James William Shaw v. The State of Texas--Appeal from 155th District Court of Waller County

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Laws-info.com » Cases » Texas » 6th District Court of Appeals » 2003 » James William Shaw v. The State of Texas--Appeal from 155th District Court of Waller County

State: Texas

Court: Texas Northern District Court

Docket No: 06-01-00130-CR

Case Date: 11/20/2003

Plaintiff: Alert Synteks, Inc.

Defendant: Jerry Spencer, L.P. and Spencer Distributing, L.P.--Appeal from 369th District Court of Anderson Co

Preview:Peggy Pickering Marr v. James Evan Marr--Appeal
from 19th District Court of McLennan County
IN THE
TENTH COURT OF APPEALS
No. 10-94-175-CV
PEGGY PICKERING MARR,
Appellant
v.
JAMES EVAN MARR,
Appellee
From the 19th District Court
McLennan County, Texas
Trial Court # 90-2258-1
O P I N I O N
Appellant Peggy Pickering Marr appeals the trial court's division of her and Appellee's marital estate. We reverse and
remand.
PROCEDURAL AND FACTUAL BACKGROUND
The parties married on or about November 26, 1982, and separated for the final time in September of 1991. Appellee
James Evan Marr filed his original petition for divorce on June 29, 1990, in the 19th District Court of McLennan
County. Appellant answered with a general denial on August 3, 1990.
On January 19, 1993, Appellee filed a "Request For Production of Documents." Over the next seven months,
Appellant, despite repeated requests and inquiries by Appellee's counsel, never produced the documents.
Notwithstanding Appellant's failure to produce the requested documents, she, on or about June 29, 1993, requested a
jury trial and paid the appropriate jury fee. Because the requested documents were never produced, Appellee on July
29, 1993, filed a "Motion to Compel and For Contempt and Sanctions," and on January 3, 1994, the trial court entered
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an order compelling Appellant to turn over the documents. By a week later Appellant still had not produced the
requested documents; accordingly, on January 10 Appellee filed a motion for sanctions, asking the court to order
Appellant to pay attorney's fees and to strike Appellant's pleadings if the requested documents were not produced by a
given date. A hearing on the motion was scheduled for January 11.
At the January 11 hearing, Appellant's attorney did not appear because she was ill; the attorney's partner, however, did
appear on her behalf. The trial court, at the hearing, granted Appellant's motion for a continuance and rescheduled the
trial date for February 22, 1994; the court also granted Appellee's motion for sanctions and ordered that the requested
documents be produced by 5:00 p.m. on January 31, 1994, or Appellant's pleadings would be stricken and Appellee
would be permitted to take a default judgment. See Tex. R. Civ. P. 215(2)(b)(5). Appellant failed to produce the
documents by the end of the day on January 31.
On February 1, 1994, Appellee and his attorney appeared before the 19th District Court to prove up Appellee's divorce
petition and receive the default judgment threatened by the court on January 11. The trial court telephoned Appellant's
attorney's partner moments before the hearing was conducted to let him know of the court's proposed action, but other
than the telephone call Appellant received no notice of the hearing on the property division. Appellant was never
warned that if she failed to produce the requested documents by January 31 that a hearing on the division of the marital
property would be conducted the next day. Nevertheless, the property division hearing was conducted on February 1
without the presence of Appellant or any of her legal representatives, and the Final Decree of Divorce was entered
February 4, dividing the marital estate in the manner requested by Appellee in every respect.
Through five points of error Appellant argues: (1) and (2) the trial court erred in conducting the February 1, 1994,
property division hearing without giving her sufficient notice; (3) Appellant was deprived of her right to a jury trial
when the court conducted the property division hearing without a jury; (4) the trial court erred in failing to order a just
and right division of the marital estate; and (5) the trial court erred in characterizing several items of property as
Appellee's separate property when they should have been characterized as community property. We reverse and
remand for a new property division hearing.
WHETHER APPELLANT WAS GIVEN SUFFICIENT NOTICE OF THE
PROPERTY DIVISION HEARING
In cases involving unliquidated damages or claims not proven by written instruments, Rule of Civil Procedure 243
requires parties who have properly requested a jury trial be provided sufficient notice of a hearing before a jury on the
issue of damages even though they forfeited their arguments on the merits of the case by allowing a judgment of
default to be entered against them. Tex. R. Civ. P. 243. // The defaulting party is entitled to notice by a writ of inquiry
of the date for his hearing on damages before a jury once the default judgment has been entered. Id. // Upon inquiry
into the amount of unliquidated damages after a default judgment, the defaulting party has the right to be present, to
interpose objections to testimony offered by the plaintiff's witnesses, and to cross-examine them in order that, by the
