contractual jury waiver in Texas

2011Although this case concerns a contractual jury waiver and not an arbitration agreement, the supreme court has confirmed that “our jurisprudence ‘should be the same for all similar dispute resolution agreements.’” See Bank of Am., 278 S.W.3d at 343 -44 (quoting Prudential, 148 S.W.3d at 135 ); see also Mikey’s Houses, 232 S.W.3d at 161 (Livingston, J., dissenting) (“But in light of Texas’s strong public policy of enforcing freedom of contract, it does not make sense to treat valid contractual jury waivers ... differently from arbitration agreements_”).

2011Although this case concerns a contractual jury waiver and not an arbitration agreement, the supreme court has confirmed that ―our jurisprudence ‗should be the same for all similar dispute resolution agreements.‘‖ See Bank of Am., 278 S.W.3d at 343–44 (quoting Prudential, 148 S.W.3d at 135 ); see also 9 Mikey’s Houses, 232 S.W.3d at 161 (Livingston, J., dissenting) (―But in light of Texas‘s strong public policy of enforcing freedom of contract, it does not make sense to treat valid contractual jury waivers . . . differently from arbitration agreements . . . .‖).

2018Co. of Am. , 148 S.W.3d 124 , 129 (Tex. 2004) (orig. proceeding) (holding as binding a contractual jury waiver).

2017We agree that the rule should be the same for all similar dispute resolution agreements. 4 Id. (citations omitted).2 We conclude that the trial court abused its discretion by failing to enforce the contractual jury waiver.

2012Capital, L.L.C., 257 S.W.3d 486, 490 (Tex.App.-Houston [14th Dist.] 2008, pet. denied).

2009See Credit Suisse, 257 S.W.3d at 490 .

2006In Rivercenter, we observed that mandamus was a discretionary writ, largely controlled by equitable principles, which are to benefit “the diligent and not those who slumber on their rights.” Id. at 367 (quoting Callahan v. Giles, 137 Tex. 571 , 155 S.W.2d 793, 795 (1941)).

2006In Rivercenter, we observed that mandamus was a discretionary writ, largely controlled by equitable principles, which are to benefit “the diligent and not those who slumber on their rights.” Id. at 367 (quoting Callahan v. Giles, 137 Tex. 571 , 155 S.W.2d 793, 795 (1941)).

2006In this regard, Small submits the case is like Rivercenter Associates v. Rivera , 858 S.W.2d 366 (Tex. 1993), a mandamus case in which we declined to enforce a contractual jury waiver because of the relator’s lack of diligence in asserting its rights.

2006In this regard, Small submits the case is like Rivercenter Associates v. Rivera, 858 S.W.2d 366 (Tex.1993), a mandamus case in which we declined to enforce a contractual jury waiver because of the relator’s lack of diligence in asserting its rights.

2011Although this case concerns a contractual jury waiver and not an arbitration agreement, the supreme court has confirmed that “our jurisprudence ‘should be the same for all similar dispute resolution agreements.’” See Bank of Am., 278 S.W.3d at 343 -44 (quoting Prudential, 148 S.W.3d at 135 ); see also Mikey’s Houses, 232 S.W.3d at 161 (Livingston, J., dissenting) (“But in light of Texas’s strong public policy of enforcing freedom of contract, it does not make sense to treat valid contractual jury waivers ... differently from arbitration agreements_”).

2011Although this case concerns a contractual jury waiver and not an arbitration agreement, the supreme court has confirmed that ―our jurisprudence ‗should be the same for all similar dispute resolution agreements.‘‖ See Bank of Am., 278 S.W.3d at 343–44 (quoting Prudential, 148 S.W.3d at 135 ); see also 9 Mikey’s Houses, 232 S.W.3d at 161 (Livingston, J., dissenting) (―But in light of Texas‘s strong public policy of enforcing freedom of contract, it does not make sense to treat valid contractual jury waivers . . . differently from arbitration agreements . . . .‖).

2012In deciding a then-issue of first impression, we compelled enforcement of a contractual jury waiver in loan documents, finding no adequate remedy by appeal for the loss of relator’s bargained-for right to a “less costly and more expeditious resolution than a jury trial.” Id. at 611 .

2007The supreme court held that a contractual jury waiver provision that is conspicuous is “prima facie evidence of a knowing and voluntary waiver and shifts the burden to the opposing party to rebut it.” 8 Id. (citing Wells Fargo, 115 S.W.3d at 609 ).

2015See Rivercenter Associates v. Rivera, 858 S.W.2d 366 (Tex. 1993); see also Rogers v. Ricane Enters., 772 S.W.2d 76, 80 (Tex.1989).

2015Anglin Co. corrected a procedural anomaly, its use we have emphasized that the writ of mandamus should not here creates one, authorizing mandamus relief to enforce issue absent “compelling circumstances.” See, e.g., Tilton v. a contractual jury waiver while relegating a party to its Marshall, 925 S.W.2d 672, 681 (Tex.1996); Geary v. Peavy, appellate remedy when denied its constitutional right to a jury 878 S.W.2d 602, 603 (Tex.1994) (per curiam).

