Duvall v. Sadler, 9363
| Decision Date | 20 May 1986 |
| Docket Number | No. 9363,9363 |
| Parties | Suzanne Mann DUVALL, Appellant, v. Cletys SADLER, Jeannette Williams Sadler, Philip M. Sadler and Jacquelyn Sadler, Appellees. |
| Court | Texas Court of Appeals |
H. Wayne Meachum, Hoecker & Meachum, Dallas, John W. Alexander, Winnsboro, for appellant.
Thomas H. Hathaway, Mike A. Hatchell, Tyler, Gordon Wynne, Jr., Wynne & Wynne, Wills Point, for appellees.
Before CORNELIUS, C.J., and BLEIL and CHADICK, * JJ.
This suit originated as an action to remove cloud from title, for partition of farm land, and for damages. Prior to the judgment underlying this appeal, title issues had been resolved and severed. The parties to the action are Mrs. Suzanne Mann Duvall, plaintiff and now appellant, and Cletys Sadler, Jeannette Williams Sadler, Philip M. Sadler, and Jacquelyn Sadler, defendants and now appellees. The judgment rendered ordered the land partitioned in kind, appointed commissioners to effect the partition, and awarded appellant Duvall damages and costs. Being dissatisfied with the judgment, Duvall has appealed.
For convenience, the points of error initially noticed will be grouped for discussion as, to a large extent, the issues raised have a common factual background. Point of Error 3 addresses the trial court's finding that Duvall agreed to try the case solely on the basis of stipulations of fact entered into by the parties. Point of Error 9 addresses the trial court's refusal to allow Duvall a jury trial and Point of Error 10 addresses the trial court's finding that Duvall had waived a jury trial.
Timely demand under Tex.R.Civ.P. 216 for and payment of a jury fee by Duvall is unquestioned. Also there is no question but that the trial pleadings of the parties raise fact issues appropriate for jury determination. A citizen's right to a trial by jury is a constitutional prerogative and should not be denied. In Texas & Pacific Railway Company v. Van Zandt, 159 Tex. 178, 317 S.W.2d 528 (1958), it is said "[t]he mere denial of that right raises an inference of probable harm." See also, Harris v. Harris, 679 S.W.2d 75 (Tex.App.--Dallas The Sadlers justify the trial court's judgment on the grounds that Duvall failed to file a complete statement of facts, and therefore, it must be presumed that evidence exists to support the findings and judgment rendered upon the findings, and that Duvall waived a jury trial and agreed to submit the case upon stipulations made by the parties.
1984, writ dism'd). However, when a jury trial is legally inappropriate to the case or clearly waived trial is conformed to the circumstance. See 35 Tex.Jur.2d Jury § 34 (1962).
The statement of facts in the record shows the trial commenced October 22, 1984, and the report of proceedings of that date takes up Pages 2-11 of the eleven page volume. The next volume of the statement of facts covers proceedings on October 23, 1984, and the report occupies Pages 1-17 of the seventeen page volume. Third is a volume that contains an index to exhibits and purports to report on Pages 2-63 proceedings on October 24 and 25, 1984, and ends with the reporter's notation "(Hearing concluded.)." Filed as a part of the statement of facts is a volume labeled "Exhibits" which contains exhibits referred to in the reported proceedings. 1
Whether the footnoted affidavit be considered or not, it appears from the record filed that this Court has before it a statement of facts certified as containing a true and correct transcription of all proceedings had in the case in the trial court. Tex.R.Civ.P. 376b makes it the duty of the official court reporter to attend all sessions of the court, make a full record of the evidence, etc. There is a presumption that an official duty is properly performed. It appears that the record on file is complete for the purposes of this appeal, and the presumptions that arise from an incomplete statement of facts are not applicable. Therefore, there is no basis for presumption, by reason of an abbreviated statement of facts, that evidence exists to support findings of fact made by the trial judge and to support the judgment rendered on the findings.
The instrument containing the parties' agreed stipulations is in compliance with Tex.R.Civ.P. 11 and was filed in the trial court. This agreement by its terms does not bind the parties to submit the case to the trial judge for determination, nor for trial by judge or jury upon the stipulated facts alone. The stipulations merely eliminated the necessity of proving the facts agreed upon in the written instrument, whether trial is by judge or jury. See May v. City of McKinney, 479 S.W.2d 114 (Tex.Civ.App.--Dallas 1972, writ ref'd n.r.e.). An agreement, if one exists, to submit the case upon the stipulations embodied in the written agreement must be found outside its text.
The trial court found both as facts and as conclusions of law that:
[T]he Plaintiff acting through her attorney and through his action and conduct waived a jury and agreed that the Court would hear and determine all factual issues.
[T]he parties entered into a written stipulation of all facts necessary for the Court to decide the controversy.
[T]he stipulation of the parties filed October 24, 1984 was entered into for ....
presentation to and use of the Court so as to avoid the necessity of a jury.
[A]ll parties agreed to the withdrawal of the cause from the jury and agreed that the Court should try the same on the basis of stipulation of facts by the parties.
The statement of facts contains a record of intermittent conversations between Duvall's counsel and the presiding judge regarding issues raised by the pleadings and evidence that counsel expected to offer for jury consideration. The last page of the statement of facts containing the proceedings on October 23 (second day of trial) shows that just before the hearing ended for the day counsel for Duvall made this request:
This indicates that no agreement existed at the time to withdraw the case from trial by jury or to submit it to the court on agreed stipulations.
The next day the noon recess was reached, and as if finishing presentation of evidence on the bill of exceptions that had occupied the morning, counsel for Duvall announced that the evidence produced would be offered as a bill of exception and asked specifically, "Will the court receive our bill?" The court answered, "The bill is received." Then a colloquy between the court and counsel for the parties ensued. The subject was a witness who was not available until the noon recess. After the noon recess, the witness in question was interrogated, and Duvall was recalled for further questioning.
While Duvall was on the witness stand the record shows a running conversation between Duvall's counsel and the judge, and then the following:
The statement of facts shows that at this juncture the court and counsel for all parties engaged in a lengthy discussion, some of which was off the record at the direction of the presiding judge, then the following occurred:
The foregoing objections and rulings are followed immediately in the statement of facts by a recitation by the trial judge "for the purpose of clarification of the record" which included this:
After conference, the Court was informed by counsel that they intended to At approximately 9:25 a.m. Wednesday morning counsel for both sides informed the Court that they had agreed to the stipulations; that the stipulations had been signed by all counsel and parties; and that the stipulations at that time were presented to the Court. At that time the jury was released after an explanation to them of the delays that had been incurred in this case.
submit the case to the Court on stipulations without the need of a jury, if those stipulations could be agreed to. The jury was released until 1:30 p.m. At that time counsel for both sides informed the Court that more time was needed to work out the stipulations. At that time the jury was recessed until 9:30 a.m. Wednesday morning.
The Court finds that the agreement, that the stipulations--that the agreement and stipulations that were entered into were entered into in light of the Court's ruling at the hearing and conference Tuesday morning.
This recitation was followed by a pronouncement of findings upon numerous factual issues determining the merit of the...
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