The First District Court of Appeals released its memorandum opinion in In re I.R.H. & Z.T.H., No. 01-15-00787-CV, holding that the trial court abused its discretion in striking a jury demand as punishment for discovery abuses.
Mother and Father filed competing motions to modify. Trial was set for August 11, 2015. On June 30, 2015, Mother’s attorney moved to withdraw and on July 10, 2015, the trial court signed an order finding Mother was properly noticed and allowing Mother’s attorney to withdraw.
At pre-trial the day before trial, Father’s counsel requested that Mother’s jury demand be struck because Mother had failed to comply with discovery and pre-trial document exchange and failed to pay court-ordered amicus fees. The trial court granted the request, striking Mother’s jury demand, though it had been made and the fee paid months before trial. Mother requested a continuance which was denied. The case went to bench trial.
On appeal, the mother asserted two issues: first, that the trial court erred by denying her motion for continuance when, according to her, she had no notice of her attorney’s withdrawal; and second, the trial court erred by striking the jury demand.
The Court of Appeals did not reach the first issue because it sustained the Mother’s second issue. The refusal to grant a timely requested jury trial is harmless error “only if the record shows that no material issues of fact exist and an instructed verdict would have been justified.” Because Mother’s pleading sought to have geographical restrictions placed on the children’s residence–a jury issue–there were material fact issues which precluded a directed verdict. The trial court’s judgment was reversed and remanded with instructions for the case to be placed on the jury docket.