                            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:



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       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

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(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.




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