                                 NUMBER13-13-00291-CV

                                    COURT OF APPEALS

                          THIRTEENTH DISTRICT OF TEXAS

                             CORPUS CHRISTI - EDINBURG


                            IN RE ROGELIO ALANIZ, ET AL.


                           On Petition for Writ of Mandamus.


                                 MEMORANDUM OPINION

        Before Chief Justice Valdez and Justices Garza and Perkes
              Memorandum Opinion by Chief Justice Valdez1

        By petition for writ of mandamus, relators, Rogelio Alaniz, Elizabeth Alaniz,

Javier Adame, Olga Adame, Heriberto Diaz, Sonia A. Diaz, Cristobal Garza, Lillie

Garza, Epifanio Gomez, Maria I. Gomez, Luis Gonzalez, Amanda Gonzalez, Ricardo

Ibanez, Lucy Ibanez, Jose Lopez, Allison Colby, Damacio Pena, Lisa Pena, and




        1
          See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is
not required to do so. When granting relief, the court must hand down an opinion as in any other case.”);
Id. R. 47.4 (distinguishing opinions and memorandum opinions).
Michelle Vecchio, request that we direct the trial court2 to reinstate the underlying cause

on its jury trial docket. We conditionally grant relief as stated herein.

                              I. STANDARD FOR MANDAMUS RELIEF

       Mandamus will issue only to correct a clear abuse of discretion for which the

relator has no adequate remedy at law. In re Prudential Ins. Co. of Am., 148 S.W.3d

124, 135 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839–40

(Tex. 1992) (orig. proceeding). A trial court has no discretion in determining what the

law is or in applying the law to the facts, and a clear failure to analyze or apply the law

correctly will constitute an abuse of discretion. Walker, 827 S.W.2d at 840. Mandamus

is appropriate only when the relator has no adequate remedy on appeal.                      Id. The

adequacy of an appellate remedy must be determined by balancing the benefits of

mandamus review against the detriments. In re Prudential Ins. Co. of Am., 148 S.W.3d

at 136. In evaluating the benefits and detriments, we consider whether mandamus will

preserve important substantive and procedural rights from impairment or loss. Id.; see

In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex. 2008) (orig. proceeding).

       Under previous law, it took “special circumstances” for the denial of a jury trial to

merit mandamus review because it was considered that, in the usual case, there was an

adequate remedy by appeal. See Gen. Motors. Corp. v. Gayle, 951 S.W.2d 469, 476

(Tex. 1997) (orig. proceeding) (quoting White v. White, 108 Tex. 570, 196 S.W. 508,

512 (Tex. 1917)) (concluding that “special circumstances” and the interests of judicial

economy allowed mandamus review of the trial court’s denial of a jury trial in

conjunction with mandamus review of a crash-test order). Now, however, “[t]he denial


       2
          The respondent in this original proceeding is the Honorable Roberto “Bobby” Flores, Presiding
Judge of the 139th Judicial District Court of Hidalgo County, Texas.

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of trial by jury is . . . reviewable by mandamus.” In re Prudential, 148 S.W.3d at 138–39;

see In re Lesikar, 285 S.W.3d 577, 587 (Tex. App.—Houston [14th Dist.] 2009, orig.

proceeding); see also Rosenthal v. Ottis, 865 S.W.2d 525, 529 (Tex. App.—Corpus

Christi 1993, orig. proceeding) (stating that an adequate remedy by appeal does not

exist for the denial of a jury trial).

                                         II. BACKGROUND

       Relators brought suit against real parties in interest, Treyson Development and

Hector Ruben Lopez Jr., for claims involving alleged deceptive trade practices, fraud in

real estate, civil conspiracy, breach of contract, and enforcement of settlement contract.

On September 25, 2012, the trial court entered a docket control order setting the case

for a jury trial on November 26, 2012. This trial setting was passed by agreement of the

parties.

       On December 6, 2012, the trial court entered another docket control order re-

setting the case for a final pre-trial conference on March 28, 2013 with a jury trial

following on April 1, 2013. At the March 28, 2013 pre-trial conference, the trial court

entered an oral order re-setting the case due to the court’s conflicting criminal docket.

At this time, the trial court set the case for final pre-trial conference on May 30, 2013

with a jury trial following on June 3, 2013.          At the May 30, 2013, final pre-trial

conference, the trial court sua sponte removed the case from the jury trial docket and

placed it on the bench trial docket. That same day, relators filed a demand for a jury

trial and paid the fee. The certificate of conference for relators’ jury demand shows that

opposing counsel was “unopposed” to the filing of the demand for jury.




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       This original proceeding ensued. Relators filed an emergency motion for stay,

which this Court granted in part and denied in part.           Specifically, the motion for

emergency stay was granted insofar as it sought a stay of the trial of this matter and

denied insofar as it sought relief on the merits and reinstatement of the underlying

matter on the jury trial docket. The Court requested and received a response to the

petition for writ of mandamus from the real parties in interest. Relators further filed a

reply to the real parties’ response.

       By one issue, relators contend that the trial court abused its discretion by sua

sponte removing the case from the jury trial docket. In response, real parties contend

that it is “undisputed” that relators did not comply with Texas Rule of Civil Procedure

216 and the trial court removed the case from the jury trial docket based on “off the

record discussions” and “the court[‘s] understanding that it was with the consent of

counsel” for relators and real parties in interest. See TEX. R. CIV. P. 216. Counsel for

real parties stated that he believed the trial court “was under the impression that the

parties had agreed that this case was to be tried before the court.”

