Aronoff v. Texas Turnpike Authority

• Decision Date: 11 January 1957
• Docket Number: No. 15208,15208
• Parties: Rochelle ARONOFF et al., Appellants, v. TEXAS TURNPIKE AUTHORITY, Appellee.
• Court: Texas Court of Appeals

Page 342

299 S.W.2d 342

Rochelle ARONOFF et al., Appellants, v. TEXAS TURNPIKE AUTHORITY, Appellee.

No. 15208.

Court of Civil Appeals of Texas, Dallas.

Jan. 11, 1957.

Rehearing Denied Feb. 15, 1957.

McKool & Bader, Dallas, for appellants.

Locke, Locke & Purnell, and Wayne O. Woodruff, Dallas, for appellee.

DIXON, Chief Justice.

This appeal is from a judgment in a condemnation proceeding originally filed January 23, 1956 by appellee Texas Turnpike Authority involving the whole taking of a fee interest in two lots with improvements owned by appellants Rochelle Aronoff and Nathan Aronoff and a leasehold interest owned by Luke Cortemeglia and Marie Cortemeglia in a liquor store located on one of the lots.

On January 30, 1956 special commissioners filed their report awarding the appellants Aronoffs $40,081.62 and the appellants Cortemeglias $4,000 for their interests. All appellants filed objections to the commissioners' decision, but admitted appellee's right to condemn. Thus the only issues left to be determined were the values of the two interests being taken.

Appellants asked for a jury trial. The court was so informed. Sometime in January 1956 both parties through their attorneys appeared in court and asked for a setting. In response to their request the case was set for trial March 19, 1956. The record shows that it was understood and anticipated by all parties-that is, by appellants, appellee and the trial judge-that trial would be to a jury.

On March 19, 1956 all appellants and appellee appeared in court and announced ready for trial. It was a Monday morning. A jury was available or would be available as usual about 10:00 o'clock. At this juncture the trial court, upon examining the docket sheet, discovered that no jury fee had been paid. The court thereupon announced that the case would not be tried to a jury, but would be tried before the court alone. Appellants objected and hurriedly paid the jury fee. Nevertheless the court persisted in its refusal to grant a jury trial. Appellants filed a written motion asking for a jury trial, setting forth in considerable detail the circumstances surrounding the setting of the case as a jury case and the failure sooner to pay the jury fee. The motion was overruled, the court stating that to grant a jury trial would seriously interfere with and impede the ordinary handling of the court's business. Appellants then asked leave to withdraw their announcement of ready. Their request was denied.

Meantime appellee had informed the court that though appellee had not asked for a jury trial and was willing to go to trial with or without a jury, it did anticipate that the case would be tried before a jury and had made preparations accordingly; and that if the court was unwilling to try the case before a jury on that day-March 19, 1956-appellee would agree to a continuance of the trial to some future date for a jury trial. After it became apparent that the court was determined to proceed with a non-jury trial, appellee further stated that it would try to avoid delay in getting its witnesses together, but if there should be such delay it would ask the court's forbearance.

The case went to trial without a jury. The court rendered judgment for the Aronoffs for $40,000 and for the Cortemeglias for $1,800. The Aronoffs had already drawn down the $40,081.62 which had been awarded to them by the commissioners and which had been deposited with the County Clerk. So the court's judgment ordered them to refund the sum of $81.62. The Cortemeglias, having withdrawn the $4,000 awarded to them by the commissioners, were ordered to refund the sum of $2,200. Both the Aronoffs and the Cortemeglias have perfected their appeals.

