Opinion
No. 14-07-00311-CV
Opinion filed March 3, 2009.
On Appeal from the 245th District Court, Harris County, Texas, Trial Court Cause No. 2003-07057.
Panel consists of Justices YATES, SEYMORE, and BOYCE.
MEMORANDUM OPINION
This case involves a post-answer default judgment and related rulings in a suit affecting the parent-child relationship (SAPCR). In seven issues, appellant Patrick J. Combe-Ovadia contends the trial court abused its discretion by (1) failing to set aside the default judgment entered against him and in favor of Amarit Gonzalez; (2) striking his amended pleadings and jury demand; (3) modifying his periods of possession of his two minor children; (4) issuing permanent injunctions; (5) determining a risk of international child abduction existed and issuing related precautionary orders; and (6) awarding attorney's fees and conditioning his right of appeal. We reverse and remand for a new trial.
I. BACKGROUND
On July 20, 2004, Patrick and Amarit were divorced and appointed joint managing conservators of their two minor children, K.A.C.O. and J.C.C.O. The divorce decree designated Amarit as the primary joint managing conservator with the exclusive right to establish the children's domicile and legal residence.
On June 7, 2005, Amarit filed a petition to modify the parent-child relationship. In her petition, she alleged that Patrick, who has dual American and French citizenship, exhibited behavior demonstrating a high risk of international abduction and requested that the court enter temporary orders for the children's safety and welfare. Patrick filed an answer. The trial court issued a scheduling order setting the case for trial on July 10, 2006, at 10:00 a.m.
On June 27, 2006, Amarit filed her second amended petition seeking appointment as sole managing conservator and modification of the parents' possessory rights and access to the children. Due to a vacation letter filed by Patrick's counsel, the parties agreed to re-set the trial date. Amarit's trial counsel filed a notice of trial setting advising the parties that the trial had been re-set to November 13, 2006, at 10:00 a.m.
On October 12, 2006, Patrick filed a jury demand. On October 25, 2006, he filed a counter-petition to modify the parent-child relationship in which he requested appointment as primary joint managing conservator as well as other modifications. Amarit filed a motion to strike Patrick's jury request. Due to a death in her family, Patrick's counsel filed a motion for continuance of the trial setting. On November 9, 2006, the associate judge conducted a hearing at which he granted the motions to strike Patrick's jury demand and for continuance. The trial was re-set for December 11, 2006.
On November 10, 2006, Patrick filed his first amended counter-petition in which he added a jury demand and a request for mediation. Amarit was not served with the amended petition until November 28, 2006. On November 13, 2006, Patrick filed a notice of appeal from the associate judge's ruling striking his jury request. Following a hearing, the presiding judge placed the case on the court's jury docket. On December 1, 2006, Amarit filed a motion to strike Patrick's amended counter-petition.
On December 5, 2006, at 8:00 a.m., a pre-trial conference was held. Due to car trouble, Patrick's counsel failed to appear and her attempts to notify the court of her delay were unsuccessful. At the conference, Amarit re-urged her motion to strike Patrick's jury request and requested that the court strike Patrick's amended counter-petition. The trial court granted both motions in orders signed on December 11, 2006.
A bench trial was held at 8:00 a.m. on December 11, 2006. Patrick and his counsel were not present. Patrick arrived at 8:40 a.m., but trial was already concluding. At the conclusion of trial, the court announced a default judgment (1) granting Amarit's request to maintain the children's American and French passports; (2) prohibiting international travel with the children without first obtaining court approval; (3) finding a risk of international abduction and granting related injunctions; (4) issuing a standard possession order; (5) awarding attorney's fees to Amarit's counsel; and (6) ordering Patrick to deposit $10,000.00 to be held in trust for Amarit's attorneys in the event he filed an appeal. Entry of judgment was set for December 15, 2006.
On December 13, 2006, Patrick filed a motion to vacate and set aside the default judgment and to reinstate the case on the jury docket for a new trial. On December 15, 2006, the court held a hearing at which it denied Patrick's motion and signed the final default judgment order.