2015Anglin Co. corrected a procedural anomaly, its use we have emphasized that the writ of mandamus should not here creates one, authorizing mandamus relief to enforce issue absent “compelling circumstances.” See, e.g., Tilton v. a contractual jury waiver while relegating a party to its Marshall, 925 S.W.2d 672, 681 (Tex.1996); Geary v. Peavy, appellate remedy when denied its constitutional right to a jury 878 S.W.2d 602, 603 (Tex.1994) (per curiam).

2012For example, the Texas Supreme Court recognized that “[ajrbitration removes the case from the court system almost altogether, and is every bit as much of a surrender of the right to a jury trial as a contractual jury waiver.” See In re Frank Kent Motor Co., 361 S.W.3d 628, 632 (Tex.2012) (orig. proceeding) (applying arbitration decisions and re *886 jecting claim that employee’s coercion to sign a jury waiver in employment contract invalidated the waiver); see also Prudential, 148 S.W.3d at 182 (observing that party who agrees to arbitrate waives both right to jury trial and right to appeal).

2012“Although mandamus is not an equitable remedy, its issuance is largely controlled by principles of equity.” In re Northrop, 305 S.W.3d 172, 175 (Tex.App.-Houston [1st Dist.] 2009, orig. proceeding) (citing In re Roxsane R., 249 S.W.3d 764, 771 (Tex. App.-Fort Worth 2008, orig. proceeding); In re Users Sys.

2012“Although mandamus is not an equitable remedy, its issuance is largely controlled by principles of equity.” In re Northrop, 305 S.W.3d 172, 175 (Tex.App.-Houston [1st Dist.] 2009, orig. proceeding) (citing In re Roxsane R., 249 S.W.3d 764, 771 (Tex. App.-Fort Worth 2008, orig. proceeding); In re Users Sys.

2007Although the right to a jury trial is broader under the Texas Constitution than the Seventh Amendment in terms of the types of causes of action it applies to (i.e., it protects "the right to trial by jury in those cases where a jury would have been proper at common law” or "where that right existed at the time the Constitution was adopted”), Lucas v. U.S., 757 S.W.2d 687, 710 (Tex.1988) (Phillips, C.J., dissenting) (quoting State v. Credit Bureau of Laredo, Inc., 530 S.W.2d 288, 291 (Tex.1975)); Trapnell v. Sysco Food Servs., Inc., 850 S.W.2d 529, 544 (Tex.App.-Corpus Christi 1992), aff'd, 890

2007See, e.g., In re Oakwood Mobile Homes, Inc., 987 S.W.2d at 573 (recognizing that in reviewing ruling on motion to compel arbitration we first determine whether party seeking arbitration established existence of arbitration agreement).

2007See, e.g., In re Oakwood Mobile Homes, Inc., 987 S.W.2d at 573 (recognizing that in reviewing ruling on motion to compel arbitration we first determine whether party seeking arbitration established existence of arbitration agreement).

2007Although the right to a jury trial is broader under the Texas Constitution than the Seventh Amendment in terms of the types of causes of action it applies to (i.e., it protects "the right to trial by jury in those cases where a jury would have been proper at common law” or "where that right existed at the time the Constitution was adopted”), Lucas v. U.S., 757 S.W.2d 687, 710 (Tex.1988) (Phillips, C.J., dissenting) (quoting State v. Credit Bureau of Laredo, Inc., 530 S.W.2d 288, 291 (Tex.1975)); Trapnell v. Sysco Food Servs., Inc., 850 S.W.2d 529, 544 (Tex.App.-Corpus Christi 1992), aff'd, 890

2007Although the right to a jury trial is broader under the Texas Constitution than the Seventh Amendment in terms of the types of causes of action it applies to (i.e., it protects "the right to trial by jury in those cases where a jury would have been proper at common law” or "where that right existed at the time the Constitution was adopted”), Lucas v. U.S., 757 S.W.2d 687, 710 (Tex.1988) (Phillips, C.J., dissenting) (quoting State v. Credit Bureau of Laredo, Inc., 530 S.W.2d 288, 291 (Tex.1975)); Trapnell v. Sysco Food Servs., Inc., 850 S.W.2d 529, 544 (Tex.App.-Corpus Christi 1992), aff'd, 890

2003Servs . , 191 F. Supp.2d at 813 (recognizing split among circuits on which party bears the burden of proof but placing burden on party seeking to enforce waiver). [16] Other jurisdictions have set forth several factors for determining whether a contractual jury waiver was knowing and voluntary: (1) the parties’ negotiations concerning the waiver, if any; (2) the conspicuousness of the provision; (3) the relative bargaining power of the parties; and (4) whether the waiving party’s counsel had an opportunity to review the agreement.