in Re: Joel Kelley Interest, Inc. ( 2020 )

Denied and Opinion Filed February 5, 2020
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00890-CV
IN RE JOEL KELLEY INTERESTS, INC., Relator
Original Proceeding from the 101st Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-15-05835
MEMORANDUM OPINION
Before Justices Bridges, Osborne, and Carlyle
Opinion by Justice Carlyle
In this original proceeding, relator Joel Kelley Interests, Inc. (JKI) seeks a writ of
mandamus directing the trial court to dismiss real party in interest’s usury claim against JKI for
lack of jurisdiction. After reviewing the petition, real party in interest’s response, JKI’s reply, and
the mandamus record, we conclude relator has not shown it is entitled to the relief requested.
According to JKI, because the Texas Supreme Court “has clearly held” that the right to
bring a usury claim “is not assignable,” the trial court abused its discretion by denying JKI’s
motion to dismiss the assigned usury claim asserted against JKI in this case. JKI cites Allee v.
Benser, 779 S.W.2d 61 (Tex. 1988), in which the supreme court concluded “a junior lienholder
lacks standing to assert the penalty provisions of the usury statutes against the senior lienholder.”
That holding did not address whether usury claims are assignable. JKI also cites cases from our
sister courts of appeals. See Smart v. Crawford Bldg. Material Co., 638 S.W.2d 228, 230 (Tex.
App.—Tyler 1982, no writ) (concluding “cause of action for usury was not assignable” because
Texas usury penalty provision “limits recovery for usury to the obligor”); South E. Xpress, Inc. v.
Bank of Crowley, 612 S.W.2d 85, 88 (Tex. App.—Fort Worth 1981, writ ref’d n.r.e.) (concluding
“claim for usury was not assignable” because usury statute “limits recovery for usury to the
obligor” and “being penal in nature is to be strictly construed”). Those cases are not binding on
this court. JKI cites no cases directly on point from the supreme court or this court, and we have
found none.
Entitlement to mandamus relief requires relator to show both that the trial court has clearly
abused its discretion and that relator has no adequate appellate remedy. In re Prudential Ins. Co.
of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). Generally, “[m]andamus will not
lie to establish as well as enforce a claim of uncertain merit.” Baird v. Harris, 778 S.W.2d 147,
148 (Tex. App.—Dallas 1989, orig. proceeding). Here, “[s]ince the law is unsettled, mandamus
will not issue.” Id. at 149 (citing Abor v. Black, 695 S.W.2d 564, 567 (Tex. 1985) (orig.
proceeding) (concluding denial of plea in abatement was not clear abuse of discretion because
Texas law was not settled)).
JKI has also failed to show it has no adequate remedy by appeal. The remaining claims
here, breach of contract, “unjust enrichment,” “money had and received,” for an accounting, and
conversion, appear to make up the substance of the dispute. Thus, the trial would not result in
“money utterly wasted enduring eventual reversal of improperly conducted proceedings.” See In
re Prudential, 148 S.W.3d at 136. Unlike the Essex case JKI cites, where the questions related to
all claims, making mandamus relief appropriate, JKI’s mandamus action addresses one claim only,
usury, a claim that does not appear to dominate the parties’ dispute. See In re Essex Ins. Co., 450
S.W.3d 524, 528 (Tex. 2014) (orig. proceeding). Having undertaken “practical and prudential”
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evaluation of this case, we conclude JKI has failed to demonstrate it has no adequate remedy by
appeal. See In re Prudential, 148 S.W.3d at 136–37.
Accordingly, we deny relator’s petition for writ of mandamus. See TEX. R. APP. P. 52.8(a)
(the court must deny the petition if the court determines relator is not entitled to the relief sought).
/Cory L. Carlyle/
CORY L. CARLYLE
JUSTICE
190890F.P05
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