                           NUMBER 13-12-00167-CV

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

THEATRE COUNCIL
PRODUCTIONS, LTD.,                                                     Appellant,

                                         v.

CITY OF HARLINGEN,                                                       Appellee.


                  On appeal from the 445th District Court
                       of Cameron County, Texas.


                       MEMORANDUM OPINION
          Before Justices Rodriguez, Benavides, and Longoria
              Memorandum Opinion by Justice Benavides

      By seven issues, Theatre Council Productions, Ltd. (TCP), appeals a final

judgment rendered in favor of appellee, the City of Harlingen (Harlingen). We reverse
and remand.

                                      I.       BACKGROUND

        This appeal involves a commercial dispute between Harlingen and TCP over the

refund of ticket sales for various Broadway musical performances that did not go on as

planned during the 2008–2009 “Spotlight Series” at the Harlingen Municipal Auditorium.

        In its original petition, Harlingen1 alleged causes of action against TCP for breach

of fiduciary duty, breach of contract, and conversion.                 Harlingen sought damages,

attorney’s fees, and requested a jury trial.            TCP filed an original answer and general

denial. On September 30, 2011, Harlingen filed a court-ordered pre-trial order which

stated that Harlingen requested a non-jury trial.              At a final pre-trial conference on

October 13, 2011, Harlingen announced ready, while TCP objected to the removal of the

cause from the jury docket to the non-jury docket and made an oral motion for

continuance, which was denied.             The trial court scheduled the matter for trial on

October 18, 2011.

        Prior to the commencement of the bench trial, TCP again objected to the

withdrawal of the case from the jury docket to the non-jury docket, but otherwise

announced ready.        The trial court noted TCP’s objection, overruled it, and proceeded

with a bench trial on the merits. The trial court rendered final judgment in Harlingen’s

favor and ordered TCP to pay Harlingen $58,996.88, plus post-judgment interest and

court costs, as well as attorney’s fees. This appeal followed.

        1
           Through various assignments of claims, the City of Harlingen brought suit on behalf of
ticketholders, who were not refunded money by TCP after the shows were cancelled. The City of
Harlingen paid refunds instead to ticketholders in exchange for the assignments of claims, if any, against
TCP.



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                             II.    RIGHT TO A JURY TRIAL

       By its seventh issue, TCP asserts that it was deprived of its right to a trial by jury.

A.     Standard of Review

       The United States and Texas Constitutions guarantee the right to a trial by jury.

See U.S. CONST. art. III, § 2; TEX. CONST. art. I, § 15. We review a trial court’s denial of

a jury demand for an abuse of discretion.      See Mercedes-Benz Credit Corp. v. Rhyne,

925 S.W.2d 664, 666 (Tex. 1996). In reviewing for an abuse of discretion, we analyze

the entire record.   See Simon v. York Crane & Rigging Co., Inc., 739 S.W.2d 793, 795

(Tex. 1987). We only find an abuse of discretion when the trial court’s decision is

arbitrary, unreasonable, and without reference to guiding principles.         See Downer v.

Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).

B.     Discussion

       TCP argues that it relied upon Harlingen’s jury demand and did not waive the

withdrawal of the case from the jury docket. We believe that a timeline of relevant

events is helpful in this case.


       August 21, 2009:             Harlingen files Plaintiff’s Original Petition, demands a
                                    trial by jury, and pays jury fee.

       August 12, 2010:             Trial court sets case for jury trial on February 28,
                                    2011.

       February 14, 2011:           Trial court grants motion for continuance and orders
                                    parties to complete mediation within sixty days.

       April 15, 2011:              Parties notify court that mediation was unsuccessful.
                                    Trial court sets jury trial for October 17, 2011 and sets
                                    pre-trial order due date on September 16, 2011.




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       August 31, 2011:              Trial court extends pre-trial order due date until
                                     September 23, 2011.

