in Re Hulcher Services, Inc.

568 S.W.3d 188

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-18-00257-CV ___________________________

IN RE HULCHER SERVICES, INC., Relator

Original Proceeding Trial Court No. 236-228956-08

Before Sudderth, C.J.; Meier and Birdwell, JJ. Memorandum Opinion by Justice Birdwell MEMORANDUM OPINION

In this original proceeding, we must decide whether the trial court abused its

discretion by striking Hulcher Services, Inc.’s jury demand for a third trial on

attorney’s fees when––before the second trial on liability, damages, and attorney’s

fees––Hulcher agreed on the record to submit the issue of attorney’s fees to the trial

judge. See Tex. R. Civ. P. 11; Baker v. Hertel, No. 11-13-00152-CV, 2015 WL 1469527,

at *2 (Tex. App.––Eastland Mar. 26, 2015, no pet.) (mem. op.). Hulcher contends that

it is entitled to a jury for the third attorney’s fees trial based on cases holding that a

party’s jury waiver does not survive a remand after appeal. But Emmert claims that

the parties’ rule 11 agreement made before the second trial precludes Hulcher from

demanding a jury in this third trial on attorney’s fees. Because our judgment and

mandate in the second trial remanded the issue of attorney’s fees for a new trial

without limitation––and the parties’ rule 11 agreement in the second trial did not

unambiguously indicate an intent that it apply to future trials on the same issue––we

grant mandamus relief.

Background

This court gave a detailed account of the background of this dispute in Hulcher

Services, Inc. v. Emmert Industrial Corp., No. 02-14-00110-CV, 2016 WL 368180, at *1–5

(Tex. App.––Fort Worth Jan. 28, 2016, pet. denied) (mem. op.). Consequently, we will

set forth only the procedural facts applicable to the current dispute.

2 Emmert and Hulcher’s first trial––at which the parties attempted to try all of

the claims and issues to a jury, including attorney’s fees––ended in a mistrial. At the

pretrial conference for the second trial, Hulcher and Emmert agreed on the record to

have a jury decide all of Emmert’s liability and damages claims except for attorney’s

fees:

[Emmert’s counsel]: Judge, may we put some stuff on the record with you --

THE COURT: All right.

[Emmert’s counsel]: -- and see if you’ll approve it or not?

....

[Emmert’s counsel]: First, we’re going to submit attorney fees to you, Judge, and not to the jury.

[Hulcher’s counsel]: That is agreed.

THE COURT: Is that agreed? All right.

After the jury found in Emmert’s favor and awarded damages, the trial judge

incorporated the jury’s awards into a final judgment along with his attorney’s fees

award. The trial court’s final judgment stated, “The parties agreed to try the issue of

attorney’s fees to the Court after the jury trial.”

Hulcher appealed. This court modified the damages awards in the judgment,

reversed the attorney’s fees award because of that modification, and remanded “the

issue of attorney’s fees for a new trial.” Id. at * 26.

3 Back in the trial court, Hulcher filed a jury demand and paid the jury fee. When

Emmert objected and moved to strike the jury demand, a visiting trial judge granted

Emmert relief and ordered that the attorney’s fees issue be tried to the bench.

Hulcher then filed this petition for writ of mandamus, arguing that its rule 11

jury waiver before the second trial does not preclude it from exercising its

constitutional right to have the attorney’s fees issue tried to a jury in the third trial. We

agree.

Rule 11 Jury Waiver Does Not Control in Third Trial on Attorney’s Fees

Although the Texas constitution guarantees the right to a trial by jury, Tex.

Const. art. I, §§ 10, 15, that right is not absolute in civil cases, Howell v. Tex. Workers’

Comp. Comm’n, 143 S.W.3d 416, 438 (Tex. App.––Austin 2004, pets. denied). In civil

cases, a party can procedurally waive the right to a jury trial by failing to timely make a

jury demand or by failing to pay the jury fee. Tex. R. Civ. P. 216; In re Wells Fargo Bank

Minn. N.A., 115 S.W.3d 600, 606–07 (Tex. App.—Houston [14th Dist.] 2003, orig.

proceeding [mand. denied]). Parties can also waive the right by agreement. See In re

Prudential Ins. Co., 148 S.W.3d 124, 129–33 (Tex. 2004).

