REVERSE and REMAND; and Opinion Filed July 8, 2015.




                                          S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        No. 05-14-00310-CV

                                 ROBERT TREJO, Appellant
                                          V.
                                 SAMANTHA HUY, Appellee

                      On Appeal from the 101st Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. DC-12-05068

                             MEMORANDUM OPINION
                          Before Justices Bridges, Fillmore, and Brown
                                   Opinion by Justice Brown
       Samantha Huy sued her landlord Robert Trejo for premises liability as a result of injuries

she allegedly sustained when she tripped on broken pavement in the parking lot of her apartment

complex. Trejo represented himself at a trial before the court. The court found in favor of Huy

and awarded damages. In this appeal, Trejo contends the court erred in removing the case from

the jury docket when his waiver of his right to a jury trial occurred before he was provided with

an interpreter. He also contends the court erred in cutting off his cross-examination of Huy after

the third question and challenges the legal and factual sufficiency of the evidence to support the

court’s findings of fact. Because the trial court determined an interpreter was necessary for

Trejo, but allowed Trejo to waive a jury trial before he was provided an interpreter, we conclude

the court erred. We reverse the trial court’s judgment and remand this cause to the trial court for

a new trial on liability and damages.
                                          BACKGROUND

       On May 7, 2012, Huy filed this lawsuit, alleging a premises liability claim due to the

dangerous condition created by cracked pavement and little to no lighting in her apartment

parking lot. She requested a jury trial and paid the jury fee. On October 30, 2013, the court

called the case for a jury trial. Trejo appeared pro se. The judge noted that Trejo’s second

attorney had been granted leave to withdraw two months earlier and asked him about his efforts

to retain another attorney. Trejo answered that he could not afford a lawyer. The week before,

he had filed a motion for a continuance, which Huy opposed. The court stated that the motion

was not in proper form and denied it. The court reporter noted in the record, “Mr. Trejo spoke in

broken English and was difficult to understand.”        The judge asked him if he needed an

interpreter. Trejo responded, “Well, Your Honor, I never before - - sometimes because my

accent, I don’t know if I need an interpreter, because the people - - I never had problem with

communicating with people, with [Huy’s attorney]. I went to his office one time and, okay, I

don’t have a problem communicating with him. But some people, they may have trouble with

the pronunciation, but - -”     The judge interrupted to instruct the bailiff to ask the court

coordinator to “call over to Crowley to whoever it is that assigns translators over there to see if

they can get us a Spanish interpreter today.”

       The judge then mentioned the jury demand and the difficulty of conducting a jury trial

with an unrepresented party. The judge told Trejo that if there was no jury he could allow a

certain amount of latitude in terms of questions asked or evidence offered, but would not be able

to do that in a jury trial. The judge then asked the parties if they would consider waiving a jury

and trying the case to the court. The judge stated, “And I’m concerned that with Mr. Trejo being

unrepresented and further potential difficulties with his language issue, it is going to be very

difficult to try this to a jury.” The judge told Trejo that both sides would have to agree to waive

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a jury trial and asked if he was prepared to do so. Trejo responded, “Well, I mean, I don’t have

any problem with that.” After further discussion with Huy’s counsel on the subject, the judge

asked Trejo about the jury waiver again. “Mr. Trejo, I want to be sure I understood you clearly.

You are agreeable to waiving a trial by jury. Yes or no?” Trejo replied, “Yes, Your Honor.”

After a recess to allow Huy’s counsel to confer with Huy, counsel announced Huy still wanted a

jury trial.

           The court went over some of the basic rules of a jury trial with Trejo, and a jury panel

was pulled. During a recess before jury selection began, the trial court learned that a translator

could not be provided on less than a week’s notice. The judge then stated, “I am simply unable

to envision completing this trial without Mr. Trejo having the services of an interpreter. I can’t

understand him. I doubt that the jury would be able to understand him, and I don’t think the

interest of justice would be served by a trial under those circumstances.” The court continued

the trial for one week. The reporter’s record reflects that the bailiff interpreted the court’s final

comments for Trejo.

           One week later, the court called the case for a jury trial. Trejo had the benefit of an

interpreter. The trial court again asked Huy’s counsel if his client would consider waiving a jury.

After a recess, Huy decided to waive a jury trial. The judge stated, “Mr. Trejo waived trial by

jury on the record in open court last week. Accordingly, we will proceed to try this case without

a jury.”

           The trial lasted one day. Huy testified that she fractured her foot after she fell due to a

crack in the concrete she could not see because it was dark. Trejo attempted to show that Huy’s

injury was due to her jumping off a U-Haul truck when she moved in to the apartment. The

court ruled in Huy’s favor and awarded her over $70,000 in damages. This appeal followed.




