### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00735- CV

In re F H P artner s, L.L.C.

ORI GINAL P ROCEEDI NG F ROM TRAVIS CO UNTY

O P I N I O N

Relator FH P ar tners, L .L .C., has filed a petition for writ of mandamus to compel the district court to enfor ce a contra ctual jury waiver by striking a jury demand of the rea l parties- in- 1 interest, Superior Funding , I nc.; Wave-Te c Pools, I nc.; Nations Pool Supply , I nc.; J ason B. Her ring and Kimberly McCormick a/k/a Kimberly A. Her ring (collec tive l y , t h e Real Parties). We will conditionally

g rant the w rit.

BACK GR OUND
The Loan and S ecurit y Agre em ent

Real parties Superior, Wave-Te c, and Nations (the Pool Corporations) are aff iliated
corpor ations that former ly wer e in the bus iness of selli ng , cons t ru ct i n g, and financing customers’ purcha ses of re sidential swimming pool s. Real party J ason B . Her

ring started the busine ss in the 2

The Hon. Rhonda H urley

. 1
W av e- T ec marke ted, sold, and, throug h contra ctors, constructe d the pools. Superior 2 provided financ ing for Wave-Te c customers throug h mortg ag e loans. Nations was the parts-buy ing arm of the business.1990s, and at re levant times he and rea l party Kimberly

A. McCormick (or

Her ring ) we re of

fice rs of the Pool Corporations. The rec ord ref lects that the business pursued a strateg y of rapid expansion that relied heavily on financ ing by as set-base d lender s, lender s who make extensions of cre dit

secur ed by loans, acc ounts rec eivable, and other business assets. Among these lende rs was State Ba nk. On April 30, 2004, the Pool Corpora tions, throug h J ason and K imberly , enter ed into 3

a L oan and Security Ag ree ment (Ag ree ment) providing the corpor ations a $4 milli on line of cre dit (later incre ased to $4.9 milli on), secur ed by their customers’ loan acc ounts and other business assets, and persona lly g uara

nteed by J ason and Kimberly

. The term of the Ag ree ment was for three y ear s,

or until April 30, 2007, or such ear lier time as State Ba nk elec ted to terminate the Ag ree ment in the
event of defa

ult. Upon termination, any unpaid balanc e the Pool Corporations owed would become immediately

due and pa

y able.
I n Fe bruar

y 2006, State Ba

nk deter mined that there was a shortfall of $1.6 milli on in the amoun t of security compar ed to the amount of t he debt, constituting an event of defa ult under the Ag ree ment. To secur e the shortfall amount, J ason cause d Superior to pledg e stock, and another
corpor ation he owned or controlled, Gra ndview I nc., to pledg e rea l proper ty it owned. Ultimately , howeve r, State Ba

nk cea sed to make any further advanc es under the Ag ree ment afte r April 2006 and,
in May of that y ear , g ave formal notice of defa ult, citing a now-$1.8 milli on shortfall and the failure
to provide S tate Bank financial st atements as require d under the Ag ree ment. State Ba nk g ave the Pool Corporations until September 30, 2006, to come into compliance with the Ag ree ment. I t also

We use their first na mes for c larity

. 3 2imposed additional require ments for incre asing the secur ity for the debt, including delivering at least

five ne w customer a ccounts e ach w eek.

On Dec ember 21, 200 6 , i n ad vance of a J anuar y 2007 merg er with Prosperity
Ba ncshar es, State Ba

nk’s pare nt corpor ation sold and assig ned the Ag ree ment to FH Partners, P.C., the prede cessor to rela tor FH Partners, L .L .C. (collec tively and individually FH ). FH is appar ently

an aff iliate of FirstCity Servicing Corporation, which specia l i zes in purcha sing, servicing and
manag ing distre ssed debt. I t is undisputed that State Ba nk did not seek or obtain the Rea l Parties’ consent to the a ssignment.

Following the as s i gn m ent, FirstCity , on FH’ s behalf , took the position that the Pool Corporations wer e in defa ult, as State Ba

nk h ad , an d , l i ke State Ba nk, did not make furthe r ad vance s under the Ag ree ment. Although the parties proposed various debt restruc turing

or ref inancing arr ang ements, includi n g a p roposal by J ason to secur itiz e Pool Corporation customer loans, no suc h arr ang ements we re e ver a g ree d to.

The Fir st Suit
I n Fe bruar y 2007, the Pool Corporations, along wi t h Gra ndview, sued State Ba

nk, FH, F irstCit y , and var ious indivi dual def endants (the First Suit). They alleg ed that the def endants had b re ached contra ctual and tort duties in inducing the Pool Corporations to enter into the Ag ree ment, decla

ring the Pool Corporations in defa ult, ref using to make further advanc es under the Ag ree ment, ref

using to rele ase or return collater al that the corpor ations purportedly could have used
to obtain alterna tive financ ing, and taking various other actions alleg edly restric ting their acc ess
to cash and financ ing. They further alleg ed that these actions, in turn, deprive d the business of the

3working capital and financ ing nece ssary to sustain its opera tions, causing it to cea se opera ti o ns, incur

liabiliti es to multipl e customers and vendors, and s u ffe r a mortal loss of g oodwill and business reputa tion. Among numerous theories they advanc ed, the plaintiffs asser ted that State Ba

nk had no rig ht to assig n the Ag ree ment to FH without the Pool Corpora tions’ c onsent and that such consent

was never obtained. Consequently , the plaintiffs asser ted, the defe ndants brea ched the Ag ree ment by purporting to e ffe ct the assig nment without the Pool Corporations’ consent and that State Ba nk committed fra

ud and neg lige nt misrepre sentation by repr esenting that it had the authority to assig n the Ag ree ment when it did not.

The plaintiffs demande d a jury

. The defe ndants filed a motion to s trike the jury demand, citing a contra ctual jury waiver that constituted the last substantive para g raph of the Ag ree ment, concluding on the same pa g e whe re the Pool C orpora tions’ signa ture lines beg an:

24.8 Waiver of Trial by Jury. IN RECO GN I T I O N OF THE HIGHER C OS TS A ND DELAY WHICH MAY RESULT F R OM A J U R Y TR I A L, THE P ARTIES HERET O WAIVE ANY RIG HT TO TRIAL BY JURY OF ANY CLAIM, DE MA ND, ACTION OR CAUSE OF ACTION (A) ARISING HEREUNDER, OR (B) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS O F THE P ARTIES HERET O, OR ANY OF THEM, WITH RESPECT H E RE T O, IN EACH CASE WHETH ER NOW EXIST ING O R H E RE AFT E R AR I S I NG , AN D W H ETHE R SOUN DI NG I N CONTRACT OR TORT O R OTHE RWISE; AND EACH P ARTY F URTHER WAIVES ANY RIG HT TO CONSOLIDATE ANY SUCH ACTION IN WHICH A JURY TRIAL HAS B EEN WAIVED WITH ANY OTHE R ACTION IN WHICH A JURY TRIAL CA N N OT BE, OR HAS NOT BEE N WAIVED; AND EACH P ARTY HEREB Y AG REES AND CONSENTS THAT ANY SUCH CL AI M, DEMAND , ACTION OR CAUSE OF A CTION SHAL L BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY P ARTY HERET O MAY F ILE AN OR I GI NAL COUNTERP ART OR A COP Y OF THIS SECTI ON WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT

4OF THE P ARTIES HERETO TO THE WA IVER OF THEI R RIG HT TO TRIAL B Y JURY.

