in Re: William E. McCormick, Jr.

• Court: Court of Appeals of Texas
• Decided: October 25, 2007
• Docket: 14-07-00712-CV
• Status: Published

Opinion

Petition for Writ of Mandamus Denied and Memorandum Opinion filed October 25, 2007

Petition for Writ of Mandamus Denied and Memorandum Opinion filed October 25, 2007.

In The

Fourteenth Court of Appeals

____________

NO. 14-07-00712-CV

IN RE WILLIAM E. McCORMICK, JR., Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

M E M O R A N D U M   O P I N I O N

Relator William E. McCormick, Jr., filed a petition for writ of mandamus in this court complaining that the trial court lacked authority to issue a judgment nunc pro tunc ,that the  trial court=s clarification order improperly changed the substance of the original judgment, and that the trial court denied relator due process.  The trial court=s orders and judgment nunc pro tunc arise out of an action to enforce the property division made as part of relator=s divorce from the real party in interest.  See Tex. Gov=t Code Ann. ' 22.221; see also Tex. R. App. P. 52.  In the petition, relator asked this court to compel the Honorable Roy Quintanilla, presiding judge of the County Court at Law Number Three of Galveston County, to set aside orders issued August 15, 2007, and August 22, 2007, entered in trial court cause number 02FD2412, styled In the Matter of the Marriage of Melissa McCormick and William E. McCormick, Jr., which ordered appellant to vacate the subject real property and appointed a receiver to sell the property.

Mandamus is intended to be an extraordinary remedy, available only in limited circumstances.  See Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 (Tex. 1989).  Mandamus will issue to correct a clear abuse of discretion and, generally, only when the relator lacks an adequate appellate remedy.  See In re Nitla S.A. de C.V., 92 S.W.3d 419, 422 (Tex.2002).

Relator has not established that he is entitled to extraordinary relief.  Accordingly, we deny relator=s petition for writ of mandamus.  This court=s order of September 19, 2007, staying enforcement of the subject orders is vacated.

PER CURIAM

Petition Denied and Memorandum Opinion filed October 25, 2007.

Panel consists of Chief Justice Hedges and Justices Frost and Seymore.  (Frost, J. dissents and would grant mandamus relief.)