in Re R. Wayne Johnson ( 2009 )

Petition for Writ of Mandamus Denied and Memorandum Opinion filed July 23, 2009

Petition for Writ of Mandamus Denied and Memorandum Opinion filed July 23, 2009.

In The

Fourteenth Court of Appeals

____________

NO. 14-09-00603-CV

NO. 14-09-00614-CV

____________

IN RE R. WAYNE JOHNSON, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

M E M O R A N D U M   O P I N I O N

On July 6, 2009, relator, R. Wayne Johnson, filed a petition for writ of mandamus in this court.  See Tex. Gov=t Code Ann. ' 22.221 (Vernon 2004); see also Tex. R. App. P. 52.  In the petition, relator asks this court to compel the Honorable David Garner, presiding judge of the 10th District Court of Galveston County, and the Honorable John Ellisor, presiding judge of the 22nd District Court of Galveston County, to set aside as void their respective orders dismissing his underlying lawsuits with prejudice.^[1]

As an initial matter, relator=s petition fails to comply with the Texas Rules of Appellate Procedure.  See Tex. R. App. P. 20.1 (requiring relator to file affidavit of indigence if relator is seeking to proceed in appellate court without advance payment of costs); Tex. R. App. P. 52.7(a)(1) (requiring relator to file certified or sworn copy of every document that is material to relator=s claim for relief and was filed in underlying proceeding).  Notwithstanding these deficiencies, relator still cannot prevail on his request for mandamus relief. 

To be entitled to the extraordinary relief of a writ of mandamus, a relator must show that the trial court clearly abused its discretion and he has no adequate remedy by appeal.  In re Team Rocket, L.P., 256 S.W.3d 257, 259 (Tex. 2008) (orig. proceeding).  Relator complains that the two orders signed by Judge Ellisor and Judge Garner are void and, therefore, not appealable.  Both orders, upon finding that relator had filed the respective underlying lawsuits in violation of the order finding him to be a vexatious litigant, and that he had filed the underlying lawsuits without obtaining prior permission from the local administrative judge, dismissed the underlying cases with prejudice. 

A void judgment can become final for purposes of appeal.  Newsom v. Ballinger Indep. Sch. Dist., 213 S.W.3d 375, 379, 380 (Tex. App.CAustin 2006, no pet.); In re Vlasak, 141 S.W.3d 233, 237B38 (Tex. App.CSan Antonio 2004, orig. proceeding).  Each order Adisposes of the entire case@ and directs that A[p]laintiff shall take nothing by this suit.@  Having disposed of all claims, the orders are final and thus are appealable even if void.  See In re Vlasak, 141 S.W.3d at 237B38 (holding court can render final judgment even if it lacks personal jurisdictionCjudgment is void if challenged, but no less final); Estate of Courvier, No. 04-07-00469-CV, 2007 WL 2935809, at *1 (Tex. App.CSan Antonio Oct. 10, 2007, no pet.) (mem. op.) (assuming, without deciding, trial court=s judgment is void, appellant was required to file timely notice of appeal).  Therefore, we need not determine whether either order is void because relator has an adequate remedy by appeal.  See In re Hamel, 180 S.W.3d 226, 229 (Tex. AppCSan Antonio 2005, orig. proceeding) (stating that mandamus relief is not available if the order complained of is appealable because appeal is almost always adequate remedy). 

Relator has not established his entitlement to the extraordinary relief of a writ of mandamus.  Accordingly, we deny relator=s petition for writ of mandamus.

PER CURIAM

Panel consists of Justices Anderson, Guzman, and Boyce.

---

            ^[1]  On July 10, 2008, Judge Garner signed an order dismissing relator=s claims in cause no. 08CV0489, styled R. Wayne Johnson v. All Doctors, et al.  Relator=s appeal from Judge Garner=s order is pending in this court in cause no. 14-08-00671-CV.  On April 17, 2009, Judge Ellisor signed an order dismissing relator=s claims in cause no. 09CV0196, styled R. Wayne Johnson v. Sharon Howell, et al.