Opinion
No. 05-04-01199-CV
Opinion filed June 5, 2006.
On Appeal from the County Court at Law No. 3, Dallas County, Texas, Trial Court Cause No. 02-07066-C.
Affirmed.
Before Justices MOSELEY, FITZGERALD, and FRANCIS.
MEMORANDUM OPINION
Jean Pierre appeals from a final judgment disposing of all claims among these parties. In a single issue, Pierre contends he was wrongfully denied his constitutional right to a jury trial. The background of the case and the evidence are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. Rs. App. P. 47.2(a), 47.4. We affirm the trial court's judgment.
Newman, Davenport Epstein, P.C. (NDE) sued Pierre for breach of contract for failure to pay legal fees and expenses. Pierre counterclaimed against NDE and also sued J. Kent Davenport, complaining they committed legal malpractice. The case was set for a non-jury trial in County Court at Law No. 4. It was continued twice and then reset for non-jury trial on October 7, 2003. On September 7, Pierre paid for and requested a jury trial. NDE moved the court to strike Pierre's jury demand. After a hearing, which was not recorded, the trial court granted NDE's motion and ordered that the trial be held "before this Court, non-jury," on October 7.
On October 7, Pierre moved to recuse the trial judge, effectively postponing trial. A visiting judge later heard the motion and denied it. The visiting judge ordered, as a non-monetary sanction, that the case "be returned to [the trial judge] in the same procedural posture that it was in as of October 7, 2003, the date of the filing of the Motion to Recuse," and be tried non-jury. The visiting judge issued findings of fact and conclusions of law in support of the order. In his findings of fact and conclusions of law, the visiting judge found that Pierre's motion to recuse "was without sufficient cause and was brought solely for the purpose of delay, specifically, but not limited to, delay of the October 7, 2003, non-jury trial setting." The visiting judge also denied Pierre's request for rehearing and/or reconsideration of sanctions.
Subsequently, the trial judge transferred the case to the County Court at Law No. 3. About four months later, Pierre filed an amended motion to reconsider, requesting reconsideration of the County Court at Law No. 4 judge's order striking Pierre's jury demand and the visiting judge's sanctions order. After a hearing, the trial court ruled the trial would be non-jury, and it was so conducted without further objection. The trial court ruled in favor of NDE and Davenport on all claims, and awarded NDE $83,183.22 in damages, pre-judgment interest, and attorney's fees, plus all costs of court. Pierre timely appeals from this order.
In his sole issue on appeal, Pierre argues that "[t]he trial court erred in denying Pierre his right to have a jury trial." In his argument, the only trial court order Pierre complains of is the County Court at Law No. 4 judge's order striking Pierre's jury demand. Thus, Pierre fails to complain about either the visiting judge's order for a non-jury trial as a non-monetary sanction or the County Court at Law No. 3 judge's denial of Pierre's amended motion to reconsider a non-jury trial as a sanction.
Specifically, Pierre asserts his jury demand was timely filed and complains the trial court erred in granting NDE's motion to strike his jury demand because NDE's motion was improperly filed (without a certificate of conference); the motion was never actually set for a hearing; the hearing held was without adequate notice to Pierre; there was not sufficient evidence to support granting the motion; and there is no record as to such evidence because a record of the hearing was not made.
Any error not assigned is waived. See City of Deer Park v. State ex rel. Shell Oil Co., 154 Tex. 174, 188-89, 275 S.W.2d 77, 85-86 (1954). As the two orders relating to Pierre's sanctionable conduct-which provide for a non-jury trial as a sanction-have not been attacked, they cannot be set aside.
We agree with Pierre that the right to a jury trial is one of our most precious rights. However, because Pierre has failed to attack the two orders described above, he cannot show that any error regarding the County Court at Law No. 4 judge's complained-of order "probably caused the rendition of an improper judgment." See Tex.R.App.P. 44.1(a)(1); Midway Nat'l Bank v. W. Tex. Wholesale Supply Co., 453 S.W.2d 460, 461 (Tex. 1970) (per curiam) (affirming judgment when appellant failed to attack independent ground that "fully supported" judgment); City of Dear Park, 154 Tex. at 188-89, 275 S.W.2d at 85-86 (same); Britton v. Tex. Dep't of Criminal Justice, 95 S.W.3d 676, 680-82 (Tex.App.-Houston [1st] 2002, no pet.) (same); Tex. Dep't of Human Res. v. Orr, 730 S.W.2d 435, 436 (Tex.App.-Austin 1987, no writ) (same); see also Dolenz v. Pulse, 791 S.W.2d 572, 573 (Tex.App.-Dallas 1990, writ dism'd w.o.j.) (declining to address propriety of pretrial and trial rulings because appellant, failing to attack directed verdict, cannot show harm). Accordingly, we resolve Pierre's sole issue on appeal against him and affirm the trial court's judgment.