NUMBER 13-11-00598-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE DIRECTORY ASSISTANTS, INC.

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Justices Rodriguez, Vela, and Perkes

Memorandum Opinion by Justice Rodriguez1

Relator, Directory Assistants, Inc. (“Directory Assistants”), filed a petition for writ 

of mandamus in the above cause on September 26, 2011, contending that the trial court 

“abused its discretion by appointing an arbitrator in contravention to the Rule 11 

agreement entered into between the parties.” Directory Assistants thus seeks to set 

aside the order appointing the Honorable Veronica Gonzales as arbitrator. We 

 

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).
2

conclude that Directory Assistants failed to avail itself of the agreed-upon method for 

selecting an arbitrator, and thus the trial court did not abuse its discretion in appointing 

an arbitrator. We deny the petition for writ of mandamus.

I. BACKGROUND

Real party in interest, Rio Grande Plumbing, Inc. (“Rio Grande”), entered into a 

“Consulting Contract” with Directory Assistants whereby Directory Assistants provided

consulting services to Rio Grande concerning methods by which Rio Grande could save 

on advertising costs. This contract contained an arbitration agreement2:

HOW WE RESOLVE DISPUTES:

Should a dispute arise, we both agree to try to resolve it with the other 

party. If we cannot, we both want to resolve it quickly, cost[-]effectively[,]

and informally. To achieve that, we both agree to resolve any dispute 

arising out of or relating to this contract through confidential binding 

arbitration and agree to try to mutually choose the arbitration service, the 

location[,] and which state’s law will govern. If we are unable to come to a 

mutual agreement, or if one of us refuses to participate in choosing, the 

party filing the demand will have the right to make the choices unilaterally, 

as long as the filing party has made a good faith attempt to come to a 

mutual agreement. The non-filing party expressly consents to and waives 

any and all objections to the choices made. 

After Directory Assistants allegedly performed its obligations under the contract and 

presented its bill to Rio Grande, Rio Grande attempted to cancel the contract and 

 

2 We express no opinion herein regarding the validity of this arbitration agreement insofar as it 

appears to allow the unilateral selection of an arbitrator by one party to the agreement. See, e.g., Lawson 

v. Archer, 267 S.W.3d 376, 383–384 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (discussing 

McMullen v. Meijer, Inc., 355 F.3d 485, 488, 493–94 (6th Cir. 2004) (holding arbitrator selection provision 

unfair and unenforceable when provision granted employer unilateral control over pool of at least five 

arbitrators from which employer and employee would then mutually select one); Floss v. Ryan's Family 

Steak Houses, Inc., 211 F.3d 306, 314 (6th Cir. 2000) (stating arbitral forum fundamentally unfair when 

third-party arbitration services provider hired by employer—and arguably biased for that reason—had 

discretion to select pool of potential arbitrators); Hooters of Am., Inc. v. Phillips, 173 F.3d 933, 938-39 (4th 

Cir. 1999) (observing arbitration rules provided mechanism crafted to ensure biased decision-maker when 

employer selected one of three arbitrators and also created list from which employee's arbitrator and third 

arbitrator were to be selected)).
3

refused to pay on grounds that Directory Assistants breached the contract and was 

guilty of fraud, negligence, and negligent misrepresentation. 

On Tuesday, November 17, 2009, by email, a representative of Directory 

Assistants asked Rio Grande about its arbitration choices under the contract: 

Please let us know what arbitration service you feel would be equitable to 

use, what location would be equitable to conduct the arbitration[,] and 

what State’s law should govern this matter. Please let me know this 

information on or before November 20th, 2009. If you elect not to 

respond, we will make the choices pursuant to the contract.

Rio Grande did not answer these inquiries.

On November 23, 2009, Directory Assistants submitted a “Demand for 

Arbitration” with the American Dispute Resolution Center, Inc. Rio Grande responded 

by filing suit against Directory Assistants in the County Court at Law Number One of 

Hidalgo County, Texas, and requesting a temporary restraining order to halt the pending 

arbitration.3 The trial court granted Rio Grande’s request for a temporary restraining 

order. Directory Assistants then moved to compel arbitration. After a hearing, the trial 

court denied Directory Assistant’s motion to compel arbitration. By order signed on April 

22, 2010, the trial court ordered the parties to mediation within sixty days with Robert 

Smith serving as mediator. 

