in Re Gary Martin ( 2018 )

Opinion filed July 26, 2018
In The
Eleventh Court of Appeals
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No. 11-18-00136-CV
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IN RE GARY MARTIN
Original Mandamus Proceeding
MEMORANDUM OPINION
This proceeding involves a suit related to fraud and the misappropriation of
assets from an estate. According to the petition, a default judgment was taken as to
liability against the executor, Brenda Jurgens, who is the real party in interest in this
proceeding and the sister of the relator. The trial court held a hearing as to damages
on December 20, 2017, but has yet to enter a judgment in the underlying cause even
though Relator has requested that the trial court do so. On May 29, 2018, Relator,
Gary Martin, filed in this court an original mandamus proceeding in which he seeks
to compel the judge of the Midland County Court at Law No. 2, the Honorable
Marvin L. Moore, to enter a final judgment in trial court cause no. CC17920. We
conditionally grant Relator’s petition for writ of mandamus.
In his response to the petition for writ of mandamus, Judge Moore informed
this court that he was waiting for Relator to amend his petition. The amended
petition was filed in the trial court clerk’s office on June 5, 2018. However, as of
this date, no judgment has been rendered by the trial court. To obtain mandamus
relief, a relator must show both that the trial court has clearly abused its discretion
and that the relator has no adequate remedy by appeal. In re Prudential Ins. Co. of
Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827
S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). We believe that, under the
circumstances here, Relator has met these requirements.
Therefore, we conditionally grant Relator’s petition for writ of mandamus.
The Honorable Judge Marvin L. Moore is directed to enter a judgment in trial court
cause no. CC17920. A writ of mandamus will issue only if Judge Moore fails to act
by August 10, 2018.
PER CURIAM
July 26, 2018
Panel consists of: Willson, J.,
Bailey, J., and Wright, S.C.J.1
Willson, J., not participating.
1
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
2