The plaintiffs did not dispute that this jury -wa iver provision was enfor cea ble and applicable to their claims in the First Suit, and did not oppose the defe ndants’ motion to strike their jury demand. See
In re Prudenti al Ins. Co. , 148 S.W .3d 124, 130-35 (Tex. 2004) (compe lling enfor ceme nt of
contra ctual jur y -wa iver provision in fac e of arg uments that provision was unenfor cea ble on constitutional or public policy g rounds an d wa s not knowing ly and voluntarily ag ree d to). The district court signe d an agr eed order striking the jury demand in J uly 2009. The case proce eded toward a bench tr ial setting dur ing the last wee k of Oc tober 2009.
I n September 2009, the pl aintiffs non-suit ed their claims ag ainst FH and FirstCi ty

. There afte r, the case we n t t o t ri al as schedule d befor e the Hon. Scott J enkins. During trial, the plaintiffs dismiss ed all of their claims except for their fra ud and neg lige nt misrepre sentation claims agai n st State Ba

nk. At the conclusion of trial, J udg e J enkins rende red a take- nothing judgme nt
ag ainst the plaintiffs. No finding s of fac t and conclusion of law wer e prepa red, nor does the rec ord ref lect that any

wer e re quested. This judg ment is now final for a ppellate pur

poses.
The Second (Pr esent) Sui t

Meanw hile, in October 2007, FH had filed a separ ate action ag ainst the Real Parties
to rec o v er a d eb t o f over $4.4 milli on that it alleg ed the Real Parties owed under the Ag ree ment (the Second or Present Suit). On Marc h 25, 2008, the Real Parties filed a counter claim ag ainst FH complaining of essentially the same ty pes of injuries they had claimed in the First Suit, including the alleg edly wrong ful ref usal to make advanc es under the Ag ree ment, rete ntion of collater al,

5and restric tion of the Pool Corporations’ acc ess to financ ing and thus its ability to do business. Wit h

their counte rcla im, the Real Parties also filed a jury demand. Three day s there afte r, on Marc h 28, the district court g rante d FH a temporar y injunction restra ining the Real Parties from collecting any pay ments on their customers’ notes that

wer e in FH’ s phy sical possession; interfe ring with FH’ s collection of pay ments; selling, ref

inancing ,

or pledg ing the notes; or “modify ing, altering , secr eting , tampering with, or otherwise manipulating [t he Pool Corporations’] books and rec ords reg arding the Notes.” The court s et a trial date for October 27, 2008 on FH’ s claims for damag es and pe rmane nt injunctive relief.
Over the next t wo -and-a-ha lf y ear s, FH and the Real Parties obtained a total of five ag ree d continuance s of the trial set t i n g and extensions of the temporar y injunction. I n eac h agreed motion seeking continuance , the parties expli citly acknow ledg ed that FH, by jo i n i n g i n the motion, was not waiving its rig ht to contest the Real Parties’ jury demand. A simil ar statement
appea red in eac h ag ree d order g ranting the continuances

. FH ultimately did not file a motion to strike the Rea l Parties’ jury demand until May 24, 2010. The timing of FH’ s filing complied with

an April 22, 2010 ag ree d scheduling order that had set a deadline of J une 15, 2010 for FH to file that moti o n . Su

b s e q u e n tly , a September 17, 2010 amende d ag ree d scheduling order —signe d on the same d at e as t h e most rec ent ag ree d continuance order —set a deadline of November 3, 2010 for FH
to have its motion to strike hear d. The rec ord ref lects that FH made a reque st for the hear ing on the same date, September 17, 2010, and that it obtained a he aring for Nove mber 3. The hear ing went forwa rd at that time.

6As wi t h t h e d ef en dants’ motion to strike the jury demand in the First Suit, FH’ s motion in the Second Suit was based on the Ag ree ment’s jury -wa iver provision, which FH claimed
t h e ri gh t to enfor ce as State Ba nk’s assignee

. Whil e not disputing t hat t he jury -wa iver provisi o n

4
had been valid and en fo rc ea b le as to State Ba nk, the Real Parties arg ued that State Ba nk’s rig hts under the Ag ree ment had n o t been validly assig ned to FH beca use they had never consente d to the assig nment. Consequently , the Real Parties urg ed, they never formed an ag ree ment with FH (as opposed to State Ba

nk) to waive their rig ht to jury trial of any claims ag ainst it. At a minimum , the Real P arties insi sted, “fa ct i s sues” remained as to whether the Agre ement was assig nable without their consent. FH joined issue by arg uing that State Ba nk’s rig hts u n d er t h e Agreement could be assi g ned without the Real Parties’ consent and that the Real Parties wer e barr ed by collater al estoppel from contending otherwise beca use th e as s i gn m ent’s validity had been fully and fairly litigated in the F irst Suit

.

Evidently persua ded by the Real Parties that some sort of fac tual deter mination was

nece ssary to deter

mine whether or not the Ag ree ment had been assig nable without the Real Parties’ consent, the district court ref used to g rant FH ’s m o t i o n to strike the Real Parties’ jury demand and instead opted to car

ry the motion to trial—a jury trial set for J anuar y 24, 2011—eff

ectively depriving FH of any rig hts it would possess under the jury -wa iver provision. Cf. Prudential Ins. Co. ,

FH has not raised, and we do not addre ss, whether the ju ry -w aiver provision might 4 be enfor cea

ble ag ainst the Real Parties under theories other than contra ctual assig nment. See, e.g. , Mey er v. W

MCO-GP, LLC , 211 S.W .3d 302, 305-08 (Tex. 2006) ( d is c u s s in g a p p lication of equitable estoppel to enfor ce arbitra tion a g ree ment on behalf of non-sig natory ag ainst signa tory ); see also In re Prudential Ins. Co. , 14 8 S. W. 3 d 1 2 4 , 1 3 1

- 3 5 ( T e x. 2004) (looking to principles g overning arbitra tion ag ree ments—like contra ctual jury waiver s, a ty pe of forum-se lection ag ree ment

— i n d etermining enfor cea bility of jury -wa iver provision). 7148 S.W .3d at 138 (ex p l ai n i n g t hat “[i] n no rea l sense” can a trial court’s denial of a party ’s

contra ctual rig ht to have the other party waive a jury “eve r be rec tified on appea l

. . . . [e] ven if [t he party ] could somehow obtain reve rsal base d on the denial of its contractua l r ight, it would alre ady have lost a pa

rt of it by having been subje ct to the proc edure it ag ree d to waive” ).
FH filed its mandamus p etition within ten day s there afte r. We reque sted a
response from the Real Parties and set the cause for oral arg ument on J anuar y 12, 2011. I n advanc e of oral arg

ument, FH reque sted an emer g ency stay of trial court proce edi ng s, including the
J anuar y 24 jury trial setting, w hich we g rante d pending our re solution of its petition.

