Court of Appeals of Texas, Fifth District, Dallas
Original Proceeding from the 101st Judicial District Court
Dallas County, Texas Trial Court Cause No. DC-15-08810
Justices Lang, Evans, and Stoddart
original proceeding, relator MCO Management, L.L.C. (MCO)
complains of the trial court's refusal to enforce a
contractual jury waiver. We conditionally grant the writ.
underlying case is a landlord-tenant dispute involving a
commercial lease. Pursuant to the lease, relator is the
Landlord and real party in interest Fortress Iron, L.P.
(Fortress) is the Tenant. After Fortress vacated the
premises, MCO sued Fortress for breach of contract and
conversion alleging Fortress failed to pay sums due under the
lease, damaged the premises, and improperly removed fixtures
from the premises. In its original answer, Fortress asserted
several affirmative defenses, including first material
breach, estoppel, and waiver. Fortress also filed
counterclaims for breach of contract, breach of the implied
warranty of suitability, and unjust enrichment.
subsequently filed a demand for a jury trial. MCO moved to
quash the demand based on a jury waiver in the lease.
Specifically, article 19, paragraph 19.4 of the lease
If, on account of any breach or default by Tenant in
Tenant's obligations under the terms and conditions of
this Lease, it shall become necessary or appropriate for
Landlord to employ or consult with an attorney or collection
agency concerning or to enforce or defend any of
Landlord's rights or remedies arising under this Lease or
to collect any sums due from Tenant, Tenant agrees to pay all
costs and fees so incurred by Landlord, including, without
limitation, reasonable attorneys' fees and costs. TENANT
EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY.
response to MCO's motion, Fortress did not dispute that
the jury waiver was enforceable or that it applied to the
dispute. However, it argued the waiver only applied to
MCO's claims against Fortress because it was located in
the portion of the lease that addressed MCO's remedies
for Fortress's breaches. It asserted its remedies for
MCO's breaches were contained in article 42 of the lease,
which did not contain any jury waiver language. Article 42
LANDLORD'S DEFAULT. If Landlord fails to perform any of
its obligations hereunder within thirty (30) days after
written notice from Tenant specifying such failure (or if the
nature of Landlord's obligation is such that more than
thirty (30) days are required for its performance, if
Landlord fails to commence such performance within such
thirty (30) day period or thereafter to diligently prosecute
the same to completion), Tenant shall at its option be
entitled to (i) institute an action for damages or (ii) seek
specific performance of Landlord's obligations under this
Lease. The liability of Landlord under this Article 42 shall
be limited as set forth in Article 43 below.
according to Fortress, its jury waiver applied only to
MCO's claims. The trial court agreed. As a consequence,
the trial court granted MCO's motion to quash as to its
claims against Fortress, determining it would act as the
factfinder on those claims. The trial court otherwise denied
MCO's motion to quash. This original proceeding followed.
entitled to mandamus relief, a relator must show both that
the trial court has clearly abused its discretion and that
relator has no adequate appellate remedy. In re
Prudential Ins. Co.,148 S.W.3d 124, 135-36 (Tex. 2004)
(orig. proceeding). A trial court has no discretion in
determining what the law is or in applying the law to the
facts, and a clear failure by the court to correctly analyze
or apply the law will constitute an abuse of discretion.
In re Cerberus Capital Mgmt, L.P.,164 S.W.3d 379,
382 (Tex. 2005) (orig. proceeding); In re Tex. Am.
Express, Inc.,190 S.W.3d 720, 723 (Tex. App-Dallas
2005, orig. proceeding). A trial court's refusal to
enforce a contractual jury waiver cannot in any "real
sense . . . ever be rectified on appeal." In re
Prudential Ins. Co. of Am., 148 S.W.3d at 138. Thus,
mandamus relief is ...