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                                          JURY WAIVER

       In his first issue, Trejo contends the trial court improperly removed the case from the jury

docket when his waiver of a jury occurred before he had a translator. We agree.

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

Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996); see In re Prudential Ins. Co. of

Am., 148 S.W.3d 124, 132 (Tex. 2004) (orig. proceeding) (waiver of jury trial must be knowing

and voluntary). Under rule of civil procedure 220, an opposing party may rely on another party’s

jury demand, when a demand is made and the fee is paid. TEX. R. CIV. P. 220; see Rhyne, 925

S.W.2d at 666. When any party has paid the fee for a jury trial, a trial court may not remove the

case from the jury docket over the objections of the opposing party. Theatre Council Prods.,

Ltd. v. City of Harlingen, No. 13-12-00167-CV, 2013 WL 4506580, at *2 (Tex. App.—Corpus

Christi Aug. 22, 2013, no pet.) (mem. op.).

       Here, when the case was called for trial, the trial judge determined that Trejo, who was

pro se, needed an interpreter. After making that determination, the judge sua sponte suggested

the parties waive a jury trial. Before an interpreter was provided, the judge asked Trejo if he was

willing to waive a jury trial, and Trejo apparently agreed to do so. At that time, Huy still wanted

a jury trial. When the proceedings resumed a week later with the interpreter the judge deemed

necessary, the judge again asked Huy to consider waiving a jury. That time, Huy agreed. But

the trial judge did not reexamine the issue of Trejo’s jury waiver with the interpreter’s assistance.

He merely stated that Trejo had waived trial by jury on the record in open court a week earlier

and proceeded with a bench trial.

       The trial court had no duty to sua sponte appoint an interpreter in this case. See Martinez

v. Cherry Ave. Mobile Home Park, 134 S.W.3d 246, 249 (Tex. App.—Amarillo 2003, no pet.).

Whether or not to appoint an interpreter is discretionary. See TEX. R. CIV. P. 183; Cheng v.

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Wang, 315 S.W.3d 668, 671–72 (Tex. App.—Dallas 2010, no pet.). Once the trial court did

appoint an interpreter, however, Trejo should have had an interpreter for all purposes. We

conclude that under these circumstances, the court had a duty to determine, with Trejo’s use of

an interpreter, whether Trejo had any objections to withdrawing the case from the jury docket

and proceeding with a trial before the court.

         Huy contends that Trejo waived this issue by failing to object to the trial court’s action in

proceeding with a bench trial. Normally, we do not review alleged errors that the appellant did

not raise in the trial court. See TEX. R. APP. P. 33.1. But fundamental error exists in those rare

instances when the record shows the court lacks jurisdiction or the public interest, as declared in

our state statutes or constitution, is directly and adversely affected. See Cox v. Johnson, 638

S.W.2d 867, 868 (Tex. 1982) (per curiam); Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex. 1982)

(per curiam). A litigant’s constitutional right to a jury trial is a matter of public interest, and the

court’s actions directly and adversely affected that interest. Because the record reflects that

Trejo’s abilities to understand and communicate effectively at the proceeding at which the trial

judge asked him if he waived a jury trial were clearly called into question, this is one of those

rare instances of fundamental error. We conclude the court abused its discretion in failing to

ensure Trejo knowingly waived his constitutional right to a jury trial. We sustain Trejo’s first

issue.

                              LEGAL SUFFICIENCY OF THE EVIDENCE

         In light of our resolution of Trejo’s first issue, we need not consider his second issue, in

which he complains of the fact that the trial court cut off his cross-examination of Huy after only

three questions. Trejo raises three other issues in which he challenges the legal and factual

sufficiency of the evidence to prove Huy’s premises liability claim. Because Trejo would be




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entitled to rendition of a take-nothing judgment in his favor instead of a remand if the evidence is

legally insufficient, we address his no-evidence arguments.

       Trejo contends there was no evidence of an unreasonable risk of harm where Huy fell, no

evidence he had actual or constructive knowledge that the light or its timer were not working,

and no evidence his negligence was a cause-in-fact of the injuries. To establish a premises

liability claim, a plaintiff who is an invitee must prove: (1) the owner had actual or constructive

knowledge of a condition on the premises; (2) the condition posed an unreasonable risk of harm;

(3) the owner did not exercise reasonable care to reduce or eliminate the risk; and (4) the owner’s

failure to use such care proximately caused the plaintiff’s injury. State Dep’t of Highways &

Public Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992). Constructive knowledge of a

dangerous condition is that which a landowner should have known or discovered after a

reasonable inspection. Cadenhead v. Hatcher, 13 S.W.3d 861, 864 (Tex. App.—Fort Worth

2000, no pet.). Proximate cause has two elements: foreseeability and cause-in-fact. LMB, Ltd v.

