Johnson, In re

• Citation: 961 S.W.2d 478
• Decision Date: 26 September 1997
• Docket Number: 13-97-558-CV,Nos. 13-97-550-C,s. 13-97-550-C
• Parties: In re Robert W. JOHNSON, Jr., Juan Lopez Butron, and Luis Enrique Cortinas Villarreal
• Court: Court of Appeals of Texas

Page 478

961 S.W.2d 478

In re Robert W. JOHNSON, Jr., Juan Lopez Butron, and Luis Enrique Cortinas Villarreal

Nos. 13-97-550-CV, 13-97-558-CV.

Court of Appeals of Texas Corpus Christi.

Sept. 26, 1997.

Ronald G. Hole, Micaela Alvarez, Law Office of Ronald G. Hole, McAllen, R.E. Lopez, Jr., Brownsville, Robert W. Johnson, Jr., Corpus Christi, for Relators.

William L. Hubbard, Jose E. Garcia, Law Office of Jose E. Garcia, Cynthia G. Gutierrez, Ellis, Koeneke & Ramirez, McAllen, Stephen White Schueler, Winstead Sechrest & Minick Pc, Houston, for Real Parties in Interest.

Before SEERDEN, C.J., and DORSEY and CHAVEZ, JJ.

OPINION

SEERDEN, Justice.

By the present original proceedings for mandamus, prohibition and injunctive relief, Juan Lopez Butron, Luis Enrique Cortinas Villarreal, and their attorney, Robert W. Johnson, Jr. (collectively "Butron"), seek to set aside orders of the trial court which prevent Butron's collection of a judgment of a sister court. We conditionally grant a writ of mandamus, and grant a writ of prohibition and injunctive relief.

I. The Legal Malpractice Judgment of the 138th District Court

Butron sued Mark A. Cantu for legal malpractice in the 138th District Court in Cameron County, and that court granted a May 1993 judgment against Cantu for more than $1,000,000. That judgment was appealed to this Court, and Cantu posted a supersedeas bond to prevent execution during the appeal. We affirmed the May 1993 judgment, the Texas Supreme Court denied writ of error, and our mandate issued on February 19, 1997. See Cantu v. Butron, 921 S.W.2d 344 (Tex.App.--Corpus Christi 1996, writ denied).

II. Initial Proceedings Before the 93rd District Court

However, while that appeal was pending, Mark A. Cantu and his wife, Roxanne Cantu, brought a separate action against Butron in the 92nd District Court of Hidalgo County (later transferred to the the 93rd District Court of Hidalgo County) for wrongful garnishment in connection with Butron's alleged attempts to collect his judgment against Cantu. Cantu's lawsuit in the 93rd District Court initially generated two interlocutory orders preventing execution of the May 1993 judgment:

-- July 28, 1995, partial summary judgment which declared the May 1993 judgment void and provided that "[n]o process or execution may be had upon that judgment"; ¹ and

-- February 11, 1997, temporary injunction specifically enjoining Butron from collecting his judgment against Cantu.

III. The Accelerated Appeal

Butron brought an accelerated appeal from the February 1997 temporary injunction, and this Court recently ordered that injunction dissolved on the ground that it was beyond the power of the 93rd District Court to enjoin the collection of a judgment of the 138th District Court. See Butron v. Cantu, 960 S.W.2d 91 (Tex.App.--Corpus Christi, 1997, n.w.h.) (not yet reported).