ANALYSIS
A writ of mandamus may issue to corr ect a trial court’s clea r abuse of discretion

or violation of duty imposed by law wher e no “ade quate” reme d y b y ap p eal exis ts. See W alker

v. Pack er , 827 S.W .2d 8 3 3 , 839 (Tex. 1992). A clea r abuse of discretion occur s when the trial court’s decision is so arbitra ry and capricious that it amounts t o clea r error. See id. Be cause

a trial court has no “discre tion” in deter mining what the law is, it is said to “abuse its discretion” if it interpre ts or ap p l i es t h e law incorre ctly

. See id

. at 840. A trial court’s abuse of discretion
in failing or ref

using to enfor ce a valid contra ctual jury wa i v er i s reme diable by mandamus. See Prudential Ins. Co. , 148 S.W .3d at 135-40.

Br inging forwa

rd its a rg uments from below, FH urg es that the district c ourt abused its discretion in ref

using to enfor ce the Ag ree ment’s jury -wa iver provision beca use the assig nment validly convey ed to it State Ba nk’s rig hts under the Ag ree ment and beca use collater al estoppel bars the Real Parties from contending otherwise. I n response , the Real Parties urg e, as a threshold matter,
8that we should deny FH’ s petition without rea ching the merits beca use FH waived any entitlement to mandamus relief

by failing to diligently

pursue its motion to st rike their jur y demand.

Waiver
I n contending that FH waived any rig ht it would have possessed to enfor ce the jury

waiver provision throug h mandamus, the Real Parties emphasize the conce pts that mandamus is

an “extraordinar

y ” reme dy whose issuance is “lar g ely con trolled by equitable principles”a nd that equity “aids the diligent and not those who slumber on their rig hts.” Riverc enter Assocs. v. Rivera , 858 S.W .2d 366, 367 (Tex. 1993) (quoting Callahan v. Giles , 155 S.W .2d 793, 795 (Tex. 1941)).
As for how those conce pts should be applied here , the Real Parties asser t that this case is analog ous
to Riverc enter , in which the Texas Supreme Court held that a party had impliedly waived its rig hts to seek manda

mus relief to e nforc e a c ontrac tual jury waiver by “wa it[ ing] over four m onths after the filing of the Def

endants’ jury demand befor e asser ting any rig hts it m ay have had under the jury waiver provisions” and “[t] he rec ord reve als no justification for this de lay .” Id. at 367-68. I n the Real Parties’ view, FH’ s “dela y in a sserting its a lleg ed rig hts under the contra ctual jury waiver provision is much more eg reg ious than the four month delay descr ibed in Riverc enter ” beca use FH did not file its motion to strike until almost twenty -six months afte r the Real Parties demande d a jury (Mar ch 25, 2008 until May 24, 2010) and waited almost another four months to reque st a hearing (until September 17, 2010) and near ly another two-and- a-ha lf months to obtain a ruling (unt il November 3, 2010). The Real P ar t i es further urg e us to infer that this “dela y ” was “intentional,”

“ s tr a te g ic , ” w it h o u t “ r e a s o nable justification,” and even “sanc tionable,” with no conce iv a b le p u r p o s e

9except “g amesmanship” to g ain lever ag e in a fall 2010 mediation, disrupt pretria l prepa rations, and delay trial at the “ eleve nth hour.” The Real Parties’ anal y sis of when or how one waives the right to seek mandamus relief is incomplete and inacc urate , both leg ally and fac tually

. I mplied wa i v er of a party ’s rig ht
t h at is reme diable by mandamus, as the Texas Supreme Court has emphasized in decisions si n ce Riverc enter , is not a function of the passag e of time in and of itself, though the passag e of time may be rele vant, but mor e g ener ally of fa cts and c ircumstance s that “cle arly demonstrate[]” the party ’s intent to waive its rig ht th ro u gh “e i t h er the intentional relinquishment of a known rig ht” or intentional conduct “unequivoc ally inconsistent with claiming a known rig ht.” In re Gen’ l Electric Capital Corp. , 203 S.W .3d 314, 316 (Tex. 2006) (orig

. proce eding ) (citations omitted ) (dist i n gu i s hing Riverc enter and holding that party did not impliedly waive its rig ht to enfor ce
contra ctual jury waiver throug h mandamus). And it follows, as the supreme court has fu rt her explained, that “[t] here can be no waiver of a r ight if the person sought t o be charg ed with waiver
say s or does nothing inconsistent with an intent to rely upon such rig ht.” Id.
As for the fac tual rec ord, the Real Parties have ignor ed numerous intervening events that explain and justify FH’ s timing in litig ating its motion to strike and inform the infere nces that

we can rea sonably draw from FH’ s conduct. See City of Keller v. W

ilson , 168 S.W .3d 802, 811-12 (Tex. 2005) (discussing contextual evidenc e). These fac ts and circ umstances include, most notably ,

a succ ession of continuanc e motions, c ontinuance order s, and scheduling order s reve aling that the parties—both F H a

n d th e Re a l Pa

r ti e s th emselves—a g ree d to postpone adjudicating the Real Parties’ entitlement to a jury trial while pursuing s ettlement and litigating the First Suit, ultimately ag ree d

10to the very schedule FH fo l l o we d i n filing its motion to strike and having it hear d, and joined

in repe atedly an d consistently rec og nizi ng FH’ s ong oing intent to challeng e the Real P arties’ jury demand in the e vent the ca se did not settle:

• The Septem ber 30, 2008 agree d continuan ce. I n the first of their five ag ree d motions for continuance and extension of the temporar y injunction, filed on September 30, 200 8 , t he parties repr esente d that they had “re fra ined from extensive discovery ” beca use they had been attempting to settle both the S econd Suit and the First S uit and “be cause of ac tivity taking place ” in the F irst Suit

. They reque sted that the case be rese t a nd the temporar

y injunction ex tended until J uly 20, 2009, “to allow for settlement neg otiations.” The ag ree d m o t i o n further indicated that FH, by ag ree ing to the motion, “is not waiving its rig ht to contest Def endants’ entitlement to a jur y t ri al .” On the same date, the district court g rante d the parties’ m o t i o n b y ag ree d order

. The order, li ke the motion, expli citly acknow ledg ed that FH “ is not waiving its rig hts to contest Defe ndants’ entitlement to a jury trial.”

