Tozee Construction, Inc. v. BNG Management Group, LLC, 05-25-00704-CV, July 24, 2026.
On appeal from 101st Judicial District Court, Dallas County, Texas
Synopsis
Once a party timely requests a jury and pays the jury fee, every other party may rely on that demand under Texas Rules of Civil Procedure 216 and 220. The original requesting party cannot later withdraw the demand and force a bench trial over the opponent’s objection; if the court nevertheless proceeds non-jury, the error is reversible.
Relevance to Family Law
This holding matters in Texas family litigation because jury-trial rights routinely intersect with suits affecting the parent-child relationship, divorce-related property disputes, reimbursement claims, fraud-on-the-community allegations, partition questions, and enforcement-related proceedings in which a jury is available on particular issues. If one side perfects the jury right and the case is placed on the jury docket, the other side may rely on that demand without filing a separate one, and the case cannot be converted to a bench trial over objection merely because the original requesting party changes course. For family law trial strategy, that means counsel should treat any existing jury demand in the file as a shared procedural asset and preserve the objection immediately if the court or opposing counsel attempts to proceed non-jury.
Case Summary
Fact Summary
BNG Management Group sued Tozee Construction, Giant Blue, and Jimmy Cho over a construction dispute involving three restaurant projects in the Dallas-Fort Worth area. BNG alleged Tozee left the work unfinished after completing roughly seventy percent and then demanded full payment before completion. BNG claimed it had to hire a replacement contractor and asserted multiple causes of action, including breach of contract, civil theft, fraud, conversion, money had and received, and intentional interference. Critically for appellate purposes, BNG filed its original petition with the jury fee.
Tozee answered and filed counterclaims for quantum meruit, unjust enrichment, breach of contract, and judicial foreclosure. BNG then answered the counterclaims and expressly demanded strict proof before a jury. Later, discovery disputes led to severe sanctions against Tozee, including an order that the case would proceed to trial on BNG’s damages.
In January 2025, BNG filed a notice withdrawing its jury request and asked for a bench trial. The trial court issued a non-jury trial setting. Tozee objected before trial, citing authority establishing that once a jury demand is perfected, the case cannot be removed from the jury docket over the opposing party’s objection. Despite that objection, the trial court conducted a bench trial and entered judgment for BNG. Tozee appealed on the single issue that it had been improperly denied a jury trial.
Issues Decided
- Whether a party that timely requested a jury and paid the jury fee could later withdraw that request over the opposing party’s objection after the case had been placed on the jury docket.
- Whether the opposing party was entitled to rely on the original jury demand without having filed a separate jury demand and fee.
- Whether proceeding to a bench trial after such an objection constituted reversible error.
Rules Applied
The Dallas Court of Appeals relied on the constitutional protection of the jury-trial right and the settled construction of Texas Rules of Civil Procedure 216 and 220.
- Texas Rule of Civil Procedure 216 governs a party’s jury demand and payment of the jury fee.
- Texas Rule of Civil Procedure 220 addresses withdrawal of a jury case from the docket and prevents removal when another party objects.
- Texas Constitution, article I, section 15 preserves the right to trial by jury.
- Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664 (Tex. 1996) holds that when a party timely demands a jury and pays the fee, the trial court may not remove the case from the jury docket over the opposing party’s objection.
- Caldwell v. Barnes, 154 S.W.3d 93 (Tex. 2004) reaffirms that one party’s perfected jury demand secures the jury right for all parties and that the case cannot be withdrawn from the jury docket over objection.
- The court also cited Dallas and other intermediate appellate authority recognizing that all parties may rely on one proper jury request, including White Motor Co. v. Loden and Hale v. Rising S Co., LLC.
Application
The court’s analysis was straightforward and procedural. The record showed that BNG paid the jury fee with its original petition and that the case had originally been placed on the jury docket. That was enough to perfect the jury-trial right for the case as a whole, not merely for BNG. Once that occurred, Tozee was entitled to rely on the existing jury demand.
BNG argued in substance that timing mattered because the court had already issued a non-jury setting before Tozee filed its written objection, and it also suggested Tozee had to do more than simply object. The court rejected that position. The governing rule was not whether the court had already circulated a non-jury setting, but whether a perfected jury demand existed and whether the opposing party objected to removal from the jury docket. Tozee did object, expressly and on the record, before the bench trial proceeded. Under Rhyne and Caldwell, that objection was sufficient.
The court also noted that once the trial court decided to proceed non-jury, Tozee had no meaningful election between jury and bench trial. In other words, the case was not one in which silence, acquiescence, or failure to appear might support waiver. The appellate record established the necessary procedural points: a timely jury fee had been paid, the case had been on the jury docket, Tozee objected to withdrawal, and the court nonetheless tried the case to the bench. On that record, the denial of a jury trial was an abuse of discretion.
Holding
The court held that when a party timely requests a jury and pays the jury fee, every other party acquires the right to rely on that demand. The original requesting party cannot later extinguish that shared right by filing a unilateral withdrawal if another party objects.
The court further held that the trial court may not remove the case from the jury docket over the opposing party’s objection under Rules 216 and 220. Because Tozee objected and the trial court nevertheless conducted a bench trial, the court of appeals concluded the trial court abused its discretion.
