## NO. 12

- 21

- 00149

- CV
IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS

IN RE:

ELISABETH GAUTHIER CRU M ,
RELATOR §
§
§ ORIGINAL PROCEEDING

MEMORANDUM OPINION Elisabeth Gauthier Crum filed this original proceeding to complain of Respondent ’ s ordering the case to trial in violation of Crum ’ s right to a jury trial and when disco very is not comple te. 1 We deny the writ.

B ACKGROUND Relator is the daughter of Su zanne Ste ed, deceased. Real P arty in Interest Joseph Ransom
Gauthier , Ste ed ’ s son , filed a first amended petition for declaratory judgment , application t o probate will and for issu ance of le tt e rs testamentary, and application to determine heirship on October 26, 2020. Crum and another of Steed ’ s children, Charles Andrew L ee, f iled opposition s
to Gauthier ’ s filing

. 2 Respondent set the contests f or a n August 2 7, 2021 , hearing. On June 18, C rum and Lee
filed a motio n for continuance of the will contest on grounds that additional discovery wa s requir ed

. Respondent moved the hea ring date to Se p tember 9. On August 26, Crum and Lee filed

a demand for a jury trial

. On Se ptember 2, Crum filed a mot ion for continuance to accommodate the jury demand

. On September 9, Respondent signed an order denying the motion for

1 Respondent is the H onorable Sarah Tunnell Clark, Judge of the County Court at Law in Houston Coun ty, Texas.

2 Lee is no t a relator in this case.2 conti nuance and f in ding the jury request to be untimely made

. Crum subsequently filed thi s original proceeding, and this Court grante d h er request for a stay of Respondent ’ s order

.

P REREQUISITES TO M ANDAMUS Mandam us is an extraordi n ary remedy. In re Sw. Be ll Tel. C o., L .P. , 235 S .W.3d 619, 623 (Tex. 2007) (o rig. proceed ing). A writ of man damus will issue only wh en the rela tor has no
ade quate remedy by appeal and t he trial court com mi tted a clear a b use of disc retion

. In re
Cerberus C a

pital Mgmt., L.P. , 164 S .W.3d 379 , 3 82 (Tex. 200 5) (orig. proceeding). The re lator
has th e burden of establi shing both prer equisites. In re Fitzgerald , 42 9 S .W.3d 886, 891 (Tex. App.

— Ty ler 2014, o rig. pr oc eedin g .).

J URY D EMAND The denial of a trial b y jury is reviewable by mandamus. I n re Pr udential , 148 S.W.3d 124, 139 (Tex. 2 004) (orig. proceeding)

. Texas Rule of Civil Procedure 216 pr ovides that n o jur y trial shall be had in any civil suit, unless a written request for a jury trial is filed with t he clerk of
the court a reasonable time before the date set for trial of the ca use on the non

- jury docket, but not less than thirty days in advance. T EX

. R. C IV

. P. 216(a). But even when a request is untimely, “ a trial court should accord the right to jury trial if it can be done without interfering with the court ’ s docket, delayin g the trial, or injuring the oppo sing party. ” Gen. Motors Corp. v . Gayle , 9 51
S .W.2d 46 9, 476 (Tex. 1997) (orig. proceeding).
In Gayle , on which Crum relies, General Motors file d a jury request on Januar y 3, 19 96,
the da y of trial , after discovering for the first time that the case was on the non

- jury docket , and sought a contin uanc e to allow its request to become timely

. Id

. at 471, 476. The tria l court denied
the motion for continuance and called the case fo r nonjury tri a l on January 5

. Id

. at 476. Under the unique facts of th e case, t he Texas Supreme Court agreed with G eneral Motors ’ contentio n th at t he trial court ab used its discretion by refusing t o grant a continuance for at least thirty days,
which wou ld have made General Motors ’ jury request and payment timely. Id

. The Supreme Court explained that the trial court conceded that the case w as n ot ready for trial. Id

. at 477. Due

to outstanding discovery issues, including resolution of the plaintiffs ’ motion to attend cras h tests,
the trial court decided not to hear evidence until Janua ry 29, twenty

- six days after General Motors paid its ju ry fee. Id

. But the tria l court acknowledged that outstan ding discovery issues would3 probably cause further multi ple delays

. Id

. At a January 10 discovery hearing , the trial court again confir med that trial would be delayed by ongoing discovery