       September 23, 2011:           Trial court extends pre-trial order due date until
                                     September 30, 2011.

       September 30, 2011:           Harlingen files pre-trial order which requests a
                                     non-jury trial rather than a jury trial.

       October 13, 2011:             Harlingen announces “ready.”         TCP objects to
                                     placement on non-jury docket and makes oral motion
                                     for continuance which is denied. Trial court sets
                                     cause for a bench trial on October 18, 2011.

       October 18, 2011:             TCP again objects to non-jury setting, which the trial
                                     court overrules. Bench trial proceeds on the merits.

       Texas Rule of Civil Procedure 220 provides that:

       When any party has paid the fee for a jury trial, he shall not be permitted to
       withdraw the cause from the jury docket over the objection of the parties
       adversely interested.

TEX. R. CIV. P. 220. Under this rule, an opposing party may rely on another party’s jury

demand, when a demand is made and a fee is paid.          See Rhyne, 925 S.W.2d at 666;

see also TEX. R. CIV. P. 216, 220.    In other words, a trial court may not remove the case

from the jury docket over the objections of the opposing party.   See Rhyne, 925 S.W.2d

at 666. The purpose of Rule 220 is to ensure that a case will not be removed from the

jury docket once it properly has been placed thereon if any party adversely affected

objects to such removal.    See Bank of Houston v. White, 737 S.W.2d 387, 388 (Tex.

App.—Houston [14th Dist.] 1987) (orig. proceeding).

       The record shows that up until September 30, 2011, when Harlingen filed its

pre-trial order, this case was set on the trial court’s jury docket.           Then, TCP

unsuccessfully objected twice to the trial court’s removal of the case from the jury docket



                                              4
to the non-jury docket.    On October 18, 2011, the trial court explained its denial of

TCP’s objection by stating the following:

       [. . . .] For the record the joint pretrial orders were due 30 days before and
       actually those kinds of issues in terms of requesting a jury should have
       been done timely.

       Here, the record shows that a jury demand was made and paid by Harlingen more

than two years prior to trial, and the trial court set the case on its jury docket.   As such,

TCP was entitled, as a matter of law, to rely on that jury setting.         See Rhyne, 925

S.W.2d at 666.      Removing the cause from the jury docket, based on Harlingen’s

pre-trial order, eighteen days prior to trial without giving TCP a reasonable time to

comply with the Rule 216 requirements for making its own jury demand and paying the

fee amounted to an abuse of discretion.      Cf. id. (“For the trial court to vacate or change

its order [setting a case on the jury docket], [the trial court] must have given the parties a

reasonable time to comply with Rule 216 requirements for making a jury demand and

paying the fee.”); see also TEX. R. CIV. P. 216.

       Because we hold that the trial court abused its discretion, we next determine

whether the trial court’s error was harmful and requires reversal.       See TEX. R. APP. P.

44.1(a). The wrongful denial of a jury trial is harmful when the case contains material

fact questions. See Rhyne, 925 S.W.2d at 667; Halsell v. Dehoyos, 810 S.W.2d 371,

372 (Tex. 1991).     Here, the record indicates several material fact questions were

presented to the trial court, including the resolution of all of Harlingen’s alleged causes of

action, the extent of Harlingen’s damages, and an award of attorney’s fees. Therefore,

the denial of the jury trial was harmful error and requires reversal.       See Rhyne, 925




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S.W.2d at 667.

        TCP’s seventh issue is overruled.2

                                        III.    CONCLUSION

        We reverse the trial court’s judgment and remand this case for a new trial before a

jury.



                                                                  __________________________
                                                                  GINA M. BENAVIDES,
                                                                  Justice


Delivered and filed the
22nd day of August, 2013.




        2
         Because we dispose of this case on the issue of TCP’s denial of a right to trial by jury, we do not
reach TCP’s other issues on appeal that challenge the legal and factual sufficiency of the trial court’s
judgment. See TEX. R. APP. P. 47.1.



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