DEREK SCHOPPA, Appellant v. MEADOW AND CENTRAL LIMITED PARTNERSHIP, Appellee

AFFIRMED; Opinion Filed June 27, 2008.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-00630-CV
............................
DEREK SCHOPPA, Appellant
V.
MEADOW AND CENTRAL LIMITED PARTNERSHIP, Appellee
.............................................................
On Appeal from the 192nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-06-01634-K
.............................................................
MEMORANDUM OPINION
Before Justices Moseley, Francis, and Lang
Opinion By Justice Lang
        Appellant Derek Schoppa appeals the trial court's judgment in favor of appellee Meadow and Central Limited Partnership (“MCLP”) following a bench trial in a case involving alleged default under a commercial lease.   See Footnote 1  Schoppa presents three issues on appeal. In his first issue, Schoppa contends the trial court erred when it denied his timely written request for a jury trial, and proceeded to trial without a jury, because of untimely payment of the jury fee. In his second and third issues, Schoppa asserts such error was an abuse of discretion and was harmful.
        Based on the record before us, we conclude Schoppa waived any right to complain on appeal of the trial court's alleged error in denying him a jury trial. Schoppa's first issue is decided against him. We need not reach Schoppa's second and third issues. The trial court's judgment is affirmed. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the law to be applied in this case is well settled. See Tex. R. App. P. 47.4.
I. FACTUAL AND PROCEDURAL BACKGROUND
 
        MCLP, as owner and landlord, filed this suit on February 15, 2006, against numerous defendants and Schoppa as a guarantor, alleging default under a lease of commercial property. In his March 27, 2006 original answer, Schoppa generally denied MCLP's claims and requested a trial by jury. On May 22, 2006, and on October 30, 2006, he filed amended answers that included, among other assertions, the same jury demand asserted in his original answer. The case was set for non-jury trial on February 19, 2007.
        The case was called for non-jury trial on February 19, 2007, but was continued until February 26, 2007. On February 20, 2007, Schoppa's jury fee was received by the Dallas County District Clerk. On February 22, 2007, Schoppa filed a motion for continuance grounded on a lack of written discovery and the illness of a family member of his counsel. The record is silent as to the disposition of Schoppa's motion for continuance. Schoppa filed a third amended answer on February 26, 2007, that included, in relevant part, the same jury demand asserted in his previous answers.         
        At the commencement of proceedings before the bench on February 26, 2007, Schoppa's counsel stated, “We have-we do have a matter we need to get on record before we begin regarding the, the tendered and properly sought jury trial that was part of our initial pleadings and answer, which this Court denied the last time we were in here and set us for a bench trial.” When asked by the trial judge if he had any law regarding the late-filed jury fee, Schoppa's counsel replied, “I'm not prepared to discuss that matter with the Court today, but I, I certainly could prepare myself a brief on that.” The trial judge responded, “I'm going to deny your objection.” In a final judgment of that same date, the trial court ruled in favor of MCLP against Schoppa.   See Footnote 2  This appeal timely followed.
II. DENIAL OF REQUEST FOR JURY TRIAL
 
        In his first issue, Schoppa contends the trial court erred when it denied his timely written request for a jury trial, and proceeded to trial without a jury, because of his untimely payment of the jury fee. Schoppa argues that a litigant's constitutional right to a jury trial restricts a trial court's discretion to deny a jury trial absent interference with the court's docket, delay of the trial, or injury to the opposing party. MCLP argues that to perfect a right to a jury trial, Schoppa was required to file written notice and pay the jury fee thirty days prior to trial. MCLP contends Schoppa “lost the right to a jury trial on February 19, 2007 when the case was called for trial and the jury fee was not paid.” According to MCLP, failure to perfect the right allows the court to exercise its discretion in denying or allowing a jury trial. In the alternative, MCLP asserts Schoppa did not affirmatively act to preserve error regarding the denial of a jury trial.
A. Standard of Review
 
        We review the trial court's denial of a jury demand under the abuse of discretion standard. Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996); Brockie v. Webb, 244 S.W.3d 905, 908 (Tex. App.-Dallas 2008, pet. struck). In conducting an abuse of discretion review, we examine the entire record. Mercedes-Benz, 925 S.W.2d at 666. We find an abuse of discretion only when the trial court's decision is arbitrary, unreasonable, and without reference to guiding principles. Id.
B. Applicable Law
 