II. ANALYSIS
A. Standard of Review
The issues in this case are subject to review under an abuse of discretion standard. See Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581, 583 (Tex. 2006) (reviewing imposition of sanctions for abuse of discretion); Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996) (reviewing denial of jury demand under abuse of discretion standard); State Bar of Tex. v. Kilpatrick, 874 S.W.2d 656, 658 (Tex. 1994) (trial court's decision to allow or deny trial amendment may be reversed only upon showing of clear abuse of discretion); Cliff v. Huggins, 724 S.W.2d 778, 778-79 (Tex. 1987) (applying abuse of discretion standard to review of denial of motion to set aside post-answer default judgment and for new trial). To determine whether a trial court abused its discretion, we must decide whether it acted without reference to any guiding rules or principles; in other words, whether the act was arbitrary or unreasonable. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam); Swaab v. Swaab, No. 14-06-00593-CV, ___ S.W.3d ___, 2008 WL 1838023, at *3 (Tex.App.-Houston [14th Dist.] Apr. 24, 2008, no pet.).
B. Default Judgment
In his first issue, Patrick contends the trial court abused its discretion in failing to set aside the final default judgment entered against him. He argues that the trial court erred in denying his motion for new trial because he had no notice of the time the trial was set to begin.
The seminal case setting forth the elements of proof a defaulting party must show to obtain a new trial following default judgment is Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (Tex. 1939). See also Estate of Pollack v. McMurrey, 858 S.W.2d 388, 390 (1993); Lowe v. Lowe, 971 S.W.2d 720, 723 (Tex.App.-Houston [14th Dist.] 1998, pet. denied). Although Craddock was a no-answer default judgment, the Texas Supreme Court has held that it applies equally to post-answer default judgments. See Lowe, 971 S.W.2d at 723 (citing LeBlanc v. LeBlanc, 778 S.W.2d 865, 865 (Tex. 1989) (per curiam)). Under the Craddock test, a default judgment should be set aside and a new trial ordered when the defaulting defendant (1) shows that the failure to appear was not intentional or the result of conscious indifference, but was due to an accident or mistake; (2) sets up a meritorious defense; and (3) shows that a new trial would cause neither delay nor work an injury to the plaintiff. Craddock, 134 Tex. at 393, 133 S.W.2d at 126.
This court has expressed hesitance about applying the Craddock test to SAPCRs. See Martinez v. Martinez, 157 S.W.3d 467, 469-70 Tex. App.-Houston [14th Dist.] 2004, no pet.) ("Although the Craddock test has been routinely applied to suits affecting the parent-child relationship (SAPCRs) by appellate courts in Texas, this court has previously noted its discomfort in doing so. . . .") (citation omitted); Lowe, 971 S.W.2d at 725 ("Although we have found that Mrs. Lowe met the three prongs of the Craddock test, we feel obligated to note our reluctance to apply it to a suit affecting the parent-child relationship."). Further, we are not the only court to question the appropriateness of using the Craddock test for SAPCRs. See, e.g., Rhamey v. Fielder, 203 S.W.3d 24, 29 (Tex.App.-San Antonio 2006, no pet.) (urging Texas Supreme Court to reconsider whether Craddock is appropriate standard in context of SAPCR); Comanche Nation v. Fox, 128 S.W.3d 745, 750 (Tex.App.-Austin 2004, no pet.) ( " — raddock does not fit well into the context of a consideration of the best interests of the child."); In re A.P.P., 74 S.W.3d 570, 575 (Tex.App.-Corpus Christi 2002, no pet.) (finding second prong of Craddock test difficult to apply in SAPCR where primary issue before court is child's best interest); see also Dorrough v. Cantwell, No. 2-05-208-CV, 2006 WL 2034016, at * 6 (Tex.App.-Fort Worth July 20, 2006, pet. denied) (per curiam) (mem. op., not designated for publication) (noting reluctance of other courts in applying Craddock test in SAPCRs given overriding consideration of best interest of child). However, absent contrary guidance from the supreme court, we remain bound to apply Craddock, albeit liberally. See Martinez, 157 S.W.3d at 470; Comanche, 128 S.W.3d at 750.
