in Re Siluria (Assignment for the Benefit of Creditors), LLC

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-22-00280-CV __________________

IN RE SILURIA (ASSIGNMENT FOR THE BENEFIT OF CREDITORS), LLC

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Original Proceeding 284th District Court of Montgomery County, Texas Trial Cause No. 21-03-03166-CV __________________________________________________________________

MEMORANDUM OPINION

Siluria (assignment for the benefit of creditors), LLC, (“Siluria ABC”)

petitioned for a writ of mandamus to compel the trial court to enforce a contractual

jury waiver in an interpleader action over disputed escrow funds. We temporarily

stayed the trial and requested a response from the Real Party in Interest, Lummus

Technology, LLC (“Lummus”).

The parties memorialized their agreement in two documents executed

simultaneously. The Asset Purchase Agreement states that the agreement shall be

governed by and construed in accordance with California law and states that “[a]ll

1 claims and disputes arising under or in connection with this Agreement[]” shall be

“adjudicated exclusively” in California and “each party waives its right to a trial by

jury of any such claims or disputes.” The Escrow Agreement expressly permits the

escrow agent to petition to interplead the escrow funds in a court in Montgomery

County, Texas, and provides that the escrow agreement is governed, interpreted and

enforced in accordance with the laws of the State of Texas. The Escrow Agreement

does not contain a jury waiver. Both agreements provide that the two agreements

constitute their entire agreement.

Siluria ABC argues the claims over the disputed funds fall within the

expansive scope of the jury waiver in the governing law provisions of the Asset

Purchase Agreement. Lummus argues the governing law provisions contained in the

Asset Purchase Agreement and the Escrow Agreement diverged regarding

disposition of the escrow funds under the Escrow Agreement.

“[A]greements executed at the same time, with the same purpose, and as part

of the same transaction, are construed together.” In re Prudential Ins. Co. of Am.,

148 S.W.3d 124, 135 (Tex. 2004) (orig. proceeding). In Prudential, the guaranty

agreement incorporated the jury waiver in the parties’ lease. Id. Here, the Asset

Purchase Agreement expressly provided for California choice of law and forum and

waived trial by jury for any disputes arising in connection with the parties’

agreement, but the interpleader action authorized by the Escrow Agreement

2 expressly provided for Texas choice of law and forum without a jury waiver. In the

Interpleader action, neither party has asserted any claims under the Asset Purchase

Agreement. Thus, Prudential is distinguishable from the facts before this court.

After reviewing the mandamus record, we conclude the relator has not shown

that the trial court clearly abused its discretion by refusing to find a jury waiver.

Accordingly, we lift our stay order of August 31, 2022, and deny the petition for a

writ of mandamus.

PETITION DENIED.

PER CURIAM

Submitted on September 12, 2022 Opinion Delivered October 20, 2022

Before Kreger, Horton and Johnson, JJ.