Opinion
05-22-00505-CV
04-26-2023
WENG ONG, Appellant v. ARMANDO FERRER GUZMAN AND ROCIO HERNANDEZ IBARRA, Appellees
On Appeal from the County Court at Law No. 3 Dallas County, Texas Trial Court Cause No. CC-21-00005-C.
Before Justices Pedersen, III, Garcia, and Kennedy
MEMORANDUM OPINION
DENNISE GARCIA JUSTICE
This case arises out of a suit Weng Ong filed against Armando Guzman and Rocio Ibarra for, inter alia, damages to real and personal property. After a bench trial, the trial court entered a take-nothing judgment against Ong.
In two issues, Ong now argues the trial court erred because she was "deprived of proper notice" of the trial setting and because the court conducted a bench trial after her timely demand for a jury. Concluding Ong's arguments are without merit, we affirm the trial court's judgment.
I. Background
Ong, appearing pro se, initiated an action for monetary relief against Guzman and Ibarra. On February 2, 2021 the clerk mailed a non-jury trial notice to Ong, setting the case for trial on December 2, 2021. The notice was mailed to the wrong address. The clerk subsequently mailed another notice setting the trial for December 6, 2021. That notice was also mailed to the wrong address.
Ong is represented by counsel on appeal.
On December 2, Ong filed a document with the trial court explaining that the court had incorrectly entered her address in the system. Ong then appeared on December 6 and participated in the bench trial.
Trial was not completed on December 6. Instead, the court continued the trial to a later date to provide the parties with time to prepare proper documentation pertaining to the property at issue.
Ong filed a jury demand on December 23, 2021. Thereafter, she received two notices setting the continuation of the bench trial. Both notices were mailed to the correct address.
The last notice set the case for trial on March 7, 2022. Ong appeared and participated in the trial. When the trial concluded, the trial court entered a take-nothing judgment against Ong on her claims.
II. Analysis
Improper Notice
Ong's first issue argues she was deprived of proper notice of the trial setting because the notice of the December 6 setting was mailed to the wrong address. According to Ong, this resulted in her "being inadequately prepared for trial" and was "prejudicial to her rights to fair notice and due process."
Texas Rule of Civil Procedure 245 permits the trial court to 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. See Tex. R. Civ. P. 245. "Error resulting from a trial court's failure to provide parties proper notice under Rule 245 is waived if a party proceeds to trial and fails to object to the lack of notice." Custom-Crete, Inc. v. K-Bar Svcs., Inc., 82 S.W.3d 655, 658 (Tex. App.- San Antonio 2002, no pet.); Stallworth v. Stallworth, 201 S.W.3d 338, 346 (Tex. App.-Dallas 2006, no pet.); Stone v. Stone, No. 02-18-00163-CV, 2020 WL 3410502, at *4 (Tex. App.-Fort Worth May 28, 2020, pet. denied) (mem. op.); State Farm Fire and Cas. Co. v. Price, 845 S.W.2d 427, 432 (Tex. App.-Amarillo 1992, writ dism'd by agr).
Despite the notice being mailed to the wrong address, Ong appeared for trial on December 6. She did not file a motion for continuance or raise the issue of inadequate notice. As a result, she waived any error resulting from improper notice. See Stallworth, 201 S.W.3d at 346. Ong's first issue is resolved against her.
Jury Trial Demand
Ong's second issue argues her "rights were violated for depriving her of a jury trial after notifying the court of her correct address and timely demanding a jury trial." But Ong provides no argument or authority to support her contention. Accordingly, the issue is forfeited for inadequate briefing. See Tex. R. App. P. 38.1(i); Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex.1994) (observing that error may be waived by inadequate briefing).
But even if the error had been preserved, and if we further assume for the sake of argument that the right to a jury trial was timely perfected, the argument still fails.The right to a jury trial is guaranteed by the Texas Constitution. Tex. Const. art. I, § 15 ("The right of trial by jury shall remain inviolate."), art. V, § 10 ("In the trial of all causes in the District Courts, the plaintiff or defendant shall, upon application made in open court, have the right of trial by jury."). Nonetheless, the right to a jury trial in a civil case is not self-executing. See Vardilos v. Vardilos, 219 S.W.3d 920, 923 (Tex. App.-Dallas 2007, no pet). To invoke and perfect the right to a jury trial in a civil case, a party must first comply with the requirements of rule 216. Id. Texas Rule of Civil Procedure 216 provides as follows:
The demand was filed after trial commenced. Moreover, the judgment recites that Ong did not pay the jury fee. 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. P. 216 (stating that a jury fee "must be deposited . . . within the time for making a written request for a jury trial"). Although the record reflects that Ong filed a pauper's affidavit when she initiated the case, there is no indication that she brought this fact to the trial court's attention or asserted a right to an exemption.
a. Request. 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.
Even when a civil litigant has perfected a right to a jury trial, a litigant waives that right if the litigant participates in a bench trial without objection. See, e.g., Sunwest Reliance Acquisitions Group, Inc. v. Provident Nat'l Assur. Co., 875 S.W.2d 385, 387 (Tex. App.-Dallas 1993, no writ) (holding "when a party has perfected its right to a jury trial in accordance with rule 216 but the trial court instead proceeds to trial without a jury, the party must, in order to preserve any error by the trial court in doing so, either object on the record to the trial court's action or indicate affirmatively in the record it intends to stand on its perfected right to a jury trial."); Goode v. McGuire, No. 01-20-00028-CV, 2021 WL 4432534, at *5 (Tex. App.- Houston [1st Dist.] Sept. 28, 2021, no pet.) (mem. op.) (constitutional right to trial by jury can be waived); In re D.R., 177 S.W.3d 574, 580 (Tex. App.-Houston [1st Dist.] 2005, pet. denied) (concluding litigants waived their objection to bench trial by failing to object or otherwise indicate they possessed "perfected" right to jury trial until charge conference); In re A.M., 936 S.W.2d 59, 61 (Tex. App.-San Antonio 1996, no writ) (observing that perfected right to jury trial in civil case may be waived by party's failure to act when trial court proceeds with bench trial).
Here, Ong participated in the trial on December 6, 2021, and filed her demand for a jury trial on December 23, 2021, after the trial had been continued to a later date. Ong continued to participate in the bench trial when it resumed on March 7, 2022. Ong did not object or affirmatively assert that she possessed a perfected right to a jury trial. Consequently, the issue was not preserved for our review. See D.R., 177 S.W.3d at 580.
III. Conclusion
Having resolved all of Ong's issues against her, we affirm the trial court's judgment.
JUDGMENT
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that each party bear its own costs of this appeal. Judgment entered this 26th day of April 2023.