in Re: Alpha-Barnes Real Estate Services, L.L.C. ( 2020 )

Denied and Opinion Filed March 17, 2020
SIn The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00073-CV
IN RE ALPHA-BARNES REAL ESTATE SERVICES, L.L.C., Relator
Original Proceeding from the County Court at Law No. 3
Dallas County, Texas
Trial Court Cause No. CC-14-01652-C
MEMORANDUM OPINION
Before Justices Schenck, Partida-Kipness, and Nowell
Opinion by Justice Nowell
Before the Court is relator’s January 17, 2020 petition for a writ of mandamus
in which it complains the trial court abused its discretion by entering a November
2018 order. We have also received the response of real party in interest, Charna
Lewis, as guardian for Anthony Cooper. Our record includes the parties’ December
2019 stipulation that Lewis “extends the deadline” for relator to file any petition for
mandamus, waives any timeliness objections regarding such a petition, and agrees
she has suffered no prejudice from the delay. Our record, however, does not include
any explanation for relator’s delay in seeking either mandamus relief or the parties’
stipulation by which they purport to extend the “deadline” for such relief.
Entitlement to mandamus relief requires a demonstration that the trial court
clearly abused its discretion and the absence of an adequate remedy by appeal.
Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding).
“Mandamus is an extraordinary remedy, not issued as a matter of right, but at the
discretion of the court.” Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, 367 (Tex.
1993). While the trial court’s order presents an error potentially justifying reversal
on a direct appeal, relator has failed to demonstrate the inadequacy of an appeal,
particularly given the limited scope of the order and alternative mechanisms by
which relator may introduce the same evidence excluded by the order. See In re
Garza, 544 S.W.3d 836, 840 (Tex. 2018) (orig. proceeding) (appeal is an inadequate
remedy “where a party’s ability to present a viable claim or defense at trial is either
completely vitiated or severely compromised.”); cf. In re Bertucci, No. 03-19-
00245-CV, 2019 WL 5280988, at *2 (Tex. App.—Austin Oct. 18, 2019, orig.
proceeding) (mem. op.) (mandamus correction unnecessary to “provide needed and
helpful direction to the law that would otherwise prove elusive in appeals from final
judgments.”) (quoting In re Prudential Ins. Co., 148 S.W.3d 124, 136 (Tex. 2004)
(orig. proceeding)).
Further, even if relator had demonstrated the absence of an adequate appellate
remedy, its unexplained delay in seeking mandamus would also justify denial of its
petition. See Rivercenter Assocs., 858 S.W.2d at 367 (denying mandamus where
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relator failed to explain seven-month delay); In re Xeller, 6 S.W.3d 618, 624 (Tex.
App.—Houston [14th Dist.] 1999, orig. proceeding) (denying mandamus where
relator waited sixteen months after entry of order appointing special master
to seek mandamus relief because “[d]elay alone provides ample ground to deny
mandamus relief.”).
We deny relator’s petition.
/Erin A. Nowell/
ERIN A. NOWELL
JUSTICE
Schenck, J., dissenting
200073f.p05
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