's] possession."
In his brief, Larry asserts that he "filed several motions with the trial court for discovery." However, the clerk's record only contains a single "Motion for Discovery and Subpoena," filed by Larry on June 3, 2014.
We review a trial court's decision denying discovery for an abuse of discretion. See Macy v. Waste Mgmt., Inc., 294 S.W.3d 638, 651 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). An appellate court should reverse a trial court's ruling on a motion to compel discovery only when the trial court acts in an arbitrary and unreasonable manner, without reference to any guiding principles. Id.
In his discovery motion, Larry sought unspecified "necessary documentation to enable th[e] [trial] [c]ourt to adequately perform [its] duty" and allow him "to prepare for tr[ial] if it bec[ame] necessary"; "a subpoena for [Dawn's] text messages and emails" from the beginning of their marriage on November 15, 2011 to the present; and an order requiring Dawn "to disclose all cell phone numbers with the[] respective service providers and all email addresses [that she had] used" during their marriage.
We liberally construe Larry's motion as a motion to compel discovery. Cf. Welcome v. Tex. Roadhouse, Inc., No. 01-12-00317-CV, 2014 WL 7335183, at *2 (Tex. App.—Houston [1st Dist.] Dec. 23, 2014, no pet.) (mem. op.) (liberally construing motion as motion to compel discovery).
To preserve error on a discovery dispute, the appealing party must obtain a ruling by the trial court on the discovery issue. U. Lawrence Boze' & Assocs., P.C. v. Harris Cty. Appraisal Dist., 368 S.W.3d 17, 32 (Tex. App.—Houston [1st Dist.] 2011, no pet.); see also TEX. R. APP. P. 33.1(a); Hayes v. Wells Fargo Bank, N.A., No. 01-06-00720-CV, 2007 WL 3038043, at *5 (Tex. App.—Houston [1st Dist.] Oct. 18, 2007, pet. denied) (mem. op.) ("Aggrieved parties in a discovery dispute must obtain a ruling before trial begins in order to preserve error. Having failed to obtain a ruling on his discovery request before trial, Hayes waived any error." (internal citations omitted)).
Here, nothing in the record establishes that the trial court ruled, either explicitly or implicitly, on Larry's discovery motion or that he objected to the trial court's refusal to rule. Cf. Nguyen v. Dall. Morning News, L.P., No. 2-06-298-CV, 2008 WL 2511183, at *2 (Tex. App.—Fort Worth June 19, 2008, no pet.) (mem. op.) (explaining "nothing in the record indicat[ed] that the trial court ever, expressly or implicitly, ruled on the [discovery] motion" or "that party objected to the trial court's refusal to rule"); Goodchild v. Bombardier-Rotax GMBH Motorenfabrik, 979 S.W.2d 1, 6-7 (Tex. App.—Houston [14th Dist.] 1998, pet. denied) (party failed to preserve error on motion to compel discovery where trial court never ruled on motion and party failed to object to refusal to rule); see also TEX. R. APP. P. 33.1(a). A party's failure to obtain a pretrial ruling on a discovery dispute existing before the beginning of trial constitutes a waiver of the issue on appeal. See Remington Arms Co. v. Caldwell, 850 S.W.2d 167, 170 (Tex. 1993); Martin v. Commercial Metals Co., 138 S.W.3d 619, 623 (Tex. App.—Dallas 2004, no pet.). Accordingly, we hold that Larry has not preserved his discovery complaint for our review.
Further, even if Larry had preserved his complaint for our review, we note that we cannot determine the nature of some of his discovery requests, and he has not explained the relevance of the information that he sought. In light of Larry's failure to identify with specificity the "documentation" needed or the relevance of the information sought, we would be unable to conclude that the trial court abused its discretion in denying his discovery motion. See Contractors Source, Inc. v. Amegy Bank Nat'l Ass'n, 462 S.W.3d 128, 138-40 (Tex. App.—Houston [1st Dist.] 2015, no pet.).
We overrule Larry's second issue.
