                     In The
               Court of Appeals
 Sixth Appellate District of Texas at Texarkana

          _________________________

               No. 06-12-00045-CV
         ______________________________


             TOMMY PEELER, Appellant

                          V.

DON BRAZIEL, AND MARY CASTLEBERRY, TRUSTEE,
   THE CASTLEBERRY FAMILY TRUST, Appellees



    On Appeal from the 124th Judicial District Court
                 Gregg County, Texas
             Trial Court No. 2006-659-B




     Before Morriss, C.J., Carter and Moseley, JJ.
    Memorandum Opinion by Chief Justice Morriss
                                            MEMORANDUM OPINION

            Tommy Peeler, Don Braziel, and Mary Castleberry, as Trustee for the Castleberry Family

Trust, owned undivided interests in approximately 782.5 acres of land situated in Gregg County

along the Sabine River—Peeler a three-quarters undivided interest and Braziel and Castleberry,

Trustee, the other one-quarter. Peeler sued Braziel and Castleberry to partition the property. The

parties agreed, at least in principle, to partition the property in kind using boundary lines that

―effectively partition[ed] the property into two separate tracts‖—allocating the acreage roughly

in their respective ownership proportions, with a small portion set apart for access to both tracts.

Because he wanted a title policy on his resulting interest, Peeler did not sign a partition deed

presented to him. As a result, a nonjury trial date was set. 1 The day before that trial, Peeler’s

attorney was allowed to withdraw, and Peeler was told to find an attorney and report the next day

for a nonjury trial.2 On the day of trial, Peeler, acting pro se, orally requested, but was denied, a




1
    At an October 6, 2011, status hearing, this case was set for a nonjury trial to be held February 8, 2012.
2
 On February 7, 2012, the trial court heard Peeler’s counsel’s motion to withdraw from the case. The following
account from Braziel and Castleberry’s attorney was given:

            Your Honor, by way of history, the parties and Counsel had a meeting in my office in July.
            We’ve been . . . discussing how to divide up this property for more than two years. In July 2011,
            we reached an agreement. The agreement was conveyed to a surveyor who did a metes and
            bounds survey. With that metes and bounds survey, in October, I prepared partition deeds. My
            clients have signed their partition deed. Mr. Peeler had not signed, refuses to sign his partition
            deed.

Despite being reminded that trial was to take place the following day, Peeler informed the court that he wanted the
withdrawal motion granted. The court granted the motion, instructing Peeler, ―Be here tomorrow. Be ready for
trial. Go find yourself an attorney.‖


                                                              2
jury trial.3 From a judgment for partition of the land as set out above, Peeler appeals on the basis

that he was wrongly denied his right to a jury trial. We affirm, because Peeler was not entitled to

a jury trial.


3
 On February 8, 2012, the day of trial, Peeler appeared pro se and made an oral motion for a jury trial in the
following exchange:

                 MR. PEELER: Your Honor, I’ve already paid—the $30 jury trial fee has been paid, and
         I’m requesting a jury trial.

                  THE COURT: When did you pay that?

                    MR. PEELER: It was paid in 2006. I tried to pay it down there, and they said it’s
         already been paid. Several clerks looked at it and called the judge and—and I was instructed to
         just tell you that.

                  THE COURT: What judge did they call?

                  MR. PEELER: I don’t know.

                  ....

                  MR. PATTERSON: I think the record will reflect that back in 2006, Joe Young, who at
         the time represented the defendant Mike Rogers, paid the jury fee. Mike Rogers has not been a
         defendant in this case for almost two years . . . . Plaintiff has not filed, in either his Third
         Amended Petition or any other pleading filed in this case, a request for jury trial.

A demand for trial by jury can be waived by contractual agreement. See In re Prudential Ins. Co. of Am., 148
S.W.3d 124, 129–33 (Tex. 2004) (orig. proceeding). Noting that a notice of nonjury setting was sent after ―the
parties agreed to have a non-jury trial on this‖ and that Peeler ―understood yesterday this case was set for a non-jury
trial,‖ the court denied the request for a jury trial. In the following, the court clarified the reason for denying a jury
trial:

         Let the Court note for the record that at the December status docket, the parties agreed to set this
         for a non-jury trial. Further, the jury fee was paid by Defendant Rogers. Defendant Rogers’ case
         was, on June 10th, 2008, severed out of this cause into a separate cause. Further, then the Rogers
         case was dismissed in December–or March 2010. Therefore, there was no effective jury fee on
         file that anybody could rely on in this particular case.

         But, again, the Court relies mainly on the parties’ agreement of a non-jury trial. By defendant
         demanding a jury trial today, this is a non-jury week, no jury was available for trial today. This
         case was properly set for a non-jury trial. Defendant made no mention of wanting a jury trial
         yesterday when he was informed that he would have to be ready for trial. Therefore jury -- request
         for jury trial was properly denied because that would have delayed the case once again. The
         Court’s judgment stands.

                                                            3
        A trial court’s denial of a jury demand is reviewed for an abuse of discretion. In re

M.T.C., 299 S.W.3d 474, 477–78 (Tex. App.—Texarkana 2009, no pet.) (citing Mercedes-Benz

Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996); In re T.H., 131 S.W.3d 598, 601 (Tex.

