In Re Ikon Midstream, LLC and Rhett Kenagy v. the State of Texas

Stay Lifted and Petition for Writ of Mandamus Conditionally Granted and
Opinion filed June 6, 2024.

In The

Fourteenth Court of Appeals

NO. 14-24-00336-CV

IN RE IKON MIDSTREAM, LLC AND RHETT KENAGY, Relators

ORIGINAL PROCEEDING
WRIT OF MANDAMUS
281st District Court
Harris County, Texas
Trial Court Cause No. 2022-47185

OPINION

In this original proceeding, relators Ikon Midstream, LLC and Rhett Kenagy
seek mandamus relief from the trial court’s order quashing their jury demand. On
May 9, 2024, we granted relators’ motion for temporary relief and stayed the
underlying trial. At our request, real parties in interest filed a response to the
petition on May 23, 2024. We conditionally grant the petition.
Background

Relator Ikon Midstream LLC filed the underlying action against real parties
in interest Bunker One Services (USA) LLC; Synergy Supply & Trading, LLC;
and Bunker One (USA) Inc.1 Ikon alleged that it purchased “ultra-low sulfur”
diesel fuel from Bunker One, but the fuel was “adulterated”—meaning that it froze
at higher temperatures than it should have, rendering it unusable. Ikon asserted
claims for breach of contract and fraud.

Contending that Ikon failed to pay for the fuel, Bunker One filed a
counterclaim against Ikon for breach of contract, quantum meruit, promissory
estoppel, and sworn account. Bunker One also filed a third-party claim against
Rhett Kenagy, who is also a relator in this proceeding.2 Bunker One alleged that
Kenagy signed a guaranty agreement in January 2021, in which Kenagy
guaranteed full payment and performance of Ikon’s contractual obligations to
Bunker One (the “Guaranty”). Bunker One asserted that Kenagy failed to comply
with the Guaranty.

In November 2023, the trial court held a hearing on various motions for
summary judgment. During the hearing, the court asked how much time would be
required to try the case if she denied the motions. Relators’ counsel said that he
could be ready for trial in six months and needed a day-and-a-half to put on Ikon’s
evidence. Bunker One’s counsel estimated two days if the case were tried without
a jury. Noting that no party had paid a jury fee, the judge suggested a bench trial.
The court offered to issue a new docket control order with a May 13, 2024

1
Real parties refer to themselves collectively as “Bunker One.” We will follow that
practice for purposes of this opinion.
2
Bunker One alleged that Kenagy owns Ikon, at least in part. Otherwise, the record does
not clarify the relationship between Ikon and Kenagy. Ikon and Kenagy are jointly represented
by a single law firm.

2
preferential bench trial setting. Relators’ counsel said, “May 13th, let’s do it.”
Bunker One objected to issuing a new docket control order in light of Ikon’s
alleged resistance to discovery and said it was ready to start trial “next week.” The
discussion continued,

THE COURT: Thank you. You want to do it Thanksgiving?
[Bunker One]: Well, maybe not Thanksgiving, but Monday, Tuesday,
Wednesday. It’s three days. We will be done.
THE COURT: No. Let’s not do that. Let’s do May. We will do May.
Give you — everybody gets time, but, I mean, this puts
everybody on a clock.
[Ikon/Kenagy]: Sure. Absolutely.
THE COURT: A real — on a very real clock, because when I
preferentially assign you, it is an assignment. It is not a
we’re set for trial and we may go.
[Ikon/Kenagy]: Yeah.
THE COURT: It is I am moving your 2022 case literally to the front of
the line on that day, and you will go to trial unless
something happens on my end, and I need to move you,
or y’all settle.
[Ikon/Kenagy]: Absolutely. Let’s do it.
THE COURT: Do we like May 13th? Perhaps you should take a
moment to confirm with your corporate representatives in
the back of the room.

Following a discussion of the claims, the court denied the summary-
judgment motions, adding that the fact issues will be for the court to decide,
“unless one of you is dying to file the jury fee.” The attorneys were then to confer
and agree on a trial date in May. In an email exchange later that day, counsel
agreed on a May 20 trial date.

