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Click here for the full text of this decision FACTS:Charles A. “Charlie” and Margie Grissom owned and operated D & W Furniture in Abilene for approximately 30 years. The Grissoms also owned warehouse and storefront space across the street from the furniture store. David H. Girdner rented a portion of this space to operate a funeral home. Girdner alleged that when he first began operating the funeral home, he discussed a lease with an option to purchase with Charlie. Girdner told Charlie that he could not enter into a lease until the roof was repaired. Charlie replaced the roof and, according to Girdner, presented him with a lease agreement that included an option to purchase the funeral home property and a portion of the warehouse for $65,000, with seller financing. Girdner testified that the lease was executed in October 1997 and that he took his copy to a local attorney’s office for safekeeping. Charlie passed away in early 2001. Margie sold the furniture store to Thomas E. Rose, a D & W employee, in September 2001. In November, she sold the warehouse to Rose and she offered to sell the funeral home property to Girdner for $125,000. Girdner declined the offer but approximately two months later mailed her a letter referencing the lease and stating his intentions to exercise its purchase option. Girdner then filed a declaratory judgment action against Margie and Rose to determine his rights to Lots 9, 10, 11 and 12. The funeral home was located on Lots 11 and 12. Lots 9 and 10 were the warehouse space on which Girdner claimed to have an option. Margie and Rose counterclaimed, seeking reciprocal declaratory relief, contractual damages and exemplary damages. Girdner began making his rent payments by check with the notation “Lease Lots 9, 10, 11 and 12.” Margie did not negotiate the checks because of the conditional notation. The trial court conducted a bench trial and found that Rose owned the warehouse and awarded him $4,800 for unpaid rent, $8,500 for attorneys’ fees and conditional attorneys’ fees in the event of an appeal. The court further found that Margie owned the funeral home property and awarded her $25,250 for unpaid rent and roofing expenses, $100,000 in exemplary damages, attorneys’ fees of $35,250 and conditional attorneys’ fees in the event of an appeal. Girdner originally challenged the trial court’s judgment with six issues, alleging the trial court abused its discretion by denying his jury request; denying him the opportunity to seek written discovery; awarding exemplary damages without an award of actual damages, and; awarding attorneys’ fees to Rose and Margie. HOLDING:The court modified the award of damages and affirmed as modified. No jury trial shall be had in any civil suit, the court stated, unless a written request for a jury trial is filed with the clerk of the court a reasonable time before the date set for trial of the cause on the nonjury docket. Courts have the discretion to determine what is a reasonable amount of time dependent upon the individual circumstances of each case, the court stated. The trial court, the 11th Court of Appeals in Eastland stated, found that Girdner’s request for a jury trial was untimely because it was made more than two years after suit was filed and less than 45 days before the fifth setting. The trial court concluded that the request was a dilatory tactic which would have delayed the trial and injured Margie and Rose, the court stated. Thus, the court held that the trial court did not abuse its discretion in denying the jury trial request, because the record adequately supported the trial court’s conclusion. As for Girdner’s point of error that he was denied the opportunity to seek written discovery, the court noted that Girdner offered no reason why he was unable to timely serve his written discovery requests. Girdner, the court stated, chose the discovery schedule by pleading in his original petition that discovery would be conducted under level two. On this record, the court found that the trial court did not abuse its discretion in denying Girdner an extension for serving discovery requests. Moving on to the question of punitive damages, the court noted that Margie sought exemplary damages pursuant to Texas Civil Practice & Remedies Code �12.002. This statute, the court stated, forbids the fraudulent use of a document or other record to evidence a lien or claim against real or personal property with the intent to cause another to suffer physical injury, financial injury, mental anguish or emotional distress. The statute, the court stated, authorizes an award of actual damages, court costs, attorneys’ fees and exemplary damages in an amount determined by the trial court. The trial court found that Girdner violated this law, the court stated, and awarded Margie $100,000 in punitive damages, $25,250 for unpaid rent and unreimbursed roofing expenses and attorney’s fees. The court rejected Girdner’s factual sufficiency challenge to the punitive damage award and also found that the trial court did not err by awarding exemplary damages under �12.002 without making a specific �12.002 actual damage finding. The court also held that the trial court’s award of attorneys’ fees did not constitute an abuse of discretion. In light of the relief obtained, the court stated, the award of fees was equitable and just. Finally, the court found that the punitive damage award was not grossly disproportionate, because of the gravity of Girdner’s conduct in effectively withholding his rent payments. After a review of previous payments, the 11th Corut modified the trial court’s judgment to award Margie $3,433.18 (rather than $3,500) in unpaid roofing expenses and $21,750 (rather than $25,450) for unpaid rent. Strange, J.; Wright, C.J., and McCall and Strange, J.J.

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