In Re: Templeton Southwest Insurance Agency, Inc.--Appeal from of County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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) No. 08-03-00295-CV

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IN RE: TEMPLETON SOUTHWEST ) AN ORIGINAL PROCEEDING

INSURANCE AGENCY, INC. )

) IN MANDAMUS

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MEMORANDUM OPINIONON WRIT OF MANDAMUS

This is an original proceeding in mandamus. Templeton Southwest Insurance Agency, Inc. (ATempleton@) seeks a writ of mandamus requiring the Honorable William E. Moody, Judge of the 34th District Court, to set aside an order denying Templeton=s plea in abatement, motion to reconsider a prior order denying a plea in abatement, motion to transfer venue, and plea to the jurisdiction. For the reasons stated below, we deny relief.

STANDARD OF REVIEW

Mandamus will lie only to correct a clear abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992)(orig. proceeding). Moreover, there must be no other adequate remedy at law. Id. The decision to issue the writ is governed by equitable principles. RivercenterAssociates v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993).

1. Clear abuse of discretion

An appellate court rarely interferes with a trial court's exercise of discretion. A clear abuse of discretion warranting correction by mandamus occurs when a court issues a decision which is without basis or guiding principles of law. See Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985)(orig. proceeding). With respect to resolution of factual issues or matters committed to the trial court=s discretion, the reviewing court may not substitute its judgment for that of the trial court. Walker, 827 S.W.2d at 839-40. The relator must therefore establish that the trial court could reasonably have reached only one decision. Id. at 840. Even if the reviewing court would have decided the issue differently, it cannot disturb the trial court=s decision unless it is shown to be arbitrary and unreasonable. Id. With respect to a trial court=s determination of the legal principles controlling its ruling, the standard is much less deferential. A trial court has no Adiscretion@ in determining what the law is or applying the law to the facts. Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion, and may result in appellate reversal by extraordinary writ. Walker, 827 S.W.2d at 840.

2. No adequate remedy by appeal

An appellate court will deny mandamus relief if another remedy, usually appeal, is available and adequate. Street v.Second Court of Appeals, 715 S.W.2d 638, 639-40 (Tex. 1986)(orig. proceeding). Mandamus will not issue where there is Aa clear and adequate remedy at law, such as a normal appeal.@ Walker, 827 S.W.2d at 840, quoting State v. Walker, 679 S.W.2d 484, 485 (Tex. 1984). Mandamus is intended to be an extraordinary remedy, available only in limited circumstances. The writ will issue Aonly in situations involving manifest and urgent necessity and not for grievances that may be addressed by other remedies.@ Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 (Tex. 1989), quoting James Sales, Original Jurisdiction of the Supreme Court and the Courts of Civil Appeals of Texas, in Appellate Procedure in Texas, ' 1.4(1)(b) at 47 (2d Ed. 1979).

3. Equitable Principles

Mandamus is an extraordinary remedy, not issued as a matter of right, but at the discretion of the court. RivercenterAssociates, 858 S.W.2d at 367. Although mandamus is not an equitable remedy, its issuance is largely controlled by equitable principles. Id. One such principle is that A>[e]quity aids the diligent and not those who slumber on their rights.=@ Id. Delay alone provides ample ground to deny mandamus relief. See Rivercenter Associates, 858 S.W.2d at 367 68 (relator waited four months to seek mandamus relief from demand for jury trial); In re Xeller, 6 S.W.3d 618, 624 (Tex.App.--Houston [14th Dist.] 1999, orig. proceeding)(relator delayed sixteen months before seeking relief from appointment of master); see also International Awards, Inc. v. Medina, 900 S.W.2d 934, 935 36 (Tex.App. Amarillo 1995, orig. proceeding)(relator sought mandamus relief on the day documents were due and four months after the court=s oral discovery ruling); Furr=s Supermarkets, Inc. v. Mulanax, 897 S.W.2d 442, 443 (Tex.App. El Paso 1995, orig. proceeding)(relator sought mandamus relief from severance order four months after severance and six days before trial on severed claim); Bailey v. Baker, 696 S.W.2d 255, 256 (Tex.App. Houston [14th Dist.] 1985, orig. proceeding)(relator sought mandamus relief from discovery order four months after order and two weeks before trial).

APPLICATION OF THE LAW TO THE FACTS BEFORE THE COURT

One of the orders challenged by Templeton is a denial of its plea in abatement and motion to dismiss signed on July 27, 2001. The mandamus petition does not reflect why Templeton delayed almost two years before seeking mandamus relief. Even if Templeton provided an explanation for its delay, the record before us does not reflect that Judge Moody clearly abused his discretion or that mandamus relief is appropriate. Accordingly, we deny the relief requested in the petition for mandamus.

July 25, 2003

DAVID WELLINGTON CHEW, Justice

Before Panel No. 3

Barajas, C.J., Larsen, and Chew, JJ.