in the Interest of I.R.H. and Z.T.H., Children ( 2016 )

Opinion issued June 30, 2016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-15-00787-CV
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IN THE INTEREST OF I.R.H. AND Z.T.H., CHILDREN
On Appeal from the 310th District Court
Harris County, Texas
Trial Court Case No. 2014-27741
MEMORANDUM OPINION
We are presented with two issues in this family law case: whether the trial
court abused its discretion in denying appellant’s motion for continuance, and
whether the trial court abused its discretion in striking appellant’s request for a jury
trial. We reverse the trial court’s judgment and remand for a new a trial.
BACKGROUND
On February 21, 2014, appellee M. Hajali filed a Petition to Modify Parent-
Child Relationship in Bexar County. On April 10, 2014, appellant M. Yun filed a
Counter-Petition to Modify Parent Child Relationship. On April 16, 2014, the
Bexar County court granted Hajali’s motion to transfer the case to Harris County.
On May 14, 2015, the Harris County court signed a scheduling order setting
a pre-trial hearing on August 10, 2015, and a trial date of August 11, 2015.
A. Yun’s Attorney Withdraws
On June 30, 2015, Yun’s attorney, T. Sharretts, filed a verified motion to
withdraw as Yun’s counsel. Her motion requested that she be allowed to withdraw
pursuant to “Texas Rules of Professional Conduct 1.15(b)(2) through (7), and
Texas Rule of Civil Procedure 10.” She listed as the reasons, “among others”:
 Failure of Respondent to comply with her agreement with Attorney
relative to payment and reimbursement to Attorney for legal expenses
for this case;
 Failure of Respondent to communicate with Attorney about the merits
of her case;
 Respondent signing Attorney’s name without consent to legal
documents, then filing in the clerk’s records, and serving opposing
counsel for the subject case;
 Respondent refused to follow Attorney’s advice relative to settlement
instead of trial subject to the results of the psychological evaluations
ordered by this court.
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The motion stated that Sharretts had sent a copy of the motion to Yun at her
last known email addresses, and through regular and certified mail to her last
known addresses informing Yun of her right to object to Sharretts’s withdrawal.
Sharretts’s motion states that Yun indicated to Sharretts that she did not object to
her withdrawing as her counsel.
On July 10, 2015, the trial court signed an order finding notice had been
given to Yun of any pending settings or deadlines, and that there was good cause
shown supporting the motion to withdraw. Accordingly, the court granted
Sharretts’s motion to withdraw.
B. Pretrial and Trial Proceedings
On July 31, 2015, Hajali—through counsel—filed (1) an Amended Petition
to Modify Parent-Child Relationship, and (2) a proposed jury charge, including
proposed submission on the issues of conservatorship of the children, who should
have the right to designate the primary residence of the child, and the amount of
reasonable attorneys’ fees for Hajali’s attorney and the amicus attorney. Yun filed
a “Counter-Petitioner’s Response to Amended Petition to Modify Parent-Child
Relationship.” In that response, she asked that the standard possession order
remain in place, but asked that geographical restriction be placed on Hajali’s right
to designate the children’s place of residence because he had moved the children
six times in the previous five years.
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On August 10, 2015, a pretrial hearing was held, which at one point turned
to Yun’s request for a continuance, which the trial court denied. Then the court
granted Hajali’s request that Yun’s jury demand be stricken for failure to comply
with local rules requiring the exchange of exhibits, motions in limine, proposed
parenting plan, etc.:
COURT: What else may I assist you here this morning?
[HAJALI’S COUNSEL]: Your Honor, we filed our motion in
limine. She has not filed. We sent – when the attorney withdrew, we
sent to both addresses that we were provided for her. We have not
received any documents from her. We have our motion in limine that
we have provided. I filed with the court. We have filed our proposed
parenting plan. We have filed our suggested relief. We filed our
proposed child support. We filed our FIS. We’ve previously -- I have
previously exchanged dates with her former attorney, not received any
exhibits. I have exhibits here, the same thing with the exception of the
updated attorney’s fees that were previously filed and also with the
Dr. Anderson's report --
....
