Court of Appeals of Texas, Third District, Austin
THE 425TH JUDICIAL DISTRICT COURT OF WILLIAMSON COUNTY NO.
17-0199-F425, THE HONORABLE BETSY F. LAMBETH, JUDGE PRESIDING
Justices Goodwin, Baker, and Triana
J. BAKER, JUSTICE
Anthony Brubaker, pro se, appeals the trial court's final
divorce decree dissolving his marriage to appellee Patricia
Byrne Brubaker. Because the trial court improperly denied
William a jury trial, we reverse the portion of the decree
dividing the parties' property and remand that issue for
a new trial. We sever the remainder of the decree, including
the portion granting the divorce, and affirm the severed
parties were married April 13, 2014. There are no children of
the marriage. Patricia filed for divorce in January 2017 on
the ground of insupportability, alleging "verbal
abuse" and "discord or conflict of
personalities." She also sought a temporary restraining
order and injunction. Patricia's petition included a
request for a jury trial, and she paid the appropriate jury
September 11, 2017, the court heard Patricia's motion to
enter temporary orders. At the hearing, Patricia asked the
court to set the case for trial. After some discussion off
the record, the judge stated, "I'm going to go ahead
and set the final trial date for December 11, 2017, at 9:00
in the morning." The transcript does not indicate
whether the trial was to be before a jury or to the court or
that either party waived a jury trial.
November 14, William filed a motion for enforcement by
contempt and order to appear, complaining that Patricia did
not move all of his separate personal property from her
residence as ordered by the court and alleging "theft
[and] willful civil and criminal contempt." Six days
later, William filed two motions for continuance-one
regarding the hearing on the motion for enforcement of
contempt, which had not been set, and the other regarding the
final trial. William refiled these continuance motions as
amended the next week, and the trial court entered a
show-cause order for Patricia to appear for a hearing on the
motion for enforcement of contempt on the same date as the
December 6, 2017-five days before the trial date-Patricia
filed a "Withdrawal of Request for Trial by Jury,"
pleading, "Plaintiff hereby withdraws her request for a
jury trial, and further requests that all issues of fact and
law be tried before the Court, on the Final Trial Date set by
the Court for December 11, 2017." On December 8, 2017,
William filed an objection to Patricia's motion to
withdraw on the basis of Rule of Civil Procedure 220,
contending that withdrawal of the cause from the jury docket
"would deprive [him] of right to trial before jury"
and that Patricia had "failed to serve [him] fair
notice" of her withdrawal request.
beginning of trial December 11, 2017, the court swore in the
witnesses that each party intended to call and then took up
William's continuances. During this discussion, the
parties argued the jury-trial issue. William argued to the
court that a "jury was requested and the fees paid, and
[Patricia] files a motion to do without a jury at a late hour
. . . I barely had a chance to reply to that." He
further argued, "I think there's a rule . . . [t]hat
once it's filed for a jury, you can't-she can't
pull it without my approval" and "the jury could
decide the division of property, the heinous manner in which
my stuff has been treated, and take those things into
consideration of the final award or division of
property." After William argued a few other issues, the
court stated, "So on September 11, 2017, you-all set
this for a bench trial before me. I'm prepared to go
forward on a bench trial. As to the jury issue, there's
no issue that could be properly presented to a jury."
The court then denied William's motion for continuance
and proceeded to try the case.
the trial, the court announced its ruling granting the
divorce and dividing the property. After the trial court
signed the final divorce decree, William filed a motion for
new trial complaining, among other things, of the trial
court's denial of his right to a jury trial.
raises various complaints on appeal, the primary one being
that the trial court abused its discretion in depriving him
of his right to a jury trial. He additionally complains about
temporary orders, the denial of his motion for enforcement
and contempt, the denial of his motions for continuance, and
certain evidentiary rulings. In general, however, Williams
fails to support his issues with substantive arguments or
citations to authorities in his briefing and has, thus,
waived them. See Tex. R. App. P. 38.1(i) (requiring
"argument for the contentions made, with appropriate
citations to authorities and to the record"); see
also, e.g., Davis v. American Express Bank,
FSB, No. 03-12-00564-CV, 2014 WL 4414826, at *3 (Tex.
App.-Austin Aug. 29, 2014, no pet.) (mem. op.) (noting that
"[a]ppellate issues must be supported by argument and
authority, and if they are not so supported, they are
waived" (citing Trenholm v. Ratcliff, 646
S.W.2d 927, 934 (Tex. 1983))). Nonetheless, we read
William's briefing liberally and attempt to address his
arguments as best as we can, recognizing that he is held to
the same standard as parties represented by counsel to avoid
giving unrepresented parties an advantage over represented
parties, see McKinnon v. Wallin, No. 03-17-00592-CV,
2018 WL 3849399, at *2-3 (Tex. App.-Austin Aug. 14, 2018,
pet. denied) (mem. op.), while addressing only those issues
necessary for disposition of this appeal, see Tex.
R. App. P. 47.1.
to jury trial
complains that the trial court erred in proceeding with a
bench trial over his objection after a "jury trial [had
been] requested and [the] jury fee [had been] paid." We
review the trial court's denial of a party's
perfected right to a jury trial over the party's
objection for an abuse of discretion. See Cardenas v.
Montfort, Inc., 894 S.W.2d 406, 410 (Tex. App.- San
Antonio 1994) (holding that trial court abused its discretion
in holding bench trial over pro se party's objection and
absent her assent to removal of case from jury docket),
writ denied, 924 S.W.2d 156 (Tex. 1996) (per
curiam); see also Mercedes-Benz Credit Corp. v.
