The Jury Demand Strikes Back: Opinions, July 25, 2017

The First and the Fourteenth Courts of Appeal released memorandum opinions yesterday, on jury demands and, essentially, the unlikelihood of success on appeal where a reporter’s record is not filed.

In Wheeler v. Wheeler, No. 01-16-00642-CV, the parents filed dueling mods. The father (a criminal defense lawyer)  filed a jury demand and paid the fee. The proceedings in trial court were, to use the First’s word, “rancorous.” The mother moved to strike the father’s jury demand as a sanction for failure to pay court-ordered amicus fees. The trial court granted the request and struck the jury demand. The father moved for reconsideration of the order, arguing the order violated his constitutional right to a jury trial, but the motion was denied.

After the conclusion of a bench trial, the trial court increased the father’s child support obligation and reappointed the parents as JMCs, with mother as primary. Father appealed.

The refusal to grant a timely-requested jury trial is harmless error only if there are no material fact issues. A party is entitled to a verdict by a jury on the issue of which JMC is to be primary. The First cited its opinion in In re I.R.H. & Z.T.H., No. 01-15-00787-CV, (which I previously blogged about here) for the proposition that “[a] trial court abuses its discretion by striking the jury demand of a party for failure to pay the amicus fee when that party has raised” a material fact issue to be decided by the jury under Tex. Fam. Code §105.002(c). It is surely not a coincidence that the First cited In re I.R.H., and not just because the relevant facts are nearly identical, but because the trial court in that case and the present case are the same.

Because the father presented some evidence in support of his claim to be appointed primary JMC, the trial court erred by depriving him of a jury trial on that issue. The case was reversed and remanded for reinstatement on the jury docket.

In In re Adamski, No. 14-16-00099-CV, the mother and father had one child together during the marriage. A jury trial was held in May, 2015, and remaining issues were tried to the bench in October, 2015. The father was represented by counsel during the jury trial portion, but not the bench trial portion. The father did not appear for the third day of the bench trial portion. On November 13, 2015, the father filed a motion for continuance in which he made allegations of physical abuse of the child by the mother, but no hearing was held on the motion.

On February 2, 2016, the trial court entered a final decree which appointed the mother primary JMC. On appeal, he also did not file a reporter’s record (cue ominous music).

In his first issue on appeal, the father argued the trial court erred in ordering above-guideline support, relying upon his tax returns attached to his inventory which was filed with the trial court. But because he did not obtain a reporter’s record, the Fourteenth could not determine if the returns were admitted into evidence at trial or any other evidence regarding his income was admitted. The issue was overruled.

In his second issue, the father argued the trial court erred in ordering a division that did not conform to the parties’ premarital agreement. But because the COA did not have the reporter’s record, it could not tell if the premarital agreement was admitted into evidence. The issue was overruled.

In his third issue, the father argued the trial court erred in not granting his motion for new trial. But because he never requested a hearing on the motion, the issue was waived. Also, the COA stated in a footnote that even if he hadn’t waived the issue, he did not meet his burden under Craddock in the MNT. The trial court was affirmed.




Pleading Affirmative Defenses: Opinions, July 20, 2017

UPDATE: The Texas Supreme Court denied the petition for review of Mr. Moore on June 1, 2018.

The Fourteenth Court of Appeals released a brief memorandum opinion in Moore v. Moore, No. 14-15-00859-CV, yesterday. Johnnie Moore sued his ex-wife Kathalean Moore for breach of an agreement incident to divorce. Kathalean countersued for enforcement of the property division. Under the AID, Kathalean was to turn over the marital residence and Johnnie was to pay Kathalean $1.4m in installments. Johnnie alleged that when he took possession of the property, it was in shambles and had been stripped of its fixtures. Kathalean alleged that Johnnie had failed to pay her $665,960.00 as required by the AID. The jury found for both parties, awarding Johnnie $183,600.00 on his conversion claim, $136,592.00 on his breach of contract claim, and $25,000 on his civil theft claim, and awarding Kathalean $650,000.00 on her breach of contract claim. The trial court disregarded the jury’s findings as to the breach of contract and civil theft claims because they represented a double recovery. Johnnie appealed.

In his first issue, Johnnie argued the trial court by denying his motion to disregard the jury’s finding that Johnnie breached the agreement. Johnnie argued that Kathalean had breached the agreement first and because she materially breached the agreement first, he was excused from further performance. While this is a perfectly valid affirmative defense, it appears Johnnie failed to plead it and it was not tried by consent. Thus the defense was waived. Even if he had pled it, the Court of Appeals noted Kathalean’s counter-petition alleged Johnnie missed two payments before she surrendered the residence.