On April 12, 2024—thirty-eight days before trial—relators jointly filed a
jury demand and paid the jury fee. Bunker One objected to a jury trial, arguing

3
that (1) relators contractually waived their right to a jury trial, (2) they had agreed
on the record to a bench trial during the summary-judgment hearing, and (3) their
demand was untimely. In support of its argument that Ikon had contractually
waived a jury trial, Bunker One presented the affidavits of Carlos Gilberto Torres
Padilla and George Kounalakis, both of whom swore that the contract between
Bunker One and Ikon governing the sale of fuel at issue included a general terms
and conditions document (the “General Terms”). The General Terms document
includes the following provision containing the jury waiver language upon which
Bunker One relies:

18. DISPUTE RESOLUTION CLAUSE

18.1. This Contract shall be construed and governed in accordance with the
exclusive jurisdiction of the united states district court for the southern
district of Texas in connection with any suit, action or other
proceeding arising out of or relating to this Contract. Each Party
hereby irrevocably and unconditionally waives the right to a trial by
jury in any action, suit or proceeding relating to a dispute hereunder
and any counterclaim with respect thereto. This Contract shall be
deemed made and prepared and shall be construed and interpreted in
accordance with the internal laws of the state of Texas, without regard
to any principles of conflicts of laws thereof which may require the
application of any other law.

The General Terms document, notably, is not signed by Ikon, nor does it
refer to Ikon by name. Padilla and Kounalakis averred that it applied nonetheless
to all transactions for the purchase of land fuel products from Bunker One,
including the transactions at issue. Kounalakis added that receipt of the General
Terms was a necessary part of Bunker One’s new customer set-up and credit
application process in which Ikon had participated in 2020. Kounalakis also
attested that the General Terms were available on Bunker One’s website at all

4
relevant times during this dispute, as is the general practice in the bunkering
industry.

Bunker One also attached to its written objection two emails that it
characterized as evidence of the transactions at issue. The emails request transfer
of 50,000 bbls of fuel on January 7, 2022, and 25,000 bbls of fuel on January 22-
23, 2022. According to Bunker One, the emails represent the “purchase
agreements” for the fuel at issue. Neither email references, incorporates, or
attaches the General Terms.

Lastly, Bunker One attached a copy of the Guaranty, which Kenagy signed
in his individual capacity as “guarantor.” Bunker One is named as the
“beneficiary.” The Guaranty does not mention Ikon. The Guaranty includes the
following clause:

9. Waiver of Jury Trial. EACH PARTY HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO TRIAL BY
JURY WITH RESPECT TO ANY LEGAL PROCEEDING ARISING OUT
OF OR RELATING TO THIS GUARANTY OR ANY OF THE
OBLIGATIONS HEREUNDER.

After a hearing, the trial court signed an order sustaining Bunker One’s
objection and quashing relators’ jury demand.

Relators filed this petition for writ of mandamus. See Tex. R. App. P. 52.
We granted temporary relief and now conditionally grant the petition.

Analysis

Relators contend that the trial court abused its discretion by quashing their
jury demand, because the demand was timely and neither relator waived the right
to a jury trial. Further, they say mandamus relief is warranted because any
ultimate relief following an ordinary appeal would be inadequate.

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A. Applicable Standards

A writ of mandamus issues to correct a clear abuse of discretion when no
adequate remedy at law exists. Walker v. Packer, 827 S.W.2d 833, 839 (Tex.
1992). A trial court has no discretion to determine what the law is or apply the law
incorrectly. Id. at 840.

The adequacy of an appellate remedy must be determined by balancing the
benefits of mandamus review against the detriments. In re Team Rocket, L.P., 256
S.W.3d 257, 262 (Tex. 2008) (orig. proceeding); In re Jetall Companies, Inc., No.
14-20-00690-CV, 2021 WL 1420950, at *3 (Tex. App.—Houston [14th Dist.]
April 15, 2021, orig. proceeding). Because this balance depends heavily on
circumstances, it must be guided by analysis of principles rather than simple rules
that treat cases as categories. In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 464
(Tex. 2008) (orig. proceeding). In evaluating benefits and detriments, we consider
whether mandamus will preserve important substantive and procedural rights from
impairment or loss. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex.
2004) (orig. proceeding). We also consider whether mandamus will “allow the
appellate courts to give needed and helpful direction to the law that would
otherwise prove elusive in appeals from final judgments.” Id. Finally, we consider
whether mandamus will spare the litigants and the public “the time and money
utterly wasted enduring eventual reversal of improperly conducted proceedings.”
Id.

