Yvette Hernandez v. First Bank D/B/A First Bank Mortgage, Its Successors and Assigns ( 2019 )

NUMBER 13-18-00243-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
YVETTE HERNANDEZ, Appellant,
v.
FIRST BANK D/B/A
FIRST BANK MORTGAGE,
ITS SUCCESSORS AND ASSIGNS, Appellees.
On appeal from the County Court
of Willacy County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Hinojosa, and Perkes
Memorandum Opinion by Justice Perkes
Appellant Yvette Hernandez appeals from a final judgment rendered in favor of
appellees First Bank d/b/a First Bank Mortgage, its Successors and Assigns, on its
forcible detainer claim. By two issues, Hernandez contends the trial court erred by: (1)
entering a final judgment that did not comply with statutory requirements; and (2) denying
her request for a jury trial. We affirm.
I. BACKGROUND
Hernandez resides at the property commonly known as 8620 Simo Road, Lyford,
Texas 78569. First Bank purchased the property at a foreclosure sale and instituted a
forceable detainer action against Hernandez in the local justice of the peace court. The
justice of the peace entered a judgment in favor of First Bank, and Hernandez filed a
notice of appeal to the Willacy County Court.
The Willacy County Clerk sent Hernandez a notice that a $341 filing fee must be
paid in order to perfect the appeal. The fee was paid, and an order was issued on March
15, 2018, setting the trial for April 11, 2018.
Before the trial commenced, Hernandez requested a jury in open court. There is
no written request for a jury in the clerk’s record and the $341 filing fee paid by Hernandez
did not include a jury fee. See TEX. R. CIV. P. 216. The trial judge denied the request.
After conducting a bench trial, the trial court announced a judgment in favor of First
Bank and informed Hernandez that she had ten days to vacate the property or a writ of
possession would be issued. The court also set the appeal bond at $3,600.
Nine days after the trial, on April 20, 2018, the court signed a written judgment that
awarded First Bank possession of the property and a conditional writ of possession if
Hernandez did not vacate the property by April 21, 2018, the tenth day after the trial court
rendered judgment in open court. Two days later, on April 23, 2018, First Bank
requested that the Willacy County Clerk issue a writ of possession.
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The next day, on April 24, 2018, Hernandez filed a motion to modify the judgment,
urging the trial court to postpone the writ’s issuance date until April 30, 2018, the tenth
day after the judgment was signed. See TEX. PROP. CODE ANN. § 24.007. On April 30,
2018, the trial court ordered the writ to be issued the following day, the eleventh day after
the judgment was signed, and denied Hernandez’s motion as moot. Although a writ was
issued the following day, there is no officer’s return in the clerk’s record indicating that the
writ was executed.
On May 3, 2018, Hernandez filed her notice of appeal to this Court. On August
17, 2018, this Court notified Hernandez that she had failed to request a reporter’s record
and arrange for payment of the record. See TEX. R. APP. P. 37.3(c). The Court
instructed Hernandez to cure the defect within ten days and provide proof of compliance
or “the Court will consider and decide those issues or points that do not require a
reporter’s record for a decision.” To date, the Court has no record of Hernandez
requesting or paying for a reporter’s record.
In its brief to this Court, First Bank states Hernandez “is still currently living on the
property.” Hernandez did not claim in her brief that she has been dispossessed of the
property, and she did not file a reply brief contesting First Bank’s representation that she
continues to reside at the property. See id. R. 38.3.
II. STANDARD OF REVIEW
When a trial court commits an error of law, the judgment may not be reversed
unless the error “probably caused the rendition of an improper judgment” or “probably
prevented the appellant from properly presenting the case to the court of appeals.” Id.
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R. 44.1(a). All errors are subject to the harmless error rule. G & H Towing Co. v.
