Rivercenter Associates v. Rivera
| Decision Date | 23 June 1993 |
| Docket Number | No. D-3172,D-3172 |
| Citation | 858 S.W.2d 366 |
| Parties | RIVERCENTER ASSOCIATES, a Texas Limited Partnership, Relator, v. The Honorable Raul RIVERA, Judge, Respondent. |
| Court | Texas Supreme Court |
Rivercenter Associates seeks mandamus relief from a trial court order overruling its motion to quash the jury demand by Real Party in Interest All Ashore, Inc. Because we hold that Rivercenter delayed without explanation its filing of the motion to quash and therefore is not entitled to mandamus relief, the petition is denied.
The underlying cause of action is a suit for enforcement of commercial lease and surety agreements. Rivercenter brought suit against Real Parties in Interest All Ashore, Inc. and its surety Les Robbins to recover rental payments after All Ashore's alleged default on its lease of store space in the Rivercenter shopping mall. Defendants filed a jury demand and paid the filing fee on March 17, 1992. On July 14, 1992, Rivercenter filed a motion to set a date for trial on the jury docket. Two weeks later, Rivercenter filed a motion to quash the jury demand based on jury waiver provisions in its contracts with All Ashore and Robbins. 1 The trial court overruled this motion after a hearing and review of the contracts.
Rivercenter seeks mandamus relief on the ground that the trial court had no discretion when presented with the motion to quash because the jury waiver provisions required, as a matter of law, that the motion be granted. The record shows, however, that Rivercenter was sent notice on the day the jury demand was filed, yet for no apparent reason delayed filing its motion to quash.
Mandamus is an extraordinary remedy, not issued as a matter of right, but at the discretion of the court. Callahan v. Giles, 137 Tex. 571, 575, 155 S.W.2d 793, 795 (1941). Although mandamus is not an equitable remedy, its issuance is largely controlled by equitable principles. Id.; see also Industrial Found. of the South v. Texas Indus. Acc. Bd., 540 S.W.2d 668, 674 (Tex.1976), cert. denied, 430 U.S. 931, 97 S.Ct. 1550, 51 L.Ed.2d 774 (1977). One such principle is that "[e]quity aids the diligent and not those who slumber on their rights." Callahan, 137 Tex. at 576, 155 S.W.2d at 795.
Rivercenter waited over four months after the filing of the Defendants' jury demand before asserting any...
To continue reading
Request your trial
-
In re Prudential Ins. Co. of America
...Woman's Hosp., 141 S.W.3d 144 (Tex.2004) (Owen, J., dissenting). 60. Tex. Civ. Prac. & Rem.Code § 51.014(9). 61. Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, 367 (Tex.1993). 62. In re Wells Fargo Bank Minnesota N.A., 115 S.W.3d 600, 606-608 (Tex.App.-Houston [14 Dist.] 63. Tex.R.App. P. 4......
-
In re Allstate Fire & Cas. Ins. Co.
...principles, including the principle that equity aids the diligent and not those who slumber on their rights. Rivercenter Assocs. v. Rivera , 858 S.W.2d 366, 367 (Tex. 1993) (orig. proceeding). Whether a party's delay in asserting its rights precludes mandamus relief depends on the circumsta......
-
Long Island Owner's Ass'n, Inc. v. Davidson
...Mandamus is an extraordinary remedy, not issued as a matter of right, but at the discretion of the court. Rivercenter Assoc. v. Rivera, 858 S.W.2d 366, 367 (Tex.1993). Although mandamus is a legal remedy, its issuance is largely controlled by equitable principles. Id. It will lie only to co......
-
In re John G. Kenedy Memorial Foundation
...curiam). However, entitlement to extraordinary relief is subject to waiver principles grounded in equity. See Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, 367 (Tex.1993) (orig.proceeding) ("Mandamus is an extraordinary remedy, not issued as a matter of right, but at the discretion of the ......