Opinion issued April 23, 2013




                                        In The

                                Court of Appeals
                                        For The

                            First District of Texas
                             ————————————
                                NO. 01-13-00076-CV
                             ———————————
    IN RE JOHN M. O’QUINN & ASSOCIATES PLLC D/B/A THE O’QUINN
       LAW FIRM AND MUSSLEWHITE & ASSOCIATES, P.C., Relators



       Original Proceeding on Petition for Writ of Injunction/Prohibition1



                           MEMORANDUM OPINION

       Relators John M. O’Quinn & Associates, PLLC d/b/a The O’Quinn Law

Firm and Musslewhite & Associates, P.C. filed a Petition for Writ of

Injunction/Prohibition seeking an order from this Court enjoining respondents/real




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       There is a related direct appeal pending in this Court as Cause No. 01-12-000984-
       CV.
parties-in-interest 2 from “taking any action whatsoever . . . other than to seek

dismissal with prejudice of their claims” in three judicial proceedings for the

pendency of the direct appeal in Cause No. 01-12-00984-CV. We deny relators’

petition.

                                 BACKGROUND

      The parties here have a protracted history of litigation, which relators claim

was finally and completely settled as to all parties and issues by a 2009 mediated

Rule 11 Settlement Agreement. On October 12, 2012, the Harris County 190th

District Court issued a final judgment. In this final judgment, the court found that

the Rule 11 Settlement Agreement was not ambiguous, that “the parties have

settled all matters that were in dispute or could have ever been in dispute between

them,” and that the settlement “was intended to resolve all pending litigation in all

courts involving the parties . . . .” The respondents have appealed that final

judgment to this Court, where it is currently pending as Cause No. 01-12-00984-

CV.    According to relators, real-parties-in-interest then filed suits essentially

attacking the district court’s judgment in three other courts, i.e., Harris County




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      Walter L. Boyaki; Miranda & Boyaki; Ruben P. Hernandez; Modesto Fernandez
      Ramirez, on behalf of Victoria Penasco and the Estate of Angel Fernandez
      Ramirez; Martha Gonzalez Ramos, individually and as representative of Sheila
      Reyes Gonzalez; Jose DeJesus Reyes Gonzalez; Paulina Baltizar Ojeda; Maria
      Ojeda De Baltazar
                                         2
Probate Court No. 2 and El Paso 205th District Court and El Paso 327th District

Court.

         Relators assert here that this “Court has dominant jurisdiction over the

lawsuit, to the exclusion of the El Paso courts, and the Harris County Probate

Court.” They argue that an injunction against respondents is necessary because the

continued “prosecution of the El Paso Parallel Litigation and the Parallel Probate

Proceedings will directly interfere with the effectiveness of, and may substantially

moot, any rulings by this Court.”

         A. The Probate Court Proceedings

         The Executor of John O’Quinn’s estate filed a Plea in Abatement in the

Harris County Probate Court No. 2 on the issue of dominant jurisdiction. The

probate court held a hearing on the motion on February 5, 2013, during which the

respondents argued that the probate court should wait to rule until this Court

resolved relators’ Petition for Writ of Injunction/Prohibition. The probate court

nonetheless issued an “Order of Abatement” of those proceedings pending

conclusion of the direct appeal of the 190th district court’s final judgment.

         In light of the probate court’s order, relators in their reply brief concede that

their request for relief with regard to the Harris County Probate Court proceedings

is likely moot.




                                             3
      B. The El Paso Court Proceedings

      Relators claim that “Real Parties in Interest have shown their intent to

prosecute [the two El Paso District Court cases] by attempting to serve Relator

Musslewhite with citation in those cases, as well as by attempting to serve the, now

dead, John M. O’Quinn by serving Dale Jefferson who represents the estate.” The

record does not reflect any additional activity in the El Paso cases, and the relators

have not requested that the El Paso district courts abate their proceedings.

                                APPLICABLE LAW

      A writ of prohibition in an appellate court is a limited purpose remedy. In re

Lewis, 223 S.W.3d 756, 761 (Tex. App.—Texarkana 2007, orig. proceeding); TEX.

GOV’T CODE § 22.221(a). The writ is used to protect the subject matter of an

appeal or to prohibit an unlawful interference with enforcement of a superior

court’s judgment. 3 See Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 682

(Tex. 1989) (orig. proceeding); Sivley v. Sivley, 972 S.W.2d 850, 863 (Tex. App.

—Tyler 1998, orig. proceeding).         Prohibition is not appropriate if any other

remedy, such as appeal, is available and adequate. In re Castle Tex. Prod. Ltd.

P’ship, 189 S.W.3d 400, 404 (Tex. App.—Tyler 2006, orig. proceeding).

      “Thus, injunctive relief may be granted by this court if a failure to do so

would result in the appeal becoming moot and the subject matter being destroyed.”

3
      Similarly, the purpose of a writ of injunction is to enforce or protect the appellate
      court’s jurisdiction. Holloway, 767 S.W.2d at 683.
                                            4
Becker v. Becker, 639 S.W.2d 23, 24 (Tex. App.—Houston [1st Dist.] 1982, no

writ). “On the other hand, this court does not have jurisdiction to issue a writ of

injunction merely for the purpose of preserving the status quo or to prevent loss or

damage to one of the parties to the appeal.” Id.

      The supreme court has also admonished that an original proceeding is not

“the appropriate vehicle for resolving a claim of res judicata.” Holloway, 767

S.W.2d at 684.

      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. . . . The assumption of
      such right would invest a court not merely with the control of its own
      judgments and authority to enforce its jurisdiction, but with a further
      power to govern other courts in the exercise of their lawful
      jurisdiction; and the result would be that the issue of the
      conclusiveness of a judgment upon what is urged as a distinct cause of
      action could never be determined except by the court that rendered it.
Id. Accordingly, the remedy provided by our system, should a trial court fail to

recognize the preclusive effect of a prior judgment, is an appeal. Id.

                                    ANALYSIS

      Without considering when, or if, a writ of injunction/prohibition would be

appropriate in this situation, we deny relators’ request because they have not

demonstrated that proceedings in the El Paso district courts pose a current threat to

the subject matter of the direct appeal from the 190th district court’s judgment. “A

writ of prohibition, whose purpose is to prohibit a lower court from unlawfully

                                          5
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.” Jones v. McDonald, 880 S.W.2d 260, 261 (Tex. App.—Waco

1994, orig. proceeding). The two El Paso district courts, which have not even been

presented with a motion to abate, cannot be said to have “evidence[d] an intent to

disturb or interfere” with the direct appeal pending in this Court. Id.

                                  CONCLUSION

       Relators’ petition is denied.




                                              Sherry Radack
                                              Chief Justice

Panel consists of Chief Justice Radack and Justices Higley and Brown.




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