NUMBER 13-11-00246-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE ISMAEL DIAZ AND RAMONA DIAZ
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Memorandum Opinion Per Curiam 1
Relators, Ismael Diaz and Ramona Diaz, filed a petition for writ of mandamus in
the above cause on April 15, 2011, seeking to compel the trial court to vacate its order
of January 5, 2011, compelling arbitration, and its order of March 11, 2011, denying
reconsideration and clarification. The Court requested and received a response to the
petition for writ of mandamus from the real party in interest herein, and further received
a reply thereto from the relators. As stated herein, we deny the petition for writ of
mandamus.
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See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is
not required to do so.”); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
Mandamus is an “extraordinary” remedy. In re Sw. Bell Tel. Co., L.P., 235
S.W.3d 619, 623 (Tex. 2007) (orig. proceeding); see In re Team Rocket, L.P., 256
S.W.3d 257, 259 (Tex. 2008) (orig. proceeding). To obtain mandamus relief, the relator
must show that the trial court clearly abused its discretion and that the relator has no
adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36
(Tex. 2004) (orig. proceeding); see In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 462
(Tex. 2008) (orig. proceeding). A trial court abuses its discretion if it reaches a decision
so arbitrary and unreasonable as to constitute a clear and prejudicial error of law, or if it
clearly fails to correctly analyze or apply the law. In re Cerberus Capital Mgmt., L.P.,
164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding) (per curiam); Walker v. Packer, 827
S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). Whether a clear abuse of discretion
can be adequately remedied by appeal depends on a careful analysis of the costs and
benefits of interlocutory review. See In re McAllen Med. Ctr., Inc., 275 S.W.3d at 462.
Sometimes, “[a]n appellate remedy is „adequate‟ when any benefits to mandamus
review are outweighed by the detriments.” In re Prudential Ins. Co. of Am., 148 S.W.3d
at 136. According to the Texas Supreme Court:
Mandamus review of significant rulings in exceptional cases may be
essential to preserve important substantive and procedural rights from
impairment or loss, allow the appellate courts to give needed and helpful
direction to the law that would otherwise prove elusive in appeals from
final judgments, and spare private parties and the public the time and
money utterly wasted enduring eventual reversal of improperly conducted
proceedings.
Id. at 136. In 2006, in order to ensure consistency between federal and state
procedures, the Texas Supreme Court held that mandamus was generally not available
to review orders compelling arbitration so that federal and state procedure would be
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consistent. See In re Palacios, 221 S.W.3d 564, 565 (Tex. 2006) (orig. proceeding). In
2009, the Texas Supreme Court reaffirmed this proposition and stated that mandamus
is “generally unavailable” to review orders compelling arbitration because petitioners
can “rarely” show that they lack an adequate remedy by appeal. In re Gulf Exploration,
LLC, 289 S.W.3d 836, 841-42 (Tex. 2009) (orig. proceeding). The supreme court
explained that generally the adequacy of an appellate remedy “depends on a careful
balance of the case-specific benefits and detriments of delaying or interrupting a
particular proceeding”; however, because both the federal and state arbitration acts
specifically exclude immediate review of orders compelling arbitration, “any balancing
must tilt strongly against mandamus review.” Id.
The Court, having examined and fully considered the petition for writ of
mandamus, the response to the petition for writ of mandamus, and the reply thereto, is
of the opinion that relators have not shown themselves entitled to the relief sought
under the standard delineated in In re Gulf Exploration. See id.; Abdel Hakim Labidi,
M.D. v. Sydow, 287 S.W.3d 922, 926 (Tex. App.–Houston [14th District] 2009, no pet.)
(consolidated appeal & orig. proceeding); see also Circle Zebra Fabricators, Ltd. v.
Ams. Welding Corp., Nos. 13-10-00504-CV & 13-10-00591-CV, 2011 Tex. App. LEXIS
1945, at **13-14 (Tex. App.–Corpus Christi Mar. 17, 2011, no pet.) (consolidated appeal
and orig. proceeding) (mem. op.). Accordingly, the petition for writ of mandamus is
DENIED. See TEX. R. APP. P. 52.8(a).
PER CURIAM
Delivered and filed the
13th day of May, 2011.
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