. Id

. The T exas Supreme Court
concluded as follows:

We recognize that o ccasionally the exigencies of a crowded docket wi ll require a judge to interrupt a bench trial, or even conduct it in segments. But here the trial judge commenced the nonjury trial in the te eth of a demand for a jury trial, timing the proceedings to avoid the requirements of Rule 216 (a) , with no expectation of reaching the heart of the case for some weeks or months. In light of such preordained delay s, Gen eral Motors established tha t a thirty

- day continuance to per fect General Motors ’ jury trial demand would not cause the Delarosas a ny i njury or delay. In fact, the trial court ’ s seriatim trial schedule seems only a sham to hold General Motors to its m istake in not paying the jury fee without penalizing the other sid e. Under these particular and unusual circumstanc es, we hold that the tria l court abused its discretion by not granting a continuance to allow General Motors ’ jury request and fee to become timely

.

Id

. Here, Crum f iled her jury demand on August 2 6 , less th an thirty days before the s cheduled September 9 bench trial. She al so filed a motion for continuance. In her order denying t he jury demand and continuance, Respondent stated that the fac ts diffe r from those in Gayle :

... Thi s case was set for a bench trial by agreement of the parties. The Court has an obligation to resolve these cases so that property of the deceased can be secured by the appointment of an Executor or Administrator. The mov ant for t he Continuance has also mov ed for the Temporary Restraining Order due to an allegation of lack of insuranc e on the premises whi ch are alleged continuing to be used as an event venue, bringing to the Court ’ s attention the need to resolve the remain ing matte rs in the case. An Administ ration of the Estate is necessary as soon as possibl e . The Court was not convin ced that the request for additional time for discovery was necessary as witnesses could be called to testify for the hearing before the Court on Septe mber 9, 2021

.

We agree with Respondent ’ s conclusion that Gayle is distinguishable from the present case

. Unlike in Gayle , t h e parties here were not operating under a mistaken belief that a jury
trial would be had. Rather, Crum ’ s counsel previo usly repr esented t o Respondent that Crum was not seeking a jury trial. Also unl ike Gayle , at the time Respondent m ade her ruling, there wa s no indication that this case w ould be subject to a multitude of future delays such that there was no expectation of reaching the heart of the case for a prolo nged period of tim e. In their August demand for jury trial, Crum and Le e stated that the dem and was made because of information
obt ained at depositions take n on Aug ust 21, which uncovered fact issues tha t should be tried to a jury. In her motion for continuance, Crum stated that she “ uncovered i nformation during discovery th at [she] desires to p resent before a jury ” and she would suffer substantial harm or4 preju dice in the presentation of her case absent a contin uance

. A t a status hearing , Crum ’ s counsel represented that Gauthier ’ s schedule prevented him from being deposed u nt il August 21
and co unsel had no opportunity to review the transcript . He rei terated the position that information came to light during the depositi on that established a jury trial would be the best way to proceed and further expressed his belief that ad ditional discovery wa s needed

. Lee ’ s counsel
added that he noticed a deposition for the end of Septe mber , but as R espondent not ed, no one
of fered rea sons establishing the necessity of the deposition . Crum ’ s c ounsel also relied on
Gauthier ’ s fili ng of a s ummary judgment motio n, which required a twenty

- one d ay response time before a hearing could be had. Accord ingly, counsel maintained that Ga uthier wo uld not be prejudice d by the delay because the summary judgment response time would fall outsi de thirty
da ys from the jury dema nd. However, at that same hearing, Gauthier ’ s counsel withdrew the summary judgment motion

. Respondent noted that Cru m sought a temporary restraining order regarding property in
d ispute and expressed the need for an expeditious reso lution

. Because of t h is request , Respondent
stated , “ So, you know, you yourself have r aised an issue that there ’ s going to be harm caused
fr om one pa rty or the other if we don ’ t go ahead and move on the case. ” Re spondent further expressed concern over th e extra burden on the court given the difficulties of empaneling a jury , particularly because of C OVID

- 19 , and stated that the court w ould be unable to acco mmodate a jury trial until the following spring or summer

. Accordingly, the circumstanc es of th is case reflect a need for an expedi ti ous resolu tion due to the nature of property involved and do not reflect that the jury demand could be ac commodated
wi thout inte rfering with Respondent ’ s docket or causing harm to the parties

. See In re City of
Dallas , 445 S.W.3d 456, 463 (Tex. App.