In Lowe, this court articulated several reasons why Craddock is not an appropriate test for suits involving the parent-child relationship. See Lowe, 971 S.W.2d at 725-27. First, Craddock was designed to be applied to traditional civil litigation — personal injury, products liability, consumer, and commercial litigation — in which only two competing interests — the plaintiff's and the defendant's — are involved. See id. at 725. By contrast, in suits involving the parent-child relationship, there are three interests involved — the mother's, the father's and, of paramount importance, the child's. See id. (" Craddock does not inquire into the child's interests and leaves no maneuvering room for a judge to consider the child's interests."). Further, Craddock's second prong does not easily lend itself to the family law area. Id. at 726. Unlike other suits in which clear defenses and claims exist, in family law there are only factors to be considered by the court in determining best interest. Id. Third, whereas the Craddock test assumes an adversarial relationship between the parties, our legislature has made great attempts to rid family law proceedings of an adversarial nature ( e.g., styling petitions in SAPCRs as "In the Interest of _______, a child"). Id. Finally, one of the main goals behind the Craddock test, as with other default judgment rules, is the desire for finality in judgment. Id. However, in family law, the trial court hearing the issues in a SAPCR retains continuing jurisdiction because the Family Code contemplates that substantive changes will occur in the decree and to the family unit. See id. at 726-27.
Under the first prong of the Craddock test, the trial court was required to determine whether Patrick's failure to appear at trial was either intentional or the result of conscious indifference on his part. See Craddock, 133 S.W.2d at 126; Martinez, 157 S.W.3d at 470. In making this determination, a court must look to the knowledge and acts of the defendant. See Martinez, 157 S.W.3d at 470. If a defendant's factual assertions are not controverted by the plaintiff, the defendant satisfies his burden if he has set forth facts which, if true, negate a finding of intentional or conscious indifference. See Dir., State Employees Workers' Comp. Div. v. Evans, 889 S.W.2d 266, 269 (Tex. 1994). The court reviews the entire record in determining whether the defaulting party's assertions are controverted. Id.
Notice of a trial setting does not ordinarily appear in the transcript and need not affirmatively appear in the record. See Bruneio v. Bruneio, 890 S.W.2d 150, 155 (Tex.App.-Corpus Christi 1994, no writ); see also Garcia v. Arbor Green Owners Ass'n, Inc., 838 S.W.2d 800, 803 (Tex.App.-Houston [1st Dist.] 1992, writ denied). Rather, the law presumes that a trial court will hear a case only after proper notice to the parties. Boateng v. Trailblazer Health Enters., L.L.C., 171 S.W.3d 481, 492 n. 4 (Tex.App.-Houston [14th Dist.] 2005, pet. denied); Hanners v. State Bar, 860 S.W.2d 903, 908 (Tex.App.-Dallas 1993, writ dism'd). To rebut this presumption, an appellant has the burden to affirmatively show a lack of notice by affidavit or other competent evidence. Jones v. Tex. Dep't of Pub. Safety, 803 S.W.2d 760, 761 (Tex.App.-Houston [14th Dist.] 1991, no writ).
In his motion for new trial, Patrick asserted that his failure to timely appear at trial was not intentional but rather because he had no notice of the 8:00 a.m. setting on December 11. In support of his motion, Patrick attached his affidavit which established the following facts. His lawyer advised him that the trial was scheduled to begin at 10:00 a.m. on December 11. He spent most of the Friday preceding trial with his counsel and witnesses to prepare for trial on Monday. He had arranged for witnesses to come from France and Belgium to testify at the trial. Patrick and one of his witnesses, David Martin, arrived in the courtroom at approximately 8:40 a.m. on December 11. In Martin's affidavit, also attached to the motion, Martin stated he was told by Patrick's attorney that trial would begin on December 11, 2006, at 10:00 a.m. In addition to the affidavits, Patrick attached copies of three subpoenas instructing witnesses to appear in the courtroom on December 11, 2006, at 10:00 a.m.
