Citizens State Bank of Sealy v. Caney Investments

HOYT, Justice,

dissenting.

The majority has entertained each of the Bank’s 23 points of error and affirmed the trial court’s judgment. I respectfully dissent because the result reached by the trial court and by the majority of this Court ignores a constitutional guarantee of trial by jury and the fact that a portion of the judgment, upon which the injunction is based, is void.

In point of error 19, the Bank asserts that the trial court erred in proceeding to trial without a jury, in violation of the Texas Constitution, which states: “The right to trial by jury shall remain invio-late_” Tex.Const. art. I, § 15. In all “District Courts, the plaintiff ... shall, upon application made in open court, have the right of trial by jury_” Tex.Const. art. V, § 10. The exceptions to the constitutional guarantee of a trial by jury are set forth in Tex.R.Civ.P. 216, which provides:

No jury trial shall be had in any civil suit, unless application be made therefor and unless a fee ... be deposited by the applicant with the clerk ... on or before appearance day or, if thereafter, a reasonable time before the date set for trial of the cause on the non-jury docket, but not less than ten days in advance....

The record before us reflects that Kueh-nert’s partners’ suit for injunctive and declaratory relief was filed on or about May 15, 1986. After granting a temporary injunction without the presence of the Bank or its attorneys, the court set the case for trial on June 30, 1986. The Bank claimed that neither it nor its attorneys were notified of the hearing. Nevertheless, on June 18, 1986, within the allotted time for appearance, the Bank filed a request for a jury trial and tendered the jury fee in accordance with rule 216. On June 30, when the parties appeared in compliance with the court’s order, the following exchange between the court and the Bank’s counsel occurred:

THE COURT: You, counsel, the Court set this matter for final hearing today, and now here it is five minutes after ten, and you all have got all of these special exceptions and all of these motions. I *588 assume counsel for the petitioner is ready to proceed and call his first witness.

All of your motions will be denied. I’m not interested in any Motions in Li-mine. We don’t have a jury. I don’t know of any jury fee that’s been paid. MR. MILLS: Your Honor, I have filed a jury fee in this matter.

THE COURT: Due to the setting of this case, and in view of the Court’s docket and calendar — in fact, this is dead week — The Court is taking this matter up out of its regular order trying to get this matter disposed of.

Your motions are all denied. You all will proceed to trial....

In Olson v. Texas Commerce Bank, 715 S.W.2d 764 (Tex.App. — Houston [1st Dist.] 1986, writ ref’d n.r.e.), we interpreted the constitution and rule 216 as providing an absolute right to a jury trial up to appearance day. After appearance day, the right to a jury trial requires a showing that the request was made and a jury fee paid within a reasonable time before the date that the case was set for trial on the non-jury docket. Id. at 767 . Here, the trial court set the case for trial at the time that it entered the temporary injunction and during “dead” week, a time when veniremen are not summoned. The record is clear that the Bank requested a jury trial, filed the required jury fee within the period that the constitution requires, and notified the court through its motions filed June 17 and 18.

The majority holds that the Bank waived this constitutional right because it did not object to the court’s refusal to impanel a jury. They rely on Walker v. Walker, 619 S.W.2d 196 (Tex.Civ.App. — Tyler 1981, writ ref’d n.r.e.), for this conclusion. In Walker , the court had already set the case for trial on the non-jury docket before a jury was requested and before the jury fee was paid (appearance day was October 22, 1979, and the case was set on the non-jury docket on February 22, 1980). Therefore, the holding in Walker is not dispositive of the issue of whether the Bank waived trial by jury. In my opinion, an affirmative waiver would be required in light of the trial court’s statements and predisposition to not grant a jury trial.

Of equal concern to me is the majority’s disposition of point of error 18. I would sua sponte sustain point of error 18, which contends that the trial court lacked jurisdiction to appoint a receiver over partnership property for the purpose of selling the partnership property.

The Texas Uniform Partnership Act provides that “[a] partner’s rights in specific partnership property are not community property” but his interest may be. Tex. Rev.Civ.Stat.Ann. art. 6132b, § 28A (Vernon 1970). This provision has been interpreted by the Texas Supreme Court to mean that the rights of a divorcing spouse can only attach to the husband’s interest in the partnership, McKnight v. McKnight, 543 S.W.2d 863, 867 (Tex.1976), and to the extent that any interest is awarded to her by the court, she becomes an assignee or purchaser of that interest. Id. at 868 ; see also Roach v. Roach, 672 S.W.2d 524 (Tex. Civ.App. — Amarillo 1984, no writ).

Logic dictates that if the court is authorized to vest in a party only a partnership interest, thereby making the assignee essentially a partner, the court is without authority to vest, through a receiver, a superior interest in itself. In this case the receiver’s interest in the partnership could not exceed Kuehnert’s interest, and for the same reasons that Kuehnert could not dispose of the partnership’s property, neither could a receiver.

I would therefore hold that the portion of the trial court’s judgment appointing a receiver over partnership property, for the purpose of selling the property, not Kueh-nert’s interest, is void and the injunction entered by the trial court is also void.