NO. 07-04-0094-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO PANEL C JUNE 1, 2004

______________________________ In re: ROD NEY WAR REN, RWW ENTERP RISES, IN C., and SPSM, LTD. Relators

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Original Proceeding

_______________________________ Before JOHNSON, C.J., and QUINN and REAVIS, JJ. RodneyWarren, RWW Enterprises, Inc. and SPSM, Ltd . (Warren) petition the court for a writ of mandamus

to compel t he Hon. A ndrew J. Kupper, 99 th Judicia l Distri ct Court, Lubbock County (99th), to abate various causes filed in that cou rt pending the final disposition of various causes filed in the 121 stJudicia l Distri ct Court, Terry Co unty (121 st). We deny the petition. The record before us illustrates that Warr en moved the 99 th to abate the cases pending therein. The trial court denied the motion. It is thataction that Warren now asks
us to review through mandamus. Howev er, it is c lear that mandamus will not lie if the relator has an adequate remedy a t law. See In re State Bar , 113 S.W.3d 730, 733 (Tex. 2003). Furthermore, appeal has been recognized as such a remedy when the relator seeks review of

inciden tal ruli ngs made by the tri al court. Id. ; Abor v. Black , 695 S.W.2d2

564, 566-67 (Tex. 1985). Within the category of incidental rulings are those denying a plea
or motion to

abate. Abor

v. Black , 695 S.W. 2d at 566 -67, quoting Pope v. Ferguson , 445 S.W.2d 950 (Tex . 1969); Coastal Oil & Gas Corp. v. Flores , 908 S.W.2d 517, 518 (Tex. App.–San Antonio 1995, orig. proceeding). Given this and the fact that Warren as ks us to review the trial court’s action viz his ple a to abate, we mus t deny hi s request

. In so holding, we do not ignore Warren’s co ntention that this cause falls within an exception to the rule announced in A bor. T he exception pertains to effort by one district court to interfere with another’s jurisdiction. When that occurs, then mandamus may indeed issue, In re State Bar , 113 S.W.3d at 734, assuming, of course, that the relator has satisfied every other element for securing the relief. Warren believes that is occurring here becaus e the 121 stpurportedly has within its registry or custody funds that constitute p art of the dispute involved in the suits pendi ng in the 99 th

. Itis true t hat one court may n ot ordina ri ly inter fere with property held by another court in custodia legis

. First Southern Properties, Inc. v. Vallone , 533 S.W.2d 339, 342-43 (Tex. 1976). S o too is it true th at t his ruleis found ed upon the premi se that th e court possessing the property acquires jur isd iction to entertain all controversies involving the property. Id. Yet, the que sti on of mandamus and the availability of an adequate legal remedyin lieu of mandamus was not at issue in Vallone , a case on which Wa rren reli es to support his contenti on. Moreover, autho rity has r ecognize d not onl y that pro perty may be held in custodia legis

by one court while ownership of that property is resolved by another butalso that the court lacking possession of the res has jurisdiction to continue as long as itdoes not disturb the other’s possession of the res
. Kull v. Brown , 165 S.W.2d 1011, 1014 (Tex. Civ. App.–Texarkana 1942, nowrit) . And, co inciden tally, th e latter rule seem s to1 The suit s ini ti ated i n the 99 th by How 1, I nc. enc ompass causes of acti on soundi ng in b reache d contractand dam age s for sa me , spe cifi c per for mance, brea ched fi duciar y dutyand damages for same, conversi on of a partn ersh ip intere st an d da ma ges for sam e, an d injun ction. Th us , m uc h m ore is inv olve d in the suit s than simpl y who owns the money that Warren deposi ted wi th t he 121 st . And, t his ci rcumstance also dist ingui shes our cas e from that b efor e the co urtin Harris v. M oore , 740 S. W.2d 14 (Tex. App.–El Paso 1987, ori g. proceedi ng), another case upon which W arren re li es. I n Ha rris , the sole issu e in th e se co nd suit ap pa ren tly invol ved an atto rne y’s a ttem pt to sec ure a po rtion of th e fu nd s he ld by ano ther cou rt. Moreov er, no wh ere did the cou rtin Ha rris mention Abor or ha ve th e be nefit of In r e State Bar , both of wh ich he ld that, when consideri ng whether to i ssue a writ of mandam us, an appeal consti tut ed an adequat e remedy as long as one c ourt did no t interfere with or i ssue an orde r interferin g w ith the ju risdictio n of the othe r. So, Ha rris is not p ersu asive

. 3 echo that described in In re State Bar and dire cting tha t, for purpos es of mandamus, an appeal is an adequate remedy so long as one court does not issue“ an order that directly interferes with another court ’s jurisd iction.” In re State Bar , 113 S.W.3d at 734 (emphasis added). Here, we are cited to no evidence of an o rder by which the 99 th tried to obtain posses sion of, otherwise exercise any control over, or in any way divest the 121 st of th e monies held within its regis try

. Until such evidence arises and is brought to ou r attention,
we cannot but hold that appeal is an ad equate remedy bywhich to review the order denying Warren’smotion to abate. See e. g. Eikenburg v. Webb , 880 S.W.2d 781, 782 (Tex. App.–Ho uston [1 stDist.] 1993, orig. proceeding) (granting mandamus relief because effort actuallywas madeto removethe fund s within the trial court’s r egistry). This see ms especially

so when, as here, the suits pending in the 99 th involve issues other than simply ownershi p of the f

unds hel d by the 1 21st. 1 In clo sin g, we recognize the increased expense i nherent in trying similar issues between similar o r identical parties in different courts. Yet, the Supreme Court has provided us with the controlling rules, and we must follow them. Accordingly, the petition for writ of mandamus is denied.4 Brian Quinn Justice