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in Re: Beauly, LLC ( 2015 )


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  • DENY; and Opinion Filed August 10, 2015.
S   In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-15-00920-CV
IN RE BEAULY, LLC, Relator
Original Proceeding Appeal from the County Court at Law No. 1
Dallas County, Texas
Trial Court Cause No. CC-14-04780-A
MEMORANDUM OPINION
Before Chief Justice Wright, Justice Bridges, and Justice Stoddart
Opinion by Chief Justice Wright
Relator filed this petition for writ of mandamus requesting that the Court order the trial
court to vacate its November 11, 2014 order abating this suit pending determination of a related
suit filed and to proceed to trial on the merits. On April 14, 2015, the trial court orally denied
relator’s motion to dissolve the order of abatement.
A writ of mandamus issues to correct a clear abuse of discretion when no adequate
remedy by appeal exists.     Walker v. Packer,
    827 S.W.2d 833
    , 839–40 (Tex. 1992) (orig.
proceeding). Mandamus is an extraordinary remedy, not issued as a matter of right, but at the
discretion of the court. In re Pendragon Transp., LLC,
    423 S.W.3d 537
    , 540 (Tex. App–Dallas,
2014, orig. proceeding) (citing Rivercenter Assocs. v. Rivera,
    858 S.W.2d 366
    , 367 (Tex. 1993)
(orig. proceeding)). Although mandamus is not an equitable remedy, its issuance is largely
controlled by equitable principles. In re
    Pendragon, 423 S.W.3d at 540
    . One such principle is
that “equity aids the diligent and not those who slumber on their rights.”
    Id. Thus, delaying 
    the
filing of a petition for mandamus relief may waive the right to mandamus unless the relator can
justify the delay.
    Id. (citing In 
    re Int'l Profit Assocs., Inc.,
    274 S.W.3d 672
    , 676 (Tex. 2009)
(orig. proceeding)).
Here relator seeks relief from the trial court’s November 14, 2014 order on the plea in
abatement. Relator does not offer any reason for the almost nine month delay in seeking
mandamus relief from the order of which it now complains. Even the trial court’s oral order
refusing to dissolve the order of abatement was made over three and a half months before relator
filed its petition.
Under these circumstances, we conclude relator is barred from seeking mandamus relief.
See
    Rivercenter, 858 S.W.2d at 367 
    (mandamus relief denied where relator waited over four
months to seek mandamus without justification); In re
    Pendragon., 423 S.W.3d at 540 
    (mandamus relief denied with respect to appointment of special master because of six-month
delay with no explanation in seeking mandamus relief); Int'l Awards, Inc. v. Medina,
    900 S.W.2d 934
    , 936 (Tex. App.–Amarillo 1995, orig. proceeding) (delay of four months and until eve of
trial was ample grounds for denying mandamus relief); Bailey v. Baker,
    696 S.W.2d 255
    , 256
(Tex. App–Houston [14th Dist.] 1985, orig. proceeding) (denying leave to file petition for writ of
mandamus where there was almost four-month delay, no explanation for delay, and relator
waited until two weeks prior to trial).
We deny the petition.
/Carolyn Wright/
CAROLYN WRIGHT
CHIEF JUSTICE
150920F.P05
–2–