Moreno, 201 S.W.3d 686, 687 (Tex. 2006). The test for cause-in-fact is whether the act or

omission was a substantial factor in causing the injury and without the act or omission the harm

would not have occurred. Id.

       The court made findings of fact and conclusions of law. In an appeal from a bench trial,

the trial court’s findings of fact have the same weight as a jury verdict. Principal Life Ins. Co. v.

Revalen Dev., LLC, 358 S.W.3d 451, 454 (Tex. App.—Dallas 2012, pet. denied). A legal

sufficiency challenge to the findings of fact fails if there is more than a scintilla of evidence to

support the finding. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 84 (Tex. 1992).

       Huy testified that in September 2010 she moved into an apartment she leased from Trejo

in a small apartment complex. There was a small parking lot in the back of the complex outside

her apartment door. Huy stated that once she opened her apartment door, she could only get one

                                                –6–
foot out before having to step off a step onto the pavement. At about 8:00 p.m. on October 6,

2010, she left her apartment. When she stepped onto the pavement, she hit a crack in the

concrete and went down immediately. Huy identified Exhibit 5A as a picture of the pavement

outside her apartment door taken about a month before her fall. The exhibit shows numerous

cracks in the pavement, including cracks leading up to her door. Huy identified Exhibits 5D, 5F,

and 5G as close-up pictures of the cracks, with quarters placed in them for reference. When she

tripped and fell, it was dark outside. There were no lights on at the time, and she was not able to

see the cracks. She identified a light fixture on her porch in one of the pictures and testified it

was on a timer and was not on the night she fell. Huy went to the emergency room later that

night and was diagnosed with a fractured foot. She could not put any weight on the foot and

required surgery to repair the injury.

       Huy called Trejo as a witness. He testified he has owned the apartment property since

1998. He also managed the property, which includes day-to-day operations, leasing, responding

to tenant requests or complaints, and maintenance. He testified he visited the property almost

every day and kept his eyes open for items needing repair.

       Trejo contends there is no evidence of an unreasonable risk of harm where Huy fell. She

testified she fell right outside her apartment door, and Trejo maintains the broken pavement was

many feet from her door. The pictures showing cracks outside the door to Huy’s apartment are

more than a scintilla of evidence that she fell due to a crack right outside her apartment. Trejo

also contends there is no evidence he had actual or constructive knowledge the lights and/or

timer were malfunctioning. We note Huy did not present evidence the lights or timer were

broken, just that the lights were not on at the time she fell. Huy’s evidence that the cracks in the

pavement were there at least one month before she fell, as well as evidence that Trejo was at the




                                                –7–
apartment regularly and looked for needed repairs, is more than a scintilla of evidence that Trejo

had actual or constructive knowledge of the dangerous condition on the premises.

       Trejo also contends his failure to eliminate the risk of harm was not the cause-in-fact of

Huy’s injuries. He points to evidence in Huy’s medical records and from a neighbor that she

injured her foot a month before her fall when jumping off the back of a U-Haul truck. He also

notes the October 2010 medical records from Huy’s visit to the emergency room indicate she

mentioned rolling her ankle when moving and possibly again while going “up the stairs the

wrong way.” Huy testified that she did not see a doctor after the U-Haul incident and that she

could still walk after that incident. When she fell at her apartment complex, she was not having

any problems with her ankle from the U-Haul incident and mentioned it to the doctors at the

emergency room just in case. We conclude there is more than a scintilla of evidence that Trejo’s

failure to repair the pavement was the cause-in-fact of Huy’s injury. We overrule Trejo’s third,

fourth, and fifth issues to the extent they challenge the legal sufficiency of the evidence.

       We reverse the trial court’s judgment and remand the cause to the trial court for a new

trial on liability and damages.




                                                      /Ada Brown/
                                                      ADA BROWN
                                                      JUSTICE


140310F.P05




                                                –8–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

ROBERT TREJO, Appellant                              On Appeal from the 101st Judicial District
                                                     Court, Dallas County, Texas
No. 05-14-00310-CV         V.                        Trial Court Cause No. DC-12-05068.
                                                     Opinion delivered by Justice Brown. Justices
SAMANTHA HUY, Appellee                               Bridges and Fillmore participating.

      In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and this cause is REMANDED to the trial court for a new trial on liability and
damages.

       It is ORDERED that each party bear his or her own costs of this appeal.


Judgment entered this 8th day of July, 2015.




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