In re Guerra & Moore L.L.P.

Decision Date09 November 2000
Docket Number1300452CV,13
CourtTexas Court of Appeals

On Petition for Writ of Mandamus.

Before Chief Justice Seerden and Justices Dorsey and Rodriguez


Opinion by Justice Rodriguez

Relators, Guerra & Moore, L.L.P., Carlos L. Guerra and J. Michael Moore (Guerra & Moore), seek a writ of mandamus from this Court directing respondent, Honorable Fernando Mancias, to rescind a temporary restraining order1 that restricted disbursement of disputed attorneys fees, and to grant Guerra & Moore's plea in abatement based on the theory of dominant jurisdiction.2 Alternately, Guerra & Moore requested we stay further proceedings in the trial court pending resolution of their request for mandamus relief. By supplemental motion for emergency temporary relief filed on July 18, 2000, Guerra & Moore informed this Court that on July 17, 2000, Judge Mancias had issued, ex parte, a writ of attachment transferring $891,000 from the Starr County District Clerk's office to the Hidalgo County Clerk's office. On July 18, 2000, this Court ordered the proceedings in Hidalgo County stayed, and requested a response. The matter was set for oral argument. Subsequently, by supplemental petition, Guerra & Moore requested that this Court also address, by way of mandamus, an ex parte order also entered by Judge Mancias on July 17, 2000, that released to the real party in interest, Mark Cantu, $891,000 from the Hidalgo County Clerk's office.

The following events are relevant:

1998 A multiple plaintiff personal injury lawsuit was filed in the 229th Judicial District Court of Starr County, Texas, as cause no. DC-98-94, styled Rolando Rey Lopez, Individually, et. al. vs. Wal-Mart Stores, Inc., Lasko Metal Products, Inc.

5/15/98 Relator, Michael Moore, and real party-in-interest, Mark Cantu, among others, agreed to represent the injured parties and divide the 40% contingent attorneys fees paid by the clients.3

6/12/00 Settlement was reached in the Lopez suit and, pursuant to a Starr County Court order, settlement monies were placed in the Lopez-Aguilera-Medina-Correa Qualified Settlement Fund.

6/16/00 Guerra & Moore filed a motion in Starr County for partial distribution of attorneys fees, and reimbursement of costs and client advances from the qualified settlement fund, alleging that a dispute had arisen as to whether Cantu was owed any fees whatsoever in the Lopez lawsuit.

6/16/00 The Starr County Court issued an ex parte order that ordered partial distribution of monies from the qualified settlement fund in the amount of $1,399,128.80, to Guerra & Moore for Guerra & Moore's attorneys fees, and for reimbursement of costs and client advances. The court also ordered settlement funds in the amount of $1,122,339.20 allegedly owed to Cantu for fees ($891,000), costs ($218,102.80), and client advances ($13,236.49), to be paid into the registry of the 229th Judicial District Court of Starr County, Texas.

6/19/00 Guerra & Moore filed a petition in interpleader/intervention in the Starr County lawsuit against Cantu for equitable recission and alternatively, for breach of contract, contract in violation of public policy, tortious interference with contractual relations and defamation.

6/26/00 Cantu filed a motion in Starr County requesting that the court grant his motion to withdraw funds from the registry of the court for his attorneys fees, and to reimburse his costs and client advances.

6/27/00 Cantu filed a motion in Starr County to dismiss the interpleader and to strike the intervention actions.

6/29/00 The Starr County Court ordered a portion of the funds that had been placed in the court's registry representing costs of $281,102.80 and client advances of $13,236.49, to be paid to Cantu. There remained a balance of $189,000, the amount Cantu claimed as attorneys fees, in the court's registry.

6/30/00 Cantu filed a lawsuit in the 93rd Judicial District Court of Hidalgo County, Texas, suing Guerra & Moore for breach of fiduciary duties, misapplication of fiduciary property, conversion, fraud, tortuous interference with an economic relationship, and breach of contract arising out of alleged contractual agreements with Guerra & Moore.

7/1/00 Cantu filed a petition in Hidalgo County for temporary restraining orders and a temporary injunction seeking relief prohibiting Guerra & Moore from misapplying monies in the amount of $189,000 to which Cantu claimed he had a contractual and equitable right.4

7/1/00 Respondent, Hidalgo County Judge Mancias, entered an ex parte temporary restraining order restraining Guerra & Moore from misapplying the $189,000.

7/6/00 Guerra & Moore filed their motion to abate and response to the petition for temporary restraining orders and temporary injunction in Hidalgo County, on the basis of dominant jurisdiction in Starr County. Guerra & Moore also filed a motion to dissolve the temporary restraining order of 7/1/00.

7/7/00 Respondent, Hidalgo County Judge Gonzalez, denied Guerra & Moore's motion to abate, and signed a second temporary restraining order again restraining Guerra & Moore from misapplying the $189,000 and setting the trial on the merits for September 5, 2000.

