Ricardo N., Inc. v. Turcios de Argueta

• Decision Date: 16 December 1993
• Docket Number: No. 13-91-655-CV,13-91-655-CV
• Parties: RICARDO N., INC., and F/V Betty N, Appellants, v. Maria Margarita TURCIOS de ARGUETA, et al., Appellees.
• Court: Texas Court of Appeals

Page 95

870 S.W.2d 95

RICARDO N., INC., and F/V Betty N, Appellants, v. Maria Margarita TURCIOS de ARGUETA, et al., Appellees.

No. 13-91-655-CV.

Court of Appeals of Texas,

Corpus Christi.

Dec. 16, 1993.

Rearing Overruled Jan. 20, 1994.

Christa L. Brown, Austin, G. Don Schauer, Pipitone, Schauer & Simank, Cynthia Satel Allison, Seger & Allison, Daniel D. Pipitone, Pipitone, Schauer & Simank, Corpus Christi, for appellants.

Richard C. Arroyo, Brownsville, Eli C. Salinas, Corpus Christi, for appellees.

Before GILBERTO HINOJOSA, PAUL W. NYE, ¹ and FEDERICO G. HINOJOSA, Jr., JJ.

OPINION

GILBERTO HINOJOSA, Justice.

Juan Luis Argueta was a header on the F/V "Betty N," a shrimping vessel owned by Ricardo N., Inc. He was lost at sea approximately eighty miles from shore and is presumed dead. On May 9, 1986, Maria Margarita Turcios de Argueta, individually and as administratrix of her deceased husband's estate, and as guardian of the persons and estates of Xiomaria Margarita Argueta, Maria de los Angeles Argueta, Jorge Samuel Argueta, and Maria Aidee, minors ("appellees"), sued Ricardo N., Inc., and the F/V "Betty N" ("appellants"). Appellees brought suit in state district court under the Jones Act and the Death on the High Seas Act. In October 1987, appellants removed the cause to federal court, where it remained until July 1991. On remand, the case was tried before the state trial judge on August 22, 1991. The trial court ruled for appellees and awarded $100,000 to Maria de Argueta and $50,000 to each of the four minor children, as well as $200,000 in exemplary damages, and prejudgment and postjudgment interest. Appellants challenge the trial court's judgment by 15 points of error. We reverse in part and affirm the remainder of the judgment.

PROCEDURAL FACTS

Appellants bring several points of error challenging the trial court's procedural rulings. The complexity of some of the related procedural issues necessitates a somewhat detailed description of the procedural facts.

This case was set for trial on the jury docket for October 19, 1987. The parties appeared before the trial court for announcements on October 16, 1987. Appellees announced "ready ... on the nonjury docket." Counsel for appellants was not present to announce "ready," but because counsel was nearby, the trial judge marked appellants ready on the trial docket. Shortly thereafter, counsel for appellants arrived and announced that they had just learned that appellees "had not requested a jury." Consequently, appellants immediately requested a jury trial and tendered the jury fee. At this time, counsel for appellees stated, "If we had made a request for a jury, we're withdrawing that request." Because the jury fee had not been paid, and because the trial court already had several jury trials scheduled, the trial judge announced that at that point in time the case was to proceed as a bench trial.

When the parties appeared on October 19, 1987, appellees announced "ready," and appellants announced "ready for jury selection." The trial judge responded that appellants would not get a jury trial because the jury fee was not timely paid and because a jury panel was not available due to the scheduling of four other jury trials. Appellants made an offer of proof in which they called the district clerk to testify that the court could accommodate appellants' request for a jury trial. When the trial judge reiterated that he would deny appellants' request for a jury trial because it would be too "burdensome," appellants requested permission to take up one other matter, and proceeded to invite opposing counsel to "stipulate limitation of liability under the Jones Act." ² Once it was established that appellees On October 21, 1987, appellants filed a petition for removal to federal court pursuant to 46 U.S.C.App. § 183 and filed a petition in federal district court pursuant to 46 U.S.C.App. § 185. The cause languished for four years in federal court before the petition was dismissed and the cause was remanded on July 11, 1991. During those four years, counsel for appellants was substituted.

would not stipulate limitation of liability, the trial judge set the case for trial October 22, 1987.

