In this cause, we consider whether the continuance of a trial setting affects the timeliness of a jury request. The court of appeals held that it does not, and therefore upheld the trial court's denial of Petitioner's jury request. We disagree, and therefore reverse.

Esther and George Dehoyos brought this suit against Jim B. Halsell for wrongful eviction and conversion. On the Dehoyoses' motion, the trial court set the case on the non-jury docket for final trial on the merits on September 8, 1989. Halsell filed a jury request, and paid the proper fee, on August 15, 1989.

The trial court called the case as scheduled on September 8, 1989. Thereafter, by order of September 14, 1989, the court struck Halsell's request for a jury trial on the ground that it was not timely filed. By the same order, however, the court also reset the case on the non-jury docket for final trial on the merits on October 13, 1989.

Under our rules, a request for a jury trial must be filed "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 request in advance of the thirty-day deadline is presumed to have been made a reasonable time before trial. See Wittie v. Skees, 786 S.W.2d 464, 466 (Tex.App. — Houston [14th Dist.] 1990, writ denied). The adverse party may rebut that presumption by showing that the granting of a jury trial would operate to injure the adverse party, disrupt the court's docket, or impede the ordinary handling of the court's business. Id.

At the time the trial court struck Halsell's request for a jury trial, the request was timely as to the October 13, 1989, trial setting. The record contains no indication that the granting of the jury trial would have injured the Dehoyoses or caused undue disruption to the trial court. Thus, the untimely jury demand became timely when the trial court reset the case for October 13. The trial court therefore erred in denying Halsell's request for a jury trial.

We disapprove the opinion in Brawner v. Arellano, 757 S.W.2d 526 (Tex.App. — San Antonio), pet. dism'd by agr., 758 S.W.2d 756 (Tex. 1988), to the extent that it is inconsistent with our holding herein.

A refusal to grant a jury trial is harmless error only if the record shows that no material issues of fact exist and an instructed verdict would have been justified. See Olson v. Texas Commerce Bank, 715 S.W.2d 764, 767 (Tex.App. — Houston [1st Dist.] 1986, writ ref'd n.r.e.). Here, the record reflects the existence of several material fact issues: chiefly, whether the Dehoyoses abandoned their apartment, and the extent of the Dehoyoses' damages.

We conclude that the trial court's refusal to grant a jury trial amounted to harmful error. We therefore grant Petitioner's application for writ of error and pursuant to Texas Rule of Appellate Procedure 170, without hearing oral argument, a majority of the court reverses the judgment of the court of appeals and remands this cause to the trial court for a jury trial.

CORNYN, J., not sitting.

Summaries of

Halsell v. Dehoyos

Supreme Court of Texas

Jun 5, 1991

810 S.W.2d 371 (Tex. 1991)

holding trial court erred in denying jury trial and remanding for new trial

Summary of this case from In re Webb-Goetz

holding that untimely request for jury trial becomes timely when trial is later reset more than thirty days after request

Summary of this case from Emesowum v. Milam St. Auto Storage, Inc.

holding that material issues of fact must be resolved by a jury

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holding that refusal to grant jury trial is harmless error if record shows that no material issues of fact exist

Summary of this case from City of Waco v. Texas Commission on Environmental Quality

holding that a jury request in advance of the thirty-day deadline is presumed to have been made a reasonable time before trial

Summary of this case from In re Lesikar

holding that untimely request for jury trial becomes timely when trial is thereafter reset more than thirty days after request

Summary of this case from Monroe v. Alternatives in Motion

concluding that untimely filed jury request became timely when trial was reset to date more than 30 days after jury request was filed

Summary of this case from O'Connor v. O'Connor

In Halsell, the Dehoyos sued Halsell, and, on the Dehoyoses' motion, the trial court set the case on the non-jury docket for final trial on the merits on September 8, 1989.

Summary of this case from Williams v. John Deloach Enters.

In Halsell, the trial court struck an untimely jury request in the same order that reset the trial approximately one month later.

Summary of this case from In re I.I.T.

In Halsell, the supreme court held that a request for a jury trial made in advance of the thirty-day deadline is presumed to have been made at a reasonable time before trial.

Summary of this case from England v. Kolbe

stating that a refusal to grant a jury trial is harmless error if the record shows that no material issues of fact exist and an instructed verdict would have been justified

Summary of this case from Murry v. Bank of Am., N.A.

stating that a refusal to grant a jury trial is harmless error if the record shows that no material issues of fact exist and an instructed verdict would have been justified

Summary of this case from Avdeef v. Nat'l Auto Fin. Co.

In Halsell v. Dehoyos, 810 S.W.2d 371, 372 (Tex. 1991) (per curiam), the supreme court held that the error in denying a timely request for a jury trial is harmless only if there are no material fact issues and if an instructed verdict would have been proper.

Summary of this case from Rabson v. Rabson

In Halsell, a defendant's untimely request for a jury trial became timely after a new trial setting was scheduled almost sixty days after the defendant's untimely request.

Summary of this case from Ricardo N v. Turcios Argueta

Halsell v. Dehoyos

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