The appeals are briefed together. They present eleven points on appeal as follows: '(1) The trial court erred and abused his discretion in denying and overruling appellants' motion for a trial by jury. (2) The trial court erred and abused his discretion in denying and depriving defendants of a trial by jury and compelling the appellants to proceed to trial without a jury. (3) The trial court erred and abused his discretion in refusing to reset or continuing this cause to some later date instead of compelling appellants to proceed to trial without a jury. (4) The trial court erred and abused his discretion in refusing to allow appellants to withdraw their announcement of ready. (5) The trial judge was so biased and prejudiced against the attorney for the appellants and the appellants and was determined from the commencement of this case to deprive the appellants of a jury trial and to award appellants amounts less than the commissioners' awards (which the trial judge did do) that appellants did not receive a fair and impartial hearing, and, therefore, this judgment should be set aside. (6) The trial court erred during the hearing on the amended motion for a new trial in controlling the court reporter and in instructing the court reporter to record only the judge's comments and on other occasions to make no record at all. (7) The trial court erred in refusing to permit the attorneys for appellants from making any objections to the court's rulings and actions and in refusing to permit said attorneys from making any bills of exceptions. (8) The trial court erred in allowing E. L. Bale, a witness for appellee, to testify, over the objections of appellants, as to the sale price of the property at 500 S. Industrial, and being Lots 11 and 12 in Block 67/415, which was introduced as a comparable sale to the subject property. (9) The trial court erred in allowing E. L. Bale, a witness for appellee, to testify, over the objections of appellants, as to the sale price of Lots 5 and 6 in Block 67/415 which was introduced as a comparable sale to the subject property. (10) The trial court erred in permitting E. L. Bale, a witness for appellee, to testify, over the objections of appellants, as to the sale price of the property located at 1901-3-5 South Industrial which was introduced as a comparable sale to the subject property. (11) The trial court erred in granting judgment to Luke and Vince Marie Cortemeglia in the sum of $1,800 because said sum is wholly insufficient and against the overwhelming weight of the testimony so as to be clearly wrong.'

It will be noticed that appellants' first four points are based on the trial court's refusal to permit trial to a jury. We shall therefore discuss these four points together.

(1) Article I, sec. 15 of the Constitution of Texas, Vernon's Ann.St. provides: 'The right of trial by jury shall remain inviolate.' ,Nevertheless trial by jury in Texas is not an absolute right in civil cases. It is subject to certain procedural rules. One of these rules is that a jury fee shall be paid ten days prior to trial. Rule 216, Vernon's Texas Rules of Civil Procedure.

It is an undisputed fact in this case that appellants did not comply with the above provision. The did not pay the jury fee until the day of trial, although a jury trial had been demanded and the case had previously been given a setting as a jury case.

(2, 3) It is recognized in our law and conceded by all parties here that Rule 216, V.T.R.C.P., is discretionary rather than mandatory; and that when the Rule has not been complied with, a trial court's decision to grant or deny a jury trial will not be reversed on appeal except on a showing of abuse of discretion. Under what circumstances will it be held that a trial court has abused such discretion? We believe the law on the question to be that a party may not be denied a jury trial though he may have been dilatory in paying the jury fee if (1) to grant a jury trial will not operate to injure the adverse party; and (2) to grant a jury trial will not disrupt the court's docket, or seriously interfere with and impede the ordinary handling of the court's business.

(4) We think that under the record in the instant case it must be held that the granting of a jury trial would not have operated to injure the adverse party. It was not appellee who had demanded a jury. The demand was made by appellants. But appellee, expecting a jury trial, had joined with appellants in requesting a setting of the case as a jury case and the court knowing that a jury had been requested, set the case for trial March 19, 1956. On that date all parties appeared in court ready for trial to a jury. Appellee, the adverse party, told the court that it was willing to proceed to trial before a jury notwithstanding appellants' belated payment of the jury fee, and even expressed a willingness to postpone the case in order to allow appellants a jury trial. Under such circumstances it cannot well be said that to grant a jury trial would have operated to injure the adverse party.

It remains then for us to consider whether the granting of a jury trial would have disrupted the court's docket or would have seriously interfered with and impeded the ordinary handling of the court's business. After a careful consideration of the whole record, we are convinced that the answer must be in the negative.

In overruling appellants' motion for a jury trial, the trial judge stated that 'If the court were to grant a jury trial, it would seriously interfere with and impede the ordinary handling of the court's business.' We do not doubt the sincerity of the trial judge, but we are convinced that his conclusion was based on an erroneous analysis of the undisputed facts. The undisputed facts are, as we have already stated, that several weeks prior to March 19, 1956 both attorneys had appeared in court and asked for a setting of the case, informing the court that it was a jury case. The judge had set the case for trial March 19, 1956, anticipating a jury trial The court's docket of cases set for trial, including not only this case but other cases as well, was arranged accordingly. Apparently it was not discovered that the jury fee had not been paid until the morning of March 19,...