OPINION
O’CONNOR, Justice.
The issue in this case is whether the court erred in denying a motion for continuance. We hold it did and reverse.
Fact summary
This is a contract suit by Collateral Protection, Inc. (plaintiff), filed as a declaratory judgment action against H.W. and Merle Higginbotham (defendants), who filed a counterclaim to recover on the same contract. This suit was filed in 1990 in the district court of Walker County, located in Huntsville. The defendants answered and were represented by an attorney from Fort Worth. In June 1991, the defendants sent a setting request to the court coordinator, with a copy to the plaintiff, for a jury trial for the week of November 25, 1991. On June 10, 1991, the court coordinator sent the parties a confirmation of a jury trial setting for November 25, 1991. Later, for medical reasons of one of the parties, the case was continued on the docket.
In December 1991, during a hearing on discovery matters, the court and the parties reached an agreement to set the case for trial on May 26, 1992. The court told the parties to send a request for a trial setting to the court coordinator to get on the court’s docket. The plaintiff complied with the court’s request and, on January 2, 1992, sent the court coordinator a request that the case be preferentially set for May 26, 1992, on the court’s jury docket. On January 10, 1992, the court coordinator sent the parties a confirmation that the case was set for a jury trial on May 26, 1992. On January 30, the trial court signed an order reflecting all the discovery rulings from the hearing and also preferentially setting the case for trial on the May 26, 1992, docket. The order did not identify the trial as a jury trial, but merely said that the case was set preferentially.1
On May 25, 1992, one day before trial, the trial judge determined from the district clerk’s records that neither of the parties had filed a request for a jury trial or paid a jury fee. Accordingly, the court cancelled the call for jurors who would have been used in selecting a jury for the next day.
On May 26, the parties arrived at the court, thinking they were to have a jury [489]*489trial. When the court told the parties it had cancelled the jury call, the plaintiff announced “ready” for either a jury or nonjury trial, and the defendants announced “ready” for a jury trial and “not ready” for a “nonjury trial.”
The court told the parties that the next possible jury setting would be in 1993 and gave a lengthy explanation of how its four, multi-county dockets were set. The court gave the defense counsel time to call his office to determine if his records showed that a jury fee was paid. When he returned, the defense counsel stated his office did not pay the fee, thinking the fee had been paid by the plaintiff; and he filed a verified, handwritten motion for continuance. The court overruled the defendants’ motions for a jury trial and for continuance, and advised the parties to proceed with a bench trial.
Before the court overruled the defendants’ motions, the defendants argued that a continuance would not interfere with or disrupt the court’s docket. The defense counsel told the court (repeating information in the motion for continuance) that his office practice was to have his secretary call the clerk to determine if a jury fee has been paid. If one has already been paid, he relies on that fee and does not pay it a second time. His office records reflect that a long-distance call was placed to the Walker County clerk’s office on June 5, 1991, about the time he would have expected that call to have been made. The minute book for the Walker County’s clerk’s office reflects an entry which appears to be “jury” next to an amount of five dollars.2 Defense counsel said in his motion for continuance that it is probable that his secretary was informed by a clerk that a jury fee had been paid and that the ease was on the jury docket.
Right to a jury trial
In point of error one, the defendants complain the trial court erred in removing the case from the jury docket and proceeding with a bench trial.
The Texas and United States Constitutions guarantee a jury trial. Tex.Const. art. I, § 15; U.S. Const, art. Ill, § 2. To be entitled to a jury trial, a party must follow the procedure set out in Tex.R.Civ.P. 216: not less than 30 days before trial, the party must make a written request for a jury and pay a jury fee. Huddle v. Huddle, 696 S.W.2d 895, 895 (Tex.1985).
The written request
The defendants concede they did not file a formal written request for a jury trial. The defendants, however, did send a setting request to the court coordinator asking for a jury trial. The Fourteenth Court of Appeals has held that a trial certification request constitutes an application for a jury trial within the meaning of rule 216. Sheth v. White, 722 S.W.2d 805, 805 (Tex.App.—Houston [14th Dist.] 1987, orig. proceeding). We agree. We hold the defendants’ request to the trial coordinator for a jury trial setting amounted to a request for a jury trial.3
The jury fee
Neither party paid a jury fee. Under Tex.R.Civ.P. 216, a party is required to file a written request for a jury trial and pay the jury fee. Here, the defendants filed a document that was sufficient as a jury request, but did not pay the jury fee.