Rhyne, 925S.W.2d 664, 666 (Tex. 1996) (reviewing related
issue of denial of jury demand for abuse of discretion). A
trial court abuses its discretion if it acts in an arbitrary
or unreasonable manner without reference to any guiding rules
and principles. Crawford v. XTO Energy, Inc., 509
S.W.3d 906, 911 (Tex. 2017). A trial court has no discretion
to misapply the law. Walker v. Packer, 827 S.W.2d
833, 840 (Tex. 1992) (orig. proceeding).
original petition, Patricia requested a jury trial and paid
the requisite fee. Texas Rule of Civil Procedure 220
provides, "When any party has paid the fee for a jury
trial, he shall not be permitted to withdraw the cause from
the jury docket over the objection of the parties adversely
interested." Tex.R.Civ.P. 220. Patricia filed her
withdrawal of jury request five days before trial, and
William responded by written objection filed with the court
two days later. William objected to withdrawal of the cause
from the jury docket on the basis of Rule 220, contending
that withdrawal of the cause from the jury docket "would
deprive [him] of right to trial before jury" and also
that Patricia had "failed to serve [him] fair
notice" of her withdrawal request.
may rely on another party's jury request and paid jury
fee, and once the case has been set on the jury docket, it
cannot be withdrawn over the objection of an adverse party.
See id.; Caldwell v. Barnes, 154 S.W.3d 93,
98 (Tex. 2004) ("When a party timely demands a jury and
pays the fee, the trial court may not remove the case from
the jury docket over the objection of the opposing
party."); Rhyne, 925 S.W.2d at 666-67 (same);
City of Elsa v. Gonzalez, 292 S.W.3d 221, 229-30
(Tex. App.-Corpus Christi-Edinburg 2009) (holding that trial
court erred in removing cause from jury docket over objection
of defendant), rev'd on other grounds, 325
S.W.3d 622 (Tex. 2010); Cardenas, 894 S.W.2d at 410
(concluding that trial court did not have discretion to hold
bench trial absent defendant's assent to removal from
jury docket where right to jury trial had been
"perfected" by plaintiff's demand in original
petition and payment of fee); see also Illinois Emp. Ins.
Co. of Wausau v. Lewis, 582 S.W.2d 242, 245-46 (Tex.
Civ. App.-Beaumont 1979, writ ref'd n.r.e.) (reversing
and remanding where plaintiff had requested jury trial and
paid fee but later requested that cause be removed from jury
docket and defendant, after receiving notice of removal,
objected to withdrawal of cause from jury docket and paid
jury fee); Roberts v. Mullen, 417 S.W.2d 74, 77
(Tex. App.-Dallas 1967) ("It is well settled that when
one party demands a trial by jury and pays the required jury
fee, the right thus secured to him inures to all other
parties to the suit."), aff'd, 423 S.W.2d
576 (Tex. 1968).
right to jury trial is one of our most precious rights"
in American jurisprudence, see General Motors Corp v.
Gayle, 951 S.W.2d 469, 476 (Tex. 1997), preserved in the
Constitution, see Tex. Const. art. 1, § 15
("The right of trial by jury shall remain
inviolate."), and codified in law, see Tex.
Fam. Code § 6.703 ("In a suit for dissolution of
marriage, either party may demand a jury trial . . .
."); see also Taylor v. Taylor, 63 S.W.3d 93,
98-99 (Tex. App.-Waco 2001, no pet.) (party to divorce
proceeding has constitutional right to jury trial). Against
this jurisdictional background, we consider William's
contention that he was deprived of this fundamental right.
record shows that William clearly objected to Patricia's
attempted withdrawal of the case from the jury docket, both
in a written pleading and at the final trial. The record does
not show that the jury fee was refunded or that the trial
court signed an order granting Patricia's jury-withdrawal
request. Rather, at the final trial, the trial court declared
that the parties had previously set the cause for a bench
trial and impliedly overruled William's objection to
withdrawal from the jury docket by proceeding with a bench
trial. However, the record does not support the trial
court's statement that the parties "set this [case]
for a bench trial." Moreover, given William's filed
objection and renewal thereof at the final hearing, we
conclude that the trial court abused its discretion in
proceeding with a bench trial after William's right to a
jury trial had been perfected and over his objection.
See Tex. R. Civ. P. 220; Caldwell, 154
S.W.3d at 98.
William did not waive his right to a jury trial by
participating in the bench trial after the trial court
impliedly overruled his objection to removal of the cause
from the jury docket, and the record does not indicate that
he otherwise knowingly waived his right to a jury trial.
See Browning v. Holloway, 620 S.W.2d 611, 617 (Tex.
App.-Dallas) (on motion for rehearing) (holding that
plaintiffs did not waive right to jury trial by participating
in non-jury hearing where plaintiffs objected to proceeding
on grounds that they were denied right to jury trial),
writ ref'd n.r.e., 626 S.W.2d 485 (Tex. 1981)
(per curiam); Coleman v. Sadler, 608 S.W.2d 344,
346-47 (Tex. App.-Amarillo 1980, no writ) (holding that party
did not waive right to jury trial by participating in bench
trial after he received court's ruling denying his demand
for jury trial); see also Crosstex Energy Servs., L.P. v.
Pro Plus, Inc., 430 S.W.3d 384, 391 (Tex. 2014) (noting
that waiver is "an intentional relinquishment of a known
right or intentional conduct inconsistent with claiming that
right"). Also, ...