B. Whether the Trial Court Abused its Discretion

Relators claim the trial court abused its discretion by quashing their jury
demand. One of our “most precious rights,” the right to a jury trial is guaranteed
by the Texas Constitution. Gen. Motors Corp. v. Gayle, 951 S.W.2d 469, 476
(Tex. 1997); Jetall, 2021 WL 1420950, at *3 (citing Tex. Const. art. I, § 15). In
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civil cases, the right to a jury trial is not automatic, but arises only when a party has
demanded a jury trial and paid the applicable jury fee. Jetall, 2021 WL 1420950,
at *3. Under Texas Rule of Civil Procedure 216, a party is entitled to a jury trial if
a written request is made within a reasonable time before the first trial setting on
the non-jury docket, but in no event less than 30 days before such setting. Tex. R.
Civ. P. 216(a). The conditions set forth in Rule 216 are prerequisites to a jury trial,
not guarantees of one. Prudential Ins. Co., 148 S.W.3d at 130.

A request in advance of the thirty-day deadline is presumed to have been
made a reasonable time before trial. Halsell v. Dehoyos, 810 S.W.2d 371, 371
(Tex. 1991) (per curiam); Jetall, 2021 WL 1420950, at *3. The adverse party may
rebut that presumption by showing that granting a jury trial would (1) operate to
injure the adverse party, (2) disrupt the court’s docket, or (3) impede the ordinary
handling of the court’s business. Halsell, 810 S.W.2d at 371; Jetall, 2021 WL
1420950, at *3. To make this showing, evidence in the record must establish at
least one of these grounds. See, e.g., Halsell, 810 S.W.2d at 371; In re J.N.F., 116
S.W.3d 426, 436 (Tex. App.—Houston [14th Dist.] 2003, orig. proceeding).

A party in a civil case may also waive its right to a jury trial by agreement.
See Prudential, 148 S.W.3d at 133, 132; In re Key Equip. Fin. Inc., 371 S.W.3d
296, 301 (Tex. App.—Houston [1st Dist.] 2012, orig. proceeding). “Contractual
jury waivers do not violate public policy and are enforceable as long as the waiver
is voluntary, knowing, and intelligent, and with full awareness of the legal
consequences.” Key Equip., 371 S.W.3d at 301 (citing Prudential, 148 S.W.3d at
132).

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1. Did Bunker One rebut the presumption that Ikon’s jury demand was
reasonably timely?
We begin with Ikon, which undisputedly filed its jury demand and paid the
required jury fee more than thirty days before the May 20, 2024 non-jury trial
setting. Ikon’s request, therefore, was presumptively reasonably timely. Halsell,
810 S.W.2d at 371; Jetall, 2021 WL 1420950, at *3.

In its response to the petition for writ of mandamus, Bunker One argues that
the presumption was rebutted because a jury trial would have disrupted the court’s
docket and business. Yet the trial court clearly indicated at the April hearing that
holding a jury trial instead of a bench trial would not have disturbed its docket:
“this case is going to trial, regardless, May 20th. It is just a matter of whether I get
to sit and listen to you for five days or a jury sits and listens to y’all for 7.” The
court later said it would give Bunker One the option of a continuance if a jury was
allowed; but the court was not required to grant such relief, and the judge indicated
that a jury would have been available for a May 20 trial. Bunker One also
suggested that relators’ jury demand was a delay tactic, but Ikon did not ask for a
delay of the trial or seek a continuance. The court did not find that the jury
demand was filed as an attempt to delay the trial, nor is there evidence that moving
the case to the jury docket would have delayed the start of trial.

Bunker One cites several cases holding that a trial court has discretion to
determine whether the presumption arising from a timely jury demand has been
rebutted. See Esparza v. Esparza, No. 13-10-00677-CV, 2012 WL 2476228, at *2
(Tex. App.—Corpus Christ—Edinburg June 28, 2012, no pet.); Clegg v. Laughlin
Partners Ltd., No. 04-06-00387-CV, 2007 WL 56707 (Tex. App.—San Antonio
Jan. 10, 2007, no pet.); Girdner v. Rose, 213 S.W.3d 438 (Tex. App.—Eastland
2006, no pet.); Universal Printing Co., Inc. v. Premier Victorian Homes, Inc., 73

