Deny Opinion Filed November 8, 2021
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00826-CV
IN RE WEATHERALL FAMILY FUNERAL SERVICES, LLC D/B/A
ETERNAL REST FUNERAL HOME, Relator
Original Proceeding from the 298th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-16-15878
MEMORANDUM OPINION
Before Justices Schenck, Nowell, and Garcia
Opinion by Justice Schenck
In this original proceeding, relator challenges the trial court’s April 23, 2021
order striking relator’s designation of a responsible third party. 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).
An unexplained delay of four months or more can constitute laches and
result in denial of mandamus relief. See Id. at 366 (unexplained delay of more than
four months); 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); Bailey v. Baker, 696 S.W.2d 255, 256 (Tex. App.—
Houston [14th Dist.] 1985, orig. proceeding) (unexplained four-month delay and
filed two weeks before trial).
Here, relator did not file the petition for writ of mandamus until September
22, 2021—five months after the challenged order. We conclude that relator’s
unexplained delay bars their right to mandamus relief. See Furr’s Supermarkets,
897 S.W.2d at 443.
Accordingly, we deny the petition for writ of mandamus. Having denied
mandamus relief, we also deny relator’s motion for stay as moot.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE
210826F.P05