At the December 15 hearing, Patrick testified that he believed the trial was scheduled to begin at 10:00 a.m. on December 11 based on his attorney's representation. Patrick's counsel also testified that, at the November 9 hearing, the associate judge had advised her off the record that the trial would begin at 10:00 a.m. on December 11. She further testified that, following that hearing, she never received written or oral notice that the trial was set to begin at 8:00 a.m. on December 11.
Amarit did not file a written response to Patrick's motion to vacate or otherwise controvert his factual assertions in the trial court. On appeal, she contends the trial court properly concluded that Patrick had notice of the 8:00 a.m. trial setting based upon the following: (1) the docket sheet; (2) the judge's statements during the November 28 hearing; (3) the judge's statements during the December 15 hearing on Patrick's motion for new trial; and (4) the fact that she, her attorney, her witnesses, the judge, and the court coordinator were present at 8:00 a.m.
The docket sheet in this case reflects the following notation for November 28, 2006: "Jury trial 12-11-06" 8am — be prepared." However, Amarit's reliance on the court's docket sheet is misplaced. In general, a docket entry forms no part of the record that may be considered on appeal; instead, it is merely a memorandum made for the convenience of the clerk and the trial court. See Rush v. Barrios, 56 S.W.3d 88, 95 (Tex.App.-Houston [14th Dist.] 2001, pet. denied); Guyot v. Guyot, 3 S.W.3d 243, 246 (Tex.App.-Fort Worth 1999, no pet.). One reason for not considering docket entries on appeal is that they are inherently unreliable. See Daniel v. Falcon Interest Realty Corp., 190 S.W.3d 177, 188 (Tex.App.-Houston [1st Dist.] 2005, no pet.); Guyot, 3 S.W.3d at 246.
Amarit also asserts that the judge notified the parties of the 8:00 a.m. start time during the November 28 hearing on Patrick's appeal from the associate judge's ruling granting Amarit's motion to strike his jury demand. However, a review of the hearing transcript reveals no mention of the trial start time. Instead, after being informed by counsel that the case was set for December 11, the judge responded, "Give me a few minutes and I'll get back to all of you," after which the hearing concluded. Amarit asserts that because the docket sheet reflects an 8:00 a.m. start time, "[i]t can be inferred that in open court [] Judge Kuntz announced the trial date and time on November 28, 2006, in the presence of both counsel." As previously discussed, Amarit's reliance on the docket sheet to prove Patrick had notice of the trial setting is without merit. See Rush, 56 S.W.3d at 95; Guyot, 3 S.W.3d at 246.
Next, Amarit argues that the trial court's conclusion that Patrick had proper notice is supported by the judge's statements during the December 15 hearing on Patrick's motion for new trial. After denying a request by Patrick's counsel to solicit testimony from Amarit's attorney on the issue of notice, the trial court stated as follows:
THE COURT: And this court from the bench announced that there would be pretrial, that I would give you your jury trial, but we will have a pretrial because this court's pretrial procedures for trial is very strenuous because we don't bring juries over here until we're ready for trial and every pretrial would be at 8:00 o'clock. We would go to trial as scheduled on the 11th starting at 8:00 o'clock because we call the jury at 8:00 o'clock. The jury's called at 8:00 o'clock. Every trial in this court and from the bench that day, it was announced at 8:00 o'clock.