8
S.W.3d 283, 294 (Tex. App.—Houston [1st Dist.] 2001, pet. denied); Six Flags
Over Tex., Inc. v. Parker, 759 S.W.2d 758, 760 (Tex. App.—Fort Worth 1988, no
writ). These cases are distinguishable principally because, unlike here, there was
evidence that granting a jury would have delayed the trials, and the jury demands
were found to be delay tactics. See Esparza, 2012 WL 2476228, at *2 (evidence of
further delay if the case were moved to the jury docket, and the case had been on
file beyond the limit for resolving family law cases); Clegg, 2007 WL 56707, at *1
(evidence that any transfer to the jury docket would have disrupted the schedule of
cases which had already been determined by the court, and there was no evidence
that a jury was available at the time of trial); Girdner, 213 S.W.3d at 444 (trial
court determined that jury demand was a dilatory tactic); Universal Printing Co.,
73 S.W.3d at 294-95 (evidence of a delay in the trial court’s docket if the case
were moved to the jury docket, as well as assertions by the opposing party that it
was not prepared for a jury trial). Under the present circumstances, Bunker One
has not demonstrated that the timing of Ikon’s jury demand was unreasonable
because honoring it would have impeded the trial court’s docket.

Bunker One also argued that granting a jury trial would have injured it. In
the trial court, Bunker One contended that it would be prejudiced because the trial
of this case to a jury would take two days longer than if it was presented to the
judge and would therefore be more expensive. Bunker One cites cases that it
maintains stand for the proposition that the increased cost of a jury trial constitutes
injury to the party opposing the jury demand.

We agree that the cost of a jury trial in time and resources is almost always
greater than the cost of a non-jury trial. We are unpersuaded, however, that this
inherent difference is universally, and alone, sufficient to demonstrate that a timely
jury demand would injure the opposing party. If the length and expense of a jury

9
trial as opposed to a non-jury trial, even in the simplest of cases, could by itself
constitute sufficient injury to rebut the presumption of reasonable timeliness
arising from a rule-compliant jury demand, then an adverse party could rebut the
presumption in every instance. As Bunker One correctly observes, some courts
have upheld the denial of a timely jury demand based in part on increased
expenses, but there were other factors at play in those cases. See Barkhausen v.
Craycom, 178 S.W.3d 413, 418 (Tex. App.—Houston [1st Dist.] 2005, pet. denied)
(extra expense and length of trial was factor in court’s decision, but the case had
already been tried once to the bench without a jury request; no abuse to deny jury
for second trial); Universal Printing Co., 73 S.W.3d at 294-95 (evidence of a delay
in the trial court’s docket if jury request granted).

Presuming that the relative difference in time and expense between a jury
trial and a non-jury trial can in some instances constitute sufficient injury to the
adverse party to justify rejecting a rule-compliant jury demand, we do not believe
Bunker One has demonstrated injury under the present circumstances. We reach
this conclusion because, here: (1) the difference in trial time is only two days;
(2) Bunker One represented that it was ready for trial six months earlier in
November; (3) Bunker One acknowledged during the April hearing on its objection
that it would be ready for trial on time regardless whether it was a jury or non-jury
trial; (4) Bunker One told the judge it had a “mountain” of motions ready to file if
the case proceeded to a jury trial; and (5) no party sought a delay of the trial
setting. We conclude that the circumstances shown by the present record do not
support Bunker One’s argument that it would have been injured by a jury trial.
Therefore, we hold that Bunker One did not rebut the presumption that Ikon’s jury
demand filed thirty-eight days before the trial setting was reasonably timely.

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2. Did Bunker One show that Ikon waived the right to a jury trial by
contract?
Bunker One argues alternatively that the trial court’s ruling was not an abuse
of discretion because Ikon contractually waived its right to a jury trial based on the
General Terms. A contractual jury waiver does not violate public policy and is
enforceable when the waiver is voluntary, knowing, and intelligent, and with full
awareness of the legal consequences. Prudential, 148 S.W.3d at 132; Key Equip.,
371 S.W.3d at 301. In determining whether a contractual jury waiver is
enforceable, it makes a difference whether the provision is conspicuous. See In re
Gen. Elec. Capital Corp., 203 S.W.3d 314, 316 (Tex. 2006) (per curiam);
Prudential, 148 S.W.3d at 134. A conspicuous jury waiver provision is “prima
facie evidence of a knowing and voluntary waiver and shifts the burden to the
opposing party to rebut it.” Bank of Am., 278 S.W.3d 342, 346 (Tex. 2009) (orig.
proceeding) (quoting Gen. Elec. Capital Corp., 203 S.W.3d at 316); Prudential,
148 S.W.3d at 134. In contrast, an inconspicuous jury waiver may still be
enforced, but the burden remains on the party seeking to enforce the provision to
show that the waiver was knowingly and voluntarily made. See Bank of Am., 278
S.W.3d at 344 (holding that Texas law does not impose a presumption against jury
trial waivers, but courts should look to whether they are knowingly made “to
address the argument that parties may be inclined to use contractual waivers to take
unfair advantage of others, using bargaining position, sophistication, or other
leverage to extract waivers from the reluctant or unwitting.”) (quoting Prudential,
148 S.W.3d at 132); see also Key Equip., 371 S.W.3d at 302.