Directory Assistants subsequently filed a petition for writ of mandamus with this 

Court seeking to enforce the arbitration agreement in the contract. See In re Directory 

Assistants, Inc., No. 13-10-00271-CV, 2010 Tex. App. LEXIS 6923, at *1 (Tex. App.—

Corpus Christi Aug. 24, 2010, orig. proceeding) (mem. op. per curiam). Before the 

Court reached the merits of the proceeding, however, on June 21, 2010 the parties 

 

3

The respondent in this original proceeding is the Honorable Rudolfo Gonzalez, Judge of the 

County Court at Law Number One of Hidalgo County, Texas. 
4

entered into a written agreement regarding arbitration which provides, in relevant part, 

as follows: 

1. The parties agree that the dispute resolution provision of the 

Consulting Contract between the parties entitled “How We Resolve 

Disputes” is valid and enforceable, and [Rio Grande] waives any 

and all claims related to the validity and/or enforceability thereof.

2. The parties agree to submit all claims and causes of action arising 

out of the contract and facts made the basis of the abovereferenced lawsuit to binding arbitration with Robert Smith, a 

licensed Texas attorney previously appointed by the Court to 

conduct mediation. The arbitration shall be conducted in 1/2 day 

(not to exceed 5 hours) only at a mutually agreeable date and time 

within the next 90 days, and all parties, their counsel and/or 

witnesses will attend via videoconference;

3. The Arbitrator, Robert Smith, shall conduct an initial teleconference 

with counsel within 2 weeks of the date of this Rule 11 agreement 

to understand the nature of the dispute, discuss any procedures 

and rules, discovery requests, etc. pursuant to the dispute 

resolution procedures set forth in the Consulting Contract, and set 

the date for the arbitration at a mutually agreeable date and time;

4. The Arbitrator shall apply Texas law to the substance of the 

dispute;

5. [Rio Grande] agrees to pay all arbitration costs with Mr. Smith up to 

and not to exceed $2[,]000, based upon Mr. Smith’s agreement to 

charge $900/party for a 1/2 day arbitration hearing (not to exceed 5 

hours) plus a small admin[istrative] fee of $200. The arbitration 

fees shall include the initial conference, any pre-arbitration research 

by Mr. Smith, the 1/2 day arbitration (not to exceed 5 hours) 

hearing, and post-hearing research, and the written arbitration 

award. If there are any charges beyond $2[,]000, the parties will 

split the amount evenly. All arbitration costs [are] to be taxed as 

“costs”, and shall be awarded to the prevailing party as designated 

and/or ordered by Mr. Smith, to the extent the prevailing party has 

incurred such costs. In the event [Directory Assistants] is ruled to 

be the prevailing party and given a monetary award by Mr. Smith, 

$800 of the arbitration costs paid by [Rio Grande] will be credited 

towards the award to [Directory Assistants]. In the event that [Rio 

Grande] is awarded any monetary amount by Mr. Smith in any 

arbitration award, the award shall include all arbitration fees paid by 

[Rio Grande];
5

6. [Directory Assistants] shall immediately dismiss and/or withdraw its 

appeal of the Court’s Order currently pending with the 13th Court of 

Appeals, and shall further dismiss its demand for arbitration with 

the American Dispute Resolution Center; and

7. The parties agree to abate the above-referenced civil case currently 

pending in Hidalgo County Court at Law No. 1 until the arbitration is 

concluded, and shall not seek any further relief in the County Court 

except so as to enforce and/or appeal the arbitration award.

This agreement is made without waiver of any substantive right or 

defense provided by the Consulting Contract, including, but not limited to 

the prevailing party’s right to recover attorneys’ fees pursuant to the 

Consulting Contract. This agreement is further made without waiver of 

Rio Grande Plumbing’s defense that conditions precedent to arbitration 

were not met.

The letter agreement was expressly intended to serve as a Rule 11 agreement 

under the Texas Rules of Civil Procedure. See TEX. R. CIV. P. 11 (providing generally 

that agreements between attorneys or parties regarding pending suits will not be 

enforced unless “in writing, signed and filed with the papers as part of the record,” or 

unless “made in open court and entered of record”). In accordance with the Rule 11 

Agreement, Directory Assistants voluntarily dismissed its petition for writ of mandamus. 