App.—Texarkana 2004, pet. denied)). An abuse of discretion occurs ―only when the trial court’s

decision is arbitrary, unreasonable, and without reference to guiding principles.‖ Id. at 478.

        ―The right of trial by jury shall remain inviolate.‖ TEX. CONST. art. I, § 15. ―This

inviolate right to a jury trial is not absolute, but rather is regulated by rules specifying its

availability.‖ Collins v. Cleme Manor Apartments, 37 S.W.3d 527, 529 (Tex. App.—Texarkana

2001, no pet.). For a civil litigant to be entitled to a jury trial, a written request for a jury must be

filed a reasonable time before trial, but not less than thirty days in advance. TEX. R. CIV. P. 216.

        A ―jury request and a jury fee payment by one party inures to the benefit of all other

parties to the suit, even if the requesting party is absent at trial.‖ Monroe v. Alternatives in

Motion, 234 S.W.3d 56, 69 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (citing Gen. Motors

Corp. v. Gayle, 924 S.W.2d 222, 225 n.1 (Tex. App.—Houston [14th Dist.] 1996, orig.

proceeding), leave granted, mand. denied, 940 S.W.2d 598 (Tex. 1997); Roberts v. Mullen, 417

S.W.2d 74, 77 (Tex. App.—Dallas 1967), aff’d, 423 S.W.2d 576, 579 (Tex. 1968)); see White

Motor Co. v. Loden, 373 S.W.2d 863, 865 (Tex. App.—Dallas 1963, no writ); see also Almaquer

v. Jenkins, 882 S.W.2d 903 (Tex. App.—Corpus Christi 1994, no writ) (jury fee paid by settling

party would inure to benefit of plaintiff where plaintiff demanded jury in pleading).

        Peeler did not pay a jury fee. He relies on the jury fee paid by a former party to the

lawsuit. Peeler’s interest in the property ―arose as a result of a Sheriff’s Deed following a

                                                   4
Judgment obtained against‖ Michael S. Rogers. Rogers and his wife, Audrey, were initially

named as defendants in the lawsuit, and Rogers had asserted counterclaims seeking to declare the

judgment lien invalid and the sheriff’s sale and deed void. A jury fee was paid by Rogers. The

trial court, however, granted partial summary judgment in favor of Peeler and severed Peeler and

Rogers’ ―declaratory judgment actions pertaining to the abstract of judgment from the other

causes of action.‖ A ―new file and cause number for the severed actions‖ was created, leaving

only the partition suit by Peeler against Braziel and Castleberry. We conclude that, under these

facts, the jury fee does not benefit Peeler.

         Even if the jury fee paid by Rogers were to benefit Peeler, the record does not reflect that

a written jury demand was ever made. A deposit of a jury fee does not, in itself, constitute a

demand for a jury. Walker v. Walker, 619 S.W.2d 196, 198 (Tex. Civ. App.—Tyler 1981, writ

ref’d n.r.e.); see TEX. R. CIV. P. 216.

         Because no jury fee benefitted Peeler and there was no written demand4 for trial by

jury—much less a timely one—we cannot conclude that the trial court abused its discretion in

failing to grant Peeler’s untimely oral demand.5



4
 Braziel and Castleberry point out that had a request for a jury trial been made in advance of the thirty-day deadline,
they would have been entitled to rebut the presumption of timeliness by showing that the granting of a jury trial
would operate to injure them, disrupt the court’s docket, or impede the handling of the court’s business. Halsell v.
Dehoyos, 810 S.W.2d 371, 371 (Tex. 1991); Sims v. Fitzpatrick, 288 S.W.3d 93, 102 (Tex. App.—Houston [1st
Dist.] 2009, no pet.). Here, the only remaining parties to the suit had reached an agreement to partition the property
in kind. After several years of discussion, they were also in agreement as to the metes and bounds descriptions of
the resulting divisions following partition. The trial court had conducted three status hearings before trial, and the
matter had been placed on the nonjury docket by agreement several months before trial. Peeler was aware of the
date of the bench trial, but waited to make his first request for jury trial on that day. He appeared pro se, did not
present evidence aside from his testimony, told the court that he did not ―know what this is about,‖ and related that
his sole concern was with ―moving forward on the closing of the property,‖ and getting a ―quit claim deed on

                                                          5
         We affirm the trial court’s judgment.



                                                      Josh R. Morriss, III
                                                      Chief Justice

Date Submitted:            August 13, 2012
Date Decided:              August 16, 2012




property without a title policy.‖ Noting that no jury was available for the week of February 8, 2012, the trial court
found that granting a jury trial ―would have delayed the case once again.‖
5
 Furthermore, the denial of a trial by jury is harmless error where the record reflects that no material issues of fact
exist and an instructed verdict would have been justified. Halsell, 810 S.W.2d at 372; see Caldwell v. Barnes, 154
S.W.3d 93, 98 (Tex. 2004) (―The wrongful denial of a jury trial is harmful when the case contains a question of
material fact.‖). The issues bearing on the partition suit were uncontested at trial. On appeal, Peeler does not
complain that the trial court erred in its judgment of partition.

                                                          6
