Petition for Writ of Mandamus Granted and Opinion filed May 5, 2016.




                                       In The

                      Fourteenth Court of Appeals

                                 NO. 14-16-00101-CV



                   IN RE SARAH LANSDEN BAKER, Relator


                           ORIGINAL PROCEEDING
                             WRIT OF MANDAMUS
                                257th District Court
                               Harris County, Texas
                         Trial Court Cause No. 2012-38473

                                     OPINION

      On February 10, 2016, relator Sarah Lansden Baker filed a petition for writ of
mandamus in this Court. See Tex. Gov’t Code Ann. § 22.221 (West 2004); see also Tex.
R. App. P. 52. In the petition, relator asks us to compel the Honorable Judy Warne,
presiding judge of the 257th District Court of Harris County, to vacate her January 6,
2016 “Order Denying Request for Jury Trial and Overruling Objection to Referral of
Final Trial to Associate Judge.” Because relator’s consent to the original bench trial
before the associate judge did not survive our partial reversal and remand, we
conditionally grant the writ.

                                     BACKGROUND
      In July 2012, Sarah filed suit for divorce from Mark Mitchell Baker and
conservatorship of the parties’ children, and additionally asserted claims for assault,
battery, terroristic threats, and intentional infliction of emotional distress against Mark.
The parties, through their counsel, signed a waiver of any objection to the associate
judge of the court hearing the trial scheduled for June 5, 6, and 7, 2013. The waiver was
filed with the court on January 30, 2013. The case was tried by Associate Judge
Deborah Patterson. A reformed final decree of divorce was signed December 18, 2013.

      Sarah appealed. In Baker v. Baker, 469 S.W.3d 269 (Tex. App.—Houston [14th
Dist.] 2015, no pet.), we affirmed the divorce judgment insofar as it granted the divorce,
but reversed the judgment in part and remanded for a new trial on (1) the
conservatorship of the children, (2) Sarah’s claims for assault, battery, terroristic threats,
infliction of emotional distress, and exemplary damages, and (3) the division of the
entire community estate.

      On remand, Sarah filed a demand for jury trial and paid the jury fee on July 8,
2015—more than thirty days before the trial setting as required by Texas Rule of Civil
Procedure 216. Later, the court notified Sarah that her case had been assigned for trial
again by Associate Judge Patterson. Immediately thereafter, on October 5, 2015, Sarah
filed an “Objection to Referral of Final Trial to Associate Judge.” At a status conference
on November 11, the trial judge informed the parties that the trial would proceed before
Associate Judge Patterson and that the case would not be submitted to a jury.



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      On January 6, 2016, the trial judge signed an “Order Denying Request for Jury
Trial and Overruling Objection to Referral of Final Trial to Associate Judge” that
provides in relevant part:

      History
            This case was originally tried in 2013. The parties agreed at the time
      [January 30, 2013, before original divorce trial] to try it to the Associate
      Judge, the Honorable Deborah Patterson ...

              After judgment was signed on December 18, 2013, SARAH
      LANSDEN BAKER appealed the judgment to the 14th Court of Appeals
      sitting in Houston. The cause was reversed and remanded [redaction by
      trial court] on two issues and affirmed in all other respects.

      Request for Jury Trial
            Following the remand of this case for a new trial on various issues,
      the Petitioner [Sarah] filed a request for jury trial and paid the required jury
      fee. The court deems this case in trial, inasmuch as the affirmed issues
      have been ruled upon.
      Objection to Referral of Final Trial to Associate Judge
            SARAH LANSDEN BAKER [redaction by trial court] filed an
      objection to Referral of Final Trial to Associate Judge long after the trial
      on the merits commenced.

      Order of the Court
             The court having heard the evidence and argument of counsel, makes
      the following orders: Because this matter is in trial, having been affirmed
      in part, it is appropriate that the remanded portion be tried by the same
      trier of fact and that the trial resume to the associate judge on the non-
      jury docket.
             IT IS ORDERED that Petitioner’s request for jury trial is DENIED.



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             IT IS ORDERED that Petitioner’s objection to referral of final trial
      referral of final trial to Associate Judge is OVERRULED.

(emphasis added).

      On February 10, 2016, Sarah filed her petition for writ of mandamus arguing that
the trial judge abused her discretion by denying Sarah’s constitutional right to a jury
trial and by overruling her objection to the referral to the associate judge.

                                        ANALYSIS
I.    Mandamus standard

      To obtain mandamus relief, a relator must show both that the trial court clearly
abused its discretion and that relator has no adequate remedy by appeal. In re Prudential
Ins. Co., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). A trial court has no
discretion in determining what the law is, which law governs, or how to apply the law,
so an appellate court reviews those matters de novo. See Walker v. Packer, 827 S.W.2d
833, 840 (Tex. 1992).

II.   The trial court clearly abused its discretion by denying Sarah’s request for a
      jury trial and her objection to the referral to the associate judge.
      Sarah’s ability to request a jury trial on remand is governed by our decision in In
re Lesikar, 285 S.W.3d 577, 581 (Tex. App.—Houston [14th Dist.] 2009, orig.
proceeding). There, the judgment was reversed in part in a previous appeal and
remanded for new trial on the issue of attorney’s fees. The case initially was tried
without a jury, but on remand, the defendant requested and paid the required fee for a
jury trial. Id. The trial court granted a motion to strike the jury demand. Id. Our court
held that the trial court abused its discretion and granted mandamus relief “because
waiver of a jury in one trial does not affect either party’s right to demand a jury in the

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second trial after remand where the demanding party has complied with Rule 216.” Id.
at 586-87 (citing In re Marriage of Stein, 190 S.W.3d 73, 76 (Tex. App.—Amarillo
2005, no pet.); Gordon v. Gordon, 704 S.W.2d 490, 492 (Tex. App.—Corpus Christi
1986, writ dism’d); Harding v. Harding, 485 S.W.2d 297, 299 (Tex. Civ. App.—San
Antonio 1972, no writ)).