See In re Directory Assistants, Inc., 2010 Tex. App. LEXIS 6923, at *1. However, 

according to the parties’ pleadings, Smith subsequently “indicated to the parties that he 

[was] unable to arbitrate this matter” and recused himself from serving as arbitrator. 

On June 3, 2011, Rio Grande then sought relief from the trial court by a motion 

entitled “Plaintiff’s Motion to Reconsider and/or Modify Order Denying Motion to Compel 

Arbitration, or Alternatively, to Appoint Mediator/Arbitrator.” Through this motion, Rio 

Grande sought to have the trial court either order the parties to mediation or withdraw its 
6

ruling denying the motion to compel arbitration and appoint an arbitrator to hear the 

dispute. 

Directory Assistants filed a response to Rio Grande’s Motion and, by a motion 

contained in its response, sought enforcement of the parties’ Rule 11 Agreement. This

response and motion for enforcement references various attempts between the parties 

to select an arbitrator and a location for arbitration.4 

According to the response, Directory Assistants agreed with Rio Grande insofar 

as it asserted that the dispute should be submitted to arbitration. However, Directory 

Assistants further requested the trial court to enforce the Rule 11 Agreement: “to the 

extent [Rio Grande] requests that the Court appoint an arbitrator to consider the claims 

at issue in this dispute, [Directory Assistants] argues that any arbitration should be had 

pursuant to the terms of the Rule 11 Agreement between the parties.” Directory 

Assistants’ motion prayed for the following relief: 

[Directory Assistants] moves the Court for an Order Granting [its] Motion 

to Enforce Rule 11 Agreement and finding that:

(1) On June 21, 2010, [Rio Grande] and [Directory Assistants] reached an 

agreement pursuant to Texas Rule of Civil Procedure 11 (the “Rule 11 

Agreement”); (2) On June 18, 2011, the Rule 11 Agreement was filed with 

the Court; (3) The Rule 11 Agreement is valid and enforceable; (4) This 

matter is subject to arbitration pursuant to the Rule 11 Agreement; (5) [Rio 

Grande] waived any argument that the dispute resolution provision of the 

Consulting Contract at issue in this dispute is invalid or unenforceable 

pursuant to the Rule 11 Agreement; (6) [Rio Grande] agreed that any 

arbitration will take place in Dallas, Texas; (7) [Rio Grande] agreed to pay 

all arbitration costs up to $2,000 pursuant to the Rule 11 Agreement, 

provided that those costs would be recovered by [Rio Grande] if [Rio 

Grande] prevails at the arbitration, and further ordering the parties to 

submit to arbitration in accordance with the Court’s findings.

 

4 We note that the response and motion asserts that the parties had agreed that arbitration take 

place in Dallas, Texas; however, the Rule 11 Agreement before this Court contains no such provision.
7

Further, to the extent [Rio Grande] asks the Court to appoint a 

mediator, [Directory Assistants] requests that [Rio Grande’s] motion be 

DENIED.

Further, to the extent [Rio Grande] asks the Court to appoint an 

arbitrator, [Directory Assistants] requests that an arbitrator be appointed in 

Dallas, Texas, consistent with the letter and spirit of the parties’ Rule 11 

Agreement, and that the arbitration be completed within forty-five (45) 

days of the Court’s ruling.

Finally, [Directory Assistants] requests that it be awarded its 

reasonable attorneys’ fees and costs [in] connection with enforcing the 

Rule 11 Agreement, attendance at the hearing regarding the same, and 

for such further relief to which Defendant may show itself entitled.

The trial court held a hearing on these issues on August 15, 2011. At the 

hearing, Rio Grande gave the trial court a brief summary of the foregoing issues and 

asked the court to “reverse its decision [denying arbitration], order the arbitration, and 

appoint [a] local arbitrator.” Rio Grande further contended that the Rule 11 Agreement 

was invalid. In response, Directory Assistants stated that Rio Grande was “using this 

opportunity of Mr. Smith recusing himself to [renege] on several other terms of the Rule 

11 Agreement that we had agreed upon,” and that “the only real issue here is venue.” 

Subsequent comments by counsel for Directory Assistants address the payment of 

arbitration fees and other terms of the Rule 11 Agreement. Counsel for Directory 

Assistants further informed the Court:

If the Court is inclined to appoint an arbitrator in McAllen, we’d certainly 

like input as to that. 