In his second issue, Johnnie argued the trial court erred by disregarding the jury’s findings in Johnnie’s favor on his claims for breach of contract and civil theft. The COA found these damages arose from the same facts, same injuries, and same measure of damages and thus constituted an impermissible double recovery. The judgment was affirmed.

Modification in Less Than a Year & Partial Revocation of a Rule 11: Opinions, July 11, 2017

Yesterday, the Fourteenth Court of Appeals released a published opinion, In re J.R.P., No. 14-15-00912-CV, and a memorandum opinion, In re D.R.G., No. 14-16-00023-CV. The published opinion concerns modifications of custody within a year of a final order and the memorandum opinion is on partial revocation of a Rule 11 agreement.

Taking the published opinion first, In in re J.R.P., a conservatorship order was entered in December 2013, naming the parents as JMCs with mother as primary. Father filed a mod in May 2014 and alleged in his affidavit that the mother had been taking drugs. At a temporary orders hearing in June, the mother requested the case be dismissed because father’s affidavit was not sufficient to support a less-than-a-year mod. The trial court declined to dismiss the case and the parties agreed the mother would submit to drug testing the next day. Within a few weeks, the father filed an amended mod petition with a revised affidavit which stated the mother had tested positive for drug use. The court conducted a temporary orders hearing and found the child’s living environment with mother endangered the child. The trial court awarded father primary and mother supervised visitation.

Trial took place in May and July 2015 at which further evidence of mother’s drug use was presented. Mother represented herself pro se. In August, the trial court granted the father’s petition to modify and entered an order appointing father and mother as JMCs with father as primary. After her motion for new trial was denied, mother appealed.

In her first two issues, mother argued the trial court erred in not dismissing the mod after finding father’s first supporting affidavit was insufficient and when it ruled the second affidavit was sufficient. The Court of Appeals found that the trial court did not abuse its discretion because the statute does not require dismissal and the trial court’s findings of fact and conclusions of law set forth its findings that the second affidavit was sufficient under the statute.

In her third issue, mother argued the trial court erred by granting the mod when there was no material and substantial change. This argument did not get very far because the evidence showed that since the entry of the prior order in December 2013, the mother had tested positive for drugs, refused to participate in CPS services or drug testing, admitted to using drugs (including crystal meth and marijuana), and there was testimony that mother’s behavior was erratic. The opinion also includes the following sentence presented without comment: “To the extent [the mother] argues that she was unstable and had a drug habit prior to the agreed final order in December 2013 and her use of drugs after that order was a continuation of established behavior, the trial court could have rejected this argument based on [the father]’s testimony that she had passed a drug test prior to the final order and he thought she had stopped using drugs.” The COA overruled the third issue.

In her fourth issue, the mother alleged the trial court erred by relying on “hearsay statements of an admitted perjurer,” i.e. the father. The COA found there was sufficient non-hearsay evidence to support the judgment.

The COA overruled the mother’s fifth issue concerning admissibility of evidence because the issue was not preserved. The judgment was affirmed.

In In re D.R.G., parents who had been named JMCs in the prior order filed competing mod petitions. They then signed a Rule 11 agreement on all issues, including their agreement to remain JMCs with father’s child support increasing. One provision allowed the child to travel by air without the father’s supervision upon reaching the age of ten. But in his amended petition, the father requested an order allowing the child to fly alone beginning at the age of five. Four months after signing the Rule 11, the father filed a motion for partial revocation of the Rule 11, specifically with regard to the travel age provision.

At trial, the trial court requested evidence to show the agreement was in the best interest of the child. The mother testified that she did not believe it was in the child’s best interest to fly alone at the age of six. The father testified that the child would be accompanied by a flight attendant and the child would never be left alone and would not be in danger. He also testified that he felt coerced into authorizing his attorney to sign the Rule 11 agreement because the mother had allegedly refused to turn over possession of the child to be the ring-bearer in the father’s wedding unless he signed the Rule 11.

The trial court signed an order which found the child could travel by air unaccompanied after the age of five. The mother appealed, seeking modification of the judgment to prohibit the child to fly alone until the age of ten.