We find Amarit's argument unavailing for several reasons. First, a trial court applying the Craddock standard must review the record to determine whether a defaulting party's assertions are controverted. The above statements did not form part of the record before the trial court; rather, they reflect the court's disagreement with Patrick's assertion that he had not received notice of the 8:00 a.m. start time. Second, it is the plaintiff who must controvert the defendant's factual assertions. Patrick has provided an excuse and Amarit did not factually controvert this excuse in the record. See Fid. Guar. Ins. Co. v. Drewery Constr. Co., 186 S.W.3d 571, 576 (Tex . 2006) (per curiam) (where plaintiff did not controvert defendant's affidavits setting forth excuse for losing lawsuit service papers, trial court was not at liberty to disregard it). If a defendant's factual assertions are not controverted by the plaintiff, the defendant satisfies his burden if he has set forth facts which, if true, negate a finding of intentional or conscious indifference. See Evans, 889 S.W.2d at 269. Third, in determining whether a defendant has satisfied the first prong, a court must look to the knowledge and acts of the defendant. See Martinez, 157 S.W.3d at 470. "[T]he Craddock standard is one of intentional or conscious indifference — that the defendant knew it was sued but did not care." Fid. Guar. Ins. Co., 186 S.W.3d at 575-76. In his affidavit, Patrick stated that he did not know that the trial was set to begin at 8:00 a.m.; had spent most of the preceding Friday with his counsel and witnesses to prepare for trial on Monday; had arranged for witnesses to come from France and Belgium to testify at the trial; and had arrived in the courtroom with Martin at 8:40 a.m. This evidence — uncontroverted by "marit — does not demonstrate intentional or conscious indifference.
Finally, Amarit argues that Patrick had notice of the trial setting because everyone else involved with the trial was present at 8:00 a.m. We decline to indulge such a presumption. Further, Amarit cites no authority to support this proposition, nor are we aware of any. In any case, Amarit failed to raise this argument in a response to Patrick's motion or controvert it in an affidavit and, thus, it was not part of the record before the trial court.
We note that a defaulting party must provide some excuse, though not necessarily a good excuse, for failing to appear. Fox, 128 S.W.3d at 750; McClure v. Landis, 959 S.W.2d 679, 681 (Tex.App.-Austin 1997, pet. denied). We need not evaluate the veracity of Patrick's excuse; rather, a "slight excuse" often will suffice to set aside a default judgment. See Fox, 128 S.W.3d at 750. Liberally construing Craddock in this SAPCR, and in light of the fact that Amarit did not factually controvert his excuse, we conclude that Patrick has satisfied Craddock's first element.
As to the second Craddock element, Amarit argues that Patrick failed to set up a meritorious defense. However, we need not consider whether Patrick has satisfied this element because when a defaulting defendant shows that he was not given notice of a trial setting, the party is relieved of his burden to show a meritorious defense. See Mathis v. Lockwood, 166 S.W.3d 743, 744 (Tex. 2005); see also Garcia v. Vera, No. 01-05-01161-CV, 2006 WL 2865033, at *4 (Tex.App.-Houston [1st Dist.] Oct. 5, 2006, no pet.) (mem. op., not designated for publication). Patrick alleges in his motion for new trial that he did not receive notice of the 8:00 a.m. setting. At the December 15 hearing, his trial counsel testified that she never received written or oral notice that the trial was to begin at 8:00 a.m. on December 11. Amarit did not controvert Patrick's factual allegations in the record. We conclude that Patrick need not show the second prong of Craddock.
Similarly, Patrick is not required to satisfy Craddock's third prong. Where a party did not receive notice of a trial setting, courts dispense with the burden to show that a motion for new trial would not cause delay or injury to the plaintiff. See Garcia, 2006 WL 2865033, at *4; Mahand v. Delaney, 60 S.W.3d 371, 375 (Tex.App.-Houston [1st Dist.] 2001, no pet.).
We conclude that Patrick met the requirements of Craddock and that the trial court erred in overruling his motion for new trial. We sustain his first issue.
C. Striking Patrick's Amended Pleading
In his second issue, Patrick contends the trial court abused its discretion by striking his amended counter-petition. His argument is two-fold. First, he argues that Amarit failed to demonstrate surprise as required by Texas Rule of Civil Procedure 63. Second, to the extent the trial court struck his amended pleading as a sanction for his counsel's failure to appear at the pre-trial conference, he contends the sanction was neither appropriate nor just.