. . . . 

We are in agreement that an arbitrator should be appointed in this case; 

the question is, who and where? And—and our position is that to the 

extent that an arbitrator is appointed, this arbitration should take place 

pursuant to the Rule 11 Agreement [that] the parties have already agreed 

to . . . . 
8

The trial court and counsel for both parties then engaged in a colloquy in which they 

each offered potential arbitrators. Directory Assistants, for instance, suggested three 

different local arbitrators. The parties argued about the validity of the Rule 11 

Agreement based on an alleged revocation of the agreement by Rio Grande before 

Directory Assistants filed the agreement as part of the record. Finally, the trial court 

informed the parties that he was appointing the Honorable Veronica Gonzalez as 

arbitrator in this case. After this oral ruling, Directory Assistants asked the Court for a 

ruling on its motion to enforce the Rule 11 Agreement on grounds that the parties had 

not “agreed to anything with respect to the Rule 11 Agreement other than that we would 

arbitrate” and the agreement contained “several terms.” The trial court stated that 

“being that the Rule 11 Agreement was specific to Mr. Robert Smith and that he’s no 

longer in the case, I’m going to not enforce the Rule 11 Agreement and have Veronica 

Gonzalez take care of it for you.” The parties made no objection to this ruling and the 

hearing concluded.

On September 13, 2011, the trial court entered an order (1) revoking its previous 

order denying Directory Assistant’s motion to compel arbitration, (2) compelling 

arbitration, (3) appointing an arbitrator, and (4) denying Directory Assistant’s motion to 

enforce the Rule 11 Agreement. Specifically, the trial court ordered the parties to 

“conduct binding arbitration in Hidalgo County, Texas, within the thirty (30) days of the 

date of this Order before the Honorable Veronica Gonzales as arbitrator.” 

This original proceeding ensued. In its petition for writ of mandamus, Directory 

Assistants contends that: (1) because the Rule 11 Agreement is valid, the trial court 

has a duty to enforce it; (2) the trial court had no authority to appoint a substitute 
9

arbitrator; and (3) mandamus relief is necessary to compel the trial court to withdraw its 

order naming a substitute arbitrator. The Court requested and received a response to 

the petition for writ of mandamus from Rio Grande. Rio Grande contends that the trial 

court did not abuse its discretion in appointing an arbitrator because the Rule 11 

Agreement did not specify a method to replace Smith following his recusal, and, in the 

alternative, the trial court had authority under arbitration law to appoint a substitute. 

II. STANDARD OF REVIEW

To be entitled to the extraordinary relief of a writ of mandamus, the relator must 

show that the trial court abused its discretion and that there is no adequate remedy by 

appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. 

proceeding). The relator has the burden of establishing both prerequisites to 

mandamus relief. In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (orig. 

proceeding). This burden is a heavy one. See In re Epic Holdings, Inc., 985 S.W.2d 41 

(Tex. 1998) (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., LP, 164 S.W.3d 379, 

382 (Tex. 2005) (per curiam) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839 

(Tex. 1992) (orig. proceeding). Appeal is an inadequate remedy when a trial court 

improperly designates an arbitrator. See In re Serv. Corp. Int'l, No. 10-0155, 2011 Tex. 

LEXIS 935, at *3 (Tex. Dec. 16, 2011) (orig. proceeding) (publication status pending); 

CMH Homes v. Perez, 340 S.W.3d 444, 452 (Tex. 2011); In re La. Pac. Corp., 972 

S.W.2d 63, 65 (Tex. 1998) (orig. proceeding); see also In re D. Wilson Constr. Co., 196 
10

S.W.3d 774, 780 (Tex. 2006) (orig. proceeding) (holding that mandamus is proper to 

correct a clear abuse of discretion when there is no adequate remedy by appeal, as 

when a party is erroneously denied its contracted-for arbitration rights under the FAA); 

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

relief where a party “would be deprived of the benefits of the arbitration clause it 

contracted for, and the purpose of providing a rapid, inexpensive alternative to 

traditional litigation would be defeated”).