This case is similar to Dawson v. Jarvis, 627 S.W.2d 444 (Tex.App.—Houston [1st Dist.] 1981, writ ref’d n.r.e.), Browning v. Holloway, 620 S.W.2d 611 (Tex.App.—Dallas 1981, writ ref’d n.r.e.), and Aronoff v. Texas Turnpike Authority, 299 S.W.2d 342 (Tex.App.—Dallas 1957, no writ). In these three cases, the trial judges and the parties believed, until the day of trial, that the parties had requested a jury and paid a [490]*490jury fee. Dawson, 627 S.W.2d at 446; Browning, 620 S.W.2d at 617; Aronoff, 299 S.W.2d at 343. Over the objections of one of the parties, the trial court struck the jury setting and proceeded with a nonjury trial; the three cases were reversed on appeal. Dawson, 627 S.W.2d at 446, 448; Browning, 620 S.W.2d at 617, 618; Aronoff, 299 S.W.2d at 343, 348. The one thing these cases have in common that is different from the case before us is that a jury was available to hear the case on the morning of trial. Dawson, 627 S.W.2d at 447; Browning, 620 S.W.2d at 617; Aro-noff, 299 S.W.2d at 343. Here, a jury was not available because the trial court can-celled the jury the day before.
The defendants did not pay a jury fee. Thus, they waived their right to a jury trial. Turk v. First Nat’l Bank, 802 S.W.2d 264, 267 (Tex.App.—Houston [1st Dist.] 1990, writ denied).
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION
O’CONNOR, Justice.
The issue in this case is whether the court erred in denying a motion for continuance. We hold it did and reverse.
Fact summary
This is a contract suit by Collateral Protection, Inc. (plaintiff), filed as a declaratory judgment action against H.W. and Merle Higginbotham (defendants), who filed a counterclaim to recover on the same contract. This suit was filed in 1990 in the district court of Walker County, located in Huntsville. The defendants answered and were represented by an attorney from Fort Worth. In June 1991, the defendants sent a setting request to the court coordinator, with a copy to the plaintiff, for a jury trial for the week of November 25, 1991. On June 10, 1991, the court coordinator sent the parties a confirmation of a jury trial setting for November 25, 1991. Later, for medical reasons of one of the parties, the case was continued on the docket.
In December 1991, during a hearing on discovery matters, the court and the parties reached an agreement to set the case for trial on May 26, 1992. The court told the parties to send a request for a trial setting to the court coordinator to get on the court’s docket. The plaintiff complied with the court’s request and, on January 2, 1992, sent the court coordinator a request that the case be preferentially set for May 26, 1992, on the court’s jury docket. On January 10, 1992, the court coordinator sent the parties a confirmation that the case was set for a jury trial on May 26, 1992. On January 30, the trial court signed an order reflecting all the discovery rulings from the hearing and also preferentially setting the case for trial on the May 26, 1992, docket. The order did not identify the trial as a jury trial, but merely said that the case was set preferentially.1
On May 25, 1992, one day before trial, the trial judge determined from the district clerk’s records that neither of the parties had filed a request for a jury trial or paid a jury fee. Accordingly, the court cancelled the call for jurors who would have been used in selecting a jury for the next day.
On May 26, the parties arrived at the court, thinking they were to have a jury [489]*489trial. When the court told the parties it had cancelled the jury call, the plaintiff announced “ready” for either a jury or nonjury trial, and the defendants announced “ready” for a jury trial and “not ready” for a “nonjury trial.”
The court told the parties that the next possible jury setting would be in 1993 and gave a lengthy explanation of how its four, multi-county dockets were set. The court gave the defense counsel time to call his office to determine if his records showed that a jury fee was paid. When he returned, the defense counsel stated his office did not pay the fee, thinking the fee had been paid by the plaintiff; and he filed a verified, handwritten motion for continuance. The court overruled the defendants’ motions for a jury trial and for continuance, and advised the parties to proceed with a bench trial.
Before the court overruled the defendants’ motions, the defendants argued that a continuance would not interfere with or disrupt the court’s docket. The defense counsel told the court (repeating information in the motion for continuance) that his office practice was to have his secretary call the clerk to determine if a jury fee has been paid. If one has already been paid, he relies on that fee and does not pay it a second time. His office records reflect that a long-distance call was placed to the Walker County clerk’s office on June 5, 1991, about the time he would have expected that call to have been made. The minute book for the Walker County’s clerk’s office reflects an entry which appears to be “jury” next to an amount of five dollars.2 Defense counsel said in his motion for continuance that it is probable that his secretary was informed by a clerk that a jury fee had been paid and that the ease was on the jury docket.