THE COURT: [D]id did you have a proposed parenting plan,
any motion in limine, and any proposed exhibits here this morning?
MS. YUN: I do not. I’m not prepared, your Honor.
[HAJALI’S COUNSEL]: Your Honor, then I would ask the
Court to strike her request for a jury trial and we proceed on a bench
trial.
THE COURT: And that’s going to be granted.
MS. YUN: Your Honor, may I speak?
THE COURT: Sure.
MS. YUN: Okay. First of all, I know that my previous attorney
had requested discovery. This is back in January of this year. And
they did not provide any of those documents.
[HAJALI’S COUNSEL]: Your Honor, we --
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MS. YUN: The psychological evaluation, I need a third party to
at least re-evaluate it. I have been severely prejudiced because my
attorney did not provide that to me. I also have a document here that
states that the psychologist did not provide that to me either. And so if
we move forward, I am severely prejudiced. I do not feel that I should
be – we should be moving forward due to several of those reasons.
And also, I did seek attorney counsel after I found out my attorney
withdrew, but the family – there was a family law conference in San
Antonio where the attorneys -- majority of the attorneys were out of
town. And even if they took my case, they didn’t have the time to
prepare so they said that in order to move forward, we need to get a
continuance in order to have a fair trial. So I’m asking if we can go
ahead and move forward with the jury trial, which is my right and --
THE COURT: And I have struck your request for a jury trial,
ma’am, as you have -- you came in this morning not prepared. And
there are local rules that are required of documentation that you’re
required to have for jury trials and that has not been presented to the
Court, so I’m striking your request for jury trial, but will allow you to
proceed on a court trial tomorrow.
A three day bench trial was held from August, 11, 2015 to August 13, 2015.
C. The Trial Court’s Judgment
The trial court entered a judgment on August 20, 2015. That judgment
stated that the Court had stricken Yun’s request for a jury trial due to her “failure
to comply with discovery, including her failure to comply with the local rules, and
her failure to be prepared to go forward on a jury trial by filing appropriate
documents at the time of the pretrial hearing. Additionally, at the time of the
pretrial hearing, Respondent had failed to pay the Court ordered amicus fees.
Based on the foregoing, all questions of fact and law were submitted to the Court.”
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The trial court’s judgment continued the parties as joint managing
conservators, with Hajali as the parent with “the exclusive right to designate the
primary residence of the children without regard to geographic location,” as well as
numerous other exclusive rights to make decisions regarding the children. Yun
was granted supervised visits with the children and ordered to pay $792.01 per
month in child support. The court additionally ordered Yun to pay Hajali’s
attorneys fees:
IT IS ORDERED that good cause exists to award [Hajali’s attorney]
judgment in the amount of Forty Thousand Five Hundred Thirty-Four
Dollars and Sixty-Eight Cents ($40,534.68) for reasonable attorney’s
fees, expenses, and costs incurred by Mohamed Hajali, with interest at
5% percent per year compounded annually, from the date the
judgment is signed until paid. The judgment, for which let execution
issue, is awarded against Mi Song Yun formerly known as Mi Song
Hajali, Respondent and in favor of [Hajali’s attorney].
Respondent is ORDERED to pay the fees, expenses, costs, and
interest to [Hajali’s attorney] . . . . by cash, cashier’s check, or money
order on or before October 19, 2015. [Hajali’s attorney] may enforce
this judgment for fees, expenses, and costs in the attorney’s own name
by any means available for the enforcement of a judgment for debt.
The judgment orders Hajali to pay $4,093.75 and Yun to pay $ 5,593.75 in
amicus attorney’s fees.
ISSUES ON APPEAL
Yun raises two issues on appeal:
(1) Did the trial court abuse its discretion in denying appellant’s motion
for continuance when her lawyer had, less than 30 days before trial
without notifying appellant, withdrawn from the case?
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(2) Did the trial court err in denying appellant’s timely and specific
request to try the case to a jury?
JURY DEMAND
In her second issue, Yun argues that the trial court’s striking her jury
demand and requiring her to instead proceed with a bench trial was reversible
error. We agree.