1. Texas Rule of Civil Procedure 63
When no pre-trial order is in place, a party has a right to amend its pleadings up to seven days before trial as long as the amendment does not operate as a surprise to the opposing party. See TEX. R. CIV. P. 63; Kilpatrick, 874 S.W.2d at 658. A judge may not refuse a trial amendment unless (1) the opposing party presents evidence of surprise or prejudice, or (2) the amendment asserts a new cause of action or defense and is thus prejudicial on its face. Kilpatrick, 874 S.W.2d at 658 (citing Greenhalgh v. Serv. Lloyds Ins. Co., 787 S.W.2d 938, 939 (Tex. 1990)); Flo Trend Sys., Inc. v. Allwaste, Inc., 948 S.W.2d 4, 7 (Tex.App.-Houston [14th Dist.] 1997, no writ).
On October 25, 2006, Patrick filed a counter-petition seeking to be appointed the children's primary joint managing conservator. After the trial was re-set to December 11, 2006, Patrick filed a first amended counter-petition on November 10, 2006, in which he requested a jury and mediation. Amarit filed a motion to strike the amended pleading. On December 5, 2006, at 8:00 a.m., the court conducted a pre-trial conference during which Amarit's motion to strike was considered. Due to car trouble, Patrick's counsel failed to appear at the hearing and her attempts to notify the court of her delay were unsuccessful. The court granted Amarit's motion.
In her motion to strike, Amarit objected to being served with Patrick's amended counter-petition less than two weeks before trial because her answer would not be due by the trial date and the case had been on file since June 2005. In support of the motion, Amarit's counsel stated at the pre-trial conference, "[w]e feel that it was untimely. . . . We feel that they filed frivolously a motion for custody less than two weeks before trial and there is just no reason to do that other than to harass my client and to run up attorney's fees." This does not constitute evidence of surprise. Moreover, the only substantive differences between the original and amended pleadings are the inclusion of Patrick's jury demand — which previously was filed on October 12, 2006 — and a request for mediation. Such amendments do not operate as a surprise.
Contrary to Amarit's contention, Patrick's original counter-petition was filed 18 days before the second trial setting on November 13, 2006. After a motion for continuance was granted, the trial was re-set for December 11, 2006.
2. Sanctions
Patrick also contends that the trial court's order striking his amended pleading appears to be a sanction against him for his counsel's failure to appear at the pre-trial conference. He argues that such a sanction was neither just nor reasonable.
At the December 5, 2006 hearing, the trial judge asked her staff whether anyone had heard from Patrick or his counsel. After being told they had not, the judge stated,
THE COURT: No contact has been made with the Court [sic] whatever. The Court having considered the fact that the other side was requesting this jury, the Court has arranged to give them their jury, having stressed the importance of the pretrial in getting ready for a jury, it's not too late to impanel that jury once we bring them over and them not appearing and it's after 8:15 and we have not heard from them, the Court will grant your motion to strike their pleadings, their first amended counterpetition and also, to strike their request for the jury trial and we will proceed as scheduled to trial on Monday, nonjury.
We agree with Patrick that the court's decision to strike his amended counter-petition appears to be in the nature of a sanction.
Texas Rule of Civil Procedure 166 permits trial courts to hold pre-trial conferences and to enter orders establishing agreements of the parties as to any of the matters considered which control the subsequent course of the case up to trial. TEX. R. CIV. P. 166. The trial court has power, implicit under Rule 166, to sanction a party for failing to obey its pre-trial orders. Koslow's v. Mackie, 796 S.W.2d 700, 703 (Tex. 1990); Taylor v. Taylor, 254 S.W.3d 527, 532 (Tex.App.-Houston [1st Dist.] 2008, no pet.). We review a trial court's imposition of sanctions under an abuse of discretion standard. See Koslow's, 796 S.W.2d at 704. In conducting our analysis, we recognize that the trial court's discretion in imposing sanctions is governed by the standards set out in TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913 (Tex. 1991). See Taylor, 254 S.W.3d at 532 (concluding TransAmerican standard applies to sanctions imposed for violating pre-trial order); Wal-Mart Stores, Inc. v. Butler, 41 S.W.3d 816, 817-18 (Tex.App.-Dallas 2001, no pet.) (applying TransAmerican standard to sanctions imposed for violation of pre-trial order).