Magee, 347 S.W.3d 293, 297 (Tex. 2011) (citing Lorusso v. Members Mut. Ins. Co., 603
S.W.2d 818, 819–20 (Tex. 1980)). “The rule recognizes that a litigant is not entitled to a
perfect trial for, indeed, few trials are perfect.” Lorusso, 603 S.W.2d at 819. Thus, the
rule “establishes a sound and common sense policy of not reversing a judgment unless
the error or errors can be said to have contributed in a substantial way to bring about the
adverse judgment.” Id. at 819–20. It is the complaining party’s burden to demonstrate
harm on appeal. Ford Motor Co. v. Castillo, 279 S.W.3d 656, 667 (Tex. 2009) (stating
that even if the trial court committed an error, “the complaining party must still show harm
on appeal to obtain a reversal.” (citing TEX. R. APP. P. 44.1(a))).
“The appellant bears the burden to bring forward an appellate record sufficient to
enable us to determine whether the complaints of reversible error are substantiated.”
Eagle Fabricators, Inc. v. Rakowitz, 344 S.W.3d 414, 421 (Tex. App.—Houston [14th
Dist.] 2011, no pet.) (citing Uranga v. Tex. Workforce Comm’n, 319 S.W.3d 787, 791 (Tex.
App.—El Paso 2010, no pet.)).
III. DISCUSSION
A. Writ of possession
By her first issue, Hernandez contends the final judgment deprived her of the right
to supersede the judgment before the writ of possession issued. Hernandez relies
primarily on § 24.007 of the Texas Property Code, which provides that, “A judgment of a
county court may not under any circumstances be stayed pending appeal unless, within
10 days of the signing of the judgment, the appellant files a supersedeas bond in the
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amount set by the county court.” TEX. PROP. CODE ANN. § 24.007. In this case, the
judgment was rendered in open court and the written judgment was signed nine days
later. Hernandez contends the judgment violated § 24.007 because First Bank was
awarded a conditional writ of possession ten days from the date the judgment was
rendered instead of ten days from “the signing of the judgment.” See id.
Even if we assume, without deciding, that the final judgment contains an error, we
conclude the error was harmless because the writ was not issued until the eleventh day
after the judgment was signed. In other words, regardless of the recital in the judgment,
Hernandez was afforded ten days to post the $3,600 supersedeas bond before the writ
was issued. 1 See id. Because Hernandez did not suffer an injury, she failed to
demonstrate a reversible error. See TEX. R. APP. P. 44.1(a); Castillo, 279 S.W.3d at 667.
Hernandez’s first issue is overruled.
B. Jury request
By her second issue, Hernandez argues the trial court erred by denying her
request for a jury trial. We review a trial court’s denial of a jury request for abuse of
discretion. See General Motors Corp. v. Gayle, 951 S.W.2d 469, 476 (Tex. 1997). A
trial court abuses its discretion if its actions were arbitrary and unreasonable or if it acted
without reference to any guiding rules or principles. Temple v. Archambo, 161 S.W.3d
217, 224 (Tex. App.—Corpus Christi–Edinburg 2005, no pet.) (citing Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985)). We defer to the trial
court’s factual determinations and only determine if the trial court correctly applied the
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Moreover, First Bank contends, and Hernandez does not dispute, that the writ of possession was
never executed; to this day, Hernandez continues to reside at the property.
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law to the facts in reaching its legal conclusion. Garza v. Attorney General, 166 S.W.3d
799, 808 (Tex. App.—Corpus Christi–Edinburg 2005, no pet.) (citing State v. $217,590.00
in U.S. Currency, 18 S.W.3d 631, 633–34 (Tex. 2000)). Under this standard, the
appellant must establish that the trial court failed to make the only reasonable decision.
Id. (citing Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992)).
Texas Rule of Civil Procedure 216 provides:
No jury trial shall be had in any civil suit, unless a written request for a jury
trial is filed 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.
Unless otherwise provided by law, a fee of ten dollars if in the district court
and five dollars if in the county court must be deposited with the clerk of the
court within the time for making a written request for a jury trial. The clerk
shall promptly enter a notation of the payment of such fee upon the court's
docket sheet.
TEX. R. CIV. P. 216.