       In Lesikar, we followed Harding v. Harding, 485 S.W.2d 297, 299 (Tex. Civ.
App.—San Antonio 1972, no writ), in which the appellee, like the trial court here, took
the position that when there is only a partial remand, a prior jury waiver remains
effective and cannot be retracted. The court of appeals rejected that argument, stating
“we believe the better view to be that on a trial after partial remand, the right to trial by
jury would not be affected by a prior jury waiver.” Id. at 300. The court gave three
reasons for adopting this view: (1) our constitutional and statutory provisions in this
State have been very zealous in preserving the right of trial by jury; (2) the adoption of
this view would make the Texas rule on partial remands the same as and uniform with
the Texas view where the entire case has been reversed; and (3) in numerous cases
involving a partial remand, the case is remanded on a number of issues and a party
should not be deprived of a jury trial on these various issues merely because he waived
a jury trial on the original trial. Id. at 300 n.3.

       Similarly, Lesikar also involved a partial reversal and remand, yet we held that
the waiver of a jury in the original trial does not preclude a party’s right to demand a
jury trial after a remand. 285 S.W.3d at 587. Applying Lesikar to this case, we hold that
Sarah’s waiver of a jury in the first trial did not preclude her from demanding a jury
after remand for the second trial. The trial court misapplied the law in concluding
otherwise.


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       Likewise, we hold that the parties’ waiver of objection to the associate judge
hearing the original trial, scheduled for June 5, 6, and 7, 2013, does not affect their
statutory right to object to a trial by the associate judge after the case has been remanded
for a partial new trial. The referral of a matter to an associate judge is governed by section
201.005 of the Family Code, which provides that a judge may refer to an associate judge
any aspect of a suit over which the court has jurisdiction under Family Code Titles 1, 4,
5, or 45. Tex. Fam. Code §201.005(a) (West Supp. 2015). If the trial court refers the suit
to an associate judge for trial, “[a] party must file an objection not later than the 10th
day after the date the party receives notice that the associate judge will hear the trial. If
an objection is filed, the referring court will hear the trial on the merits or preside at a
jury trial.” Tex. Fam. Code § 201.005(c) (West Supp. 2015). “If one of the parties files a
timely written objection to the associate judge presiding over trial, the case shall be tried
by the referring judge rather than the associate judge.” In re I.J.R., 05-09-00565-CV,
2011 WL 711639, at *3 (Tex. App.—Dallas Mar. 2, 2011, orig. proceeding) (mem. op.).
Thus, a trial court has no discretion to overrule a timely objection to the referral.

       Here, Sarah timely filed her objection immediately after she received notice that
the new trial after remand had been referred to the associate judge. Upon objection, the
statute prescribes that the referring trial court “will . . . preside at a jury trial.” Tex. Fam.
Code Ann. § 201.005(c). Accordingly, the trial judge misapplied the law by overruling
Sarah’s objection to the referral to the associate judge.

III.   Sarah does not have an adequate remedy by appeal.

       The denial of trial by jury is reviewable by mandamus. See In re Prudential Ins. Co.
of Am., 148 S.W.3d 124, 139 (Tex. 2004). In Lesikar, we held that “because [the relator]
stands to lose [his constitutional right to a jury trial], he does not have an adequate remedy

                                               6
by appeal.” 285 S.W.3d at 587 (citing Rosenthal v. Ottis, 865 S.W.2d 525, 529 (Tex.
App.—Corpus Christi 1993, orig. proceeding) (stating adequate remedy by appeal does not
exist for denial of jury trial)). In addition, as our sister court has explained, an appeal is
particularly inadequate to remedy the denial of a jury trial in cases involving child custody
issues:

          Here, the district court’s error in denying Reiter’s request for a jury trial could
          be remedied on appeal, following a bench trial and final judgment. But we
          conclude that appeal from a bench trial would not be adequate under the
          circumstances of this case. In this situation, both parties would be required to
          endure a trial and its attendant expenses for naught. More importantly, the
          child affected by the underlying case should not suffer the delay of a second
          trial before parental rights and obligations can be established.
In re Reiter, 404 S.W.3d 607, 611 (Tex. App.—Houston [1st Dist.] 2010, orig. proceeding)
(citations omitted). “Justice demands a speedy resolution of child custody and child support
issues.” Proffer v. Yates, 734 S.W.2d 671, 673 (Tex. 1987) (orig. proceeding) (holding that
relator had no adequate remedy by appeal for trial court’s failure to enforce mandatory
venue provision in child custody case).

          These principles apply here because one of the issues to be tried is the
conservatorship of the parties’ children. We therefore conclude that appeal is not an
adequate remedy for the trial court’s legal error in denying Sarah’s request for a jury trial
and overruling her objection to the referral to the associate judge.

                                          CONCLUSION
          For these reasons, we direct the trial court to (1) vacate its January 6, 2016 “Order
Denying Request for Jury Trial and Overruling Objection to Referral of Final Trial to
Associate Judge”, and (2) grant Sarah’s request for a jury trial and sustain Sarah’s


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objection to the referral to the associate judge. 1 We are confident that the trial court will
act in accordance with this opinion. The writ will issue only if it fails to do so.




                                                   /s/   J. Brett Busby
                                                         Justice


Panel consists of Justices Christopher, McCally, and Busby.




       1
          Sarah also filed a “Motion Requesting Acknowledgment of and Action Upon Real Party in
Interest’s Failure To Answer.” In light of the relief granted herein, this motion is now moot. We
therefore deny the motion.

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