Jack Rettig v. Ronald E. Bruno, Christopher Garcia, Sergio Lopez, Patrick G. Mendoza, and Troy J. Williams

• Court: Court of Appeals of Texas
• Decided: June 18, 2015
• Docket: 04-15-00350-CV
• Status: Published

Opinion

ACCEPTED 04-15-00350-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 6/18/2015 4:32:00 PM KEITH HOTTLE CLERK

No. 04-15-00350-CV FILED IN 4th COURT OF APPEALS IN THE COURT OF APPEALS FOR THE SAN ANTONIO, TEXAS FOURTH JUDICIAL DISTRICT OF TEXAS06/18/15 4:32:00 PM SAN ANTONIO KEITH E. HOTTLE Clerk

Jack Rettig, Appellant v.

Patrick Mendoza and Christopher Garcia, Appellees

Appeal from the 111th District Court of Webb County, Texas

APPELLANT JACK RETTIG’S MOTION TO ABATE APPEAL

LAW OFFICE OF Fritz Byrne Head & Fitzpatrick AUDREY MULLERT VICKNAIR PLLC

Audrey Mullert Vicknair C. M. Henkel III State Bar No. 14650500 State Bar No. 09463000 802 N. Carancahua Ste. 1350 500 North Shoreline, Ste. 901 Corpus Christi, Texas 78401-0022 Corpus Christi, Texas 78401 (361) 888-8413; (361) 887-6207 fax (361) 883-1500; (361) 888-9149 fax avicknair@vicknairlaw.com skip@cmenkel.com

Attorneys for Appellant Jack Rettig

1 TO THE HONORABLE FOURTH COURT OF APPEALS:

COMES NOW Appellant Jack Rettig and files this Motion to Abate Appeal,

and for cause would show:

This an appeal from two orders granting Motions to Vacate a domesticated

foreign judgment. TEX. CIV. PRAC. & REM. CODE Ch. 35, et seq. Appellant Jack

Rettig obtained a final judgment against Appellees Patrick Mendoza and

Christopher Garcia and three others in a Louisiana Federal Court in September

2014. Rettig domesticated that foreign judgment in Harris County, Texas in

October 2014. Mendoza and Garcia filed motions to vacate the foreign judgment

(the other three defendants have not challenged the foreign judgment). The case

was transferred to Webb County in February 2015.

On May 7, 2015 the Webb County Court held a hearing on the motions to

vacate (it is Rettig’s position the court’s plenary power had long since expired).

Shortly before the hearing, Mendoza filed a Fed. R. Civ. P. 60 motion in the

foreign court – the Louisiana federal court -- seeking relief from the foreign

judgment. That Motion was set for submission on the briefs in the foreign court on

May 27, 2015. Mendoza and Garcia apprised the Webb County Court of the

pending Rule 60 motion at the May 7 hearing and they and the court appeared to

recognize that the disposition of that Rule 60 motion may have an effect on the

propriety of any Order entered on the motions to vacate. Under the impression that

2 its plenary power was still in effect but about to expire, the Webb County Court

entered orders granting Mendoza and Garcia’s motions to vacate on May 8 and

May 11, 2015.

On Monday June 8, 2015, Rettig filed a Motion to Vacate, Correct, Modify

or Reform the Orders enter by the Webb County Court, arguing in support, among

other arguments, that if the Rule 60 Motion is denied, then the foreign judgment

will have been upheld and the Orders vacating the foreign judgment in Webb

County should be set aside.

Also on June 8, 2015 Rettig filed a Notice of Appeal. That appeal has now

been docketed.

As of the date of this filing, the Rule 60 motion is still pending in federal

court, as is Rettig’s attendant Motion to Vacate, Modify, Correct or Reform the

trial court’s orders in Webb County.

Because the judgment at issue is a domesticated foreign judgment, the trial

court retains the inherent and statutory authority to enforce its judgments, even

after its plenary power has allegedly expired. TEX. R. CIV. P. 308; BancorpSouth

Bank v. Prevot, 256 S.W.3d 719, 724 (Tex.App.—Houston [14th Dist.] 2008, pet.

denied). And TEX. R. APP. P. 27.3 clearly contemplates that even after a case is

appealed the trial court may enter orders modifying the appealed order, or vacating

it.

3 Both Mendoza’s Rule 60 motion and Rettig’s Webb County Motion to Vacate

remain live for disposition and would be expected to have an effect on this appeal.

Rettig here prays this Court to abate this appeal until such time as the federal court

rules on the Rule 60 motion and, as necessary, the Webb County Court then rules

on Rettig’s Motion to Vacate.

PRAYER

WHEREFORE, Appellant Jack Rettig prays the Court to ABATE this appeal

until the foreign court – the Louisiana federal court -- rules on Appellee Mendoza’s

pending Rule 60 motion and the trial court has the opportunity, as necessary, to

rule on Rettig’s Motion to Vacate. Rettig prays for all other relief to which he is

entitled.

Respectfully submitted,

/s/ Audrey Mullert Vicknair Audrey Mullert Vicknair State Bar No. 14650500 LAW OFFICE OF AUDREY MULLERT VICKNAIR 802 N. Carancahua Ste. 1350 Corpus Christi, TX 78401-0022 (361) 888-8413; (361) 887-6207 fax avicknair@vicknairlaw.com C. M. HENKEL III State Bar No. 09463000 FRITZ, BYRNE, HEAD & FITZPATRICK, PLLC 500 North Shoreline, Ste. 901 Corpus Christi, Texas 78401 (361) 883-1500; (361) 888-9149 fax skip@cmhenkel.com Attorneys for Jack Rettig

4 [VERIFICATION – see attached]

CERTIFICATE OF CONFERENCE The undersigned avers that she made successful contact with opposing counsel, Mr. Bushara for Mr. Mendoza and Ms. Terry for Mr. Garcia, on June 16, 2015 but as of the time of this filing neither has responded to her query as to whether they are opposed to the relief requested herein.

/s/ Audrey Mullert Vicknair Audrey Mullert Vicknair

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing instrument was served in accordance with the Texas Rules of Appellate and Civil Procedure, on counsel named below, on this the _18th__ day of June, 2015.

Lance H. Beshara – counsel for Appellee Mendoza PULMAN CAPPUCCIO PULLEN BENSON & JONES, LLP 2161 N.W. Military Hwy., Suite 400 San Antonio, Texas 78213 Jana K. Terry – counsel for Appellee Garcia BECKSTEAD TERRY P.L.L.C. 9442 N. Capital of Texas Hwy. Arboretum Plaza One, Suite 500 Austin, Texas 78759 By tex.gov electronic filing system