• The F ebruary 20, 2009 agree d contingent join t scheduli ng order. The parties ag ree d to, and the district court signe d, a scheduling order g overning the First Suit and, conting ent on an order cons o l i d at i n g t he two rela ted case s, the Second Suit. The ag ree d order set a dead l i n e o f May 15, 2009, for the filing of motions to strike jury demands. There is no indication, howeve r, that the two suits were ever consolidated.

• The May 28, 2009 a g re ed continuan ce. On May 27, 2009, the parties filed their second ag ree d motion for continuance and extension of the temporar y injunction, reque sting that trial be reset on October 26, 2009 (the same date as trial in th e First Suit). As befor e, the parties repr esente d that they had “re fra ined from extensive discovery ” while neg otiating t o s et t le the two case s and “bec ause of activity taking place ” in the First Suit. And, o n ce ag ain, the parties acknow ledg ed that FH “is not waiving its rig ht to contest Def endants’ entitlement to jury trial.” On the following day , the district court g rante d the motion by ag ree d order , ag ain noting that FH “is not waiving its rig hts to contest Def endants’ entitlement to a jury

trial.”

• The October 9, 2009 agreed co ntinu ance. On October 8, 2009, the parties filed their third ag ree d motion for continuance and extension of the t empora ry injunction, reque sting that trial be postponed until Aug ust 2, 2010. The parties advised that they had “re fra ined from extensiv e d i s cover

y ” beca use they had been attempting to neg otiate settlement and beca use of the R eal Parties’ pretr i al p re p ar ati ons in the First Suit. Once ag ain, t he parties acknow ledg ed that FH “is not waiving i t s ri g ht to contest Def endants’ entitlement to jury trial.” On t he following day , the district court g rante d the motion by ag ree d order , ag ain

11acknow ledg ing that FH “is not waiving its righ t to contest Def endants’ entitlement to jury trial.”

• The April 22, 2010 agree d continuan ce. On April 20, 2010 , t h e p ar t ies filed their fourth ag ree d motion for continuance and extension of the temporar y injunction, reque sting that trial be rese t until October 11, 2010. I n this motion, unlike the previous ones, the parties advised that settlement neg otiations had finally failed a nd that they

“now intend to eng ag e in full discovery in this case .” As befor e, the ag ree d motion indicate d that FH, by ag ree ing to the motion, “is not waiving its rig ht to contest Def endants’ entitlement to a jury trial.” On April 22, the district court signe d an ag ree d order g ranting the continuance and extension as reque sted, ag ain stating that FH “is not waiving its rig hts to contest Def endants’ entitlement to a jury trial.”

• The April 22, 2010 agree d sched ulin g order. On the same date that it g rante d the fourth ag ree d continuance and extension, the district court also signe d an ag ree d scheduling order

. Among other pretria l deadlines, the parties and court ag ree d that FH would have until J une 15, 2010 to file its motion to strike the Real Parties’ jury demand. As previously noted, FH f iled its mot ion to strike in advance of the de adline, on May 24, 2010.

• The Septem ber 17, 2010 agree d continu a n ce . On September 17, 2010, the parties filed their fifth and most rec ent ag ree d motion for continuance and extension. I n this motion, the parties reque sted that trial be further postponed in order to mediate the case . As befor e, the parties acknow ledg ed that FH, by ag ree ing to the motion, “is not waiving its rig ht to contest Def endants’ entitlement to a jury trial,” but also addre ssed the s ch ed u l i n g of a hear ing on FH’ s motion to s trike in the event mediation failed to y ield settlement. “I f mediation is unsucce ssful,” the parties advised, FH “intends to set a hear ing on [i ts] Motion to Strike J ury Demand

. . . for a date afte r mediation.” Depe nd i n g o n t he district court’s ruling on the motion, the parties reque sted a trial date of J anuar y 17, 2011 for a bench trial or J anuar y 24, 2011 for jury

trial. On the same date, the district c ourt signe d an ag ree d order g ranting the motion. Simi lar to the pre vious orders, the a g ree d order indicated that F H “is not waiving its rig ht to a deter

mination on its Motion to Strike the J ury Demand of [t he Real Parties].” Also on the same day , as previously indicated, FH reque sted a hear ing on its motion to strike.

• The October 4, 2010 am ended agree d schedul i ng order. On October 4, 2010, the district court signe d an amende d ag ree d scheduling order that set a hear ing on FH’ s motion to strike for Nove mber 3, 2010. As noted, the hear ing w ent forw ard a t that time.

These motions and order s—ag ain, all of which wer e ag ree d to by the Real Parties—fa ll f

ar short of “cle arly demonstrating ” that FH intentionally relinquished any rig ht

12it possessed to enfor ce the jury -wa iver provision or eng ag ed in intentional conduct “unequivoc ally

inconsistent” with claiming that rig ht. See id. To the contra ry , the rec ord aff

irmatively demonstrates
FH’ s ong oing intent to asser t that ri gh t

. T his rec ord further reve als that FH’ s timing in pursuing its motion to strik e wa s n o t t h e product of unexplained or unjustified delay , but of the parties’ joint ag ree ment t o p o s tpone resolution of the jury -wa iver issue, along with discovery and other pretria l matters, while the parties attempted se ttlement or litigate d the Fir st Sui t. Once the parties ultimately proce eded t o wa rd trial, they ag ree d to a schedule for FH to file its motion and have it hear d, and F H fully

complied with these de adlines. The Real Parties have not attempted to controve rt these fac ts—and, perha ps tellingly , they conspicuously o m i t t ed any mention of them when raising their waiver arg uments in their
response to FH’ s petition d es p i t e obviously being awa re of them; we lear

ned of these fac ts only when F H filed a

reply and suppl emental appendix. When confr onted wit h these fa cts during oral arg ument, the Real Parties conce ded that FH did not waive any rig hts it possessed to seek enfor ceme nt of the jury -wa iver provision at the trial level, but attempted to arg ue that FH somehow
st i l l wa i v ed its rig ht to seek mandamus relief in the event the district court ref used to enfor ce the jury -wa iver provision (as it ultimately did). I n the R eal Parties’ view, in other words, the parties’

numerous ag ree d continuance motions, ag ree d continuance order s, and agr eed scheduling order s demonstrate FH’ s intent to seek a district court ruling on its motion to strike while also abandoning the rig ht to appellate relief that would ensure the district court’s ruling complied with the law. The Real P arties’ proposed dist inction betwee n FH’ s intent to enforc e the jury -wa iver provision at the trial versus appellate levels finds no support in either the rec ord or Texas law. See id. We hold that

13FH did not waive its rig ht to seek man d am u s to enfor ce any rig hts it possesses under the

Ag ree ment’s jury -wa iver provision.
Assignme nt
We now turn to the merits of FH’ s arg uments that th e d i s t ri ct court abused its discretion in ref

using to enfor ce the Ag ree ment’s jury -wa iv er p ro v i s ion. We ag ree with FH that State Ba

nk’s rig hts under that provision were validly assig ned to it as a matter of law, and do
not rea ch FH’ s contention that collater al estoppel bars the Real Parties from arg uing otherwise. See Tex. R. App. P . 47.1, 52.8(d).

