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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