Procedural Jury-waiver Agreements Generally Apply to Single Trial

Whether Hulcher may now demand a jury trial on attorney’s fees is a question

of law. The long-standing majority rule is that when an appellate court remands all or

part of a case without limitation, a party who waived a jury before the original trial

may nevertheless demand a jury on the remanded issue or issues. See Dunlap v. Brooks, 4 3 Willson 425, 427 (Tex. Ct. App. 1888) (holding that whether a party waived or

demanded a jury in a first trial does not control the party’s right to waive or demand a

jury after remand because the effect of an appellate court’s reversal of a trial court

judgment is to “remand the cause for trial as though no previous trial had been had”);

In re Baker, 495 S.W.3d 393, 396 (Tex. App.––Houston [14th Dist.] 2016, orig.

proceeding); In re Lesikar, 285 S.W.3d 577, 587 (Tex. App.––Houston [14th Dist.]

2009, no pet.); In re Marriage of Stein, 190 S.W.3d 73, 74–75 (Tex. App.––Amarillo

2005, orig. proceeding); Gordon v. Gordon, 704 S.W.2d 490, 492 (Tex. App.––Corpus

Christi 1986, writ dism’d); Harding v. Harding, 485 S.W.2d 297, 299 (Tex. Civ. App.––

San Antonio 1972, no writ); see also F.M. Davies v. Porter, 248 F. 397, 398 (8th Cir.

1918) (holding that written stipulation waiving jury in first trial did not affect right of

either party to demand a jury on remand); Burnham v. N. Chicago St. Ry., 88 F. 627,

628–30 (7th Cir. 1898) (holding same and explaining that court could not presume

that parties who stipulated in writing to waive jury trial anticipated a second trial at

that time, especially considering that a second trial could be before a different judge or

a judge who had already ruled against one of them); Osgood v. Skinner, 57 N.E. 1041,

1043 (Ill. 1900) (“The agreement to waive a jury only binds the parties to that mode of

trial for one trial. . . .”); Nedrow v. Michigan-Wisconsin Pipe Line Co., 70 N.W.2d 843, 844–

45 (Iowa 1955) (stating general rule and reversing trial court’s interlocutory ruling

denying jury trial on remand when parties had agreed to waive jury at first trial);

Cochran v. Stewart, 68 N.W. 972, 973 (Minn. 1896) (holding that because conditions at a 5 second trial might be “wholly different” from those at the first, “[i]t is hardly fair to

presume that by waiving a jury for one trial the parties intended to waive a jury for any

further trial that may be had”); Benbow v. Robbins, 72 N.C. 422, 423 (1875) (holding that

trial judge erred by denying jury trial on remand to parties who had agreed to waive

jury in first trial); Worthington v. Nashville, C. & St. Louis Ry., 86 S.W. 307, 308–09

(Tenn. 1905) (reviewing cases and adopting majority rule); Spring v. Dep’t of Labor &

Indus., 695 P.2d 612, 614–15 (Wash. Ct. App. 1985) (adopting majority view and

holding that trial court erred by refusing jury trial on first remand of case); In re Dorraj

J.J., 836 N.W.2d 860, 863–65 (Wis. Ct. App. 2013) (noting that appellee had not

identified evidence indicating that appellant intended to waive a jury for future fact-

finding hearings and holding that “absent an unambiguous declaration that a party

intends to bind itself for future fact-finding hearings or trials, a jury waiver applies

only to the fact-finding hearing or trial pending at the time it is made”); cf. Brown v.

