In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-08-409 CV
____________________
IN RE KENNETH HOLMES AND HELEN HOLMES
By petition for writ of mandamus, the plaintiffs, who in 2004 non-suited a case filed in the 58th District Court and re-filed the case in the 136th District Court, seek to compel the trial court judge to transfer the case to the 58th District Court. Kenneth Holmes and Helen Holmes filed the motion to transfer in 2008. The trial court ruled that Kenneth Holmes and Helen Holmes waived through inaction their rights under a local rule to compel a transfer. The relators assert that the rule is mandatory and therefore cannot be waived. We hold the trial court did not abuse its discretion. Accordingly, we deny mandamus relief.
A local rule provides that a civil case that has been non-suited and re-filed must be reassigned to the same court. See Jefferson (Tex.) Civ. Dist. Loc. R. 6(D). Although the case had been on the docket of the 136th District Court for four years, the Holmeses filed a motion to transfer less than two months before the date the case is set for trial. "Mandamus relief, which is largely controlled by equitable principles, may be denied a party for lack of diligence." In re Users Sys. Servs., Inc., 22 S.W.3d 331, 337 (Tex. 1999); see also Vaughan v. Walther, 875 S.W.2d 690, 691 (Tex. 1994). After reviewing the mandamus record, we conclude that the trial court did not abuse its discretion by denying the motion to transfer.
The relators' petition for writ of mandamus and motion for temporary relief are denied.
PETITION DENIED.
PER CURIAM
Submitted on September 30, 2008
Opinion Delivered October 2, 2008
Before McKeithen, C.J., Gaultney and Horton, JJ.