IV. Subsequent Orders of the Trial Court Preventing Execution

After this Court handed down its opinion in the accelerated appeal, Butron moved to set aside the partial summary judgment as well. The 93rd District Court, however, denied Butron's motion and declined to set aside the partial summary judgment. In addition, on September 4, 1997, the 93rd District Court granted an additional temporary restraining order preventing Butron from collecting his judgment by prohibiting Universal Security of America, Inc., the surety on the supersedeas bond, from demanding payment of a letter of credit issued by International Bank of Commerce as security for the bond. ²

Finally, Cantu has recently, on September 17, 1997, filed another lawsuit against Universal Surety and International Bank of Commerce in the 370th District Court of Hidalgo County, seeking injunctive relief. On September 18, 1997, the trial court signed a temporary restraining order granting generally the same relief as had already been granted by the 93rd District Court, by prohibiting Universal Surety from making demand for funds under the letter of credit issued by the International Bank of Commerce.

V. Relief Requested by Original Proceedings Before this Court

By the present original proceedings, Butron requests mandamus relief to set aside the partial summary judgment and temporary restraining order of the 93rd District Court, writ of prohibition to prevent the trial court from issuing subsequent orders of the same nature, and an injunction to prevent Cantu from continuing to ask for such relief before other courts of this state. Finally, Butron asks this Court to hold Cantu in contempt for his continuing efforts to block collection of the judgment through ex parte proceedings in the courts below.

a. mandamus

Generally, 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. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992).

A court of appeals may issue a writ of mandamus to enforce its jurisdiction and to prevent the trial court from interfering with its judgments. See TEX. GOV'T CODE ANN. § 22.221(a) (Vernon 1988); Upjohn Co. v. Marshall, 843 S.W.2d 203, 204 (Tex.App.--Dallas 1992, no writ). Specifically, when the appellate court has once determined the validity of injunctive relief by interlocutory appeal, any attempt by the trial court to interfere with that determination by a subsequent inconsistent order is reviewable by mandamus and need not await further appeals. See State v. Walker, 679 S.W.2d 484, 485 (Tex.1984) (when the court has once established the validity of a temporary injunction on appeal, mandamus is appropriate to review a subsequent order of the trial court dissolving that injunction).

In the present case, the trial court had no more authority to restrain Butron from executing his judgment by way of the partial summary judgment and temporary restraining order, than by the temporary injunction which this Court has already ordered set aside on appeal. Accordingly, the trial court erred in failing to set aside the partial summary judgment, and in entering the later temporary restraining order, for the same reasons explained by this Court in Butron v. Cantu.

Moreover, under the present circumstances, mandamus relief is appropriate to require the trial court to set aside orders that interfere with the execution of a sister court's judgment and challenge this Court's jurisdiction enforce its judgment. The trial court's failure to set aside the partial summary judgment and the continued issuance of temporary orders beyond its power and contrary to the prior judgment of this Court, impairs the effectiveness of the relief granted by this Court.

In addition to mandamus, the courts of appeals in Texas also have the authority to issue "all other writs necessary to enforce the jurisdiction of the court." See TEX. GOV'T CODE ANN. § 22.221(a) (Vernon 1988).

b. prohibition

A writ of prohibition is used to protect the subject matter of an appeal or to prohibit an unlawful interference with the enforcement of a superior court's orders and judgments. Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 683 (Tex.1989); Chang v. Resolution Trust Corp., 814 S.W.2d 543, 545 (Tex.App.--Houston [1st Dist.] 1991, orig. proceeding). The writ of prohibition has three functions: preventing interference with higher courts in deciding a pending appeal, preventing inferior courts from entertaining suits which will relitigate controversies which have already been settled by issuing courts, and prohibiting a trial court's action when it affirmatively appears that the court lacks jurisdiction. Texas Capital Bank-Westwood v. Johnson, 864 S.W.2d 186, 187 (Tex.App.--Texarkana 1993, orig. proceeding); McClelland v. Partida, 818 S.W.2d 453, 456 (Tex.App.--Corpus Christi 1991, orig proceeding). One of the purposes for which a writ of prohibition may be used is to prevent a court from exercising jurisdiction which it has no lawful right to exercise. McClelland, 818 S.W.2d at 456.

In the present case, the 93rd District Courts is continuing to act beyond its jurisdiction in attempting to block the execution of the judgment...