III. ANALYSIS

Directory Assistants contends that the parties entered into a valid Rule 11 

agreement that provided for the use of the arbitration procedures defined in the contract 

and asserts that the trial court “lacked any basis for refusing to enforce the parties’ 

agreement and instead naming a substitute arbitrator.” Directory Assistants requests 

that we direct the trial court to withdraw its order naming a substitute arbitrator and to 

allow the parties to select their own substitute arbitrator and, if they are unable to agree, 

to allow Directory Assistants to name the substitute arbitrator in accordance with the 

contract and the Rule 11 agreement.

Rio Grande requested appointment of an arbitrator under section 5 of the Federal 

Arbitration Act. Section 5 of the FAA explicitly permits a trial court to appoint an 

arbitrator under certain circumstances. 9 U.S.C. § 5; see CMH Homes v. Perez, 340 

S.W.3d 444, 449 (Tex. 2011); compare TEX. CIV. PRAC. & REM. CODE ANN. § 171.041 

(West 2011) (allowing a court to appoint an arbitrator if (1) the agreement to arbitrate 

does not specify a method of appointment; (2) the agreed method fails or cannot be 
11

followed; or (3) an appointed arbitrator fails or is unable to act and a successor has not 

been appointed). Section 5 of the FAA provides: 

If in the agreement provision be made for a method of naming or 

appointing an arbitrator or arbitrators or an umpire, such method shall be 

followed; but if no method be provided therein, or if a method be provided 

and any party thereto shall fail to avail himself of such method, or if for any 

other reason there shall be a lapse in the naming of an arbitrator or 

arbitrators or umpire, or in filling a vacancy, then upon the application of 

either party to the controversy the court shall designate and appoint an 

arbitrator or arbitrators or umpire, as the case may require, who shall act 

under the said agreement with the same force and effect as if he or they 

had been specifically named therein . . . .

9 U.S.C. § 5. Thus, if the arbitration agreement specifies a method for selecting an 

arbitrator, the parties must follow that method. Id.; see CMH Homes, 340 S.W.3d at 

449. However, if the agreed-upon method breaks down and there is a lapse in 

appointing an arbitrator, the parties may petition the trial court to appoint an arbitrator. 9 

U.S.C. § 5; see CMH Homes, 340 S.W.3d at 449; In re FirstMerit Bank, N.A., 52 S.W.3d 

749, 757 (Tex. 2001) (orig. proceeding) (stating that the FAA permits the trial court to 

choose an alternate set of arbitrators). 

The trial court is permitted to appoint an arbitrator only if one or both of the 

parties “fail[s] to avail” itself of the agreed-upon arbitrator selection method, or there is a 

“lapse” in the selection of an arbitrator. 9 U.S.C. § 5; see In re Serv. Corp. Int'l, 2011 

Tex. LEXIS 935, at **4–6. The section 5 substitution process triggered by the “fail to 

avail” and “lapse” language of the FAA should be invoked by the trial court when there 

is some “mechanical breakdown in the arbitrator selection process” or “one of the 

parties refuses to comply, thereby delaying arbitration indefinitely.” In re La. Pac. Corp., 

972 S.W.2d at 64–65 (citing In re Salomon Inc., 68 F.3d 554, 560 (2d Cir. 1995)); see In 

re Serv. Corp. Int'l, 2011 Tex. LEXIS 935, at **4–6; Royce Homes, L.P. v. Bates, 315 
12

S.W.3d 77, 89 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (“Here, the trial court did 

not abuse its discretion by appointing an arbitrator because the record reflects that there 

was a mechanical breakdown in the process of appointing CAS as arbitrator.”); In re 

Brock Specialty Servs., Ltd., 286 S.W.3d 649, 656 (Tex. App.—Corpus Christi 2009, 

orig. proceeding) (applying section 5 of the FAA to allow the trial court to choose an 

alternate arbitrator where the arbitrator specified by contract was no longer in 

existence). When a contract provides consensual methods for appointment of an 

arbitrator, the court must allow the parties sufficient time to utilize the contractual 

method before intervening to appoint an arbitrator. See In re Serv. Corp. Int'l, 2011 Tex. 

LEXIS 935, at *8. 