The parties concur that the validity of the assig nment of State Ba nk’s rig hts under the jury -wa iver provision turns on whether State Ba nk was require d to obtain the Real Parties’ consent in order to assig n the Ag ree ment to FH. Although the Ag ree ment contains no terms that expli citly 5
either authorize or prohibit assig nment, the presumption or g ener al rule u n d er T ex as law, as FH emphasizes, is that all contra cts are fre ely assig nable. See Crim Truck & Tractor C o. v. Navistar Int’l T ransp. Co. , 823 S.W .2d 591, 596 (Tex. 1992); Dittman v. Model Baking C o
. , 271 S.W

. 76,
77 (Tex. Comm’n App. 1925, judgm’ t adopted)

. Simi larly , it is the longsta nding rule in Texas that 6

FH does not contend that State Ba nk’s rig hts under the Ag ree ment’s jury -wa iver provision 5 wer e sever able and assig nable independe ntly from the other rig ht s p u rportedly convey ed by the assig nment. Cf. Southern Cmty. Gas Co. v

. Houston Natural Gas Corp. , 197 S.W .2d 488, 490 (Tex. Civ. App.—San Antonio 1946, writ ref’ d) (de termining that contra ct provision soug ht to be specific ally enfor ced was sever able and, standing alone, assig nable)

. We e x press no opinion a s to whether they would be. Cf. Ree f v. Mills Novelty Co. , 89 S.W .2d 210, 21 1 (Tex. 1936) (g iving eff ect to expli cit 6 prohibition aga i n s t assig nment of salesman’ s rig ht to commissions without employ er’ s consent); Zale Corp. v. Dec orama , 470 S.W .2d 406, 408-09 (Te x . Civ. App.—W aco 1971, writ ref ’d n.r.e.) (g iving e ffe ct to contra ct provision that expli citly authorized assig nment). 14the rig ht to collect a debt—including not only debts based in contra ct but also the broade r cate g ory

of rig hts to rec over money known as choses in action—is g ener ally assig nable. See State Farm Fire & C a s
. C o
. v. Ga ndy , 925 S.W .2d 696, 705-07 (Tex. 1996); Citi zens State Bank of Houston

v. O’Leary , 167 S.W .2d 719, 721 (Tex. 1942). These principles date back to the Eng lish antec edents of Texas common law, and embody public policies favor ing alienability and trade of leg al rig hts to achie ve economic benef

it, in derog ation of older conce pts that rig hts are unique to particula r parties and particula

r situations. See Gandy , 925 S.W .2d at 705-07; see also O ’Leary , 167 S.W .2d at 721 (“I t is not the policy of the law of this State to favor restra ints upon the alienation of proper ty

. Our
courts have held that any specie s of proper ty is assig nable, and that ever y thing which may be called

a debt may be assig ned . . . .” ( internal quotations omitted)); Magnolia Petroleum Co. v. Hav oline
Auto Supply Co. , 172 S.W

. 759, 761 (Tex. Civ. App.—Da llas 1914, no writ) (“A t the prese nt da y ,

no doubt, an ag ree ment to pay money , or to deliver g oods, may be assig ned by the person to whom the money i s t o b e p ai d or the g oods are to be delivere d, if there is nothing in the terms of the
contra ct

. . . which mani fe s t s t h e i n tention of the parties that it shall not be assig nable.” (quoting Arkansas Smelting Co. v. Belde n Mining Co. , 127 U.S. 379, 387 (1888)))

.

Whil e acknow ledg ing that “[a]s a g ener al rule

. . . contra cts are assig nable a bsent a restric tion preve ntin g t h ei r s ale or assig nment,” the Real Parties attempt to distinguish the rig hts assig ned to FH by sug g esting that the “g ener al rule” deriv es solely from contra ct lang uag e specific ally allowing as s i g nment, the neg otiability of the instrument in question, or statutes that 7 8

See Zale Corp. , 470 S.W .2d at 408-09. 7 See Vernor v. Southwest Fed. Land Bank , 77 S.W .2d 364, 366 (Tex. App.—San Antonio 8 2002, pet. denied) (promissory note was assig nable by orig inal lender without debtor’s consent). At some leng th, the Real Parties a rg ue that the Ag ree ment is not a neg otiable instrument.

15have been repe aled or do not apply here , as opposed to the Tex as common or decisional law 9

on which FH relies. These arg uments misconstrue the jurisprudenc e and its historica l r oots. See 1 0 Gandy , 925 S.W .2d at 706-07 (surve y ing historical evolution of assig nability of rig hts in equity and

common law and noting that Texas decisional law has long permitted assig nments of non-neg otiable instruments and “rig hts not cover ed by the statute” (citing Kelley v. Bluff Creek Oil Co , 309 S.W .2d 208, 212 (Tex. 1958); O’Leary , 167 S.W .2d at 721)); Dittman , 271 S.W

. at 77 (“A t one time no nonneg otiable obl igation was assigna ble. But thi s was by rea son of a state and stag e of soci et y and a dominant sentiment that have long passed. The doctrine ha s been a bandoned e ven in theory .”).
But the primary means by which the Real Parties have attempted to avoid the g ener al rule is by invoking a long- rec og nized exception that applies when a contra ct is said to “re l[ y ] on the
persona l trust, confide nce, skill, char acte r or cre dit of the parties.” See Crim Truck & Tractor Co. , 8 2 3 S

. W.2d at 596. The noti on underly ing this “per sonal trust

. . . or credit” ex ception is that the
g ener al policy of fre e assig nment should y ield to a contra cting party ’s interest in choosing the person with whom it deals with respe ct to cer tain ty pes of contra ctual rig hts or duties that, by their nature ,
The Real Parties corr ectly observe tha t n u me r o u s o ld e r T e xa s c a ses addre ssing assig nability 9 of contra cts ref

ere nce a statute—on the books betwe en 1840 and the leg islature’s 1965 e nactment of the U.C.C.—that expli citly ma d e a s s ig n a b le “any instrument not neg otiable by the law merc hant.” See, e.g. , Ree

f , 89 S.W .2d at 211; Dittman v. Mo del Baking Co. , 271 S.W

. 76, 77 (Tex. Comm’n App. 1 925, judgm’ t adopted) ; see also Act approve d J an. 25, 1840, 4th Cong., R.S., §§ 1-4, 1840 Rep. Tex. L aws 144, 144-46, reprinted in 2 H.P.N. Gammel, The Laws of Texas 1822-1897 , at 318-20 (Austin, Gammel Book Co. 1898) (for merly at Tex. Re v . C i v . S t at. Ann. arts. 568- 71 (Ve rnon 194 8 )) , r ep ea led by Act of May 19, 1965, 59th L eg ., R.S., ch. 721, § 10-102, 1965 Tex. Gen. L aws 1, 179-80.