A. Applicable Law and Standard of Review
The Texas Constitution guarantees the right to trial by jury. See TEX. CONST.
art. I, § 15. In order to be entitled to a trial by jury, a party must file a written
request for a jury trial and pay a jury fee a reasonable time before trial. TEX.
CONST. 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”). Moreover, a party may not have a jury trial 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.” TEX. R. CIV. P. 216. A request for a jury trial
made in advance of the thirty-day deadline is presumed to have been made at a
reasonable time before trial. Sims v. Fitzpatrick, 288 S.W.3d 93, 102 (Tex. App.—
Houston [1st Dist.] 2009, no pet.) (citing Halsell v. Dehoyos, 810 S.W.2d 371, 371
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(Tex. 1991); In re J.N.F., 116 S.W.3d 426, 436 (Tex. App.—Houston [14th Dist.]
2003, no pet.)).
We review a court’s denial of the right to a jury trial under an abuse of
discretion standard. See Mercedes–Benz Credit Corp. v. Rhyne, 925 S.W.2d 664,
666 (Tex. 1996); Sims, 288 S.W.3d at 102. We consider the entire record and will
find an abuse of discretion only when the trial court’s decision was arbitrary,
unreasonable, and without reference to guiding principles. Mercedes–Benz Credit,
925 S.W.2d at 666; Sims, 288 S.W.3d at 102.
“The refusal to grant a timely requested jury trial is harmless error only if
the record shows that no material issues of fact exist and an instructed verdict
would have been justified.” Sims, 288 S.W.3d at 102; see also 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.”).
B. Analysis
It is undisputed that Yun demanded a jury trial and paid the jury fee months
before the trial setting, and that the parties were set on the jury docket. The trial
court’s stated reasons for striking Yun’s jury demand were her (1) “failure to
comply with discovery, including her failure to comply with the local rules,” (2)
her failure to be prepared to go forward on a jury trial by filing appropriate
documents at the time of the pretrial hearing,” and (3) failure to pay amicus fees
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before the pre-trial hearing. Based on these articulated reasons, the court struck
Yun’s jury demand at Hajali’s urging as a sanction, although the court did not label
it as such.
Here, Hajali does not cite any authority in support of the proposition that
striking a party’s jury demand is an appropriate sanction for any of these
infractions. Indeed, he cites no authority in support of his one-sentence argument
that striking Yun’s jury demand was not error.
While the imposition of sanctions is reviewed under an abuse of discretion
standard, an “appellate court must ensure there is a direct nexus between the
improper conduct and the sanction imposed.” Low v. Henry, 221 S.W.3d 609, 614
(Tex. 2007). And a sanction should be no more severe than necessary to satisfy its
legitimate purpose. Hamill v. Level, 917 S.W.2d 15, 16 (Tex. 1996). The trial
court’s sanction does not fit this criteria.
Our own review of the trial court’s local rules demonstrate that there are
certain financial documents the parties are required to exchange ten days before
trial, regardless of whether the trial is to the bench or a jury. When child support
and medical support is at issue, the local rules provide additional financial
disclosures. The local rules further provide that failure to comply with these
obligations may be grounds for discovery sanctions under Rule 215 of the Texas
Rules of Civil Procedure. Nothing in Rule 215 provides for the striking of a jury
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demand as a sanction for failure to timely answer discovery. In fact, we have
previously held that a jury demand survives even death-penalty sanctions for
discovery abuse. Sims, 288 S.W.3d at 103–04 (holding that imposition of death
penalty sanctions did not deprive party of right to have damages assessed by jury
rather than court). Nothing indicates that Yun was provided notice and a hearing
on the court’s sanction, as required by Rule 215, nor does anything in the record
demonstrate that the court contemplated a different or lesser sanction.