Chenoworth, 51 Tex. 469, 475 (1879) (reversing judgment because trial court improperly

refused the defendants a jury trial when they had not demanded a jury trial at the trial

court’s prior term); Dean v. Sweeney, 51 Tex. 242, 243 (1879) (“[I]f, at a preceding term,

a jury had been waived or demanded, this should not control the right in the

discretion of a party to demand at a succeeding term a trial by jury which had before

been waived, or to waive such trial which had before been demanded.”); Wilson v.

Horsley, 974 P.2d 316, 321–22 (Wash. 1999) (noting that “many states have determined

that the waiver of a jury trial is not operative for the subsequent trial of the same 6 case” and holding that right to jury trial is revived after mistrial even if previously

waived); Tesky v. Tesky, 327 N.W.2d 706, 708 (Wis. 1983) (holding that trial court

erred by refusing jury demand after granting a new trial on a threshold liability issue in

a bifurcated trial because “a party to a lawsuit is entitled as a matter of right to a jury

trial on a question of fact if that issue is retried”). None of these cases distinguish

between, or make an exception for, agreed waivers and waivers by failing to timely

request a jury or pay the jury fee. See, e.g., F.M. Davies, 248 F. at 398; Burnham, 88 F. at

628–30; Osgood, 57 N.E. at 1043; Nedrow, 70 N.W.2d at 844–45; Baker, 495 S.W.3d at

395; Harding, 485 S.W.2d at 299. 1

When we remanded the issue of attorney’s fees for a new trial, we did not rule

upon or consider the parties’ rule 11 agreement to try attorney’s fees in the second

trial to the court.2 Instead, although our remand was limited to a single issue, the

effect of reversal and remand was to leave the trial court judgment on that issue as

though it had never been rendered and no trial on that issue had occurred. See Dunlap,

These authorities apply to procedural rule 11 jury-waiver agreements made in 1

the course of pending litigation and do not involve pre-existing contractual jury waivers bargained for in advance of litigation. See, e.g., In re Bank of Am., 278 S.W.3d 342, 346 (Tex. 2009); In re Guggenheim Corp. Funding, LLC, 380 S.W.3d 879, 884–90 (Tex. App.––Houston [14th Dist.] 2012, orig. proceeding [mand. dism’d]). 2 For that reason, the scope or enforceability of the rule 11 agreement here is not the law of the case. See Fleming v. Allstate Ins. Co., No. 03-09-00705-CV, 2010 WL 4137502, at *4 (Tex. App.—Austin Oct. 22, 2010, pet. denied) (mem. op.) (explaining that under the law of the case doctrine, “a court of appeals is normally bound by its initial decision on a question of law if there is a subsequent appeal in the same case”).

7 3 Willson at 427; Safeco Surety v. J.P. Sw. Concrete, No. 01-12-00672-CV, 2013 WL

5820619, at *5 (Tex. App.––Houston [1st Dist.] Oct. 29, 2013, no pet.); Cessna Aircraft

Co. v. Aircraft Network, LLC, 345 S.W.3d 139, 145 (Tex. App.––Dallas 2011, no pet.);

Seale v. Click, 556 S.W.2d 95, 97 (Tex. App.––Eastland 1977, writ ref’d n.r.e.).

Accordingly, the majority rule applies here unless the parties intended their jury-

waiver agreement for attorney’s fees to apply to any future trials of that issue.

Scope of Rule 11 Agreement

Rule 11 aims to remove misunderstandings and controversies that accompany

verbal assurances; as reduced to writing, the agreements therefore “speak for

themselves.” Fortis Benefits v. Cantu, 234 S.W.3d 642, 651 (Tex. 2007); Birdwell v. Cox,

18 Tex. 535, 537 (1857). The trial court has a ministerial duty to enforce a valid

pretrial rule 11 agreement. Fortis Benefits, 234 S.W.3d at 651. We determine the scope

of a rule 11 agreement by examining the words used, the surrounding circumstances

from which the agreement arose, the state of and allegations in the pleadings, and the

attitude of the parties with respect to the issues. Lesikar v. EOG Res., Inc., 236 S.W.3d

457, 458–59 (Tex. App.—Amarillo 2007, no pet.). We must examine the entire

agreement to determine the parties’ intent. Ezirike v. Anthony, No. 01-05-00090-CV,

2007 WL 1441033, at *3 (Tex. App.––Houston [1st Dist.] May 17, 2007, no pet.)

(mem. op.).

