in Re Billy Swiney and Patricia Swiney ( 2007 )

Opinion filed April 5, 2007

Opinion filed April 5, 2007

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-07-00070-CV

                                                     __________

IN RE BILLY SWINEY AND PATRICIA SWINEY

Original Mandamus Proceeding

M E M O R A N D U M  O P I N I O N

Billy Swiney and Patricia Swiney have filed in this court a petition for writ of mandamus. Relators are challenging the trial court=s December 29, 2005 order denying their amended motion to compel discovery responses of Cusach, Inc. d/b/a Lone Star Mobile Homes to their third request for production, their motion to compel discovery responses to their second amended request for production of Cusach, and their motion for sanctions.  Relators argue that the trial court should have ordered Cusach to produce net worth and financial information.  Relators seek a writ of mandamus requiring the trial court to enter an order compelling Cusach to produce net worth and financial information.

The trial court entered the challenged order on December 29, 2005.  Relators filed their  petition for writ of mandamus in this cause on March 27, 2007. Thus, relators did not file their petition for writ of mandamus until fifteen months after the trial court entered its order.  Delay alone provides ample ground to deny mandamus relief.  In re Xeller, 6 S.W.3d 618 (Tex. App.CHouston [14th Dist.] 1999, orig. proceeding).  When the record does not reveal a justification for the delay, a court may appropriately deny mandamus relief.  See Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993).

Relators attribute their delay in this cause to waiting for the trial court=s resolution of similar discovery issues involving a codefendant, Crest Ridge Homes, Inc.  The trial court entered an order denying relators= motion to compel Crest Ridge to produce net worth and financial information on December 26, 2006.  Relators have filed a separate petition for writ of mandamus in Cause No. 11-07-00071-CV relating to the trial court=s December 26, 2006 order.  Waiting for the trial court to address discovery issues relating to Crest Ridge does not justify relators= fifteen-month delay in seeking mandamus relief in this cause.  Therefore, based on their delay in filing this cause, we deny mandamus relief to relators.      

Additionally, in this cause, relators argue that the trial court abused its discretion in failing to compel the production of net worth and financial information. Relators raise a similar argument in Cause No. 11-07-00071-CV.  For the reason stated above in this opinion and for the reasons stated in our opinion denying mandamus relief in Cause No. 11-07-00071-CV, we find that relators have failed to establish their right to mandamus relief in this cause.

We deny relators= petition for writ of mandamus.

PER CURIAM

April 5, 2007

Panel consists of:  Wright, C.J.,

McCall, J., and Strange, J.