in Re Cox Ventures, Inc. D/B/A Media Ink ( 2013 )

Opinion issued March 7, 2013
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00879-CV
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IN RE COX VENTURES, INC. D/B/A MEDIA INK, Relator
Original Proceeding on Petition for Writ of Mandamus
MEMORANDUM OPINION
By petition for writ of mandamus, relator, Cox Ventures, Inc. d/b/a Media
Ink, seeks mandamus relief compelling the trial court to vacate its order granting
Real Party in Interest, KNG L.L.C. d/b/a Texas Direct Bindery & Letterpress’s
application to compel arbitration and motion to sever.1 We deny Cox’s petition for
writ of mandamus.
Background
On October 4, 2011, KNG sued Cox alleging claims based on a sworn
account, breach of contract, quantum meruit, and unjust enrichment. Following the
filing of its original answer, Cox asserted a counterclaim against KNG alleging
breach of contract and conversion. KNG timely filed its answer.
KNG subsequently filed an application to compel arbitration of Cox’s
counterclaim and a motion to sever it from KNG’s claims. Cox filed its response
and a counter-motion to compel arbitration of all of the parties’ claims. On April
9, 2012, the trial court signed an order granting KNG’s application to compel
arbitration of Cox’s counterclaim and its motion to sever.
Discussion
On September 28, 2012, Cox filed this petition for writ of mandamus. In its
petition, Cox complains that the trial court abused its discretion by compelling
arbitration of Cox’s counterclaim and severing it from KNG’s claims rather than
compelling arbitration of all of the parties’ claims.
1
The underlying case is KNG, L.L.C. d/b/a Texas Direct Bindery &
Letterpress v. Cox Ventures, Inc. d/b/a Media Ink, Cause No. 1002161,
pending in County Civil Court at Law No. 1 of Harris County, Texas, the
Honorable Debra Ibarra Mayfield, presiding.
2
Mandamus is an extraordinary remedy; it is not issued as a matter of right
but rather at the discretion of the court. Rivercenter Assocs. v. Rivera, 858 S.W.2d
366, 367 (Tex. 1993). Mandamus relief is not an equitable remedy but its issuance
is largely controlled by equitable principles. Id. One such principle is that
“[e]quity aids the diligent and not those who slumber on their rights.” Id. (quoting
Callahan v. Giles, 155 S.W.3d 793 (1941)).
Here, Cox filed its petition for writ of mandamus nearly six months after the
court signed its April 9 order. 2 Cox offers no justification for its delay in seeking
mandamus relief and the record reveals none. Delay alone provides ample ground
to deny mandamus relief. See International Awards, Inc. v. Medina, 900 S.W.2d
934, 936 (Tex. App.—Amarillo 1995, orig. proceeding) (finding four-month delay
between court’s severance order of counterclaim and relator’s petition for writ of
mandamus provided grounds to deny requested relief); Furr’s Supermarkets, Inc.
v. Mulanax, 897 S.W.2d 442, 443 (Tex. App.—El Paso 1995, orig. proceeding)
(denying relator’s motion for leave to file petition for writ of mandamus filed four
months after court’s oral discovery ruling and one month after written order was
signed and where relator offered no explanation for delay); Bailey v. Baker, 696
S.W.2d 255, 256 (Tex. App.—Houston [14th Dist.] 1985, orig. proceeding)
2
We note that the trial court has set this case for trial six times to date—four of
these orders were signed after the trial court signed its April 9 order but before
Cox filed its petition for writ of mandamus.
3
(denying motion for leave to file petition for writ of mandamus where relator
waited nearly four months to file motion and provided no justification for delay).
Accordingly, we deny Cox’s petition for writ of mandamus and lift the stay entered
on September 26, 2012.
PER CURIAM
Panel consists of Justices Keyes, Sharp, and Huddle.
4