As the party seeking to establish that Ikon waived its constitutional right to a
jury trial, it was Bunker One’s burden to show that the waiver was voluntary,
knowing, and intelligent. See Bank of Am., 278 S.W.3d at 344-46; Key Equip., 371
S.W.3d at 302. In the trial court, Bunker One argued that the General Terms
11
waiver provision is conspicuous and hence prima facie evidence of a voluntary,
knowing, and intelligent waiver. We disagree. The jury waiver language in the
General Terms is not conspicuous. It consists of one sentence in the middle of a
paragraph discussing governing law; it appears on the last page of a nine-page
document; and it is not distinguished from the surrounding typeface with bold or
italics. In fact, it is not different in appearance from any other provision. The
paragraph in which the jury waiver sentence appears is titled, “Dispute Resolution
Clause”—as opposed to, for example, “Jury Waiver Clause.” Because the
provision is not conspicuous, Bunker One had the burden to show that Ikon
voluntarily and knowingly accepted it by other means. See Key Equip., 371
S.W.3d at 302. For the following reasons, we conclude that Bunker One did not
meet that burden.

First, the General Terms document is not signed by Ikon, Kenagy, or anyone
purporting to represent Ikon. Padilla and Kounalakis assert in their affidavits that
the General Terms were part of the agreement with Ikon and applied to the
transactions at issue. Assuming the truth of those assertions, that testimony is no
different from an evidentiary perspective than having a copy of the General Terms
document signed by Ikon. But even a signed General Terms document would not
change the fact that the jury waiver provision is not conspicuous. Bunker One was
required to present more evidence than merely a signed copy of the General Terms
to show that Ikon knowingly and voluntarily assented to an inconspicuous jury
waiver.

Bunker One points to a course of dealing between the parties. An
established course of commercial dealings between sophisticated parties may
support a finding that an inconspicuous contractual jury waiver was knowingly and
voluntarily accepted. See id. at 302-03. In Key Equipment, the party seeking to

12
enforce an inconspicuous contractual jury waiver presented not only a signed copy
of the contract but also introduced business records reflecting several earlier lease
agreements between the parties with the same jury waiver provision. Id. at 302.
Bunker One’s evidence does not rise to that level. Bunker One relies on the two
emails constituting the “purchase agreements”3 with Ikon relating to the present
dispute, but it has not presented business records evidencing a course of dealing
predating this dispute and showing that Ikon had knowingly agreed to a similar
jury waiver. Moreover, neither of the emails incorporates, attaches, or refers to the
General Terms. Although Bunker One argues that it did business with Ikon over
“several years,” there exists no evidence in the record showing that Ikon assented
to or had notice of the jury waiver provision in the General Terms at any time.

Citing this court’s decision in StubHub v. Ball, 676 S.W.3d 193 (Tex.
App.—Houston [14th Dist.] 2023, no pet.), Bunker One relies on Kounalakis’s
statement that the General Terms document was a necessary part of the new
customer set-up process in which Ikon participated in 2020. At issue in StubHub
was whether a party who purchased show tickets through StubHub’s website had
assented to a user agreement containing an arbitration clause. Id. at 196. The
court discussed the mechanisms by which online or website users may be found to
have consented to agreements through use of another party’s website. Id. at 200-
01. StubHub argued that the claimant manifested his consent to the user agreement
by “clicking a button” indicating his affirmative acceptance of the terms when he
created his account (a process known as a “clickwrap” agreement). Id. We held,
however, that StubHub’s evidence was not sufficiently clear, direct, and positive in
its description of the account registration process to show that the claimant

3
The General Terms defines the term “purchase agreement” to mean “the written
confirmation issued by [Bunker One] setting out details in relation to the supply of the Products
to [Ikon].”

