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denying petition for writ of mandamus because relator did not justify its eight month delay in filing its petition for writ of mandamus
Summary of this case from In re PrimoOpinion
NUMBER 13-16-00098-CV
03-28-2016
IN RE FARMERS TEXAS COUNTY MUTUAL INSURANCE COMPANY
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Justices Garza, Perkes, and Longoria
Memorandum OpinionPer Curiam
See TEX. R. APP. P. 52.8(d) ("When denying relief, the court may hand down an opinion but is not required to do so."); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
Real parties in interest Albino Hernandez and San Juanita Hernandez were injured in an automobile accident with an uninsured driver. They brought suit against the uninsured driver and their automobile insurer, relator Farmers Texas County Mutual Insurance Company ("Farmers"), asserting contractual and extra-contractual claims based on the uninsured/underinsured motorist provisions of their insurance policy. On May 11, 2015, Farmers filed a motion to sever and abate the real parties' extra-contractual claims until a final judgment was rendered on their contractual causes of action. On June 8, 2015, the trial court denied Farmers' motion. On August 18, 2015, the trial court denied Farmers' motion for rehearing of its motion to sever and abate. This original proceeding ensued on February 12, 2016.
By one issue, Farmers contends that the trial court abused its discretion in denying these motions, "thereby requiring it to prepare for and litigate claims which have not accrued and may be rendered moot by the outcome of the contract case." This Court requested and received a response to the petition for writ of mandamus from the real parties in interest and received a reply thereto from Farmers. See TEX. R. APP. P. 52.2, 52.4, 52.8. This Court also granted relator's motion for temporary relief and ordered the trial court stayed pending resolution of this original proceeding.
"Mandamus relief is proper to correct a clear abuse of discretion when there is no adequate remedy by appeal." In re Frank Motor Co., 361 S.W.3d 628, 630 (Tex. 2012) (orig. proceeding); see In re Olshan Found. Repair Co., 328 S.W.3d 883, 887 (Tex. 2010) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable that it amounts to a clear and prejudicial error of law or if it clearly fails to correctly analyze or apply the law. In re Olshan Found. Repair Co., 328 S.W.3d at 888; Walker, 827 S.W.2d at 840. Mandamus will not issue "when the law provides another plain, adequate, and complete remedy." In re Tex. Dep't of Family & Protective Servs., 210 S.W.3d 609, 613 (Tex. 2006) (orig. proceeding) (quoting In re Prudential, 148 S.W.3d at 135-36). Stated otherwise, mandamus should not issue to correct grievances that may be addressed by other remedies. In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 207 (Tex. 2009) (orig. proceeding); Walker, 827 S.W.2d at 840.
Mandamus is an extraordinary and discretionary remedy that is not issued as a matter of right. In re Dorn, 471 S.W.3d 823, 824 (Tex. 2015) (orig. proceeding); Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993); Callahan v. Giles, 155 S.W.2d 793, 795 (Tex. 1941). Even though mandamus is not an equitable remedy, its issuance is largely controlled by equitable principles. In re Dorn, 471 S.W.3d at 824; Rivercenter, 858 S.W.2d at 367. "One such principle is that '[e]quity aids the diligent and not those who slumber on their rights.'" Rivercenter, 858 S.W.2d at 367 (quoting Callahan, 155 S.W.2d at 795). Therefore, "delay alone can provide ample ground to deny mandamus relief." In re Boehme, 256 S.W.3d 878, 887 (Tex. App.—Houston [14th Dist.] 2008, orig. proceeding); see In re Timberlake, No. 14-15-00109-CV, 2015 WL 7873726, at *2 (Tex. App.—Houston [14th Dist.] Dec. 3, 2015, orig. proceeding) (same); In re E. Tex. Salt Water Disposal Co., 72 S.W.3d 445, 448 (Tex. App.—Tyler 2002, orig. proceeding) ("Texas courts often deny mandamus relief on the basis of delay alone."); In re Xeller, 6 S.W.3d 618, 624 (Tex. App.—Houston [14th Dist.] 1999, orig. proceeding) ("Delay alone provides ample ground to deny mandamus relief. . . . Because relators waited sixteen months to seek mandamus relief from the appointment of a master, we hold that mandamus relief on that basis is barred by laches."); Int'l Awards, Inc. v. Medina, 900 S.W.2d 934, 935-36 (Tex. App.—Amarillo 1995, orig. proceeding) ("Why [relator] waited more than four months from the date severance was ordered, and until the eve of trial, to petition for relief went unexplained. Moreover, such a delay alone provides ample ground to deny leave to petition for mandamus relief.").
See also In re Nat'l Lloyds Ins. Co., No. 13-15-00521-CV, 2016 WL 552112, at *7 (Tex. App.—Corpus Christi Feb. 10, 2016, orig. proceeding [mand. filed]) (mem. op.); In re Cox Ventures, Inc., No. 01-12-00879-CV, 2013 WL 867433, at *1 (Tex. App.—Houston [1st Dist.] Mar. 7, 2013, orig. proceeding) (mem. op. per curiam); In re Swiney, No. 11-07-00070-CV, 2007 WL 1018793, at *1 (Tex. App.—Eastland Apr. 5, 2007, orig. proceeding) (mem. op. per curiam); In re Templeton Sw. Ins. Agency, Inc., No. 08-03-00295-CV, 2003 WL 21716579, at *2 (Tex. App.—El Paso July 25, 2003, orig. proceeding) (mem.op.).
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., 274 S.W.3d 672, 676 (Tex. 2009) (orig. proceeding) (per curiam) ("[D]elaying the filing of a petition for mandamus relief may waive the right to mandamus unless the relator can justify the delay."); In re Pendragon Transp. LLC, 423 S.W.3d 537, 540 (Tex. App.—Dallas 2014, orig. proceeding); In re State, 318 S.W.3d 908, 910 (Tex. App.—Eastland 2010, orig. proceeding) ("When the record does not reveal a justification for the delay in filing a petition for writ of mandamus, a court may appropriately deny mandamus relief.").
The Court, having examined and fully considered the petition for writ of mandamus, the response, the reply, and the applicable law, is of the opinion that relator has not met its burden to obtain mandamus relief. Here, Farmers delayed filing its petition for eight months after the trial court denied its motions and six months after the trial court denied rehearing, and did not justify the delay. Accordingly, the stay previously imposed by this Court is LIFTED. See TEX. R. APP. P. 52.10(b) ("Unless vacated or modified, an order granting temporary relief is effective until the case is finally decided."). The petition for writ of mandamus is DENIED. See id. 52.8(a).
Farmers asserts that it "has not found any authority establishing how a party offers an explanation for the time period between the order and the mandamus petition while acting within the limitations of the mandamus record imposed by the [Texas Rules of Appellate Procedure]," but states that it "specifically warrants that Farmers extended a new settlement offer to the [real parties] in December 2015." Farmers offers no argument or rationale regarding how or why the "new settlement offer," made four months after the trial court denied rehearing and two months before the inception of this proceeding, provides an alleged justification for the delay. --------
IT IS SO ORDERED.
PER CURIAM Delivered and filed the 28th day of March, 2016.