In Re: Robert M. Davidson and Vanessa E. Komar--Appeal from 188th District Court of Gregg County

NO. 12-06-00204-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN RE: ROBERT M. DAVIDSON AND ORIGINAL PROCEEDING

VANESSA E. KOMAR, RELATORS

MEMORANDUM OPINION

In this original proceeding, Robert M. Davidson and Vanessa E. Komar seek mandamus relief from an Arizona judgment, which the real parties in interest, Jay Grossman and Eudice Grossman, are attempting to enforce in Gregg County, Texas. Specifically, Davidson and Komar ask this Court to direct the trial court to declare the judgment void or, alternatively, ask this Court to declare the judgment void in this proceeding.1 We deny the writ.

Background

The Grossmans are the holders of a final judgment against Davidson and Komar. The judgment was entered on March 23, 2005 in the Superior Court of Pima County, Arizona, in trial court cause number C-333954 styled Jay Grossman and Eudice Grossman vs. Robert Michael Davidson and Vanessa Davidson, a.k.a. Vanessa E. Komar. The judgment is for $7,849,031.27, plus postjudgment interest as therein provided. The Grossmans filed an authenticated copy of the judgment in Gregg County pursuant to the Uniform Enforcement of Foreign Judgments Act and have sought various orders from the respondent trial court to enforce the judgment.

On November 9, 2005, Davidson and Komar filed a motion in the trial court seeking a declaration that the judgment is void. On June 6, 2006, Davidson and Komar filed a renewed motion for declaratory relief alleging additional hidden facts in support of the motion.2 In their motion, Davidson and Komar assert that the Arizona trial judge who signed the judgment was disqualified, which deprived the Arizona trial court of subject matter jurisdiction. Therefore, they allege, the judgment is void. The trial court has not ruled on the motion. Davidson and Komar filed this original proceeding on June 15, 2006.

Availability of Mandamus

A writ of mandamus is a judicial writ directed at an individual, official, or board to whom it is addressed to perform some specific legal duty to which the relator is entitled under legal right to have performed. Crowley v. Carter, 192 S.W.2d 787, 790 (Tex. Civ. App. Fort Worth 1946, orig. proceeding). Mandamus will issue to correct a clear abuse of discretion where there is no adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992).

Davidson and Komar have not alleged or shown that the trial court abused its discretion relating to the motion. Moreover, the trial court has not ruled on the motion. Consequently, Davidson and Komar have failed to satisfy the first prerequisite to mandamus. See id. at 839-40. Nevertheless, they ask this Court, in effect, to preempt the trial court s exercise of its discretion to rule on their motion by ordering the trial court to grant the requested declaratory relief. Alternatively, Davidson and Komar ask this Court to declare the judgment void. We are mindful that [t]he office of mandamus is to execute, not to adjudicate. It does not ascertain or adjust mutual claims or rights between the parties. Wortham v. Walker, 133 Tex. 255, 128 S.W.2d 1138, 1145-46 (1939). The relief Davidson and Komar seek from this Court is an adjudication, which is not available in this proceeding.

Conclusion

Davidson and Komar have failed to show that the trial court abused its discretion. Therefore, we need not address whether they have an adequate remedy by appeal. See Tex. R.

App. P. 47.1. Because Davidson and Komar have not shown themselves entitled to mandamus relief, the petition for writ of mandamus is denied.

SAM GRIFFITH

Justice

Opinion delivered June 30, 2006.

Panel consisted of Worthen, C.J. and Griffith, J.

(PUBLISH)

1 Respondent is the Honorable David Brabham, Judge of the 188th Judicial District Court, Gregg County, Texas.

2 For purpose of this opinion, we construe the renewed motion as an amended motion for declaratory relief.