On appeal, the mother asserted two issues: 1) the evidence was insufficient to support the father’s allegation that he was under duress and coercion when he signed the Rule 11 agreement; and 2) the Rule 11 was unambiguous and the trial court was required to sign a judgment consistent with the Rule 11 agreement because a) the father withdrew his consent to only a portion of the agreement which is not effective to withdraw consent because the agreement was an integral whole, and b) the father’s attorney signed the Rule 11 agreement with the father’s permission.

The Court of Appeals found the father’s partial revocation was sufficient to prevent the trial court from rendering an agreed judgment and the trial court did not err in rendering a judgment on the issues raised by the parties’ petitions in accordance with the best interests of the child.

The COA found that the father’s partial revocation was effective, contrary to the mother’s argument, citing the “familiar principle” that partial revocation of a Rule 11 prevents a court from entering an agreed or consent judgment.  The agreement was not an MSA, which would have required the trial court to enforce the MSA, regardless of a party’s revocation of consent. Additionally, the mother did not challenge the trial court’s best interest finding, so the COA was not required to review it. The judgment was affirmed.








Donald Sr. & Jr. in a Comedy of Heirs: Opinions, July 6, 2017

The Fourteenth Court of Appeals released its memorandum opinion in In the Matter of the Marriage of Carolyn Clark Kennedy and Donald Ray Clark Sr. and in the Interest of Donald Ray Clark, Jr. this morning, which illustrates the necessity of getting names right on title documents.

Donald Clark Sr. leased a property in Galena Park, Texas for most of the 90’s where he lived with his four children, including Donald Jr. In 2000, the owner of the property executed a quit claim deed to the property in Donald Jr.’s favor.

Donald Sr. and Carolyn Clark were married in 1996. She and her three children moved into the Galena Park house. A divorce petition was filed in 2012. In the divorce, Carolyn claimed the Galena Park house was community property. Donald Sr. disputed the characterization.

After a bench trial (and some strange procedural twists and turns), the trial court ruled the Galena Park property was community property, ordered the property sold, the proceeds divided as community property, and that Donald Jr. take nothing.

On appeal, Donald Sr. and Jr. argued the trial court erred by mischaracterizing the house as community property because the quit-claim deed vested title in the property to Donald Jr.

The evidence included the original lease dated May 7, 1992. The Lessee was listed as “DONALD RAY CLARK JR.” But it was signed “Donald Ray Clark Sr.” with “JR.” crossed out.  The quit-claim deed, on the other hand, executed by the Lessor quit-claims the house “unto the said Donald Ray Clark, Jr., his heirs and assigns…” Donald Sr. testified it was intended for the title to be in Jr.’s name and that Donald Jr. is the owner of the property. Donald Jr. was 16 at the time of the quit-claim deed. Donald Sr. testified he was not asking the court to award him the property. Donald Jr. also testified that he was the owner and that the property should be awarded to him.

However, the evidence also included a General Warranty Deed dated September 29, 2001 in which Donald Sr. claimed to be the executrix of Donald Jr.’s estate. At trial, Donald Sr. denied the purpose of the General Warranty Deed was to correct title from Donald Jr. to Donald Sr. He testified that the purpose of the General Warranty Deed was to obtain a loan and put the Galena Park home up as collateral. Having received the loan proceeds of $39,000, Donald Sr. and Carolyn split the proceeds between them and Donald Sr. did not give any to Donald Jr. The loan was paid off in 2015 before trial.

In 2005, Donald Sr. and Carolyn executed a home equity loan on the house for $37,999.90. Then, on December 16, 2011, Donald Sr., Donald Jr. and Carolyn executed a tax lien deed of trust on the house. Donald Sr. testified the tax lien was taken to pay delinquent taxes on the home and he was paying it back.

Carolyn argued the purpose of the 2001 General Warranty Deed was to “put the public on notice that [the property] was owned by” Donald Sr. and Carolyn. But, the Court of Appeals pointed out, there was no evidence that title transferred from Donald Jr. to either Donald Sr. or Carolyn. Texas law does not restrict the ability of minors under the age of eighteen to own property. The 2001 General Warranty Deed is not signed by Donald Jr. It is signed only by Donald Sr. and Carolyn. In other words, regardless of the parties’ intentions, the quit-claim deed effectively transferred title to the property to Donald Jr.

As such, the Court of Appeals found the trial court erred by finding the house was community property, reversed the judgment of the trial court and the order that the house be sold, and remanded the matter for “consideration of Carolyn’s other grounds for relief and Donald Jr.’s cross-claim.”  The remainder of the judgment was affirmed.

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