                                NO. 12-10-00313-CV

                         IN THE COURT OF APPEALS

           TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS
                                                 '
IN RE: ROBERT C. MORRIS,
RELATOR                                          '    ORIGINAL PROCEEDING

                                                 '
                                MEMORANDUM OPINION
                                    PER CURIAM
        In this original mandamus proceeding, Relator Robert C. Morris complains that
the trial court signed an order setting aside a default judgment it granted against three of
the four defendants Morris named in his lawsuit. He argues that the default judgment
was final and therefore the trial court lacked plenary power to set it aside. Accordingly,
he urges that the order setting aside the default judgment is void and the trial court abused
its discretion by signing it.
        Mandamus will issue only to correct a clear abuse of discretion when there is no
adequate remedy by appeal. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382
(Tex. 2005) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992)
(orig. proceeding). But mandamus is available to challenge a void order, even if the
order was appealable and the party requesting relief failed to pursue an appeal. Dikeman
v. Snell, 490 S.W.2d 183, 186 (Tex. 1973); see also In re Sw. Bell Tel. Co., 35 SW.3d
602, 605 (Tex. 2000) (orig. proceeding) (when order is void, relator need not demonstrate
inadequacy of appellate remedy).
        Here, the default judgment was granted on February 4, 2010, but did not dispose
of all parties in Morris’s suit. A default judgment that fails to dispose of all parties can
be final only if the “intent to finally dispose of the case” is “unequivocally expressed in
the words of the order itself.”     See In re Burlington Coat Factory Warehouse of
McAllen, Inc., 167 S.W.3d 827, 830 (Tex. 2005) (quoting Lehmann v. Har-Con Corp.,
39 S.W.3d 191, 200 (Tex. 2001)). The record in this proceeding does not include a copy
of the written order granting the default judgment. Therefore, we are unable to address
Morris’s contention that the order was final. Without a determination that the order
granting the default judgment was final, we cannot conclude that the trial court lacked
plenary power to set aside the default judgment.                Consequently, Morris has not
established that the order setting aside the default judgment is void.
         Absent a showing that order setting aside the default judgment is void, Morris has
not established that the trial court abused its discretion in signing the order. Therefore, he
has not satisfied the first prerequisite to mandamus. Accordingly, the petition for writ of
mandamus is denied.
Opinion delivered October 20, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                (PUBLISH)




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