in Re Audie Long ( 2005 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-05-203 CV ____________________

IN RE AUDIE LONG

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Original Proceeding

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MEMORANDUM OPINION ⁽¹⁾

Audie Long filed a petition for writ of mandamus and request for temporary relief on May 17, 2005. Long asserts the amount in controversy exceeds the jurisdictional limit of the trial court, and asks us to order the trial court to vacate the final judgment signed March 18, 2005. Long apparently filed a timely post-judgment motion and the appellate timetables have not yet expired. The judgment is fully and immediately appealable. Tex. R. App. P. 26.1. The trial court's plenary power to vacate its judgment expired no later than May 16, 2005, thirty days after the date on which it overruled Long's "Motion to Vacate Void Judgment." See Tex. R. Civ. P. 329b(e).

Mandamus will issue only to correct a clear abuse of discretion or violation of a duty imposed by law when that abuse cannot be remedied by appeal. Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex.1992); Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992). Mandamus is not a substitute for appeal. Matthaei v. Clark, 110 Tex. 114, 216 S.W. 856, 861 (Tex. 1919). Accordingly, the motion for temporary relief and the petition for writ of mandamus are denied.

WRIT DENIED.

PER CURIAM

Opinion Delivered May 19, 2005

Before McKeithen, C.J., Gaultney and Horton, JJ.

1. Tex. R. App. P. 47.4.