Opinion
No. 01-04-00139-CV
Opinion Issued July 7, 2005.
On Appeal from the 311th District Court, Harris County, Texas, Trial Court Cause No. 2001-16182.
Panel consists of Chief Justice RADACK and Justices JENNINGS and HANKS.
MEMORANDUM OPINION
Appellant, Jennifer DeGhelder, challenges the trial court's November 10, 2003 order, entered after a bench trial, granting a petition to modify an order in a suit affecting the parent-child relationship filed by appellee, William Compton, Jr. Compton brought suit, seeking to modify the parent-child relationship with his children, J.C., A.C., and B.C., based on allegations that DeGhelder's live-in boyfriend abused another child living in DeGhelder's home. In three issues, DeGhelder contends that the trial court abused its discretion in denying her right to a jury trial. We reverse and remand for a new trial.
A companion case involving appellant's children from her prior marriage was tried simultaneously with this suit, but the companion case is not at issue in this appeal.
DeGhelder identifies her three issues as follows: (1) Whether the trial court abused its discretion in denying appellant's right to a trial by jury, (2) whether continuing to try this case to a jury would have interfered with the trial court' docket, delayed the trial, or injured the opposing party, and (3) whether the trial court's ruling violated appellant's right to a trial by jury under the Texas Constitution. We consider these issues together.
Factual and Procedural Background
On September 29, 2003, the trial court seated a jury and commenced a jury trial on the merits of Compton's petition. The following day, a juror did not appear due to a death in his family. Because there was no alternate juror, and the parties objected to proceeding with a jury of less than twelve members, the court declared a mistrial, and excused the remaining members of the jury. The trial court then swore in a second venire panel and commenced voir dire. However, during voir dire, the court discovered that the parties had not paid a jury fee. The court recessed voir dire and conducted an in-chambers conference to determine whether the case would be tried to a jury or the bench.
During this conference, DeGhelder advised the court that she had just paid the jury fee and was ready to proceed with a jury trial. Alternatively, DeGhelder requested a 30-day continuance if the court determined that it could not proceed with a jury trial at that time. She also argued that the parties had already picked one jury, that it would be prejudicial not to continue with a jury trial because all parties had been aware that this case was to be tried to a jury, that continuing with a jury trial would not be disruptive to the court, and that it would be unconstitutional to deny appellant her right to a jury trial in light of the material fact issues presented in the case.
Compton argued that, in light of the failure to pay a jury fee, DeGhelder was not entitled to a jury trial. The attorney ad litem argued that it was not in the best interest of the children for the case to be delayed even one day, and that the case should be tried to the bench to conclude the litigation. The court then noted that, if it proceeded with a jury trial, the case could not be completed during the week originally set aside for the trial, that in light of the mistrial the court was already behind schedule, and that the court had another docket the following week with a substantial number of cases.
After noting that it had not signed any written order setting the case for jury trial, that the payment of the jury fee had not been made in compliance with the Texas Rules of Civil Procedure, that it would prejudice the parties to continue with a jury trial, and that the attorney ad litem had stated that it would not be in the best interest of the children to continue the case, the court dismissed the jury, denied DeGhelder's motion for continuance, and proceeded with a bench trial.
Jury Fee
DeGhelder asserts that the trial court abused its discretion and violated her constitutional right to a jury trial when it dismissed the jury panel during voir dire upon learning that the jury fee had not been paid. Appellant further asserts that trying the case to a jury would not have interfered with the trial court's docket, would not have delayed the trial, and would not have injured Compton.
We review a trial court's denial of a jury demand 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. We will find an abuse of discretion only when the trial court's decision is arbitrary, unreasonable, and without reference to guiding principles. Id.
The Texas Constitution guarantees the right to trial by jury. See Tex. Const. art. I, § 15. However, in order to be entitled to a trial by jury, a party must file a written request for a jury trial and pay a jury fee within a reasonable time before trial. Tex. Const. art. V, § 10 (stating that "no jury shall be empaneled in any civil case unless demanded by a party to the case, and a jury fee be paid by the party demanding a jury, for such sum, and with such exceptions as may be prescribed by the Legislature"); Tex. R. Civ. P. 216 (stating that a jury fee "must be deposited . . . within the time for making a written request for a jury trial").
Here, the record establishes that appellant did not timely pay a jury fee. However, DeGhelder did pay the fee immediately after being notified by the trial court that a jury fee had not been paid, and it is well-established that a trial court, even when a party does not timely pay the jury fee, 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).
This Court has previously held that a trial court abused its discretion in denying an appellant a jury trial under similar circumstances. Dawson v. Jarvis, 627 S.W.2d 444, 446-47 (Tex.App.-Houston [1st Dist.] 1981, writ ref'd n.r.e.). In Dawson, on the morning of the trial, the trial court discovered that, though the parties had timely requested a jury, neither party had paid a jury fee. Id. at 446. The trial court refused to conduct a jury trial even though both attorneys were ready and prepared to proceed with a jury trial, the parties and witnesses had been advised that there would be a jury trial, the court personnel had prepared for a jury trial, three docket control orders had indicated that there would be a jury trial, a jury panel was available to hear the case, and one of the parties offered to pay the jury fee before commencement of the trial. Id. at 446-47. When the trial court declared its intention to proceed with a bench trial, one of the parties objected. Id.
Compare Higginbotham v. Collateral Prot., Inc., 859 S.W.2d 487, 489 (Tex.App.-Houston [1st Dist.] 1993, writ denied) (finding trial court did not abuse its discretion in denying jury trial because jury was not available to hear case, but noting that when a jury is available to hear case, appellate courts have reversed trial court's denial of jury trial).
In this case, the trial court was in the middle of conducting voir dire when it became aware of DeGhelder's failure to pay a jury fee, and the jury panel was waiting in the courthouse and was available to hear the case. Additionally, the trial court had set its docket for the week based on the presumption that the case would be tried to a jury, and the parties had prepared for a jury trial. Thus, we find that DeGhelder established that a jury trial could be conducted without interfering with the court's docket or delaying the trial. DeGhelder also established that the other parties would not be injured by proceeding with a jury trial because they were clearly prepared to proceed. While DeGhelder offered to continue the case if necessary, nothing in the record indicates that the trial court, or any of the other parties, seriously contemplated continuing the case, whether the case was tried to the bench or a jury. We recognize that a jury trial generally takes longer than a bench trial to conduct, and we are sympathetic to the trial court's comment that conducting a bench trial would serve the interests of efficiency in handling the remainder of its docket. However, conducting a jury trial of this case would not have resulted in any unanticipated "delay" or "interfered" with the court's docket any more than any other jury trial. Thus, based on the unique circumstances presented in this case, we must conclude that, despite DeGhelder's late payment of a jury fee, the trial court abused its discretion in denying DeGhelder a jury trial of this case. We further conclude that, in light of the material fact issues presented in the case, this error was not harmless. See In re J.N.F., 116 S.W.3d 426, 437 (Tex.App.-Houston [14th Dist.] 2003, no pet.).
We sustain DeGhelder's first, second, and third issues.
Conclusion
We reverse the judgment and remand the cause for a new trial.