dissenting.
I disagree with the court that Pat Holloway has not received adequate review of the judgment rendered against him in 1982. Because of the peculiar perplexities in this case, the court of appeals did not abuse its discretion in utilizing a writ of prohibition to put an end to this vexing litigation.
This saga began in 1979 when the Brownings sued Humble Exploration Company and Holloway in the 193rd State District Court. The Brownings sought equitable ownership of both Humble and Holloway’s assets and also sought to impose a constructive trust on these assets. They also prayed for actual and exemplary damages. In 1982, after a month-long jury trial, judgment was rendered against Holloway for $72,000,000 in actual damages and $10,000,000 in exemplary damages. To a greater or lesser extent, Holloway’s litigious whims and contentions have been reviewed by approximately 50 state court judges in 9 state court proceedings and approximately 34 federal judges in 10 federal court proceedings. See Browning v. Navarro, 826 F.2d 335 (5th Cir.1987); Holloway v. Walker, 784 F.2d 1287, reh’g denied, 790 F.2d 1170 (5th Cir.1986); Holloway v. Walker, 765 F.2d 517 (5th Cir.1985); Browning v. Navarro, 743 F.2d 1069 (5th Cir.1984), rev’g 37 B.R. 201 (N.D.Tex.1983); Browning v. Ryan, 756 S.W.2d 379 (Tex.App.-Dallas 1988, orig. proceeding); Humble Exploration Co. v. Browning, 677 S.W.2d 111 (Tex.App.-Dallas 1984), en banc op. on motion to reinstate 690 S.W.2d 321 (Tex.App.-Dallas 1985, writ ref’d n.r.e.), cert. denied, 475 U.S. 1065, 106 S.Ct. 1376, 89 L.Ed.2d 602 (1986); Humble Exploration Co. v. Walker, 641 S.W.2d 941 (Tex.App.-Dallas 1982, orig. proceeding); Humble Exploration Co. v. Fairway Land Co., 641 S.W.2d 934 (Tex.Civ.App.-Dallas 1982, writ ref’d n.r.e.); Browning v. Holloway, 620 S.W.2d 611 (Tex.Civ.App.-Dallas), writ ref’d n.r.e. per curiam, 626 S.W.2d 485 (Tex.1981). Thus, I do not fault the court of appeals for trying to terminate this litigation.
The court of appeals’ dismissal of Holloway’s appeal of the 1982 judgment in Humble Exploration Co. v. Browning is more than a mere order of dismissal. It is an opinion which embraces both the judgment of dismissal and the holdings which led to the ultimate decision to dismiss. In light of the history of this litigation, it is illogical to conclude that the dismissal itself is intact, yet conclude that the rationale behind the dismissal has no real effect, should be regarded as mere surplusage, and that no writ of prohibition may be issued for its protection. We previously reviewed Holloway’s application for writ of error concerning this judgment and determined the court of appeals committed no reversible error. We did not then take the opportunity to deem the court of appeals’ holdings, other than the order of dismissal itself, as surplusage and we should not take such opportunity now.
The court states that the court of appeals apparently viewed its judgment as essentially one of affirmance. I disagree. The effect of the judgment was not to affirm the trial court but to dismiss the action altogether because Holloway elected to seek review in federal court regarding the same state court judgment. The court of appeals necessarily determined the merits of the action, i.e., whether Holloway’s appeal had merit in light of his having elected an inconsistent remedy in federal court. Therefore, the court of appeals rendered a judgment which can be protected by writ *686of prohibition. This is in keeping with the purpose of a writ of prohibition which is to prevent the relitigation of issues which were decided in or otherwise precluded by a prior decision of an appellate court. See Cherokee Water Co. v. Ross, 698 S.W.2d 363, 366 (Tex.1985); City of Orange v. Clark, 627 S.W.2d 146, 147 (Tex.1982). Thus, given its prior history, it makes little sense to me to allow this litigation to continue. With every legal setback Holloway receives, he initiates another lawsuit or appeal. \Ya bastal1
The court states that even had the court of appeals ruled on the merits, such ruling would have been “mere surplusage” incapable of enforcement and cites Fitch v. International Harvester Co., 163 Tex. 221, 354 S.W.2d 372, 373 (1962). Fitch was a per curiam opinion which involved a dismissal of an appeal based on want of prosecution as the appellants failed to timely perfect their appeal. The instant matter does not involve a dismissal for want of prosecution and is therefore distinguishable from Fitch. Furthermore, the court of appeals in Fitch attempted to both dismiss the appeal and affirm the trial court. The court of appeals in the case before us did not pursue such inconsistent treatment.
In Humble Exploration Co. v. Browning, the court of appeals specifically held that if a party seeks review of a state court judgment in federal court on the ground of an alleged violation of a condition of remand from bankruptcy court without pointing out the alleged error in the state court, the party is barred from further relief in state court. This holding was germane to the judgment of dismissal, and should be entitled to protection when a lower court attempts to take action in contravention of it, as Judge Ryan attempted to do by opening up yet another avenue for Holloway’s perpetual complaints.
Judge Ryan declared the 162nd District Court judgment void for want of jurisdiction. However, the court of appeals had previously concluded that under the facts of this case, when the parties permitted the case to go to judgment without notifying the trial judge that the proceeding had not been conducted in accordance with the remand order of the bankruptcy court, the defect was not jurisdictional, but a matter of procedure and was thus waived. The Fifth Circuit in Browning v. Navarro later issued an opinion consistent with this view. Therefore, Judge Ryan’s judgment does interfere with the court of appeals' judgment of dismissal, and a writ of prohibition to prevent such interference is proper.
I agree with the court of appeals that if circumstances ever existed for a writ of prohibition, this is one. Litigants, such as Holloway, who have had more than ample opportunity to litigate all issues in various forums, should not be allowed to bring forth additional matters which should have been or were raised in a previous proceeding. As all legal controversies must some day come to an end, we should deny the writ of mandamus. Rather than finding fault with the court of appeals, I applaud it for trying to bring closure to this protracted litigation. It is unjust to force the Brownings to continue to bear the costs and burdens of further litigation.
For the above reasons, I dissent.
. Bnough is enough.