exclusion of improper evidence, a proper judgment may be rendered on competent evidence. Bass v. Duffey, 620
S.W.2d 847, 849-50 (Tex. Civ. App. Houston [14th Dist.] 1981, no writ).
The question before us is whether Rule 243 applies in divorce cases; we will therefore examine the rule to ascertain its
meaning and scope. Rule 243 recognizes, first, the importance of a party's right to a trial by jury, and, second, that the
determination of the amount of damages is a question primarily for the jury. See Mackey v. Bradley Motors, Inc., 871
S.W.2d 243, 247-48 (Tex. App. Amarillo), rev'd on other grounds, 878 S.W.2d 140 (Tex. 1994) (per curiam); Hanners
v. State Bar of Texas, 860 S.W.2d 903, 910-11 (Tex. App. Dallas 1993, no writ) // ; see also Davis v. City of
Galveston, 635 S.W.2d 634, 635 (Tex. App. Waco 1982, no writ). It assures defaulting defendants, provided they
properly request and do not waive a trial by jury, that they will be afforded their right to have a jury weigh the facts
underlying the plaintiff's complaint for unliquidated damages and ascertain from those facts the amount of their
damages. Hanners, 860 S.W.2d at 911.
We believe Rule 243 applies in cases involving the division of marital property as well as the proper characterization
of the parties' assets as either community or separate. The prominent role of a jury in divorce cases is readily apparent.
Parties to divorce proceedings are entitled to a jury trial upon proper request; the jury alone decides whether contested
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assets will be characterized as either community or separate; and, while the question of a just and right division of the
marital estate rests solely within the sound discretion of the court, the jury's findings on the factual issues underlying
the division of the marital estate, including the valuation of the assets, are conclusive. Tex. Fam. Code Ann. 3.61, 3.63
(Vernon 1993); In re Marriage of Moore, 890 S.W.2d 821, 834 n.7; 838 (Tex. App. Amarillo 1994, no writ);
Archambault v. Archambault, 763 S.W.2d 50, 51 (Tex. App. Beaumont 1988, no writ). Given the right of parties to a
jury trial in divorce cases and the pronounced functions of the jury in the property division and characterization aspects
of divorce cases, we believe the nature of the property division to be sufficiently akin to the unliquidated damages
referred to in Rule 243 so as to require defaulting parties in divorce cases be provided sufficient notice of a hearing
before a jury on the issue of the property division, unless, of course, the defaulting party somehow waives his request
for a jury. See Bradley Motors, 878 S.W.2d at 141.
Here, Appellant timely requested a jury trial and paid the necessary jury fee. She was notified if she failed to produce
by January 31, 1994, certain documents that had been requested by Appellee, a default judgment would be entered
against her and her pleadings would be stricken. Appellant failed to timely produce the documents. The next day, on
February 1, a default judgment was entered against her; her pleadings were stricken; and Appellee appeared before the
court for a property division hearing to prove up the allegations in his pleadings. Other than a telephone call to
Appellant's attorney moments before the hearing, Appellant received no notice of this hearing. Legally sufficient notice
of this hearing was required by Rule 243. Accordingly, the court erred in conducting the hearing without providing
Appellant sufficient notice of it or a jury trial.
The situation here differs from that in Lind v. Gresham, 672 S.W.2d 20 (Tex. App. Houston [14th Dist.] 1984, no writ),
where there was no request for a jury trial. In Lind, the Fourteenth Court held that when a defendant defaults in an
unliquidated damages case, he is entitled to notice only when an evidentiary hearing on damages is held subsequent to
the hearing on the plaintiff's motion for sanctions. Id. at 22. But, held the court, when the trial court hears evidence on
damages at the same time it conducts a hearing on the plaintiff's motion for sanctions, there is no requirement that the
defendant receive any independent notice of the evidentiary hearing on damages. Id. When a jury trial is requested in
cases involving unliquidated damages, however, Rule 243 requires that a writ of inquiry be issued before the
evidentiary hearing on damages is conducted. Tex. R. Civ. P. 243. The writ of inquiry is a deferred hearing, meaning
that it is to take place at a time subsequent to the court's rendition of an interlocutory default judgment. Mackey, 871
S.W.2d at 248. Therefore, in cases involving unliquidated damages where the defaulting defendant has properly
requested a jury trial, the defendant is entitled to notice of an evidentiary hearing on damages to be held on a date
following the entering of the default judgment on the underlying cause or causes of action.
The portion of the judgment relating to the property division is reversed and that portion of the cause is severed and
remanded for a new property division hearing. Otherwise the judgment is affirmed. //
BOBBY L. CUMMINGS
Justice
Before Chief Justice Thomas,
Justice Cummings, and
Justice Vance
Affirmed in part, reversed and remanded in part
Opinion delivered and filed July 31, 1995
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