Although it briefly alluded to the U.C.C. during oral arg ument, FH did not ass er t i n i t s 1 0 mandamus briefing that the U.C .C. makes the Ag ree ment assig nable, nor does the re cord indicate that it ever did be low. I nstead, F H has re lied solely on the above Texas common law or e quitable conce pts that gove rn assig nability of contra ct rig hts.

16contemplate or require perf

ormanc e only by a specific person. See Menge r v. W ard , 30 S.W . 853,
855 (Tex. 1895) (“Rights arising out of a contra ct can not be transferr ed if they i n v o lve a rela tion of persona l confide nce, such that the party whose ag ree ment confe rre d those ri gh t s m ust have intended them to be exercised only by him in whom he a ctually confide d.”). These ty pes of rig hts or duties:

arise on acc ount of surety ship; technica l g uara nty ; persona l rela tionship, as betwee n master and serva

nt; persona l skill or service s, as in such a case , or that of an attorney for his client; persona l terms of contra ct, as wher e a particula r oblige e is made the measure of per formanc e, the a g ree ment is to supply what he “nee ds,” or he is to be “satisfied” ; or confide nce or trust, as from lender toward borrowe r—it being ever y whe re conce ded that in such instances a man has a rig ht to choose the individuals with whom he will deal.

See Dittman , 271 S.W

. at 77. “B ut, saving exceptions of these kinds, the full and unexceptional
l i b er t y o f restric ting alienation of contra ctual rig hts has g iven way ,” and Texas law has lon g been said to be quit e “liberal” in favor ing assignme nt. Id. at 7 7-78 (citing numerous examples of
contra ctual rig hts and duties held to be assig nable, i n cl uding “such obliga tions as to clea n city streets, to keep railroa d car s in repa ir, to ere ct an d o p er at e a mill,” “to supply hops of a cer tain standard,” “to insure ag ainst fire,” “to paint, paper , and whitewash a house,” “to constru ct and
opera te a street railwa

y extension for five y ear s in behalf of a land company owning a city addition,”
“to m ai ntain a switch and furnish car s and fre ight service at a lumber mill,” and to construct an oven)

. The Real P ar t i es have attempted to rely on what is perha ps the most common application of the “per sonal trust

. . . or cre dit” exception. Texas courts have long held that a debtor

17cannot assig n an extension of cre dit or deleg ate its duty to pay a cre dit o r without the cre ditor’s

consent. See Menge r , 30 S.W

. at 855; Lanca s t er v. Gree r , 572 S.W .2d 787, 789-90 (Tex. Civ. App.—Ty ler 1978, writ ref ’d n.r.e.) ; Magnolia Petroleum Co. , 172 S.W

. at 761. This ref lects a view that a cre ditor’s ag ree ment to extend cre dit inhere ntly contemplates a spec i fi c debtor and that the

cre ditor should not be eff

ectively forc ed to extend cre dit to a differ ent debtor without the cre ditor’s
consent. See Menge r , 30 S.W

. at 8 5 5 (“ I n t h e rela tion of debtor and cre ditor there is more than simply the financ ial ability of the debtor and the value of t h e s ec u ri t y g iven; the char acte r of the

man is oftentimes worth more than his proper ty as an assura

nce of prompt pay

ment, and secur ity of that which he holds upon the l ien ex ists. But it is useless t o specula te upon rea sons that might be assig ned why a cre ditor might pref er one man to another as his debtor; it is his rig ht to make his own contra cts, with which courts can not interfe re except to enfor ce them as made.” ); Lancaster , 572 S.W .2d at 790 (“The rationale

. . . is that cre dit contra cts by their very nature involve a rela tionship betwee n the seller and buy er of persona l confide nce and trust, such that the seller [who extends cre dit] must have intended the rig hts confe rre d by the contra ct to be exercised only by him in whom he actually confide d.”); Magnolia Petroleum Co. , 172 S.W

. at 761 (a lthough pa rty “wa s willing to g ive cre dit to [t he debtor ] , it does not follow that he was willing to g ive cre dit to [t he debtor’s a ssigne e]. I t could not be forc ed to do so by a mer e assig nment of the c ontrac t.”).
T he Real Parties urg e that this rule applies equally to preve nt cre ditors from assig ning their contra ctual rig hts a g a in s t d e b to r s w it h o u t the debtors’ consent, not just debtors from unilatera lly assig ning their obliga tions to someone else. Whil e acknow ledg ing that the case s have ty pically
proscr ibed attempted assig nments by debtors rathe r than cre ditors, the Real Parties urg e t h at “t he

18case law expressly and repe atedly expresses the rule both bilatera lly and in the plural.” I n support,

they cite instances wher e Texas courts, when ref ere ncing the “per sonal trust

. . . or cre dit” exception, have used phrase s like “contr acts involving the extension of cre dit” or “providing for cre dit betwee n the parties” without immediately specify i n g whether they are ref

err ing to assig nments by debtors

or cre ditors. Fr om this, the Real Parties conclude that the “per sonal trust

. . . or cre dit” exception

1 1
is implicated here beca

use the Ag ree ment “inv o lves” an “extension of cre dit”—State Ba nk’s extension of cre dit to them—and any disti n ct i o n s betwee n State Ba nk’s rig ht to rec eive pay

ment versus the Rea l Parties’ oblig ations to make the pa y ments are immaterial.
FH insists that whi l e t h e “p ersonal trust

. . . or cre dit” exception preve nts debtors from unilatera lly assig ning their obliga tions without cre ditors’ consent, it does not apply in the same
way to restric t a cre ditor from assig ning its corr esponding ri gh ts ag ainst the debtor. We ag ree with FH—the exception and its underly ing rationale do not extend to a cre ditor’s assig nment of its rig ht to rec eive pay

ment from a debtor. Vernor v. Southwest Fed. Land Bank , 77 S.W .2d 364, 366 (Tex. App.—San Antonio 2002, pet. denied) (re jectin g d e f

a u lt ing debtors’ arg ument that promissory
note involved “per sonal cre dit” and, there fore , could not be assig ned by orig inal lender ; “[o] nly the [debtors’] cre dit is implicated, not the bank’s”); see Dittman , 271 S.W

. at 77 (exception applied 1 2

See, e.g. , Z

a l e C o r p
. , 470 S.W .2d at 408 (“A n exception to this rule is that a contra ct 1 1 providing for cre dit betwee n the parties is not assig nable.” ); Southern Cmty. Gas Co. , 197 S.W .2d at 489 (“A contra ct providi ng for credit between the parties is n o t assig nable.” ); Ampsco Pipeline Co. v

. Donico Prod. Co. , 112 S.W .2d 483, 485 (Tex. Civ. App.—S an Antonio 1938, writ dism’d) (“.