In the instant case, the contract signed by Directory Assistants and Rio Grande 

provided that they “agree to try to mutually choose the arbitration service, the location[,] 

and which state’s law will govern,” but if they are “unable to come to a mutual 

agreement,” or if one of the parties “refuses to participate in choosing,” the party 

seeking arbitration “will have the right to make the choices unilaterally, as long as [that] 

party has made a good faith attempt to come to a mutual agreement.” The contract 

further specifies that the non-filing party “expressly consents to and waives any and all 

objections to the choices made.” The Rule 11 Agreement at issue essentially ratified 

the dispute resolution procedures referenced in the contract.

Thus, because the arbitration agreement specified a method for selecting an 

arbitrator, the trial court was permitted to appoint an arbitrator only if one or both of the 

parties “fail[ed] to avail” itself of the agreed-upon arbitrator selection method, or there 
13

was a “lapse” in the selection of an arbitrator. 9 U.S.C. § 5; see CMH Homes, 340 

S.W.3d at 449; In re Serv. Corp. Int'l, 2011 Tex. LEXIS 935, at **4–6. 

We conclude, based on the specific factual and procedural posture of the case 

as presented to this Court, that the trial court was permitted to appoint an arbitrator. By 

written motion, Directory Assistants informed the Court that “to the extent [Rio Grande] 

asks the Court to appoint an arbitrator, [Directory Assistants] requests that an arbitrator 

be appointed in Dallas, Texas, consistent with the letter and spirit of the parties’ Rule 11 

Agreement.” At the hearing on these issues, Directory Assistants stated that it was “in 

agreement that an arbitrator should be appointed in this case” and that if the trial court 

was “inclined to appoint an arbitrator in McAllen” that Directory Assistants would 

“certainly like input as to that.” In short, Directory Assistants asked the trial court to 

appoint an arbitrator in this case and thus failed to avail itself of the agreed-upon 

arbitrator selection method. Accordingly, the trial court did not abuse its discretion in 

appointing an arbitrator. 9 U.S.C. § 5; see CMH Homes, 340 S.W.3d at 449; In re Serv. 

Corp. Int'l, 2011 Tex. LEXIS 935, at **4–6. 

Our determination herein is buttressed by the fundamental principles underlying 

mandamus relief. As a general rule, mandamus will not issue to compel an action that 

has not first been demanded and refused. See In re Perritt, 992 S.W.2d 444, 446 (Tex. 

1999) (orig. proceeding); Terrazas v. Ramirez, 829 S.W.2d 712, 723 (Tex. 1991) (orig. 

proceeding); Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 556 (Tex. 1990) (orig. 

proceeding).5 Moreover, equity is generally not served by issuing an extraordinary writ 

against a trial court judge on a ground that was never presented in the trial court and 

 

5

An exception to this “demand and refusal” requirement arises if demand would be futile. See In 

re Perritt, 992 S.W.2d 444, 446 (Tex. 1999) (orig. proceeding); Terrazas v. Ramirez, 829 S.W.2d 712, 723 

(Tex. 1991) (orig. proceeding); however, the record before us fails to implicate this doctrine.
14

that the trial judge thus had no opportunity to address. See In re Michele Le, 335 

S.W.3d 808, 814 (Tex. App.—Houston [14th Dist.] 2011, orig. proceeding). 

Although Directory Assistants requested the trial court to enforce the Rule 11 

Agreement, the Rule 11 Agreement broadly addressed the validity and enforceability of 

the arbitration agreement and did not reference Directory Assistants’ right under the 

arbitration agreement to select an arbitrator. In short, Directory Assistants never 

informed the trial court that it was invoking its contractual right to unilaterally select an 

arbitrator and it never requested the trial court to enforce that right. Instead, and 

inconsistently, Directory Assistants requested the trial court to appoint an arbitrator. 

The trial court was not presented with Directory Assistants’ contention that it had the 

unilateral right to select the arbitrator and the trial court thus had no opportunity to 

address it. See id.; see also TEX. R. APP. P. 33.1.

IV. CONCLUSION

The Court, having examined and fully considered the petition for writ of 

mandamus and the response thereto, is of the opinion that relator has not shown itself 

entitled to the relief sought. Accordingly, the stay previously imposed by this Court is 

LIFTED. See TEX. R. APP. P. 52.10(b) (“Unless vacated or modified, an order granting 

temporary relief is effective until the case is finally decided.”). The petition for writ of 

mandamus is DENIED. See id. 52.8(a). 

NELDA V. RODRIGUEZ

Justice

Delivered and filed the 29th

day of February, 2012.