Finally, the court held that the error required reversal. The judgment entered after the bench trial was reversed, and the case was remanded for further proceedings consistent with the opinion.
Practical Application
For family lawyers, Tozee is a useful reminder that jury-docket status is not controlled exclusively by the party who first paid the fee. In a divorce involving disputed characterization, reimbursement, waste, valuation, or fraud-on-the-community issues, one side may request a jury for strategic reasons early in the case and later decide a bench trial is preferable. Under Tozee, that later shift does not authorize the trial court to proceed non-jury if the other side objects.
The same point can matter in SAPCR litigation where jury-triable issues are in play, including conservatorship-related questions or restrictions on a parent’s rights within the scope permitted by the Family Code. If a jury has been properly demanded and the fee paid, opposing counsel should immediately assess whether maintaining the jury setting serves the client’s objectives. If it does, counsel should file a prompt written objection to any attempted withdrawal and make the objection again when the case is called.
This case is also important in post-sanctions or narrowed-issue settings. Tozee shows that even where liability or merits issues have been constrained by interlocutory rulings, the jury-trial right can still remain operative as to the issues left for trial. Practitioners should not assume that a sanctions order, docket-control order, or reset onto a non-jury docket silently eliminates a previously perfected jury demand.
Strategically, family lawyers should also avoid overreliance on docket sheets or coordinator notices. A non-jury setting notice does not override Rules 216 and 220 if a proper jury demand remains in the case and an opposing party objects. Preservation should be express, written, and renewed orally if necessary, but Tozee confirms that an affirmative objection is the central procedural step.
Checklists
Preserving the Jury Right When the Other Side Withdraws
- Confirm that a timely jury demand and jury fee are in the clerk’s record.
- Verify whether the case was previously placed on the jury docket.
- File a written objection to withdrawal of the jury demand as soon as notice is received.
- Cite Texas Rules of Civil Procedure 216 and 220.
- Cite Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664 (Tex. 1996), and Caldwell v. Barnes, 154 S.W.3d 93 (Tex. 2004).
- State expressly that your client relies on the existing jury demand and insists on a jury trial.
- Re-urge the objection on the record when the case is called for trial.
- If the court proceeds non-jury, make sure the objection and ruling are reflected in the record.
Reviewing the File in a Family Law Case for Hidden Jury Issues
- Check the original petition, answer, counterpetition, and amended pleadings for an existing jury demand.
- Confirm payment of the jury fee rather than assuming a demand alone was sufficient.
- Review all prior settings to determine whether the case was once placed on a jury docket.
- Evaluate whether the issues remaining for trial are jury-triable under the Family Code and applicable case law.
- Consider whether your client benefits more from preserving or opposing a jury setting.
- Do not assume a coordinator’s non-jury notice supersedes a perfected jury right.
Responding to a Sudden Non-Jury Setting
- Compare the setting notice against the docket history and clerk’s file.
- Object immediately in writing if a prior jury demand was perfected.
- Request that the court maintain or restore the case to the jury docket.
- Avoid language suggesting consent to a bench trial.
- Appear at trial and reassert the jury objection even if the court denies relief in advance.
- Preserve the issue in any motion for new trial if the case nonetheless proceeds to the bench.
Best Practices for the Party Who Originally Requested the Jury
- Before attempting withdrawal, determine whether any opposing party may prefer to rely on the jury demand.
- Do not assume unilateral withdrawal is effective once the jury right has been perfected.
- If a strategic shift toward a bench trial is desired, seek express agreement from all parties.
- If there is no agreement, be prepared for the case to remain on the jury docket.
- Account for the possibility that even a late-stage narrowing of issues does not eliminate the opponent’s right to insist on a jury.
Appellate Preservation Checklist
- Ensure the clerk’s record includes the original jury demand and proof of fee payment.
- Ensure the clerk’s record includes the written withdrawal notice, if any.
- File a written objection before trial.
- Obtain a ruling or at least a record showing the court proceeded despite the objection.
- If possible, secure a reporter’s record of the trial call and objection.
- Raise the denial of jury trial again in a motion for new trial.
- Frame the issue on appeal as a Rule 216/220 violation and abuse of discretion under Rhyne and Caldwell.
Family Law Crossover
The procedural rule established and reaffirmed here is simple but powerful: a perfected jury demand belongs to the case, not just to the party who first filed it. Under Rules 216 and 220, once a party timely demands a jury and pays the fee, the case is entitled to remain on the jury docket unless all parties agree otherwise or no party objects to removal. In family law practice, that issue can surface when one side initially requests a jury in a divorce involving property characterization or in a SAPCR involving jury-submissible issues, but later seeks a bench trial after mediation, partial settlement, sanctions rulings, or narrowing of contested issues. Tozee confirms that the opposing party may rely on the original demand and insist that the matter proceed to a jury so long as the objection to withdrawal is made. For practitioners, the key procedural move is not filing a new demand after withdrawal, but making a timely, express objection to removing the case from the jury docket.
Citation
Tozee Construction, Inc. v. BNG Management Group, LLC, No. 05-25-00704-CV, ___ S.W.3d ___, 2026 WL ___ (Tex. App.—Dallas July 24, 2026, no pet. h.).
Full Opinion
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