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

Opinion

Opinion issued March 7, 2013

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-12-00879-CV ——————————— 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.