. . the well-e stablished exception to the g ener al rule of assig nability —that is, wher e the contra ct involves the extension of credit.”)

.

The Real Parties urge that Vernor hinge d on the negotiability of t he pro m i s s o ry n o t e at 1 2 issue. I t didn’t, and such a distinction, as pre viously noted, is unavailing

. See V ernor , 77 S.W .2d at 366; see also Gandy , 925 S.W .2d at 706-07. 19to contra cts rely ing on “conf idence or trust, as from lender toward borrower ” (empha sis added) ). 1 3
There is simply no Texas authority holding that a cre ditor’s rig ht to rec eive pay ment on a debt is the sort of contra ctual rig ht that Texas law reg ards as being predic ated on a debtor’s “per sonal trust

. . . or cre dit” in a cre ditor, such that the cre dito r ca n n o t fr eely assig n that rig ht. See Vernor , 77 S.W .2d at 366. I ndeed, as we previously noted, the rig ht to re ce i v e p aym en t on a debt has long been considere d among the ty pes of rig hts that Texas law deems fre ely assig nable. See Gandy , 925 S.W .2d at 705-07. The citations the Real Parties portray as establishing t h e “b ilatera l” or “plura l” application of the exception to debtors turn out to be dicta or out-of-c ontext quotations, not holdings. No Texas court ha s so held and, lac king suc h authority , we will not be the f irst. 1 4
On the other hand, the Real Parties have in s i s t ed t h at, whateve r the g ener al rules
reg arding assig nments by cre ditors versus de btors might be, the Ag ree ment never theless uni quely
“re lied” on their “trust” and “conf idence ” in State Ba

nk’s “per sonal” “skill,” “cha rac ter,” or “cr edit,”

so as n o t to be assig nable without their consent. Although they insist that such “re liance” is established as a matter of law within the “four corn er s ” o f t h e Ag ree ment, they rely primarily on evidenc e of what they term “fa cts and circ umstances surrounding the formation of the contra ct” that,
in their vi ew, raises “fact issues” in th i s re g ard. This evidenc e consists principally of an aff idavit
prepa red by J ason Herring

. The gra vamen of J ason’s testim ony is that he had soug ht out a lender

See also Restatement (Second) Contracts § 317 cmt. d (1981) (“When the obligor ’s duty 1 3 is to pay money , a chang e i n t h e p er s o n to whom the pay ment is to be made is ordinarily not materia l.”). The Real Parties also asser t that this basic distinction betwee n the assig nability of debtors’ 1 4 obliga tions v er s u s cr edit ors’ rig hts “is a patent violation of the equal protec tion clause of the Four teenth Amendment of t he United States Constit ution.” Howeve r, t hey offe r no authorities or analy sis to support that novel proposition. See Tex. R. App. P . 52.3(h), 52.4( d). 20that (in addition to p ossessing sound “cha rac ter” and “cr edit”) was knowledg eable , experience d, and committed to the sort of asset-ba sed financ ing that had fuele d the business’s past g rowth and succe ss; that he had deter mined that State Ba

nk and its personne l fit the b i l l ; that the Pool Corporations executed the Ag ree ment (and the g uara ntors the g uara

ntee) in relianc e on this “per sonal trust” and “conf idence ” in S t at e Ba n k ’s “skill,” “cha rac ter,” or “cr edit;” and that they would not have contra cted with “any bank or commerc ial lender who was not heav i l y comm itted
to asset-ba sed lending as a substantial p ar t o f i t s core business” or “small, inexperience d or improperly motivated lender s.” The Real Parties also p o i n t t o evidence to the eff ect that the 1 5
business model or strateg y of FH and/or FirstCity was not asset-ba sed lending , b u t purcha sing of bad debt and resolving it for more than i t p ai d

. As FH sug g ests, the Real Parties’ view of the “per sonal trust . . . or cr edit” exception is flawe d in numerous re spects.

Contrary to the Real Parties’ view, application of the ex ce p t i o n does not turn on a particula r party ’s subjective “trust” or “re liance” upon enter ing into a parti cular contra ct, but on whethe r t h e rig hts it convey s to the other party are a ty pe that Texas law reg ards as “involving a rela tion of persona l confide nce” such that th e o t h er party should not be permitted to unilatera lly substitut e another for itself throug h assig nment. See Menge r , 30 S.W

. at 855; Dittman , 271 S.W

. at 77-78. And to deter

mine the nature of the rig hts the parties have convey ed, we beg in (as with any issue of contra ct construction or interpre tation) with the Ag ree ment’s lang uag e, the objective manifestation of their intent. Frost Nat’l Bank v. L & F Distribs

. , L t d

. , 165 S.W .3d 310, 311-12

FH objected below that Her ring ’s testimony was incompetent beca use it consisted of parol 1 5 evidenc e and unsuppor

ted leg al or fa ctual conc lusions.

21(Tex. 2005). C ontrac t terms are given their plain, ordinary , and gene rally acc epted mean i n g s, and

contra cts are to be construe d as a whole in an effort to harmonize and give effe ct to all provisions of the contra ct. Valence Operating Co. v. Dorsett , 164 S.W .3d 656, 662 (Tex. 2005). I f a contra ct

can be g iven a cer

tain or definite leg al meaning or interpre tation, it is not ambig uous and is construed

as a ma tter of law

. Coker v. Cok er , 650 S.W .2d 391, 393 (Tex. 1983). There is no ambig u i t y re gar ding the terms of the Ag ree ment that are materia l to whether the “per sonal trust

