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IN THE
TENTH COURT OF APPEALS
 

No. 10-94-063-CV

     DONNA DOUTHITT JONES, ET AL.,
                                                                                              Relators
     v.

     HONORABLE W.T. McDONALD, JR., ET AL.,
                                                                                              Respondents
 

 Original Proceeding
                                                                                                    

O P I N I O N
                                                                                                    

      This is an original proceeding for a writ of prohibition.  Relators, Donna Douthitt Jones and
her brother, Cameron Douthitt, seek to prohibit Judge W.T. McDonald, Jr., visiting judge of the
87th District Court, Cleathern Fuller,
 and his attorney, Jack Cagle, from litigating issues that,
if determined, will allegedly interfere with our judgment and mandate in Jones v. Fuller, 856
S.W.2d 597 (Tex. App.—Waco, 1993, writ denied).  We deny the petition for the writ without
prejudice to its refiling.
WRIT'S AVAILABILITY
      A writ of prohibition, whose purpose is to prohibit a lower court from unlawfully interfering
with the enforcement of a higher court's judgments and orders, will not issue until the trial court
evidences an intent to disturb or interfere with the higher court's judgment.  Compare Jones v.
Strauss, 800 S.W.2d 842, 843 (Tex. 1990) (orig. proceeding) with Jones v. Strauss, 745 S.W.2d
898, 900 (Tex. 1988) (orig. proceeding). 
PRIOR LITIGATION
      Donna and Cameron sued Fuller and the Fuller 1991 Children's Trust in July 1991, seeking
a declaratory judgment that they hold express easements across the Fuller tract under deeds from
their father, B.D. Douthitt.  They also sought injunctive relief, damages, and attorney's fees. 
Following a bench trial in May 1992, the court rendered a judgment that Donna and Cameron take
nothing.
      Donna and Cameron appealed.  We issued an opinion and judgment on April 21, 1993, but
later withdrew and substituted for them an opinion and judgment dated June 16, 1993.  In our final
opinion we reversed the take-nothing judgment, severed the action for declaratory judgment from
the claims for injunctive relief, damages, and attorney's fees, and then rendered a declaratory
judgment that Donna and Cameron 
each have valid easements appurtenant across the property now owned by the Fuller 1991
Children's Trust; that the appurtenant easements are coextensive with the road beginning at
the cattle guard and then along the green-line road to its intersection with the common
boundary line of the Warrick Martin Survey and McGruder Survey.
See Fuller, 856 S.W.2d at 605.  Finally, without specifying whose claims were being remanded,
we remanded for trial the actions for injunctive relief, damages, and attorney's fees.  However,
our judgment and mandate both expressly stated that we remanded Donna's and Cameron's causes
of action.
      Before we withdrew our first opinion, Fuller and the Trust filed a cross-action against Donna
and Cameron for a declaratory judgment, injunctive relief, and damages.  They sought a
declaratory judgment that the easement claimed by Donna and Cameron "is not valid and is of no
force and effect" but, if an easement exists, that it be "designated to a reasonable form and manner
so as to not unduly interfere with the activities of the servient estate."  As already noted, our
second opinion not only declared that the easements existed but specified their location on the
ground.  Following the issuance of our mandate, Donna and Cameron amended their pleading for
injunction, damages, and attorney's fees.
      Fuller and the Trust allege in an amended cross-petition, filed after our mandate issued, that
Donna and Cameron should pay Fuller's attorney's fee because they claimed "unlimited rights"
over the Fuller tract and that Fuller is entitled to recover actual and punitive damages because
Donna and Cameron forced him to "defend his personal freedom," "threatened and harassed" him,
and wrongfully placed a lien against his property.  Fuller also seeks to permanently enjoin Donna
and Cameron from using any of the Fuller property, except the easement specified in our opinion,
and from using the easement specified in our opinion until Donna and Cameron, at their expense,
have it described by metes and bounds.
HAS TRIAL COURT EVIDENCED AN INTENT
TO INTERFERE WITH OUR JUDGMENT?
      Donna and Cameron contend they are entitled to a writ of prohibition because Judge
McDonald's statements at a discovery hearing evidence an intent to interfere with our judgment
and mandate.  For the reasons given below we do not agree.
      At the hearing Fuller generally argued that Donna and Cameron had claimed in the first trial
"broader rights" to an easement than they were later awarded on appeal and, for that reason, he
is entitled the recover larger attorney's fees in the second trial.  Donna and Cameron asserted,
however, that any claim by Fuller for attorney's fees based on having defended against their
easement claim is now precluded by res judicata.  See Barr v. Resolution Trust Corp., 837 S.W.2d
627, 629-31 (Tex. 1992).  They pointed out that Fuller did not seek attorney's fees in the first trial
