in Re: David Reiss and Spy Games, LLC

• Court: Court of Appeals of Texas
• Decided: February 18, 2022
• Docket: 05-21-00600-CV
• Status: Published

Opinion

DENY and Opinion Filed February 18, 2022

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00600-CV

IN RE DAVID REISS AND SPY GAMES, LLC, Relators

Original Proceeding from the 191st Judicial District Court Dallas County, Texas Trial Court Cause No. DC-18-02498

MEMORANDUM OPINION Before Justices Molberg, Reichek, and Smith Opinion by Justice Reichek In this original proceeding, relators seek mandamus review of the trial court’s

December 21, 2018 temporary injunction order. 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). Although

mandamus is not an equitable remedy, its issuance is largely controlled by equitable

principles. Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993) (orig.

proceeding). One such principle is that “equity aids the diligent and not those who

slumber on their rights.” Id. (internal brackets and quotation marks omitted). Thus,

delaying the filing of a petition for mandamus relief may waive the right to

mandamus unless the relator can justify the delay. In re Int’l Profit Assocs., Inc., 274 S.W.3d 672, 676 (Tex. 2009) (orig. proceeding). “A delay of only a few months can

constitute laches and result in denial of mandamus relief.” In re Dryden Co., No. 05-

20-00028-CV, 2020 WL 205314, at *1 (Tex. App.—Dallas Jan. 14, 2020, orig.

proceeding) (mem. op.).

Although the doctrine of laches does not apply to a void order, see In re

Chester, 309 S.W.3d 713, 718 (Tex. App.—Houston [14th Dist.] 2010, orig.

proceeding), we disagree with relators’ assertion that the challenged order is void

and accordingly apply the doctrine here. Relators’ July 16, 2021 petition for

mandamus was filed two and a half years after the trial court’s December 21, 2018

temporary injunction order. As a result, we conclude that relators’ unexplained delay

bars their right to mandamus relief.

In any event, based on our review of the petition, response, reply, and the

record, we conclude that relators have failed to show that they lack an adequate

appellate remedy. Accordingly, we deny the petition for writ of mandamus. See TEX.

R. APP. P. 52.8(a).

Also pending before the Court is relators’ motion to strike real party in

interest’s February 7, 2022 sur-reply. We grant the motion, and we accordingly

strike the sur-reply.

/Amanda L. Reichek/ AMANDA L. REICHEK 210600F.P05 JUSTICE

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