In TransAmerican, the supreme court developed a two-part test for courts to apply when determining whether a sanction is just. 811 S.W.2d at 917. First, there must be a direct relationship among the offensive conduct, the offender, and the sanction imposed. Spohn Hosp. v. Mayer, 104 S.W.3d 878, 882 (Tex. 2003) (citing TransAmerican, 811 S.W.2d at 917). A just sanction must be directed against the abuse and tailored to remedy any prejudice caused to the innocent party, and the sanction should be imposed upon the offender. Id. Second, just sanctions must not be excessive. TransAmerican, 811 S.W.2d at 917; Taylor, 254 S.W.2d 533. In other words, a sanction imposed should be no more severe than necessary to satisfy its legitimate purposes, which include securing compliance with discovery rules, deterring other litigants from similar misconduct, and punishing violators. Taylor, 254 S.W.2d 533. For this reason, courts must be certain that less stringent sanctions would not have sufficed to fully promote compliance. TransAmerican, 811 S.W.2d 917; Taylor, 254 S.W.2d 533.
We first consider whether the sanction imposed here was directly related to the abusive conduct. Patrick and his counsel do not dispute that they were aware of the pre-trial conference. The record reflects that Patrick's counsel experienced car trouble on her way to the hearing and that she attempted to contact the court beginning at approximately 7:30 a.m. She left a message on the court coordinator's voice mail system at 8:01 a.m. to advise of her delay, and her husband left a similar message on her behalf at 8:20 a.m. She arrived at the courtroom between 8:45 a.m. and 9:00 a.m., after the hearing had concluded. She asked the clerk and the coordinator whether her messages had been received. The coordinator checked her messages and played them aloud. After advising the judge of counsel's arrival, the coordinator returned and relayed a message from the judge to Patrick's counsel. Patrick's counsel ordered a copy of the hearing transcript from the court reporter, filed two motions, and spoke with the coordinator regarding the procedure for obtaining a copy of the voice mail messages. Nothing in the record indicates that counsel's failure to appear at the pre-trial conference was due to any lack of diligence on her part. More importantly, her failure to appear was in no way attributable to Patrick.
The record does not reflect the substance of the message.
We next consider whether the sanction was excessive. Nothing in the record indicates that the trial judge considered lesser sanctions or that lesser sanctions would not have been effective. See Taylor, 254 S.W.3d at 533; In re Bledsoe, 41 S.W.3d 807, 814 (Tex.App.-Fort Worth 2001, orig. proceeding). Nor did the court's scheduling order warn Patrick that his counsel's failure to timely appear at the hearing could result in sanctions against him. See In re Bledsoe, 41 S.W.3d at 814 (noting trial court's docket control order did not warn party that non-compliance with order would result in imposition of sanctions striking his pre-trial pleadings). Further, the order striking Patrick's amended pleading was not supported by a motion for sanctions or the court's invocation of its own power to sanction, and Patrick had no opportunity to be heard on the issue. The record also does not reflect any past conduct by Patrick that would warrant the imposition of such a harsh sanction. We are unaware of any evidence that Patrick or his counsel engaged in any type of bad faith conduct, abused the discovery process, or otherwise failed to comply with the trial court's orders prior to the pre-trial conference. See Taylor, 254 S.W.3d at 534.
We conclude that to the extent the court's order was intended as a sanction, such a sanction fails under both TransAmerican prongs. Accordingly, we conclude the trial court abused its discretion by striking Patrick's amended counter-petition. We sustain his second issue.