To the extent that Larry contends that the trial court erred in denying a hearing on his discovery motion, we note that the decision "to hold an oral hearing on a motion to compel is a matter within the discretion of the trial court." Cire v. Cummings, 134 S.W.3d 835, 843 (Tex. 2004). And "there is no 'oral hearing' requirement in the rules." Id. at 843-44 ("A 'hearing' does not necessarily contemplate a personal appearance before the court or an oral presentation to the court."); see also TEX. R. CIV. P. 215.1.
Jury Demand
In his third issue, Larry argues that the trial court erred in denying him a jury trial because he requested one in the "proposed final decree of divorce" that he "sent to the trial court." In his proposed decree, Larry included the following language:
Upon the Court signing this FINAL DECREE OF DIVORCE a jury will be waived. However, in the event that the Court does-not sign this FINAL DECREE OF DIVORCE, a Jury Trial in all things is requested.
We review a trial court's denial of a party's demand for a jury trial for an abuse of discretion. Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996). In conducting an abuse-of-discretion review, we examine the entire record. Id. A trial court abuses its discretion when its decision is arbitrary, unreasonable, and without reference to guiding principles. Id.
In Texas, civil lawsuits are tried without a jury unless a party requests a jury trial. TEX. R. CIV. P. 216. To successfully request a jury, a litigant must submit a written request for a jury and pay a jury fee within a reasonable time, but not less than thirty days, before trial. Id.; Huddle v. Huddle, 696 S.W.2d 895, 895 (Tex. 1985) (time limitations for requesting jury trial apply to payment of jury fee as well); Stallworth v. Stallworth, 201 S.W.3d 338, 346 (Tex. App.—Dallas 2006, no pet.) ("In order to maintain that [jury] request, it is required that the party file a written request with the clerk of the court in a reasonable amount of time before the trial date . . . and a jury fee must also be paid to the clerk of the court within the same time frame."). If either the request or the fee is untimely, the trial court has discretion to deny the request. TEX. R. CIV. P. 216; Huddle, 696 S.W.2d at 895; Monroe v. Alts. in Motion, 234 S.W.3d 56, 69-70 (Tex. App.—Houston [1st Dist.] 2007, no pet.).
Larry does not assert, nor does the record show, that he paid the jury fee or filed an affidavit of indigence. See TEX. R. CIV. P. 216, 217 (fee not required if party files "affidavit to the effect that he is unable to make such deposit, and that he can not, by the pledge of property or otherwise, obtain the money necessary for that purpose"); see also In re M.N.M., No. 05-14-00723-CV, 2014 WL 6737003, at *8 (Tex. App.—Dallas Dec. 1, 2014, pet. denied) (mem. op.) (party did not show reversible error regarding denial of jury trial where she did not cite to record regarding payment of jury fee, payment of jury fee not noted on docket sheet, no entry on bill of costs showing payment, and no "other indication in the record that a jury fee was paid or that [party] was excused from paying such fee"). Thus, even were we to assume that Larry timely filed a written request for a jury, his jury fee was untimely.See TEX. R. CIV. P. 216.
We note that Larry's "proposed" final decree of divorce, which he asserts contains a request for a jury trial, was filed only one day before the trial court entered its final decree. --------
Finally, we note that even where a party does not timely pay a jury fee, the trial court should accord the right to jury trial if it can be done without interfering with the court's docket, delaying the trial, or injuring the opposing party. Gen. Motors Corp. v. Gayle, 951 S.W.2d 469, 476 (Tex. 1997); Dawson v. Jarvis, 627 S.W.2d 444, 446-47 (Tex. App.—Houston [1st Dist.] 1981, writ ref'd n.r.e.). Here, however, Larry has not attempted to demonstrate that granting his request for a jury trial would not have interfered with the trial court's docket, delayed the trial, or injured the opposing party. See Monroe, 234 S.W.3d at 70.
Accordingly, we hold that the trial court did not err in denying Larry's jury-trial request. See In re Marriage of Crosby, 322 S.W.3d 354, 356 (Tex. App.—El Paso 2010, no pet.) (party "not entitled to a trial by jury" where party requested jury trial, but did not pay jury fee).
We overrule Larry's third issue.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice Panel consists of Justices Jennings, Massengale, and Huddle.