Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-13-00175-CV
IN RE TRANSACTION CLEARING, LLC
and Betty A. AGUILAR
Original Mandamus Proceeding 1
PER CURIAM
Sitting: Sandee Bryan Marion, Justice
Rebeca C. Martinez, Justice
Patricia O. Alvarez, Justice
Delivered and Filed: March 20, 2013
PETITION FOR WRIT OF MANDAMUS DENIED
On March 13, 2013, Relators Transaction Clearing, LLC and Betty A. Aguilar filed a
petition for writ of mandamus and an emergency motion for temporary relief. In the petition for
writ of mandamus, Relators complain the trial court abused its discretion in issuing an order on
January 16, 2013 granting the petition to take the Rule 202 presuit depositions filed by Real
Parties in Interest Bizteam, LLC, Business Asst, LLC, and United Prosolve, LLC. See TEX. R.
CIV. P. 202.1, et seq.
One of the grounds asserted by Relators in the petition for writ of mandamus is that the
claims on which discovery is sought are now the subject of pending arbitration proceedings. The
1
This proceeding arises out of Cause No. 2012-CI-18963, styled In re Bizteam, LLC, Business Asst, LLC, and
United Prosolve, LLC, pending in the 408th Judicial District Court, Bexar County, Texas, the Honorable Larry Noll
presiding. However, the order complained of was signed by the Honorable Michael Mery, presiding judge of the
37th Judicial District Court, Bexar County, Texas.
04-13-00175-CV
record indicates the hearing on the presuit depositions was conducted on January 11, 2013, at
which time the trial court made the oral ruling granting the depositions. A written order was
signed by the trial court on January 16, 2013. In their petition, Relators indicate that on January
14, 2013 Relators filed demands for arbitration and the American Arbitration Association has
already accepted jurisdiction over the controversies and ordered the parties to proceed with the
selection of arbitrators. Therefore, Relators contend the pending arbitration precludes the presuit
deposition from being held.
However, the record fails to reflect that Relators ever presented this argument to the trial
court prior to seeking mandamus relief from this court. See Terrazas v. Ramirez, 829 S.W.2d
712, 723 (Tex. 1991) (orig. proceeding) (holding that as a general rule mandamus is not available
to compel an action which has not first been demanded and refused). At the time the trial court
entered its order, there is nothing in the record to indicate Relators had made the trial court aware
the claims had been submitted to arbitration. Therefore, we conclude it was improper for
Relators to seek relief from this court without first giving the trial court the opportunity to
reconsider its ruling on the presuit deposition in light of the now pending arbitration.
Accordingly, we DENY the petition for writ of mandamus and the emergency motion for
temporary relief. See TEX. R. APP. P. 52.8(a).
PER CURIAM
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