in Re: Falcon International Bank, Ray A. Gonzalez, Curt Cavazos, and Trevino, Valls & Haynes, L.L.P. ( 2012 )

NUMBER 13-12-00326-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN RE FALCON INTERNATIONAL BANK, RAY A. GONZALEZ,
CURT CAVAZOS, AND TREVIÑO, VALLS & HAYNES, L.L.P.
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Garza
Memorandum Opinion Per Curiam
Relators, Falcon International Bank (“Falcon”), Ray A. Gonzalez, Curt Cavazos,
and Treviño, Valls & Haynes, L.L.P., filed a petition for writ of mandamus in which they
allege that respondent, the Honorable Noe Gonzalez, presiding judge of the 370th
Judicial District Court of Hidalgo County, Texas, abused his discretion, leaving relators
without an adequate appellate remedy, by denying relators’ objection to jury trial and
motion to strike jury demand in the underlying cause, trial court cause number C-0300-
12-G. Relators also filed a emergency motion for stay of proceedings in which they
stated that a jury trial is scheduled to begin in the underlying cause on the afternoon of
May 14, 2012. On May 14, 2012, we granted the emergency motion, ordered all
underlying trial court proceedings stayed until further order of this Court, and ordered
the real parties in interest, Mark A. Cantu, Roxanne Pena Cantu, and Canflor, L.P., to
file any response to relators’ petition for writ of mandamus on or before Friday, May 18,
2012. We subsequently extended the deadline for the real parties in interest to file a
response to Friday, June 1, 2012. No response has been filed.
This Court, having fully reviewed and considered the petition for writ of
mandamus and the record documents provided by relators, is of the opinion that
relators’ petition is meritorious and should be granted. Mandamus will issue to correct a
clear abuse of discretion for which the remedy by appeal is inadequate. In re Prudential
Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). A trial court
abuses its discretion when it acts in an unreasonable or arbitrary manner, when it acts
without reference to guiding rules and principles, or when it clearly fails to analyze or
apply the law correctly. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig.
proceeding); Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991).
The following factual background is established by the record as provided by
relators. In 2008, real parties in interest refinanced their mortgage on a 64-unit
apartment complex in McAllen, Texas, through relator Falcon. In 2009, real party in
interest Cantu filed for bankruptcy and wanted to modify the mortgage agreement with
Falcon. On June 30, 2010, the parties signed a written modification of the mortgage
note, which, among other things, extended the time for Cantu to pay. The modification
agreement also stated the following:
2
MAKER, GUARANTOR AND HOLDER HEREBY . . . IRREVOCABLY
AND UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT
PERMITTED BY LAW, TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS NOTE OR ANY OF THE LOAN
DOCUMENTS EXECUTED IN CONNECTION WITH THIS NOTE . . .
AND FOR ANY COUNTERCLAIM THEREIN . . . .
(Emphasis in original.) Canflor, L.P. subsequently defaulted on its obligations to Falcon
and Falcon sought to foreclose on the subject property. Real parties in interest then
sued relators, seeking to enjoin the foreclosure. On April 3, 2012, the trial court
rendered a temporary injunction restraining relators from foreclosing on the subject
property and setting the case for trial on May 14, 2012. Real parties in interest
demanded a jury trial; relators objected and filed a motion to strike the jury demand,
referencing the June 30, 2010 modification agreement. On May 11, 2012, the trial court
denied relators’ objection to jury trial and its motion to strike jury demand.
In so doing, the trial court clearly failed to apply the law correctly and therefore
abused its discretion. In general, contractual jury waivers are enforceable and do not
violate public policy. See In re Prudential, 148 S.W.3d at 129–33. A conspicuous jury
waiver provision, such as the one the parties entered into here, is prima facie evidence
of a knowing and voluntary waiver and shifts the burden to the opposing party to rebut
it. In re Gen. Elec. Capital Corp., 203 S.W.3d 314, 316 (Tex. 2006) (orig. proceeding).
Relators have established: (1) that real parties in interest knowingly and voluntarily, and
with the advice of counsel, entered into the modification agreement; and (2) that the jury
waiver clause in that agreement applies to all the claims made by real parties in interest
in the underlying lawsuit. Real parties in interest have failed to rebut these contentions.
See id. Moreover, when a trial court improperly refuses to enforce a jury waiver, there
is no adequate remedy by appeal. In re Frank Kent Motor Co., 361 S.W.3d 628, 631
3
(Tex. 2012) (orig. proceeding) (citing In re Prudential, 148 S.W.3d at 138).
We therefore conditionally GRANT the petition for writ of mandamus and direct
the trial court to (1) vacate its order denying relators’ objection to jury trial and motion to
strike jury demand and (2) set the matter for bench trial pursuant to the parties’
agreement. The writ will issue only if the trial court fails to comply. Finally, the stay
previously imposed on the trial court proceedings is hereby lifted, and all pending
motions before this Court not otherwise disposed of are hereby denied as moot.
PER CURIAM
Delivered and filed the
5th day of June, 2012.
4