This rule operates in conjunction with Rule 245. In a contested case, the parties
are entitled to receive notice of a first trial setting not less than forty-five days in advance.
Id. R. 245. Thus, notice under Rule 245 triggers a party’s obligations to timely file a
written jury request and pay the fee. Id. R. 216. In this contested case, the trial court
notified the parties on March 15, 2018, that the trial had been set for April 11, 2018, which
was less than forty-five days in advance.2 When a trial court’s untimely notice under
2 Hernandez does not complain on appeal that the trial court’s notice was defective under Rule
245; therefore, we will not consider it as an independent basis for reversal. See TEX. R. APP. P. 38.1(f),
(i). Moreover, the issue is waived if the parties proceed to trial without objecting. Abend v. Federal Nat’l
Mortg. Ass’n, 466 S.W.3d 884, 886 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (holding party appealing
forcible detainer action to county court waived error under Rule 245 by failing to object). There is no
indication in the record before us that Hernandez objected.
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Rule 245 prevents a party from satisfying the thirty-day requirement under Rule 216, a
written jury demand made within thirty days of the trial setting will be deemed timely. In
re J.C., 108 S.W.3d 914, 916–17 (Tex. App.—Texarkana 2003, no pet.) (citing Bell
Helicopter Textron, Inc. v. Abbot, 863 S.W.2d 139 (Tex. App.—Texarkana 1993, no pet.)).
In this case, however, Hernandez did not file a written jury demand in the Willacy
County Court at any point in time, nor did she pay the filing fee.3 But Hernandez’s failure
to comply with Rule 216 does not necessarily end our inquiry. Because it “is one of our
most precious rights,” even where a party does not comply with Rule 216, “a trial court
should accord the right to jury trial if it can be done without interfering with the court’s
docket, delaying the trial, or injuring the opposing party.” Gayle, 951 S.W.2d at 476
(citations omitted).
In this case, despite our clear warning about the consequences, Hernandez failed
to request a reporter’s record. The only indication in the appellate record that Hernandez
made a jury request are two notations by the judge on the court’s docket sheet: “Request
for jury denied on day of trial” and “Attorney for defendants request for a trial by jury
denied in open court.” See TEX. R. APP. P. 34.5(a)(3) (generally, the clerk’s record must
3 The appendix to Hernandez’s brief does contain a copy of an answer that includes a jury demand
that Hernandez purportedly filed in the justice of the peace court. See TEX. R. APP. P. 38.1(k)(2) (“The
appendix may contain any other item pertinent to the issues or points presented for review . . . .”).
Hernandez would like us to consider this document as evidence that she satisfied Rule 216’s requirements.
In essence, she contends that her original jury request in the justice of the peace court carried over to her
trial de novo in the Willacy County Court.
We do not reach this question, however, because this item was not included in the clerk’s record.
It was Hernandez’s obligation to ensure that all items necessary to this appeal were included in the clerk’s
record, see id. R. 34.5(b); Rakowitz, 344 S.W.3d at 421, and we cannot consider items outside of the
appellate record unless they implicate our jurisdiction. Arbor E&T, LLC v. Lower Rio Grande Valley
Workforce Dev. Bd., Inc., 476 S.W.3d 25, 29–30 (Tex. App.—Corpus Christi–Edinburg 2013, no pet.).
Accordingly, we will proceed on the record before us, which indicates that Hernandez first asserted her
right to a jury trial in Willacy County Court by making a request in open court on the day of trial.
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include the court’s docket sheet). Thus, without a reporter’s record, we are left to
speculate whether the trial court applied Gayle correctly. See Gayle, 951 S.W.2d at 476;
Rakowitz, 344 S.W.3d at 421; Garza, 166 S.W.3d at 808. In short, we cannot determine
whether a trial court abused its discretion without a record of how the trial court exercised
its discretion. See Rakowitz, 344 S.W.3d at 421. We overrule Hernandez’s second
issue. See id.
IV. CONCLUSION
The judgment of the trial court is affirmed.
GREGORY T. PERKES
Justice
Delivered and filed the
12th day of September, 2019.
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