in Re Andre Lamond Morgan

• Court: Court of Appeals of Texas
• Decided: July 23, 2013
• Docket: 01-13-00464-CV
• Status: Published

Opinion

Opinion issued July 23, 2013

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-13-00464-CV ——————————— IN RE ANDRE LAMOND MORGAN, Relator

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION

Relator Andre Lamond Morgan filed a petition for writ of mandamus 1

complaining that Respondent, the Honorable Wesley R. Ward, failed to rule on

Relator’s motion for default judgment.

1 The underlying case is Andre L. Morgan v. Rosario Stornello, No. 2012-69630, from the 234th District Court of Harris County, Texas, the Honorable Wesley Ward, presiding. To be entitled to mandamus relief, the relator must establish both that he has

no adequate remedy at law to redress his alleged harm, and that what he seeks to

compel is a ministerial act not involving a discretionary or judicial decision. State

ex rel. Young v. Sixth Judicial Dist. Court of Appeals, 236 S.W.3d 207, 210 (Tex.

Crim. App. 2007). If the relator fails to meet either of these requirements, then the

petition for writ of mandamus should be denied. See id. It is the relator’s burden

to properly request and show entitlement to mandamus relief. Walker v. Packer,

827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding).

The district clerk’s records indicate that Relator’s civil suit was dismissed

for want of prosecution on May 7, 2013. The May 7, 2013 dismissal is an

appealable final judgment. Relator has an adequate remedy at law because he

could have challenged Respondent’s failure to grant his motion for default

judgment on appeal. See Aguilar v. Livingston, 154 S.W.3d 832, 833 (Tex. App.—

Houston [14th Dist.] 2005, no pet.) (although denial of motion for default

judgment is interlocutory order not subject to appeal, appellate courts may consider

issue when denial is challenged in appeal from final judgment).

Accordingly, Relator’s petition for writ of mandamus is denied.

PER CURIAM

Panel consists of Chief Justice Radack and Justices Sharp and Massengale.