. . . or cre dit” exception applies. To summarize those terms, State Ba nk
ag ree d to ext end a line of cre dit to the Pool Corpora tions (spe cifica lly , Superior) over a three -y ear period, subject to ear lier termination in the event of defa ult. The debt was to be secur ed by customer loan acc ounts and other assets of the business. The siz e of advanc es or draw s the Pool Corporations could obtain was tied to the value of their customer acc ounts that secur ed their indebtedness, cappe d by an ag g reg ate limit , and subject to adjustments by State Ba nk based on events of defa ult or other developments it perc eived to neg atively impact its secur ity interest. I n turn, the Pool Corporations

wer e re quired to pay

back the debt, pl us interest, with t he entire outstanding inde btedness coming due and pay able upon termination. By the time of S t at e Ba n k ’s assig nment to FH, as previously noted, the Pool C orpora tions had draw n milli ons under the line of cre dit, and State Ba nk had decla red the Real Parties to be in defa ult and cea sed to make further advanc es. FH an d Fi rst City followed a

simil ar c ourse throug h the Ag ree ment’s eve ntual termination.
A cre ditor’s ag ree ment to extend cre dit and rec eive pay ment on a debt, aga in, has lon g b ee n held to be assig nable by the cre ditor. See Gandy , 925 S.W .2d at 705-07; Vernor , 77 S.W .2d at 366. I n urg ing that the Ag ree ment confe rre d additional rig hts on State Ba nk that

22implicate the “per sonal trust

. . . or cre dit ” exception, the Real Parties allude g ener ally to terms

that, in their view, aff

ord State Ba

nk “discre tion” or “judg ment” in reg ard to “wha t collater al would be acc epted for the borrowing base,” “the bank’s possession a nd rele ase of loan files,” “the bank’s collection and a llocation of the borr ower ’s income,” and “[t] he siz e of the loan” or adjustments in the lending base or limit

. They also emphasize what they portray as the “long -term,” “ong oing,” and “comple x ” nature of the “re lationship”—a three -y ear line of cre dit, as contra sted with a one-time
l o an or cre dit sale. Their basic rea soning seems to be that beca use the Ag ree ment, as th ey s ee i t ,

was one-sided (ec hoing a theme from the First Suit) and placed their business financ ially at the merc y of State Ba

nk to “coope rate ” and “dea l fairly and intelligently with them and in a manner that would support their business model,” it ref lects that they nece ssarily relied on “trust” or “conf idence ” in State Ba nk’s unique attributes, “skill,” “cha rac ter” or “cr edit” when ag ree ing to those terms. L eaving aside that the te rms of the Ag ree ment arg uably neg ate this sort of relianc e, 1 6
the Real Parties ref

er us to no authority holding that a l en d er ’s discretion in reg ard to making advanc es under a li ne of credit come s within the sorts of contrac tual rig hts that Texas law reg ards

Amo n g o t her fea tures, the Ag ree ment contains a merg er clause providing that the 1 6 Ag ree ment “super sedes all other ag ree ments and understanding s betwee n the p ar ties here to

. . . rela ting to the subject m at t er here of,” disclaiming any promises by State Ba nk to induce the Real Parties into the Ag ree ment, and ag ree ing tha t “[n] o course of dea ling, c ourse of perf ormanc e or trade usag e, and no parol[] evidenc e of any nature , shall be used to supplement or modify any terms.” Fur

thermore , while the Real Parties dispute i t s en fo rceability , it rema ins that the Real P arties ag ree d to “ RE L E AS E [], EXCULPA TE[], AND INDEMNIF [Y] [STATE BANK ]

. . . F ROM ANY AND ALL LIABIL ITY ARISING FR O M AN Y AC T S BY ANY ENTI TY, I N C LU D I N G LE N D ER , UNDER THIS AG REEMENT OR IN F URTHERANCE THERE OF

. . . .” See Springs W

indow Fashions Div., Inc. v. B l i n d Ma ke r , In c. , 184 S.W .3d 840, 868-75 (Tex. App.—2006, pet. g rante d, rema nded by ag r.) (op

. on reh’ g ) (apply ing Schlumberge r Tech. Corp. v. Swanson , 959 S.W .2d 17 1 , 1 7 9 -8 0 (Tex. 1997), and Prudential Ins. Co. v. Jefferson Assocs. , 896 S.W .2d 156, 162 (Tex. 1995)). 23as “in v o l ving a rela tion of persona l confide nce” such that the lender should not be permitted to

u n ilatera lly substitut e another for itself throug h assig nment. We further observe that even if t h e Real Parties’ argum en ts conce rning State Ba nk’s “discre tion” otherwise had merit, the principal
contra ctual rig ht as signe d to FH was the rig ht to collect the Real Parties’ debt—quintessentially
among the ty

pes of rig hts that Texas law deems fre ely assig nable. S ee He f f i n gton v. Hellums , 212 S.W .2d 245, 248 (Tex. Civ. App.—Austin 1948, writ ref ’d n.r.e.) (“The only substantial rig hts passing by the assig nment then wer e the debt due [t he cre ditors and assig nors]

. . . . There can be no
q u es t ion but that the debt due [t he cre ditors] was assig nable, for it has been held that ‘eve ry th i n g which may

be ca lled a debt may

be assig ned.’” (quoting 5 Tex. J ur. Assignments § 6 (1930)) ).
I n short, the rig hts confe rre d to State Ba nk under t he Ag ree ment and assig ned to FH do not, as a matter of law, i mplicate the “per sonal trust

. . . or credit” ex ception to the gene ral
Texas rule favor ing fre e assig nment of contra ct rig hts. Nothing i n t h e Real Parties’ evidenc e of “fa cts and circ umstances surrounding the formation of the contra ct” can alter this conclusion. This proof, even if competent, would not be materia l to whether the contra ct rig hts assig ned to FH are the ty pe to which the e x ception applies. See M enger , 30 S.W . at 855; Dittman , 271 S.W . at 77-78.
Be cause S t at e Bank was not require d to obtain the Real Parties’ consent for the assig nment, the absence of such conse n t cannot render the assignment i nvalid. As there has been

no other basis prese nted for holding the assig nment invalid, FH, as State Ba nk’s assig nee, owns the rig ht to enfor ce the Ag ree ment’s jury -wa iver provision. See, e.g. , Thweat v

. Jack son , 838 S.W .2d 725, 727 (Tex. App.—Austin 1992) (“[I ]t is axiom atic that an assig nee . . . stands in the shoes of the assig nor and obtains the rig ht, title, and interest that the assig nor had at the time of the assig nment.”),

24aff’d , 883 S.W .2d 171 (Tex. 1994). By re fu s i n g to enfor ce FH’ s rig hts under this provision by

g ranting its motion to strike t he R eal Parties’ jury demand, the district court abused its discre tion.
See P rudential Ins. Co. , 148 S.W .3d at 135-40.

CONCLUSION
We conditionally g rant FH’ s petition for writ of mandamus. The writ will issue only
if the district court fa ils to comply with this opinion. The stay of proce eding s issued by this Court will remain in eff

ect until the district court c omplies with thi s opinion.

__________________________________________ Bob Pembe rton, J ustice
Be fore J ustices Pury ear , Pemberton and Rose Filed: F ebrua

ry 17, 2011

25