CourtListener 9992918•In Re: BE&K Building Group, LLC v. the State of Texas
In Re: BE&K Building Group, LLC v. the State of Texas
CourtListener 9992918Txctapp5Jul 1, 2024
Full text
DENIED and Opinion Filed July 1, 2024
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-24-00754-CV
IN RE BE&K BUILDING GROUP, LLC, Relator
Original Proceeding from the 354th District Court
Hunt County, Texas
Trial Court Cause No. 92070
MEMORANDUM OPINION
Before Justices Molberg, Carlyle, and Breedlove
Opinion by Justice Breedlove
Before the Court is relator’s June 21, 2024 petition for writ of mandamus.
Relator challenges an October 9, 2023 order denying relator’s amended plea in
abatement.
Entitlement to mandamus relief requires relator to show that the trial court
clearly abused its discretion and that relator lacks an adequate appellate remedy. In
re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (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 “[e]quity aids the
diligent and not those who slumber on their rights.” Id. “Thus, [a relator’s] delaying
the filing of a petition for mandamus relief may waive the right to mandamus unless
the relator can justify the delay.” In re Barnes, No. 05-22-00312-CV, 2022 WL
1955754, at *1 (Tex. App.—Dallas June 3, 2022, orig. proceeding) (mem. op.). “A
delay of only a few months can constitute laches and result in denial of mandamus
relief.” Id.
The laches doctrine applies to bar petitions for writ of mandamus wherein a
relator challenges a trial court’s denial of a plea in abatement when the relator fails
to provide an adequate explanation for an unreasonable delay in seeking mandamus
relief. See In re Autumn Ranch, No. 05-24-00255-CV, 2024 WL 1190480, at *1
(Tex. App.—Dallas Mar. 20, 2024, orig. proceeding) (mem. op.) (applying laches to
bar petition for mandamus challenging denial of plea in abatement); 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.) (same).
The record before us reflects that the trial court denied relator’s amended plea
in abatement on October 9, 2023. Relator states, and the record reflects, that the
order was not sent to the parties until January 31, 2024. But even if we measure
relator’s delay from January 31, 2024, relator waited 142 days (almost five months)
after its receipt of the order before seeking mandamus relief. Relator does not
provide, and the record does not reveal, any justification for this unreasonable delay.
See In re Wages & White Lion Invs., LLC, No. 05-21-00650-CV, 2021 WL 3276875,
–2–
at *1 (Tex. App.—Dallas July 30, 2021, orig. proceeding) (mem. op.) (“An
unexplained delay of four months or more can constitute laches and result in denial
of mandamus relief.”).
Accordingly, we deny relator’s petition for writ of mandamus.
/Maricela Breedlove/
MARICELA BREEDLOVE
JUSTICE
240754F.P05
–3–
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