In the hearing on appellee's motion for remand on July 11, 1991, the federal district judge determined that FED.R.CIV.P. 11 sanctions were not appropriate, stating that "there was a good faith effort and reliance on the part of previous counsel in this case with regards to some language in Vatican Shrimp concerning proper removal, albeit misplaced on their part." After the case was remanded to the state court, the state trial judge concluded that appellants had removed the case solely for purposes of delay. In a hearing on August 9, 1991, the trial judge stated, "if I remember this case correctly, the lawyers representing the defendants ... filed removal because they wanted a jury trial and I wouldn't give it to them. That's the only reason they filed a removal.... I think that they were doing it for that particular--for that purpose only, and not for any other purpose."

Having concluded that counsel for appellant removed solely for purposes of delay, the trial court ordered that the case would be tried "as it stood on October 22, 1987." On August 14, 1991, the state trial judge drafted and mailed a letter which stated:

The Court has reviewed all motions and the Court will order the case be tried as it stood on October 22, 1987. The docket sheet reflects the reasons for my ruling. I enclose a copy of the docket sheet.

I will try this case next week and most likely on Thursday, August 22, 1991 at 10:00 a.m. My office will let you both know for sure on Monday, August 19, 1991.

The docket sheet reflects that the reasons for the trial court's ruling were 1) the court had too many juries to select and, 2) appellants' request for a jury trial was untimely.

Throughout trial, the court ruled against appellants consistent with its proclamation that the parties would try the case "as it stood" in 1987. The judge disallowed the testimony of three defense witnesses who appellants did not designate before October 22, 1987; the judge refused to grant appellants' request for a trial amendment to plead that Maria was not Argueta's wife, and also prohibited cross examination to determine her status as the children's representative; he denied appellants' requests to engage in further discovery, denied appellants' motion for continuance, and refused to deem as admitted requests for admission which appellants filed in federal court; and, the trial judge denied appellants' renewed requests for a jury trial.

DENIAL OF A JURY TRIAL

Appellants bring five procedural points of error which challenge these "back to the past" procedural rulings. In their first point of error, appellants challenge the court's refusal to grant a jury trial in 1987 and in 1991. This point of error involves three separate issues.

The first issue to resolve is whether the trial judge correctly denied appellants' request for a jury trial in October 1987. Before addressing the merits of appellants' claims, we question whether appellants, by engaging in sanctionable conduct, have waived their right to complain of the 1987 denial of a jury trial. Had appellants submitted to the trial court's denial of their request for a jury trial, tried the case to the bench, and then raised the issue on appeal, appellants' right to complain of the denial of their jury request undoubtedly would have remained intact. However, appellants did not even attempt to file a motion for continuance. Instead, they immediately launched into the limitation of liability issue, which could only be resolved by the federal court Regardless of the equitable propriety of appellants' pretrial conduct in 1987, appellants' claim that the trial court wrongfully denied their request for a jury trial in 1987 fails on the legal merits. The right of trial by jury and the manner in which this right may be secured are set forth in article I, § 15 and article V, § 10 of the Texas Constitution, and Rule 216 of the Texas Rules of Civil Procedure. ³ Two affirmative acts are required. A demand for a jury trial must be made and a jury fee must be deposited with the clerk. TEX.R.CIV.P. 216. A party desiring a jury trial must file the request and pay the jury fee at least thirty days prior to the date set for trial. Id. In the absence of compliance with Rule 216, whether to grant a jury trial is discretionary with the trial judge. Dawson v. Jarvis, 627 S.W.2d 444, 446 (Tex.App.--Houston [1st Dist.] 1981, writ ref'd n.r.e.).

even though they could have removed at any time over the prior year and four months. We agree with the state trial court's conclusion that appellants' decision to remove was a blatant attempt to side step the court's denial of a jury trial. Because appellants' dilatory tactics have caused such judicial inefficiency, their unclean hands should work as a waiver of their right to complain of the trial court's refusal to grant a jury trial in 1987.

Appellants in this case untimely requested a jury trial and paid the jury fee less than thirty days before trial on October 16, 1987. Accordingly, the trial judge had the discretion to deny appellants' request. Dawson, 627 S.W.2d at 446.

To show that a trial court has abused its discretion in denying a request for a jury trial, the complaining party must establish that the granting of the late request would not have 1) interfered with the orderly handling of the court's docket, 2) delayed the trial of the case, and 3) operated to the injury of the other party. Halsell v. Dehoyos, 810 S.W.2d 371, 371 (Tex.1991). Cases in which trial courts have been held to have abused their discretion in denying jury trials involve situations in which both parties clearly indicated they wanted trial by jury, the trial had been set on the jury docket, and jury panels were available, yet payment of the jury fee was...