Allied Aviation Fueling Company of Houston Inc. and one of its drivers, Reginald Willis, filed a petition for writ of mandamus on Monday, telling the court they're "ready, willing and able" to defend the claims brought by Ulysses Cruz before an in-person jury. They say the trial court has made a "unilateral, arbitrary and unauthorized" decision to force the parties to hold a virtual jury trial, which isn't in line with the emergency orders the Texas Supreme Court issued during the coronavirus pandemic.
"The sole basis for the trial court's purported authority to compel a virtual jury trial over defendants' objections is this court's 38th emergency order," Allied said. "But that order nowhere authorizes a jury trial to be conducted entirely remotely without the consent of all parties. The trial court abused its discretion in concluding otherwise."
The court granted the motion for a stay and is still considering the petition for writ of mandamus, giving the plaintiffs until July 8 to respond to the request. Randy Sorrels of Sorrels Law, who represents Cruz, told Law360 on Tuesday he had informed the Texas Supreme Court that he would be waiving his response and was not opposed to an in-person jury trial.
"We have asked the defendants if they'll agree to modify the order, and if the trial court agrees to do so then the mandamus is moot," he said.
Rusty Hardin of Rusty Hardin & Associates LLP, who represents Allied and Willis, said that he and his team will be considering Sorrels' proposed modified order, and reiterated that his clients have "always been willing to go to trial, as long as it's in person."
"We're delighted [the Texas Supreme Court] decided to look at this issue, which has implications for trial lawyers all over the state," he said.
In May, the First Court of Appeals in Houston conditionally granted a petition for writ of mandamus in which Allied and Willis asked the panel to force Harris County District Judge Dedra Davis to vacate her rulings denying their request for a jury trial.
Over objections from Allied and Willis, according to the petition, Judge Davis then set the case for a virtual jury trial during a June 4 hearing at which she acknowledged that she had conducted "zero jury trials through Zoom." Allied and Willis complained to the Texas Supreme Court that Judge Davis hadn't given them any "rules, procedures or process" to follow for conducting a virtual jury trial.
The First Court of Appeals in Houston on Monday denied a petition for writ of mandamus from Allied and Willis related to the virtual jury trial, but did not specify its reasoning.
Allied and Willis argue that forcing them into a virtual jury trial is impeding their ability to "effectively select a jury panel, present evidence and confront and cross-examine witnesses in person before a live jury that can fully participate in the jury process in a courtroom — not virtually on a small laptop or iPad while at home in front of a television or in bed with external distractions."
Cruz filed his lawsuit against Allied and Willis in November 2019 after he was struck by a van driven by Willis, and owned by Allied, at Houston's Bush Intercontinental Airport. Sorrels said that the incident left Cruz, who was 48 at the time, a paraplegic.
Allied and Willis told the court in their Monday filing that this is no "routine personal injury lawsuit," noting that Cruz has identified 64 fact witnesses, retained four experts and disclosed more than 175 others who may be called to testify.
Sorrels has said he doesn't care whether there's a bench trial, a virtual jury trial or an in-person jury trial in the case, but that some trial is needed.
"I think that the issue is now squarely in front of the court to interpret its own emergency order and how it applies to jury trials for parties not necessarily consenting to a virtual jury trial," he said.
Willis and Allied are represented by Rusty Hardin, Joe Roden, Ryan Higgins and Daniel R. Dutko of Rusty Hardin & Associates LLP, and Stuart B. Brown Jr., Brett Kutnick, Justin V. Lee and Joseph A. Fischer III of Jackson Walker LLP.
Cruz is represented by Randall O. Sorrels and Alexandra Farias-Sorrels of Sorrels Law.
The case is In re Reginald Willis and Allied Aviation Fueling Company of Houston Inc., case number 21-0472, in the Supreme Court of Texas.
--Editing by Regan Estes.
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