in Re River Inn Association of Unit Owners D/B/A River Inn Resort and Conference Center and Geraldine Smallwood

• Court: Court of Appeals of Texas
• Decided: April 29, 2009
• Docket: 04-09-00239-CV
• Status: Published

Opinion

i i i i i i

MEMORANDUM OPINION

No. 04-09-00239-CV

IN RE RIVER INN ASSOCIATION OF UNIT OWNERS d/b/a RIVER INN RESORT AND CONFERENCE CENTER AND GERALDINE SMALLWOOD

Original Mandamus Proceeding1

PER CURIAM

Sitting: Karen Angelini, Justice Phylis J. Speedlin, Justice Marialyn Barnard, Justice

Delivered and Filed: April 29, 2009

PETITION FOR WRIT OF MANDAMUS DENIED

On April 27, 2009, relators filed a petition for writ of mandamus and a motion for emergency

relief, seeking to compel the trial court to vacate or rescind in its entirety the trial court’s November

19, 2008 order following the August 14, 2008 bench trial.

Mandamus is an extraordinary remedy, and its issuance is largely controlled by equitable

principles. Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993). “One such principle

is that ‘[e]quity aids the diligent and not those who slumber on their rights.’” Id. (quoting Callahan

v. Giles, 137 Tex. 571, 576, 155 S.W.2d 793, 795 (Tex. 1941)). The order relators seek to challenge

1 … This proceeding arises out of Cause No. 05-40-B, styled River Inn Association of Unit Owners d/b/a River Inn Resort and Conference Center v. Estate of J.T. Neal and Neal Family Limited Partnership, pending in the 198th Judicial District Court, Kerr County, Texas, the Honorable Emil Karl Prohl presiding. 04-09-00239-CV

was entered by the trial court on November 18, 2008. On February 5, 2009, the trial court held a

hearing on relators’ Motion for Clarification and/or Motion for Reconsideration. On February 11,

2009, the trial court set the remaining issues for a jury trial on April 28, 2009. However, relators did

not file the petition for writ of mandamus complaining of the November 18, 2008 order until April

27, 2009, the day the pretrial conference was set and the day before trial. Relators are not entitled

to extraordinary relief in light of the unexplained delay in filing the petition for writ of mandamus.

Accordingly, the petition for writ of mandamus is DENIED. See TEX . R. APP . P. 52.8(a).

-2-