in Re: Lisa Fineberg

• Court: Court of Appeals of Texas
• Decided: January 27, 2022
• Docket: 05-21-00524-CV
• Status: Published

Opinion

DENY and Opinion Filed January 27, 2022

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00524-CV

IN RE LISA FINEBERG, Relator

Original Proceeding from the 204th Judicial District Court Dallas County, Texas Trial Court Cause No. F14-14944

MEMORANDUM OPINION Before Justices Schenck, Nowell, and Garcia Opinion by Justice Schenck In this original proceeding, relator asks this Court to compel the recusal of the

Honorable Tammy Kemp, the presiding judge of the 204th Judicial District Court,

Dallas County. Relator also complains that Assigned Judge Jim Jordan should have

recused himself from hearing the motion to recuse Judge Kemp.

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.).

Here, relator waited almost fourteen months to file a petition for writ of

mandamus, after this Court dismissed her appeal for lack of jurisdiction and denied

her request to treat the notice of appeal as a mandamus petition without prejudice to

refiling a proper petition. At that point, it had been nearly two years since the most

recent complained-of action. Relator has offered no explanation for this lengthy

delay. Accordingly, because we conclude that relator’s unexplained delay bars her

right to mandamus relief, we deny the petition for writ of mandamus.

/David J. Schenck/ DAVID J. SCHENCK JUSTICE

210524F.P05

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