in Re: Tekin & Associates, LLC

• Court: Court of Appeals of Texas
• Decided: February 9, 2022
• Docket: 05-21-00219-CV
• Status: Published

Opinion

DENY and Opinion Filed February 9, 2022

In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00219-CV

IN RE TEKIN & ASSOCIATES, LLC, Relator

Original Proceeding from the County Court at Law No. 2 Dallas County, Texas Trial Court Cause No. CC-20-01986-B

MEMORANDUM OPINION Before Justices Osborne, Pedersen, III, and Goldstein Opinion by Justice Pedersen, III Relator’s petition for writ of mandamus challenges the trial court’s August 31,

2020 order denying relator’s Rule 91a motion to dismiss. See TEX. R. CIV. P. 91a.

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).

Under prior holdings of this court and others, an unexplained delay of four

months or more can constitute laches and result in denial of mandamus relief. See

Rivera, 858 S.W.2d at 366 (unexplained delay of more than four months); In re

Wages & White Lion Investments, No. 05-21-00650-CV, 2021 WL 3276875 (Tex.

App.—Dallas, July 30, 2021, orig. proceeding) (mem. op.) (unexplained delay of

over four months from oral ruling and three months from date order was signed);

Int’l Awards, Inc. v. Medina, 900 S.W.2d 934, 936 (Tex. App.—Amarillo 1995, orig.

proceeding) (unexplained delay of more than four months and waited until eve of

trial); Furr’s Supermarkets, Inc. v. Mulanax, 897 S.W.2d 442, 443 (Tex. App.—El

Paso 1995, no writ) (unexplained four-month delay in challenging discovery orders).

Here, relator’s April 6, 2021 petition for mandamus was filed seven months

and six days after the trial court’s August 31, 2020 order denying the motion to

dismiss. We conclude that relator’s unexplained delay bars his right to mandamus

relief. Accordingly, we deny the petition for writ of mandamus. See TEX. R. APP. P.

52.8(a).

210219f.p05 /Bill Pedersen, III// BILL PEDERSEN, III JUSTICE

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