7/14/00 Guerra & Moore filed their petition for writ of mandamus and their first motion for emergency temporary relief with this Court.

7/17/00 Cantu filed (1) an application for writ(s) of attachment, and (2) an emergency motion to withdraw funds from the registry of the court. The application and motion were presented ex parte to respondent, Hidalgo County Judge Mancias.

7/17/00 Respondent, Judge Mancias, entered the following: (1) a writ of attachment ordering the Starr County District Clerk to transfer $891,000 from that registry to the Hidalgo County District Clerk; and (2) an order allowing Cantu to withdraw $189,000 from the Hidalgo County registry.

7/18/00 Guerra & Moore filed a supplemental motion for emergency temporary relief from the writ of attachment entered in Hidalgo County.5

7/18/00 This Court issued an order staying the July 17, 2000 writ of attachment, as well as all further proceedings in the trial court in Hidalgo County pending further orders of this Court.

7/26/00 Guerra & Moore filed a motion for leave to file and supplemental petition for writ of mandamus, seeking relief from the writ of attachment and the order of withdrawal of funds issued in Hidalgo County by respondent, Judge Mancias, on July 17, 2000. The motion was granted.

7/27/00 Cantu filed his response to Guerra & Moore's motion for leave to file and supplemental petition for writ of mandamus.

7/28/00 Cantu filed his response to Guerra & Moore's petition for writ of mandamus.

Mandamus will issue only to correct a clear abuse of discretion when there is no adequate remedy by appeal. See Mitchell Energy Corp. v. Ashworth, 943 S.W.2d 436, 437 (Tex. 1997); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). A trial court abuses its discretion when it does not follow guiding rules and principles and reaches an arbitrary and unreasonable decision. See Republic Royalty Co. v. Evins, 931 S.W.2d 338, 342 (Tex. App.--Corpus Christi 1996) (orig. proceeding); Excel Corp. v. Valdez, 921 S.W.2d 444, 448 (Tex. App.--Corpus Christi 1996) (orig. proceeding); see also Walker, 827 S.W.2d at 839. When one court directly interferes with the jurisdiction of another, mandamus becomes appropriate. See In re McCall, 967 S.W.2d 934, 938-39 (Tex. App.--Corpus Christi 1998) (orig. proceeding) (exception to general rule that denial of motion to abate subsequently filed lawsuit pending outcome of first filed lawsuit is not normally reviewable by mandamus was applied where failure to abate resulted in two courts taking directly conflicting positions); Republic Royalty, 931 S.W.2d at 341; Flores v. Peschel, 927 S.W.2d 209, 211 (Tex. App.--Corpus Christi 1996) (orig. proceeding).

Guerra & Moore assert that mandamus relief is proper because there are competing orders in this case. Cantu argues that an appeal, not a mandamus, is the appropriate and adequate remedy in this case. He contends that because the Hidalgo County Court made an incidental ruling, the denial of Guerra & Moore's plea in abatement, an appeal is the proper vehicle for appellate review. See Abor v. Black, 695 S.W.2d 564, 657 (Tex. 1985). Although Cantu correctly sets out a general proposition of law, we do not agree that this proposition applies under the facts of this case.

Cantu relies on the following cases to support his argument: Abor, 695 S.W.2d at 567; Niemeyer v. Tana Oil & Gas Corp., 952 S.W.2d 941, 945 (Tex. App.--Austin 1997, no writ); Coastal Oil & Gas Corp. v. Flores, 908 S.W.2d 517, 518-19 (Tex. App.--San Antonio 1995) (orig. proceeding); Owens v. Moore, 778 S.W.2d 151, 152 (Tex. App.--Houston [1st Dist.] 1989) (orig. proceeding); and Dalho Corp. v. Casseb, 747 S.W.2d 512, 514 (Tex. App.--San Antonio 1988) (orig. proceeding).

In Abor, the supreme court first determined that the denial of the plea in abatement was an incidental ruling that could be remedied by appeal. See Abor, 695 S.W.2d at 567. The court distinguished its holding in Abor from its earlier decision in Curtis v. Gibbs, 511 S.W.2d 263 (Tex. 1974),6 noting:

The distinction in Curtis is that one of the courts had enjoined the other court from proceeding. While the language of Curtis could have been more precise, we decline to grant mandamus relief here because there is no conflict of jurisdiction. No injunction has been granted in this case nor has any order which actively interferes with the exercise of jurisdiction in the Harris County District Court.

Id. at 567. The Abor Court concluded there was no conflict of jurisdiction under the facts of its case, and denied mandamus relief. See id.

In 1988, the San Antonio Fourth Court of Appeals, following Abor, concluded that because the denial of a plea in abatement was an incidental ruling...

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