DENY; and Opinion Filed February 1, 2019.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00035-CV
IN RE PATRICIA KENNEDY, Relator
Original Proceeding from the 44th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-16-15332
MEMORANDUM OPINION
Before Justices Brown, Schenck, and Reichek
Opinion by Justice Schenck
The underlying proceeding is a personal injury suit arising from a slip and fall at a fast food
restaurant. Trial is set for February 4, 2019. In this original proceeding, relator complains of an
October 17, 2018 order striking her June 8, 2018 supplemental expert designations.
Mandamus will issue only to correct a clear abuse of discretion for which relator has no
adequate remedy at law. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004) (orig.
proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding). A trial
court abuses its discretion when it acts in an unreasonable or arbitrary manner or, stated differently,
when it acts without reference to guiding rules and principles. City of San Benito v. Rio Grande
Valley Gas Co., 109 S.W.3d 750, 757 (Tex. 2003). An appellate remedy is adequate when any
benefits to mandamus review are outweighed by the detriments; on the other hand, when the
benefits outweigh the detriments, appellate courts must consider whether the appellate remedy is
adequate. In re Prudential Ins. Co., 148 S.W.3d at 136. “Whether a trial court abused its discretion
in excluding evidence because it was untimely disclosed is generally reviewable on appeal from
the final judgment.” In re Tyson Foods, Inc., No. 12-17-00156-CV, 2017 WL 3225051, at *2 (Tex.
App.—Tyler July 31, 2017, orig. proceeding) (mem. op.) (citing Beinar v. Deegan, 432 S.W.3d
398, 406 (Tex. App.—Dallas 2014, no pet.) (review of exclusion of untimely disclosed evidence
following summary judgment); Tranum v. Broadway, 283 S.W.3d 403, 425–26 (Tex. App.–Waco
2008, pet. denied) (review of exclusion of expert testimony under Rule 193.6 reviewed on appeal)).
A party does not have an adequate remedy by appeal, however, when the party’s ability to present
a viable claim or defense is severely compromised or vitiated by the erroneous discovery ruling to
the extent that it is effectively denied the ability to develop the merits of its case. Walker, 827
S.W.2d at 843.
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. 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); see also In re Pendragon Transp. LLC, 423 S.W.3d 537, 540
(Tex. App.—Dallas 2014, orig. proceeding) (laches applied and petition filed less than two weeks
before trial and six months after order issued); 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).
Based on the record before us, we conclude relator has not shown she is entitled to the
relief requested because relator has not established the trial court abused its discretion, has not
shown she lacks an adequate remedy on appeal, and has not explained her delay in seeking
mandamus relief. Accordingly, we deny relator’s petition for writ of mandamus. See TEX. R. APP.
–2–
P. 52.8(a) (the court must deny the petition if the court determines relator is not entitled to the
relief sought).
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE
190035F.P05
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