Petition for Writ of Mandamus Denied and Memorandum Opinion filed 

March 26, 2013.

In The

Fourteenth Court of Appeals

NO. 14-13-00225-CV

IN RE SMART CALL, LLC, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

On Appeal from the 61st District Court

Harris County, Texas

Trial Court Cause No. 2010-25504

MEMORANDUM OPINION

On March 15, 2013, relator Smart Call, LLC filed a petition for writ of 

mandamus in this court. See Tex. Gov’t Code §22.221; see also Tex. R. App. P. 

52. In the petition, relator asks this court to compel the Honorable Al Bennett, 

presiding judge of the 61st District Court of Harris County, to set aside his order 

denying its motion to compel arbitration and to grant the motion. Relator also filed 

a motion for emergency relief asking that we stay all proceedings below, including 
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the trial of the underlying case scheduled to commence Monday, March 18, 2013. 

See Tex. R. App. P. 52.10. We denied the emergency motion on March 15, 2013.

The real party in interest, Genio Mobile, Inc., filed suit against relator in 

2010 to recover set up fees paid to relator in connection with the proposed 

provision of wireless communication goods and services. Relator filed a special 

appearance, which was denied September 30, 2010. This court affirmed the denial 

on August 25, 2011. See Smart Call, LLC v. Genio Mobile, 349 S.W.3d 755 (Tex. 

App.—Houston [14th Dist.] 2011, no pet.). Relator moved to compel arbitration on 

March 5, 2013, asserting that the alleged arbitration agreement was governed by 

the Federal Arbitration Act. The real party objected, stating that no contract 

containing an agreement to arbitrate exists. The trial court conducted a hearing on 

March 8, 2013, and denied the motion by written order on March 14, 2013. Relator 

immediately filed a notice of interlocutory appeal. See Tex. Civ. Prac. & Rem. 

Code § 51.016. The following day, relator filed this proceeding.

Mandamus is an extraordinary remedy that will issue only if (1) the trial 

court clearly abused its discretion and (2) the party requesting mandamus relief has 

no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 

135–36 (Tex. 2004). We determine the adequacy of an appellate remedy by 

balancing the benefits of mandamus review against its detriments. Id. at 136. In 

evaluating benefits and detriments, we consider whether mandamus will preserve 

important substantive and procedural rights from impairment or loss. Id.

In this case, relator has an adequate remedy in the interlocutory appeal that it 

perfected on March 14, 2013.1See In re Columbia Med. Ctr. of Las Colinas, 

Subsidiary, L.P., 290 S.W.3d 204, 207 (Tex. 2009) (“Mandamus should not issue 

 

1

 The interlocutory appeal remains pending before this court. See Smart Call, LLC v. Genio 

Mobile, Inc., No. 14-13-00223-CV (Tex. App.—Houston [14th Dist.]).
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to correct grievances that may be addressed by other remedies.”). In 2009, the 

legislature enacted section 51.016 of the Civil Practice and Remedies Code at the 

urging of the Texas Supreme Court, which had argued that interlocutory appeal, 

already available to arbitration orders under the Texas Act, was “preferable to 

reliance on the writ of mandamus to fill this gap in appellate jurisdiction.” Jack B. 

Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992).

Relator filed a motion for emergency stay in the appeal. See Tex. R. App. P. 

29.3 (providing that appellate court may make temporary orders during pendency 

of interlocutory appeal). We denied the motion for stay on March 15, 2013. See 

Perry Homes v. Cull, 258 S.W.3d 589, 590 (Tex. 2008) (holding that homeowners 

were not entitled to compel arbitration after waiting until the eve of trial to request 

it).

Relator has not demonstrated that it is entitled to extraordinary relief. See In 

re Prudential, 148 S.W.3d at 136; see also In re Santander Consumer USA, Inc., 

___ S.W.3d ___, No. 01-12-00728-CV, 2013 WL 652721, *5 (Tex. App.—

Houston [1st Dist.] Feb. 21, 2013, orig. proceeding) (denying mandamus relief to 

compel arbitration after interlocutory appeal was not timely filed). Because an 

adequate appellate remedy is provided by statute, we deny relator’s petition for 

writ of mandamus.

PER CURIAM

Panel consists of Chief Justice Hedges and Justices Boyce and Donovan.