Right to a jury trial
In point of error one, the defendants complain the trial court erred in removing the case from the jury docket and proceeding with a bench trial.
The Texas and United States Constitutions guarantee a jury trial. Tex.Const. art. I, § 15; U.S. Const, art. Ill, § 2. To be entitled to a jury trial, a party must follow the procedure set out in Tex.R.Civ.P. 216: not less than 30 days before trial, the party must make a written request for a jury and pay a jury fee. Huddle v. Huddle, 696 S.W.2d 895, 895 (Tex.1985).
The written request
The defendants concede they did not file a formal written request for a jury trial. The defendants, however, did send a setting request to the court coordinator asking for a jury trial. The Fourteenth Court of Appeals has held that a trial certification request constitutes an application for a jury trial within the meaning of rule 216. Sheth v. White, 722 S.W.2d 805, 805 (Tex.App.—Houston [14th Dist.] 1987, orig. proceeding). We agree. We hold the defendants’ request to the trial coordinator for a jury trial setting amounted to a request for a jury trial.3
The jury fee
Neither party paid a jury fee. Under Tex.R.Civ.P. 216, a party is required to file a written request for a jury trial and pay the jury fee. Here, the defendants filed a document that was sufficient as a jury request, but did not pay the jury fee.
This case is similar to Dawson v. Jarvis, 627 S.W.2d 444 (Tex.App.—Houston [1st Dist.] 1981, writ ref’d n.r.e.), Browning v. Holloway, 620 S.W.2d 611 (Tex.App.—Dallas 1981, writ ref’d n.r.e.), and Aronoff v. Texas Turnpike Authority, 299 S.W.2d 342 (Tex.App.—Dallas 1957, no writ). In these three cases, the trial judges and the parties believed, until the day of trial, that the parties had requested a jury and paid a [490]*490jury fee. Dawson, 627 S.W.2d at 446; Browning, 620 S.W.2d at 617; Aronoff, 299 S.W.2d at 343. Over the objections of one of the parties, the trial court struck the jury setting and proceeded with a nonjury trial; the three cases were reversed on appeal. Dawson, 627 S.W.2d at 446, 448; Browning, 620 S.W.2d at 617, 618; Aronoff, 299 S.W.2d at 343, 348. The one thing these cases have in common that is different from the case before us is that a jury was available to hear the case on the morning of trial. Dawson, 627 S.W.2d at 447; Browning, 620 S.W.2d at 617; Aro-noff, 299 S.W.2d at 343. Here, a jury was not available because the trial court can-celled the jury the day before.
The defendants did not pay a jury fee. Thus, they waived their right to a jury trial. Turk v. First Nat’l Bank, 802 S.W.2d 264, 267 (Tex.App.—Houston [1st Dist.] 1990, writ denied). The trial court then had discretion to grant or deny the late request, and the burden of showing abuse of discretion is on the party who made the late request. Id. We overrule defendants’ point of error one complaining of the lack of a jury trial.
Motion for continuance
In point of error two, the defendants contend the court erred in overruling the defendants’ motion for continuance and proceeding with a bench trial.
The granting or denial of a motion for continuance is within the discretion of the trial court and will not be reversed unless the record shows a clear abuse of discretion. State v. Wood Oil Distrib. Inc., 751 S.W.2d 863, 865 (Tex.1988). The test for abuse of discretion is “whether the court acted without reference to any guiding rules and principles.” Wright v. Brooks, 773 S.W.2d 649, 651 (Tex.App.—San Antonio 1989, writ denied). We will apply the abuse of discretion standard to the trial court’s refusal to grant the motion for continuance.
The most troublesome aspect of this case is that the defendants would have filed a proper request for a jury trial and timely paid the fee but for mistakes on the part of the court and its personnel. In his motion for continuance, the defense counsel, whose office is in Fort Worth, said he was unable to send someone to the courthouse to check the records. He testified his secretary regularly calls the court to determine if a jury fee has been paid in a case. He opined that, when she called, someone in the clerk’s office, relying on the court’s minute book, told her the case was set on the jury docket. The record establishes that the court coordinator, acting as the agent for the trial court, sent the parties at least two notices that the case was set for a jury trial. The collective effect of these mistakes on the defendants was to assure them the case was properly set on the jury docket. But for these mistakes, the defendants would have filed a jury fee.4
We sustain point of error two, complaining of the trial court’s refusal to grant a continuance, and reverse and remand the cause.
JACKSON B. SMITH, Jr., J., dissents.