        It is within the discretion of the trial court to deny a jury trial in the absence of a timely request or payment of a fee. Monroe v. Alternatives in Motion, 234 S.W.3d 56, 69 (Tex. App.-Houston [1st Dist.] 2007, no pet.) (citing Huddle v. Huddle, 696 S.W.2d 895, 895 (Tex. 1985)); see also Williams v. Williams, 19 S.W.3d 544, 546 (Tex. App.-Fort Worth 2000, pet. denied) (trial court did not abuse discretion in denying jury request made on first day of hearing). However, “[e]ven where a party does not timely pay the jury fee, courts have held that a trial court should accord the right to jury trial if it can be done without interfering with the court's docket, delaying the trial, or injuring the opposing party.” General Motors Corp. v. Gayle, 951 S.W.2d 469, 476 (Tex. 1997).
        A party's ability to complain on appeal that the trial court denied it the right to a jury trial is conditioned on the party preserving its complaint at trial in accordance with the Texas Rules of Appellate Procedure. Sunwest Reliance Acquisitions Group, Inc. v. Providence Nat'l Assurance Co., 875 S.W.2d 385, 388 (Tex. App.-Dallas 1993, no writ). Under Texas Rule of Appellate Procedure 33.1(a), as a prerequisite to presenting a complaint for appellate review, the record must show the complaint was made to the trial court by a timely request, objection, or motion that stated the grounds for the ruling sought from the trial court with sufficient specificity to make the trial court aware of the complaint. Tex. R. App. P. 33.1(a). The burden is on the appellant to bring forth a record sufficient to show reversible error. Sunwest, 875 S.W.2d at 388.
C. Application of Law to Facts
 
        The record shows this case was called for non-jury trial on February 19, 2007. Schoppa acknowledges his jury fee “was not paid . . . until received by the District Clerk on about February 20, 2007.” On February 22, 2007, Schoppa filed a motion for continuance grounded on a lack of written discovery and the illness of his counsel's family member. Schoppa's motion for continuance contained no mention of his right to a jury trial.
        A party is required to act affirmatively in order to preserve the right to complain on appeal that it was denied its right to a jury trial. Sunwest, 875 S.W.2d at 387. Schoppa contends he preserved for this Court's consideration the trial court's error regarding the denial of a jury trial by filing of a “verified, emergency motion for continuance, which was denied,” his assertion at trial on February 26, 2007, of his right to a jury trial despite late payment of the jury fee, and his motion for new trial. However, the record does not show an objection by Schoppa on February 19, 2007, the date this case was called for non-jury trial, regarding the trial court going forward with a bench trial. See id. at 388; see also Schwartz v. Forest Pharms., Inc., 127 S.W.3d 118, 127 (Tex. App.-Houston [1st Dist.] 2003, pet. denied) (to preserve error for appeal pursuant to rule 33.1, party must make timely, specific objection at earliest possible opportunity). Further, the record does not show Schoppa indicated in his February 22, 2007 motion for continuance that he intended to stand on his alleged right to a jury trial. See Sunwest, 875 S.W.2d at 388. Therefore, we conclude Schoppa waived any right to complain on appeal of the trial court's alleged error in denying him a jury trial. See id.; Tex. R. App. P. 33.1(a). Schoppa's first issue is decided against him.
                                         III. CONCLUSION
        Based on the record before us, we conclude Schoppa did not preserve the right to complain on appeal that he was denied his right to a trial by jury. We decide against Schoppa on his first issue. In light of our disposition of Schoppa's first issue, we need not address Schoppa's second and third issues. The trial court's judgment is affirmed.
                                                                                                                                                             ----------------------
070630f.p05                                                  DOUGLAS S. LANG        
                                                          JUSTICE
 
 
 
Footnote 1 According to the record, this case was originally filed in the 191st Judicial District Court of Dallas County and was transferred prior to trial to the 192nd Judicial District Court of Dallas County. Although the heading on the judgment in the record reads “191st Judicial District,” the record shows the judgment in this case was rendered and signed by the 192nd Judicial District Court of Dallas County.
Footnote 2 MCLP's claims against the other defendants were disposed of prior to trial.