D. Striking Patrick's Jury Demand
In his third issue, Patrick contends the trial court abused its discretion by striking his jury demand as a sanction for his counsel's failure to appear at the pre-trial conference.
As previously noted, after the associate judge initially granted Amarit's motion to strike Patrick's jury demand, the presiding judge placed the case on the jury docket. However, at the December 5, 2006 pre-trial conference, Amarit re-urged her motion to strike. The trial judge granted the motion and struck Patrick's jury demand.
A request for a jury trial made more than 30 days in advance of trial is presumed to be reasonable. Halsell v. Dehoyos, 810 S.W.2d 371, 371 (Tex. 1991) (per curiam). A party opposing the request may rebut the presumption by showing that a jury trial will (1) injure the party; (2) disrupt the trial court's docket; or (3) impede the ordinary handling of the court's business. Id. Patrick's jury demand was filed 31 days before the November 13, 2006 trial setting and, thus, is presumed to be reasonable. Amarit did not establish the existence of any of the foregoing factors in her motion to strike or at the pre-trial conference; rather, her counsel asserted that the jury demand was "unfair surprise" and "[w]e don't feel a jury is necessary." Thus, Amarit failed to rebut the presumption of reasonableness.
Moreover, in light of the judge's statements at the pre-trial conference, we are persuaded that she struck Patrick's jury demand as a sanction for his counsel's failure to appear at the hearing. As with the striking of his amended pleading, we likewise find this sanction to be neither just nor reasonable under the TransAmerican standard. The sanction imposed was not directly related to the offensive conduct. We find no evidence that counsel's failure to appear at the pre-trial conference was due to any lack of diligence on her part or in any way attributable to Patrick. Moreover, nothing in the record suggests that the trial judge considered lesser sanctions or that lesser sanctions would not have been sufficient.
In her brief, Amarit argues that even if the trial court erred in striking Patrick's jury demand, any error was harmless because there remained no claims upon which Patrick was entitled to a jury trial. Under the Texas Family Code, a party is entitled to a jury verdict on the issues of appointment of a sole managing conservator and joint managing conservators, and the determination of which joint managing conservator has the exclusive right to designate the primary residence of the child. TEX. FAM. CODE ANN. § 105.002(c) (Vernon 2009). In support of her position, Amarit relies on the fact that she abandoned her request to be sole managing conservator at the conclusion of the pre-trial conference, and that the court struck Patrick's amended counter-petition in which he requested to be appointed primary joint managing conservator.
Amarit's contention is without merit. Although it is true that Amarit abandoned her request for sole managing conservatorship, she agreed to do so only if the case was tried to the bench rather than a jury. Thus, if the court had not erroneously struck Patrick's jury demand, it appears that Amarit would not have abandoned her request. In addition, although the court struck Patrick's amended counter-petition, his original counter-petition — in which he sought primary parent status — remained a viable pleading at the time of trial.
Amarit also contends that any error in striking Patrick's jury request was harmless because Patrick waived his right to a jury by his failure to appear at trial. See TEX. R. CIV. P. 220 ("Failure of a party to appear for trial shall be deemed a waiver by him of the right to trial by jury."). Her argument is misplaced. Although it is undisputed that Patrick and his counsel did not appear at trial, the trial court struck Patrick's jury request at the pre-trial conference — six days before trial.
We conclude the trial court abused its discretion by striking Patrick's jury demand. His third issue is sustained.
Because of our disposition of Patrick's first issue, we need not address issues four through seven.
III. CONCLUSION
We hold the trial court abused its discretion in failing to set aside the default judgment and in overruling Patrick's motion for new trial because he satisfied the requirements of Craddock. We further hold the trial court abused its discretion in striking Patrick's amended counter-petition and jury demand. Accordingly, we reverse the judgment of the trial court, order that the case be reinstated on the trial court's jury docket, and remand for a new trial.