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
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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
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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.
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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
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[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
/s/ Audrey Mullert Vicknair
Audrey Mullert Vicknair
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