or preserve for appellate review any complaint relating to their denial.  
      Our judgment and mandate establish as a matter of law that Donna and Cameron have express
easements across Fuller's tract and, furthermore, conclusively establish their location on the
ground.  These decisions are now binding on the trial court in all subsequent proceedings as the
"law of the case."  See Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986).  Nor can these
issues be relitigated because of the doctrine of res judicata.  See Barr, 837 S.W.2d at 628 n.1.
      Judge McDonald has not evidenced any intention of allowing Fuller to litigate whether an
easement actually exists or its location.  Thus, he has not evidenced any intent of allowing Fuller
to disturb or interfere with our judgment and mandate in that regard.
RES JUDICATA
      Judge McDonald has indicated, however, that he will allow Fuller to litigate whether he is
entitled to greater attorney's fees in the second trial because of allegedly having to defend against
an overly broad easement claim in the first trial.  Assuming that this issue is barred by res
judicata, as Donna and Cameron contend, will litigating the barred issue disturb or interfere with
our judgment and mandate?
  Not in this instance.
      The Supreme Court has specified the essential condition for using a writ of prohibition to
resolve a claim of res judicata:
The power of a court to enforce its jurisdiction does not include an authority to prevent
the prosecution of any suit to which a judgment of the court may be an effectual bar, but
which . . . makes no attempt to disturb it, or to interfere with its execution. . . .
Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 (Tex. 1989) (orig. proceeding) (quoting
Milam County Oil Mill Co. v. Bass, 106 Tex. 260, 264-65, 163 S.W. 577, 578-79 (1914))
(emphasis added).  Thus, a writ of prohibition can only be used to prevent litigation of an issue
barred by res judicata when the issue's litigation will disturb or interfere with the higher court's
judgment or its execution.  Otherwise, a complaint relating to an issue precluded by res judicata,
when its litigation will not disturb or interfere with the prior judgment, must be resolved in a
direct appeal.  Holloway, 767 S.W.2d at 684.
      Allowing Fuller to litigate an issue regarding his attorney's fees from the first trial—assuming
it is an issue barred by res judicata—will not interfere with or disturb our judgment declaring the
existence of an easement and its location.  Any complaint Donna and Cameron have relating to
the issue being barred by res judicata should be preserved and presented in a direct appeal.
EXCEEDING SCOPE OF REMAND 
      A writ of prohibition is available to prevent a trial court from exceeding the scope of a limited
remand:    
When the opinion and mandate of this court prohibit relitigation of some issues on
remand, or direct that only some expressly severed issues or causes may still be litigated, and
the parties and trial court attempt relitigation beyond that which was expressly permitted, a
writ of prohibition will issue to prohibit relitigation.
Cherokee Water Co. v. Ross, 698 S.W.2d 363, 366 (Tex. 1985) (orig. proceeding).  The writ is
available because a trial court that allows the parties to litigate beyond the scope of a limited
remand is interfering with that portion of the judgment limiting the remand.  See Hudson, 711
S.W.2d at 630 (holding that a trial court is restricted to determining only the issues within the
limited remand).
      Donna and Cameron contend they are entitled to a writ of prohibition because Judge
McDonald has evidenced an intent to allow Fuller to litigate issues that exceed the scope of our
remand.  The problem with their hypothesis is that our judgment and mandate did not limit the
scope of the remand.  Ours was a general remand.  We merely remanded Donna's and Cameron's
causes of action for injunctive relief, damages, and attorney's fees without expressing any intent
to limit the remand in any way.  See id. (holding that the intent to limit the remand "must clearly
appear from the decision").  We neither expressly prohibited the trial court from litigating any
particular issues nor expressly directed that only certain severed issues or causes could still be
litigated on remand.  
      Fuller indicated through his counsel at the discovery hearing that he intends to litigate the
issues raised in his cross-petition, including claims for injunctive relief, damages, and attorney's
fees, and Judge McDonald has evidenced an intent to allow him to do so.  However, none of the
claims asserted by Fuller, even if litigated, will exceed the scope of our remand.
      We therefore deny the petition for a writ of prohibition because Judge McDonald, Fuller, and
his attorney have not evidenced an intent to disturb or interfere with our judgment or mandate. 
See Jones, 745 S.W.2d at 900.  We deny the petition without prejudice to its refiling. 
 
                                                                               BOB L. THOMAS
                                                                               Chief Justice
Before Chief Justice Thomas,
      Justice Cummings, and
      Justice Vance
Writ denied
Opinion delivered and filed July 13, 1994
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