13
assented to the user terms when he set up an account. Much like Kounalakis’s
affidavit, the affidavit in StubHub stated in conclusory fashion that the user
agreement’s terms must be accepted to create an account. Id. at 202. But, as we
said,

the declarations do not explain how a potential user manifests that
acceptance during the registration process. Nowhere in either
declaration does Monroe attest that when Ball created his StubHub
account in 2012 he affirmatively clicked on a button indicating he
explicitly accepted the User Agreement. Monroe’s statements are not
sufficiently clear, direct, and positive to establish that the User
Agreement is a clickwrap because they are simply too general. Cases
in which courts uphold the validity of clickwrap agreements have
involved evidence describing the clickwrap process in more detail
than that presented here by StubHub.
Id. Moreover, we observed that other accepted forms of creating an agreement
over the internet required evidence that the user received actual or constructive
notice that he or she would be bound by the terms at issue or at least that the terms
were reasonably conspicuous. Id. We found that StubHub presented no evidence
bearing on notice or conspicuousness relating to the user’s account creation
process because there was “no description of each affirmative step Ball had to take
to complete the registration process; there was no evidence of the screenshots that
Ball would have seen when he registered his account; and there was no explanation
of the text that was presented to Ball.” Id.

StubHub does not support Bunker One’s position. Kounalakis did not
describe the set-up process or explain with even minimal detail how Ikon would
have been notified of, or would have been deemed to have assented to, the jury
waiver provision during the new customer set-up process. Without any description
of that process, Kounalakis’s affidavit does not establish that Ikon received fair
notice of the jury waiver provision that would potentially support a finding that it

14
knowingly and voluntarily agreed to waive its jury trial right by participating in a
new client set-up process. See id. Bunker One’s evidence is notably far less robust
than the evidence we found insufficient in StubHub.

For similar reasons, it is insufficient to say, as Kounalakis does, that the
General Terms document is available on Bunker One’s website, without any
additional description of website procedures or processes that would require Ikon
to have visited the website and to have assented to the General Terms through its
use of Bunker One’s website. See id. We conclude that Bunker One failed to
establish that Ikon contractually waived its right to a jury trial by the General
Terms.

3. Did Bunker One demonstrate that Ikon waived its right to a jury trial
at the November summary judgment hearing?

Finally, Bunker One argued in the trial court that Ikon agreed to a bench trial
by its counsel’s statements during the November summary-judgment hearing. This
argument is based on the following exchange:

THE COURT: Well, let me tell you -- let me tell you what I am
thinking, a short version. Ultimately, at the end of the day, it is a
summary judgment, but you -- nobody has filed a jury fee, which
means it would come to me anyway. Y’all are arguing a whole lot of
stuff that, A, not in the record; but B, not evidence because, as we all
know, lawyer argument is not evidence. Right?
[IKON]: Sure.
THE COURT: So I am thinking, and what I like to usually do
when it comes down to motions for summary judgments, when it’s
things that will eventually be a bench trial, is why don’t I just try it?
And then you can bring your witnesses, and I can hear all of the
evidence as it properly deserves to be, out of the mouths of the people
who would provide that testimony sworn under oath.
...
[BUNKER ONE]: We don’t disagree, Your Honor. We were

15
actually -- told your coordinator happy to try the case this week or last
week. We think we have the witnesses and the information. The
discovery period is closed, and we are actually ready to go.
...
THE COURT: Well, so how about this? What do we think
about May 13th? I'll give y’all a preferential setting. I will tell you,
you are go -- you are assigned to trial, as a bench trial, May 13th. I’ll
give you three full days. You tell me what you need to do to put on
all your evidence, and I will sit here and diligently listen to it with
bells on and then make a decision.
And we will probably issue a new DCO, but because it’s a
preferential setting, that trial date will not move absent, like, a good
cause, which in my world on a preferential setting, good cause
literally needs to be somebody’s in the hospital, like one of the parties,
or corporate rep for one of the parties is in the hospital, or counsel is
in the hospital and not able to try the case, which we don’t wish on
anybody.
[IKON]: Sure.
THE COURT: I tell you that so that you understand when I say
“good cause,” I am not just like, Oh, well our witness is not available.
I am, like, should have done that deposition by video then.
[IKON]: May 13th, let’s do it.
THE COURT: May 13?
[BUNKER ONE]: I am not at all opposed to May 13. I do
think, given the discovery abuses, opening up a new DCO, I want to, I
guess, state our objection to that.
THE COURT: Understood.
[BUNKER ONE]: I can see where it is going, but I -- we
would rather just do it live, you know, next week if you had
availability, so I’ll say that. We are ready to go.
THE COURT: Thank you. You want to do it Thanksgiving?
[BUNKER ONE]: Well, maybe not Thanksgiving, but
Monday, Tuesday, Wednesday. It’s three days. We will be done.