— Dallas 2014, orig. proceeding) ( “ t rial court h as a duty to schedule cases in a manner that will result in the expeditious resolution of disputes ” )

. For this

reason, we cannot conclu de that Respondent abused her discretion by d eclining to honor Crum ’ s jury demand. See id . ( “We will not interfere with the trial court ’ s discretion to manage i ts docket without a clear showing of abuse” ).

I N COMPLE TE D ISCOVERY Crum also argues that mand amus is warranted because Respondent ordered the case to trial while discovery was substantially incomplete. According to Crum, d eposition s have been5 noticed for September 28 , 2021 , and the need for such depositions did not be come apparent until
the d e p ositions taken on August 21 occurred

. She further maintains that complete transcripts of
the August 21 dep ositions had not been p rovided as of the date of her mandamus petition. She

argues, “ The need for continued discov ery in this matter makes the conti nuance of the hearing set
for September 9, 2021, necessary. ” Pursuant to Cr um ’ s r equest, this Court stayed Respondent ’ s order denying the motio n for cont inuance and for jury demand pending further order of this Court.
Th is Court ’ s order did not stay disc overy. Th e September 9 hearing date and the September 28 deposition date have long passed

. Given this Court ’ s conclusion that Respo ndent did not abuse her discretion by denying the jury demand and the fact that several m onths have passed since
Crum filed her petition for writ of mandamus , essentially giving the parties additional time to pursue d iscovery , we conclude that this issue is no w moot. See T EX

. R. A PP

. P. 47.1; see also In
re M olina Healt hcare, Inc

. , No. 01

- 20

- 00 582

- CV, 2021 W L 2096727 , at *1 ( Tex. App.

— Houston [1 st Dist.] May 25, 2021, orig. proceeding) (mem. op.) (per curiam) ( “ Because we granted Molina ’ s motion to stay the September 7, 2020 trial setting, Molina ’ s challenge t o the trial

court ’ s August 15, 202 0 order denying its motion for con tinuance has been rendered moot ” ) ; In re Tex. Constr. Specialists, L.L.C. , No. 01

- 18

- 01028

- CV, 2019 WL 543691, at *1 (Tex. App.

— Houston [1 st Dist.] Feb. 12, 2019, ori g. proceeding) (mem. op .) (per curiam) (dismissing as

moo t mandamus petition challenging refusal to rule on motion to continue trial setting where appellate court granted motion staying trial setting) ; In re Hite , No. 12

- 18

- 00121

- CV, 2018 WL
271 5300, at * 2 (Tex. App.

— Tyler June 6, 2018, orig. proceeding) ( me m. o p.) ( i f controversy no longer exists between the parties, the case becomes moot )

.

D ISPOSITION Having d etermine that Respondent did not abuse her discretion by denying Crum ’ s untimely demand for a jury trial, we deny t he petition for writ of mandamus. We lift our stay of Septe mber 8, 2021

. G REG N EELEY Justice Opinion delivered January 12, 2022. Panel consisted of W orthen, C.J., Hoyle, J., and Neeley, J.6 

## COURT OF APPEALS

TWE LFTH COUR T OF APPEA LS DISTRICT OF T EXAS

JUDGMENT

JAN UARY 12 , 2022

NO. 12

- 2 1

- 00149

- CV

ELISABETH GAUTHIER CRUM , Relator V.

HON. SARAH TUNNELL CLARK , Respondent

O RIGINAL P R OCEEDING

ON THIS DAY came to be heard the petitio n for writ of mandamus filed by
Elisabe th Gauthier C rum ; who is the relator in appella te cause number 12

- 21

- 00149

- CV and a party in trial court cause number 09990 , pending on the docket of the County Court at Law of
Houston County , Texas. Said peti tion fo r writ of mandamus having been filed herein on Septe mber 8, 2021 , and the same having been duly con sidered, because it is the opinion of this
Court that the writ should not issue , it i s therefore CONSIDERED, ADJUDGED and ORDERED that the said pe tition for writ o f mandamus be, and the same is, hereby denied

. Greg Neeley, Justice

. Panel consi sted of Worthen, C.J., Hoyle, J. and Neeley, J.