in Re Popular Leasing USA, Inc. ( 2005 )

In The  

Court of Appeals

Ninth District of Texas at Beaumont ____________________

NO. 09-05-223 CV ____________________

IN RE POPULAR LEASING USA, INC.

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Original Proceeding

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MEMORANDUM OPINION

In this original proceeding, relator, Popular Leasing USA, Inc., seeks mandamus relief from the respondent's May 12, 2005, order denying relator's motion to dismiss. In the underlying class action lawsuit, the real party in interest, Party Props, Inc., and three other plaintiffs, sued relator and three other defendants under a number of theories including recision of certain equipment rental leases, unreasonable debt collection practices, injunctive relief, and declaratory judgment. Both relator and Party Props, Inc. agree that all of the other plaintiffs and defendants have either settled their respective claims, or have agreed to transfer venue of said claims.

Party Props, Inc.'s pleadings allege, inter alia, that the equipment subject to the equipment rental agreement in question never worked; that relator was aware of relator's assignor's (Norvergence) fraudulent misrepresentation to Party Props, Inc. that the leased equipment would work; that in July of 2004, relator's assignor sought Chapter 11 bankruptcy protection of which relator was fully aware; and that the forum selection clause contained in the equipment rental agreement in question is unenforceable because it does not provide for a specific venue should either party wish to litigate any issue relating to the equipment rental agreement. Invoking the forum selection clause in the equipment rental agreement, relator filed its motion to dismiss for lack of jurisdiction. Respondent later issued his order denying relator's motion to dismiss.

A writ of mandamus will issue to correct a clear abuse of discretion when there is no other adequate remedy at law. See In re FirstMerit Bank, N.A., 52 S.W.3d 749, 753 (Tex. 2001) (orig. proceeding). The trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. See Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). When the trial court's decision rests on resolution of fact issues, the party opposing the trial court's decision must establish that the court could reasonably have reached only one decision. Id. at 840. We find the relator has not demonstrated that the respondent abused his discretion, nor has relator shown that it is entitled to the relief sought. Accordingly, the petition for writ of mandamus is denied.

WRIT DENIED.

PER CURIAM

Submitted on June 6, 2005

Opinion Delivered August 11, 2005

Before McKeithen, C.J., Kreger and Horton, JJ.