According to Hulcher, “This was a simple agreement at the previous trial to

submit one issue to the court. The terms of that agreement were fulfilled when 8 Emmert’s attorney’s fee claim was tried to the court.” We agree. The agreement stated

on the record was to “submit attorney fees” to the trial judge, “not to the jury.”

Although these words indicate an intent to submit the issue of attorney’s fees to the

trial judge at that point in time, they do not contemplate the possibility of a future trial

on attorney’s fees, nor do they show an intent to bind the parties to try “the issue of”

attorney’s fees for all time to the bench. Compare Burnham, 88 F. at 628–30; Nedrow, 70

N.W.2d at 844; Harding, 485 S.W.2d at 298–99, with In re Bank of Am., 278 S.W.3d at

343; see also Dorraj, 836 N.W.2d at 865; State Farm Lloyds v. Gulley, 399 S.W.3d 242,

246–47 (Tex. App.––San Antonio 2012, no pet.) (construing rule 11 agreement to

apply solely to first attempted interlocutory appeal only); Cox v. Cox, 298 S.W.3d 726,

734 (Tex. App.––Austin 2009, no pet.) (construing rule 11 settlement agreement to

apply solely to temporary orders and not final judgment). In addition to the plain

language of the rule 11 agreement, the context of the second trial (as summarized by

Hulcher) supports the same conclusion:

Hulcher agreed to try the issue of attorney’s fees to the trial court as part of a number of agreements made on the third day of trial. Given that Emmert was bringing a number of claims, some of which permitted attorney’s fees and some of which did not, and of course no one knew which claims Emmert would prevail on, it would have been difficult to present the attorney fee evidence to the jury with various assumptions concerning segregation of fees.

That the rule 11 agreement was intended to apply only to the second trial is further

supported by the fact that Hulcher did not waive a jury for attorney’s fees in the first

trial that ended in a mistrial. 9 We hold that the plain language of the rule 11 agreement waiving a jury on the

issue of attorney’s fees in the second trial does not unambiguously indicate that the

parties intended to waive a jury for any future trials of the same issue. Thus, the trial

court abused its discretion by striking Hulcher’s jury demand and ordering the parties

to try Hulcher’s attorney’s fees request to the bench on remand.

No Adequate Remedy by Appeal

Because the trial court’s order denies Hulcher its constitutional right to a jury

trial––a loss which the supreme court has held is reviewable by mandamus, In re

Prudential, 148 S.W.3d at 139––and because the proceedings in the trial court are now

the third trial in this case, we hold that appeal is not an adequate remedy for Hulcher

on this issue. See In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex. 2008) (orig.

proceeding); In re Rodriguez, Nos. 13-16-00411-CV, 13-16-00416-CV, 2017 WL

395257, at *8–9 (Tex. App.––Corpus Christi Jan. 27, 2017, orig. proceeding) (op. on

reh’g); Lesikar, 285 S.W.3d at 587; see also In re Columbia Med. Ctr. of Las Colinas

Subsidiary, L.P., 290 S.W.3d 204, 209–10 (Tex. 2009) (determining that protection of

right to jury trial was an exceptional circumstance justifying mandamus relief when

trial court granted new trial after jury verdict without explaining why).

Conclusion

We conclude that the trial court abused its discretion by striking Hulcher’s jury

demand and that mandamus relief is appropriate. We therefore conditionally grant

mandamus relief and order the trial court to vacate the July 27, 2018 order striking 10 Hulcher’s jury demand and requiring that “the issue of attorney’s fees be held to the

court.”

/s/ Wade Birdwell Wade Birdwell Justice

Delivered: October 11, 2018