in Re: Ismael Diaz and Ramona Diaz

• Court: Court of Appeals of Texas
• Decided: May 13, 2011
• Docket: 13-11-00246-CV
• Status: Published

Opinion

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. 1 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

2 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.