Tuesday, May 13, 2008
How to (not) lose right to jury trial
Right to trial by jury in family court easily waived by not objecting to bench trial, and making sure the objection makes it into the record.
Appellant Waived Consideration Of His Issue Contending The Trial Court Erred When It Allegedly Denied Appellant's Request For A Jury Trial
In his second issue, appellant argues the trial court abused its discretion when it denied his request for a jury trial. Appellee asserts appellant has waived this issue on appeal because he failed to preserve this issue for appellate review by objecting on the record to the trial court conducting a bench trial. Once again, we agree with appellee.
When a party has perfected his right to a jury trial in accordance with Rule 216 of the Texas Rules of Civil Procedure but the trial court proceeds to trial without a jury, the party must, to preserve error, object on the record or affirmatively indicate on the record it intends to stand on its perfected right to a jury trial. In re K.M.H., 181 S.W.3d 1, 8 (Tex. App.- Houston [14th Dist.] 2005, no pet.) (citing Sunwest Reliance Acquisitions Group, Inc. v. Provident Nat'l Assurance Co., 875 S.W.2d 385, 387-88 (Tex. App.- Dallas 1993, no writ). The burden is on an appellant to bring forth a record sufficient to show reversible error. Sunwest, 875 S.W.2d at 388. Because there is no reporter's record in this appeal, even assuming without deciding appellant perfected his right to a jury trial, appellant cannot demonstrate he preserved this issue for appellate review by objecting on the record or otherwise affirmatively indicating on the record his intention to stand on his right to a jury trial. Accordingly, appellant has waived this issue on appeal. Tex. R. App. P. 33.1; Sunwest, 875 S.W.2d at 388. We overrule appellant's second issue.
Case involved pro-se litigant, but lesson equally important for lawyers to heed if appeal is a possibility.
Patterson v. Patterson (Tex.App. - Houston [14th Dist.] May 13, 2008) (Anderson) (divorce, waiver of jury trial, local rules, attorney's fees)
AFFIRMED: Opinion by Justice John Anderson
14-07-00487-CV Richard Steven Patterson v. Gwendolyn Elizabeth Patterson
Appeal from 247th District Court of Harris County
Trial Court Judge: Judge Bonnie Crane Hellums
Jury waiver not a rare occurrence: Here is another case of second thoughts about wisdom of bench trial that did not sway the judges on appeal
Lofton v. Dyer (Tex.App.- Houston [1st Dist.] May 15, 2008)(Hanks) (real estate law, trespass to try title, adverse possession, right to try case to jury waived)
Right to Trial by Jury
In issue one, the Loftons argue that the trial court erred in denying them their right to a trial by jury.
A litigant waives the right to trial by jury if he participates in a bench trial without objection. See, e.g., In re D.R., 177 S.W.3d 574, 580 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) (holding that litigants waived their objection to bench trial by failing to object or otherwise indicate they possessed “perfected” right to jury trial until charge conference); In re A.M., 936 S.W.2d 59, 61 (Tex. App.—San Antonio 1996, no writ) (observing that perfected right to jury trial in civil case may be waived by party’s failure to act when trial court proceeds with bench trial); Sunwest Reliance Acquisitions Group, Inc. v. Provident Nat’l Assur. Co., 875 S.W.2d 385, 387 (Tex. App.—Dallas 1993, no writ) (holding that, “when a party has perfected its right to a jury trial in accordance with rule 216 but the trial court instead proceeds to trial without a jury, the party must, in order to preserve any error by the trial court in doing so, either object on the record to the trial court’s action or indicate affirmatively in the record it intends to stand on its perfected right to a jury trial”).
The Loftons contend that they made a demand and paid a jury fee on October 24, 2001, and, when the case was called to bench trial, they requested that the trial proceed before a jury.
On August 2, 2005, all parties, through their respective attorneys, including the Loftons, waived their right to a jury trial and elected to try the case to the trial court without a jury. In February 2006, the trial court sent out a Notice of Bench Trial to be held on April 3, 2006. On March 6, 2006, the trial court sent out a Notice of Docket Call, which also reflected that the case was set for a bench trial. The Loftons never objected.
Accordingly, the trial court did not err in denying the Loftons’ belated request for a jury trial.
We overrule issue one.