in Re Southwest Laboratories, LLC Intuit Diagnostic Laboratory Management, LLC B.M. Medical Management Service, LLC Strategic Ancillary Services, LLC And Munear Ashton Kouzbari

Opinion

DENY; and Opinion Filed July 24, 2018.

In The Court of Appeals Fifth District of Texas at Dallas No. 05-18-00832-CV

IN RE SOUTHWEST LABORATORIES, LLC; INTUIT DIAGNOSTIC LABORATORY MANAGEMENT, LLC; B.M. MEDICAL MANAGEMENT SERVICE, LLC; STRATEGIC ANCILLARY SERVICES, LLC; AND MUNEAR ASHTON KOUZBARI, Relators

Original Proceeding from the 162nd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-16-12748

MEMORANDUM OPINION Before Justices Lang-Miers, Fillmore, and Stoddart Opinion by Justice Fillmore In this original proceeding, relators complain of two discovery orders: a January 5, 2018

order granting a motion to show cause and a February 5, 2018 order on a forensic examination

protocol. 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). Mandamus is an extraordinary remedy, not issued as a matter of right, but at the

discretion of the court. Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993) (orig.

proceeding). Although mandamus is not an equitable remedy, its issuance is largely controlled by

equitable principles. Id. One such principle is that “equity aids the diligent and not those who

slumber on their rights.” Id. 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. See Rivera, 858 S.W.2d at 366 (four months); In

re Pendragon Transp. LLC, 423 S.W.3d 537, 540 (Tex. App.—Dallas 2014, orig. proceeding) (six

month delay and filed less than two weeks before trial); Int’l Awards, Inc. v. Medina, 900 S.W.2d

934, 936 (Tex. App.—Amarillo 1995, orig. proceeding) (delay of four months and until eve of

trial); Furr’s Supermarkets, Inc. v. Mulanax, 897 S.W.2d 442, 443 (Tex. App.—El Paso 1995, no

writ) (four months); Bailey v. Baker, 696 S.W.2d 255, 256 (Tex. App.—Houston [14th Dist.] 1985,

orig. proceeding) (four-month delay, no explanation for delay, and filed two weeks prior to trial).

Here, relators waited more than five months to seek mandamus relief and offer no

explanation for the delay. We conclude that relators’ unexplained delay bars their right to

complain of the discovery orders through a petition for writ of mandamus. In addition, based on

the record before us, we conclude relators have not shown an abuse of discretion. Accordingly,

we deny relators’ petition for writ of mandamus. See TEX. R. APP. P. 52.8(a) (the court must deny

the petition if the court determines relator is not entitled to the relief sought).

/Robert M. Fillmore/ ROBERT M. FILLMORE JUSTICE

180832F.P05

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