We have likewise located no authority supporting the trial court’s other
articulated reason for striking Yun’s jury demand, i.e., the failure to pay court-
ordered amicus attorney fees before the pretrial hearing. In the only case we
located that addressed this issue, both the appellee and the amicus attorney argued
successfully in the trial court that the appellant’s jury demand should be stricken
for “failure to pay court-ordered amicus attorney fees” and other conduct the
appellee characterized as “frivolous,” “groundless,” and “harassing.” Nelson v
Nelson, No. 01-13-00816-CV, 2015 WL 1122918, at *2 (Tex. App.—Houston [1st
Dist.] March 12, 2015, pet. filed) (mem. op). On appeal, however, the appellee
conceded that the trial court’s striking the appellant’s jury demand for failure to
pay amicus fees was error, and instead argued that it was harmless. Id. at *3.
Here, although Hajali does not concede that striking Yun’s jury demand was
erroneous, he nonetheless focuses his briefing on the argument that any error in
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striking the jury demand was harmless. Specifically, he argues that “Texas Family
Code Section 105.002(c)(2) prohibits the court from submitting to the jury
questions regarding possession, access, or any right or duty other than which party
should have the exclusive right to designate the primary residence of the child.”
From this he reasons that, because Yun was not requesting to be named the party
with the exclusive right to designate the primary residence of their children, there
were no issues that would be proper for a jury to resolve, rendering any error in
striking the demand harmless. “Therefore,” Hijali argues, Yun “fails to show that
the Court abused its discretion by striking the jury and proceeding with a bench
trial, because all remaining issues decided by the court could not have been
decided by a jury, but would have been ruled on by the court” anyway.
Section 105.002 of the Texas Family Code provides what is appropriate for
submission to the jury:
§ 105.002. Jury
(a) Except as provided by Subsection (b), a party may demand a jury
trial.
(b) A party may not demand a jury trial in:
(1) a suit in which adoption is sought, including a trial on the issue
of denial or revocation of consent to the adoption by the managing
conservator; or
(2) a suit to adjudicate parentage under Chapter 160.
(c) In a jury trial:
(1) a party is entitled to a verdict by the jury and the court may not
contravene a jury verdict on the issues of:
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(A) the appointment of a sole managing conservator;
(B) the appointment of joint managing conservators;
(C) the appointment of a possessory conservator;
(D) the determination of which joint managing conservator has
the exclusive right to designate the primary residence of the
child;
(E) the determination of whether to impose a restriction on the
geographic area in which a joint managing conservator may
designate the child’s primary residence; and
(F) if a restriction described by Paragraph (E) is imposed, the
determination of the geographic area within which the joint
managing conservator must designate the child's primary
residence; and
(2) the court may not submit to the jury questions on the issues of:
(A) support under Chapter 154 or Chapter 159;
(B) a specific term or condition of possession of or access to the
child; or
(C) any right or duty of a conservator, other than the
determination of which joint managing conservator has the
exclusive right to designate the primary residence of the child
under Subdivision (1)(D).
TEX. FAMILY CODE ANN. § 105.002 (West 2014).
Hajali’s selective citation of section 105.002(c) in arguing that there were no
issues to be presented to the jury because Yun did not seek to designate the
primary residence of the children under section 105.002(c)(1)(D) ignores that
Yun’s pleading did seek to have geographical restrictions placed on the children’s
residence—an issue also solely within the jury’s province under section
105.002(c). See TEX. FAM. CODE § 105.002(c)(1)(E)&(F) (“[A] party is entitled to
a verdict by the jury and the court may not contravene a jury verdict on the issues
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of . . . the determination of whether to impose a restriction on the geographic area
in which a joint managing conservator may designate the child’s primary
residence;” and “if a restriction . . . is imposed, the determination of the geographic
area within which the joint managing conservator must designate the child's
primary residence.”). Because Yun was entitled to have the issue of any
geographical restriction decided by a jury, the trial court’s striking her jury demand
was not harmless.1
We accordingly sustain Yun’s second issue.
CONCLUSION
We reverse the trial court’s judgment and remand to the trial court for
reinstatement on the jury docket. In light of our disposition of this issue, we need
not reach the Yun’s first issue contending that the trial court abused its discretion
in denying her request for a continuance to secure the services of a new attorney.
1
Yun also argues that she was entitled to have the reasonableness of the attorneys’
fees claimed by Hajali submitted to the jury, and we note that Hajali included such
a submission in his proposed jury charge.
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Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Jennings and Lloyd.
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