                                        III. ANALYSIS

       The Texas Constitution guarantees the right to a trial by jury. See TEX. CONST.

art. I, § 15 (“The right of trial by jury shall remain inviolate.”); see also id. 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”). “The right to jury trial is

one of our most precious rights, holding ‘a sacred place in English and American

history.’“ Gen. Motors Corp., 951 S.W.2d at 476.



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       The right to a jury trial in a civil proceeding is not “self-executing.” In re M.P.B.,

257 S.W.3d 804, 811 (Tex. App.—Dallas 2008, no pet.). To exercise their right to a trial

by jury, the relators were required to follow Texas Rule of Civil Procedure 216 by filing

“a written request for a jury trial . . . 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” and timely pay the jury fee by depositing it with the clerk of the court “within

the time for making a written request for a jury trial.” TEX. R. CIV. P. 216; see Huddle v.

Huddle, 696 S.W.2d 895, 895 (Tex. 1985) (holding that time limitations for requesting

jury trial apply to payment of jury fee as well). In addition, even if a party complies with

Rule 216, it must act affirmatively by either “object[ing] on the record to the trial court’s

action [in proceeding without a jury] or indicat[ing] affirmatively in the record it intends to

stand on its perfected right to a jury trial.” Sunwest Reliance Acquisitions Group, Inc. v.

Provident Nat’l Assurance Co., 875 S.W.2d 385, 387 (Tex. App.—Dallas 1993, no writ);

see also In re M.P.B., 257 S.W.3d at 811; Vardilos v. Vardilos, 219 S.W.3d 920, 923

(Tex. App.—Dallas 2007, no pet.).

       We review the trial court’s denial of a party’s demand for a jury trial under an

abuse of discretion standard. Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664,

666 (Tex. 1996). It is within the discretion of the trial court to deny a jury trial in the

absence of a timely request or payment of a jury fee. Huddle, 696 S.W.2d at 895;

Martin v. Black, 909 S.W.2d 192, 197 (Tex. App.—Houston [14th Dist.] 1995, writ

denied). An untimely jury demand should be granted, however, if it can be done: (1)

without interfering with the court’s docket, (2) delaying the trial, or (3) injuring the

opposing party. See Gen. Motors Corp., 951 S.W.2d at 476 (citing Allen v. Plummer, 71



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Tex. 546, 9 S.W. 672, 673 (1888) (holding that requirements of jury demand and fee

“are not strictly mandatory,” so that party failing to comply does not forfeit right to jury if

such failure does not prejudice opposing party); Dawson v. Jarvis, 627 S.W.2d 444, 446

(Tex. App.—Houston [1st Dist.] 1981, writ ref’d n.r.e.) (“[I]n spite of the mandatory

language of Rule 216, the rule is construed as being discretionary with the judge.”);

Aronoff v. Tex. Turnpike Auth., 299 S.W.2d 342, 344 (Tex. Civ. App.—Dallas 1957, no

writ) (stating that Rule 216 “is discretionary rather than mandatory[,] and that when the

Rule has not been complied with, a trial court’s decision to grant or deny a jury trial will

not be reversed on appeal except on a showing of abuse of discretion”)); Monroe v.

Alternatives in Motion, 234 S.W.3d 56, 70 (Tex. App.—Houston [1st Dist.] 2007, no

pet.); see also Barkhausen v. Craycom, Inc., 178 S.W.3d 413, 418 (Tex. App.—Houston

[1st Dist.] 2005, pet. denied).

       In the instant case, there is nothing in the record which suggests that setting this

case for a jury trial would interfere with the trial court’s docket, delay the trial, or injure

the real parties in interest.   The record reflects that the cause had been set for trial on

the jury docket since its inception. It is significant that all parties knew the case had

been set on the jury docket and were not surprised by a new jury trial setting. See, e.g.,

Tex. Valley Ins. Agency v. Sweezy Constr., Inc., 105 S.W.3d 217, 219–20 (Tex. App.—

Corpus Christi 2003, no pet.) (“As a matter of law, we find that appellants were entitled

to rely on the court's orders setting the case for a jury trial. . . . For the trial court to

vacate or change its order, it must have given appellants a reasonable time to comply

with Rule 216 requirements for making a jury demand and paying the fee.”); McCormick

v. Tex. Comm. Bank Nat. Ass’n, 751 S.W.2d 887, 891 (Tex. App.—Houston [14th Dist.]



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1988, writ denied) (“TCB contends that the ten year old case had never been set on the

non-jury docket and had, in fact, been set on the jury docket numerous times, a fact that

appellants do not refute.       Four months before trial, appellants had agreed to a

preferential trial setting. There could be no surprise to appellants.”).          Under these

circumstances, it was an abuse of discretion for the trial court to deny the late request

for a jury trial.

                                       IV. CONCLUSION

        The Court, having examined and fully considered the petition for writ of

mandamus, is of the opinion that relators have shown themselves entitled to the relief

sought. See TEX. R. CIV. P. 216; Gen. Motors Corp., 951 S.W.2d at 476; Huddle, 696

S.W.2d at 895; Monroe, 234 S.W.3d at 69–70; Barkhausen, 178 S.W.3d at 418.

Accordingly, the stay previously imposed by this Court is LIFTED. See TEX. R. APP. P.

52.10(b) (“Unless vacated or modified, an order granting temporary relief is effective

until the case is finally decided.”). We conditionally grant mandamus relief and direct

the trial court to grant relators’ request for a jury trial and reinstate this matter on the jury

docket. The writ will issue only if the trial court fails to comply.

                                                    ___________________
                                                    ROGELIO VALDEZ
                                                    Chief Justice

Delivered and filed the
23rd day of July, 2013.




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