In re First Savings Bank, FSB, Richard Driscoll, Southwest Securities Group, Inc., William D. Felder, Haynes and Boone, LLP, Greg R. Samuel and Craig Unterberg--Appeal from 249th District Court of Johnson County

IN THE

TENTH COURT OF APPEALS

No. 10-04-00197-CV

In re First Savings Bank, FSB,

Richard Driscoll, Southwest Securities Group, Inc.,

William D. Felder, Haynes and Boone, LLP,

Greg R. Samuel and Craig Unterberg

Original Proceeding

MEMORANDUM Opinion

Relators seek a writ of mandamus from this Court directing Respondents to vacate a show-cause order issued in connection with a contempt motion filed by Walter G. Mize and alleging that Relators had failed to comply with a temporary injunction which this Court dissolved in an interlocutory appeal. Because the appeal of the temporary injunction is now pending in the Supreme Court, the trial court has no jurisdiction to enforce the order. Thus, we will conditionally grant the writ.

The Honorable D. Wayne Bridewell, Judge of the 249th District Court of Johnson County, granted Mize s request for a temporary injunction in the underlying proceeding. Relators perfected an interlocutory appeal to this Court. In a memorandum opinion, we reversed the order granting the temporary injunction, dissolved the injunction, and remanded the cause to the trial court with instructions to dismiss Mize s claims for want of jurisdiction. First Sav. Bank, FSB v. United Heritage Corp., No. 10-03-00118-CV, slip op. at 6, 2004 Tex. App. LEXIS 4345, at *7-8 (Tex. App. Waco May 12, 2004, pet. filed) (mem. op.).

Mize filed a petition for review in the Supreme Court, which remains pending. Mize then filed the contempt motion in the trial court, complaining that Relators have failed to comply with the temporary injunction. On the same date, the Honorable William C. Bosworth, Jr., Judge of the 413th District Court of Johnson County, issued an order requiring Relators to appear and show cause why they should not be held in contempt. See Tex. Gov't Code Ann. 24.303(a) (Vernon 2004).

Relators contend that the trial court did not have jurisdiction to issue the show-cause order because of the pendency of the appeal.

For appealable orders in the nature of an injunction, in which the validity of the order alleged to have been violated is itself in issue in the appeal, the appellate court alone is vested with jurisdiction to enforce the injunctive provisions by contempt.

Schultz v. Fifth Jud. Dist. Ct. of Apps., 810 S.W.2d 738, 740 (Tex.1991) (orig. proceeding) (footnote omitted); In re Taylor, 39 S.W.3d 406, 409-10 (Tex. App. Waco 2001, orig. proceeding); In re Goldblatt, 38 S.W.3d 802, 804 (Tex. App. Fort Worth 2001, orig. proceeding). Under the rationale of Schultz and its progeny, we agree with Relators contention.

Because the trial court lacked jurisdiction to issue the show-cause order, Relators need not show that they have no other adequate legal remedy. In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding) (per curiam); In re McGuire, 134 S.W.3d 406, 410 (Tex. App. Waco 2004, orig. proceeding).

Although Relators name as Respondents both Judge Bridewell, the elected judge of the 249th District Court, and Judge Bosworth, who sat as judge of the 249th District Court under the exchange of benches provision of the Government Code, Judge Bridewell is the proper respondent in this case. See In re Dilley Indep. Sch. Dist., 23 S.W.3d 189, 190 n.1 (Tex. App. San Antonio 2000, orig. proceeding); Hoggard v. Snodgrass, 770 S.W.2d 577, 588 (Tex. App. Dallas 1989, orig. proceeding).

The trial court had no jurisdiction to enforce the temporary injunction because of the pendency of the appeal. Accordingly, we conditionally grant the requested writ of mandamus. The writ will issue if Judge Bridewell fails to advise this Court in writing within fourteen days after the date of this opinion that he has vacated the show-cause order.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Writ conditionally granted

Opinion delivered and filed September 15, 2004

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