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THE COURT: No. Let’s not do that. Let’s do May. We will
do May. Give you – everybody gets time, but, I mean, this puts
everybody on a clock.
[IKON]: Sure. Absolutely.
THE COURT: A real -- on a very real clock, because when I
preferentially assign you, it is an assignment. It is not a we’re set for
trial and we may go.
[IKON]: Yeah.
THE COURT: It is I am moving your 2022 case literally to the
front of the line on that day, and you will go to trial unless something
happens on my end, and I need to move you, or y’all settle.
[IKON]: Absolutely. Let’s do it.
THE COURT: Do we like May 13th? Perhaps you should take
a moment to confirm with your corporate representatives in the back
of the room.
[BUNKER ONE]: I will, Your Honor. . . .
...
THE COURT: The Court is going to deny the summary
judgments at this time. I think there are some fact issues to go -- I
was going to say for the jury, but, no, they go to me. So I can sit and
listen to all of it unless one of you is dying to file the jury fee.
How are we looking?
...
THE COURT: Well, it’s not a matter of efficiency. I feel like
y’all just have a whole lot of moving parts.
[BUNKER ONE]: I think simplicity and clarity will emerge
through the trial, Your Honor.
THE COURT: I hope so. I love simplicity and clarity. So
what I am going to do is I am going to make a note that I am
tentatively kind of bookmarking y’all for May 20th, starting at
9:00 a.m., for a bench trial.
I am going to set aside, just so that I don’t accidentally tag
something in. It is like, oh, it’s three days, so I'll set something on,
like, Thursday. I am just going to set y’all for, like, the whole week.

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[BUNKER ONE]: Appreciate that, Your Honor.
...
THE COURT: Exactly. But what I will do is give y’all an
opportunity to confirm with your clients. E-mail Rick Torres, my
coordinator, and say, Judge says May 20 for preferential setting, great;
or, no, it doesn’t work. Obviously, cc all opposing counsel on it
because if it doesn’t work, then, again, any day -- any week other than
the first week of May, I am willing to set aside for y’all.
MR. HANCE: We appreciate that.
THE COURT: I figure that is the easiest way to get rid of y’all.
Don’t take it personally, but I find on cases like this where it’s a lot of
just, you know -- a lot of disagreement where it feels like that if we
just heard evidence that the facts will be pretty clear, particularly
something like a suit on sworn account, that sometimes I can just get
rid of you faster just by trying you, especially since it is to the bench,
than just waiting for you to -- 2026 to roll around which is probably
when you would get hit on a 2022 case. But I am happy to set aside
three to four to five days for y’all.
...
THE COURT: . . .
That being said, you know, whenever -- to be clear, whenever
you do land on a date, it will constitute an assignment. It trumps
everybody else. So if somebody is like, oh, we’re calling you to trial
on May 20th, like, I have already been assigned in the 281st. They
can call and confirm with me, and I will tell them, nope, I already
have got them for that day for three to five days. But that also is
incumbent on y’all to then do whatever you need to do in order to get
the testimony that you need, get the evidence you need, all of that,
motions, everything that you need to get done to get yourself ready for
trial, because there will not be an 11th hour continuance. It is like,
Oh, well, we still need depositions. I am like, you knew back in
November when you were assigned.
So, I mean, I think I am sitting -- like if you ask for a trial
setting, court setting right now, it should be less than a month. Yeah.
So -- and, of course, you can’t get in front of me in time, the Court has
emergency proceedings in place, so you can just call. You either send
an e-mail or write a letter to the Court saying why you need an
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emergency hearing, and I am -- unless it is really not an emergency,
which sometimes happens with y’all, not y’all like you specifically,
but lawyers, I am happy to jump on a Zoom, resolve something real
quick so that you can do -- keep doing whatever you need to do to get
yourself ready.
[BUNKER ONE]: We, again, appreciate that, Your Honor.
That’s helpful to know. Hopefully, we won’t have to take advantage
of that.
. . . (Emphasis added).

Based on this discussion, Bunker One argues that Ikon waived its right to a
jury trial by agreement on the record. Waiver requires intent, either the intentional
relinquishment of a known right or intentional conduct inconsistent with that right.
Gen. Elec. Capital Corp., 203 S.W.3d at 316. The question of intent to waive the
right is the key inquiry. Rodriguez v. Classical Custom Homes, Inc., 176 S.W.3d
928, 932 (Tex. App.—Dallas 2005, no pet.). In considering whether a waiver
occurred, we view the record as a whole. See Mercedes-Benz Credit Corp. v.
Rhyne, 925 S.W.2d 664, 666 (Tex. 1996).

To be sure, Ikon said it could be ready for a May trial setting and not only
acknowledged that the court was offering to preferentially assign the case for a
bench trial in May but that it agreed. At the same time, however, when the judge
ultimately ruled that she was denying the summary judgment motions, she also
indicated that the parties had the option of filing a jury demand. Ikon’s intent or
lack of intent to waive a jury must be viewed with the court’s comments in mind.
Viewed as a whole, we conclude the statements cited by Bunker One do not show
an intentional relinquishment of the right to a jury trial by Ikon when the court’s
statements could be reasonably construed as not foreclosing a future jury demand
by any party. Thus, the statements made at the November summary-judgment

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hearing do not support an implied finding that Ikon intended to waive its right to a
jury trial.

* * *

For these reasons, we hold that by filing a jury demand and paying the jury
fee more than thirty days before the first non-jury trial setting, Ikon raised the
presumption that its demand was reasonably timely. The record does not support
Bunker One’s arguments that a jury trial would have injured Bunker One or
disrupted the court’s docket; thus, Bunker One has not rebutted the presumption
that Ikon’s jury demand was timely. Additionally, Bunker One did not establish
that Ikon voluntarily, intentionally, and knowingly waived its right to a jury trial by
agreement. Therefore, the trial court abused its discretion in granting Bunker
One’s motion to quash Ikon’s jury demand.

Given our disposition of Ikon’s issue, we need not address whether Kenady
waived his right to a jury trial. Because we hold that Ikon secured its right to a
jury trial, Kenady can rely upon Ikon’s request. See Mercedes-Benz Credit Corp.,
925 S.W.2d at 666; In re Marriage of Harrison, 557 S.W.3d 99, 134 (Tex. App.—
Houston [14th Dist.] 2018, pet. denied).

C. Whether Ordinary Appellate Relief is Inadequate

Having determined that the trial court abused its discretion by striking Ikon’s
timely jury demand, we must consider whether Ikon has an adequate remedy by
appeal. This is determined by balancing the benefits of mandamus review against
the detriments. See Team Rocket, L.P., 256 S.W.3d at 262.

We consider whether mandamus will preserve important substantive and
procedural rights from impairment or loss. See Prudential, 148 S.W.3d at 136.
The right to a trial by jury is an important constitutional right. This court has

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previously granted mandamus relief when a trial court abused its discretion in
striking a party’s timely jury demand. Jetall, 2021 WL 1420950, at *5.

We also consider whether mandamus will spare the litigants and the public
“the time and money utterly wasted enduring eventual reversal of improperly
conducted proceedings.” See Prudential, 148 S.W.3d at 136; Jetall, 2021 WL
1420950, at *5. A refusal to grant a jury trial is harmless error only if the record
shows that no material issues of fact exist, and an instructed verdict would have
been justified. Halsell, 810 S.W.2d at 372; see also Mercedes-Benz Credit Corp.,
925 S.W.2d at 667 (“The wrongful denial of a jury trial is harmful when the case
contains material fact questions.”). The trial court denied the motions for summary
judgment and, therefore, has already determined that there are issues of material
fact. Addressing the trial court’s abuse of discretion for striking Ikon’s jury
demand will spare the parties and the public “the time and money utterly wasted”
on an improperly conducted bench trial. See Prudential, 148 S.W.3d at 136. We
determine that the benefits of granting mandamus relief in this case outweigh the
detriments. We therefore conclude that Ikon does not have an adequate remedy by
appeal.

Conclusion

Because the trial court abused its discretion by striking Ikon’s timely jury
demand and Ikon lacks an adequate remedy by appeal, we conditionally grant
Ikon’s petition for writ of mandamus and direct the trial court to vacate its May 2,
2024 order quashing Ikon’s jury demand. The writ will issue only if the trial court
fails to act in accordance with this opinion. We lift this court’s May 9, 2024 stay
order.

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/s/ Kevin Jewell
Justice

Panel consists of Justices Jewell, Zimmerer, and Hassan

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