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

ACCEPTED
04-15-00350-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
9/14/2015 4:32:40 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 TEXAS09/14/2015 4:32:40 PM
SAN ANTONIO KEITH E. HOTTLE
Clerk

Jack Rettig,
Appellant
v.

Ronald Bruno, et al,
Appellees

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

APPELLANT JACK RETTIG’S BRIEF

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

Oral Argument Requested

i
 IDENTITIES OF PARTIES AND COUNSEL

APPELLANT Jack Rettig

COUNSEL Audrey Mullert Vicknair
State Bar No. 14650500
LAW OFFICE OF AUDREY MULLERT
VICKNAIR
802 N. Carancahua, Ste. 1350
Corpus Christi, Texas 78401-0022
(361)888-8413; (361)887-6207 fax
avicknair@vicknairlaw.com

C. M. “Skip” 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

APPELLEE PATRICK G. MENDOZA

COUNSEL Lance H. Beshara
State Bar No. 24045492
PULMAN CAPPUCCIO
PULLEN BENSON & JONES, LLP
2161 N.W. Military Hwy., Suite 400
San Antonio, Texas 78213
(817) 289-9494; (817) 870-9852 fax
lbeshara@pulmanlaw.com
APPELLEE Christopher Garcia
COUNSEL Jana K. Terry
State Bar No. 24003041
BECKSTEAD TERRY P.L.L.C.
9442 N. Capital of Texas Hwy.
Arboretum Plaza One, Suite 500
Austin, Texas 78759
(512) 827-3574; (855) 845-3262 fax

ii
 jterry@becksteadterry.com

APPELLEE Sergio Lopez

COUNSEL Carlos Evaristo Flores
State Bar No. 24050606
PERSON,WHITWORTH, BORCHERS
&MORALES, LLP
602 E. Calton Road, 2nd Floor
P.O. Drawer 6668
Laredo, Texas 78042-6668
(956) 727-4441; (956) 727-2696 fax
cflores@personwhitowrth.com

APPELLEE Troy J. Williams
COUNSEL Darrell W. Cook
State Bar No. 00787279
Darrell W. Cook & Associates, P.C.
One Meadows Building
5005 Greenville Ave., Ste. 200
Dallas, Texas 75206
(214) 368-4686; (214) 363-9979 fax
dwcook@attorneycook.com

APPELLEE, PRO SE Ronald E. Bruno
2304 Matador Circle
Austin Texas 78746

iii
 TABLE OF CONTENTS
IDENTITIES OF PARTIES AND COUNSEL ........................................................ ii

TABLE OF CONTENTS ......................................................................................... iv

INDEX OF AUTHORITIES.................................................................................... vi

STATEMENT OF THE CASE ................................................................................ ix

STATEMENT REGARDING ORAL ARGUMENT ............................................ xi

ISSUES PRESENTED............................................................................................ .xi

I. The trial court’s plenary power expired before it entered the orders at issue;
those orders are void.

II. Mendoza failed to establish by clear and convincing evidence that the
Louisiana Federal Court judgment was not entitled to full faith and credit.

III. Mendoza failed to present any evidence, let alone clear and convincing
evidence as required, of inadequate service of process.

IV. Under the law of the rendering state, Mendoza did not establish, by clear
and convincing evidence as required, that the Louisiana Federal Court
judgment is subject to modification because of some alleged lack of notice
of the motion for summary judgment granted by the federal court.

STATEMENT OF FACTS AND PROCEDURAL HISTORY ................................1

SUMMARY OF THE ARGUMENT ........................................................................5

ARGUMENT .............................................................................................................7

I. The Trial Court’s Plenary Power Had Expired When It Granted
Mendoza and Garcia’s Post-Judgment Motions and Vacated this
Domesticated Foreign Judgment in its Entirety ..............................................7

A. An Authenticated Foreign Judgment Is Treated in the Same Manner
as a Judgment of the Texas Court in Which It is Filed ..................................7

B. Rule 329b Post-Judgment Motion and Plenary Power Deadlines
Apply to Foreign Judgments............................................................................8

iv
 C. The Trial Court’s Plenary Power Expired Before It Purported to
Vacate this Foreign Judgment; the Orders are a Nullity ...............................10

D. The Transfer of Venue Does Not Affect Post-Judgment Deadlines
and Plenary Power .........................................................................................13

E. Summation Regarding Expiration of Plenary Power .................................16

II. Mendoza's Motion to Vacate Fundamentally Has No Merit: He Failed
to Prove this Foreign Judgment is Not Entitled to Full Faith and Credit
By Presenting No Evidence at the Hearing ...................................................16

III. Mendoza's Argument that He Was Denied Adequate Service of
Process is Baseless .........................................................................................19

A. No Testimonial Evidence Regarding Adequate Process Was Filed .........19

B. Mendoza was Afforded Adequate Due Process ........................................22

1. Applicable Law ....................................................................................22

2. Mendoza's Proffer ...............................................................................24

3. Conclusion .........................................................................................27

C. The Foreign Judgment is Not Subject to Modification Because of
Some Alleged Lack of Notice of the Summary Judgment Motion ...............28

III. Garcia, Lopez, Bruno and Williams ...............................................................34

CONCLUSION AND PRAYER ............................................................................38

CERTIFICATE OF COMPLIANCE .......................................................................40

CERTIFICATE OF SERVICE ................................................................................40

APPENDIX ..............................................................................................................42

A - Webb County Orders Granting Mendoza and Garcia's Motions
to Vacate (CRII: 1043-1050, 1051-1062)
B - Foreign Judgment Filed by Jack Rettig in Harris County (CR
20-54)
C - Harris County Court Order Granting Motion to Transfer Venue
(CR 17)

v
 INDEX OF AUTHORITIES
CASES
Bahr v. Kohr, 928 S.W.2d 98
(Tex.App.—San Antonio 1996, writ denied) ...................................... 8, 9, 10, 17

BancorpSouth Bank v. Prevot, 256 S.W.3d 719
(Tex.App.—Houston [14th Dist.] 2008, pet. denied) ......................................16

Bethlehem Steel Corp. v. Devers, 389 F.2d 44 (4th Cir. 1968) ................................24

Blanco River, LLC. v. Green, 457 F. Appx. 431 (5th Cir. 2012) .............................23

Cantu v. Grossman, 251 S.W.3d 731
(Tex.App.—Houston [14th Dist.] 2008, pet. denied) ..........................................14

EnviroPower, LLC v. Bear, Stearns & Co., Inc., 265 S.W.3d 16
(Tex.App.—Houston [1st Dist.] 2008, pet. denied) ..................................... 17, 18

Gray v. First Nat’l Bank of Dallas, 393 F.2d 371 (5th Cir. 1986) .................... 23, 24

Green v. Johnson, Richards & Co., 2011 WL 5190282
(M.D. La. 2011) ........................................................................................... 24, 30

Hazen Research, Inc. v. Omega Minerals, Inc., 497 F.2d 151
(5th Cir. 1974).....................................................................................................23

In re Kenneth Vern Gibbs, 2015 Tex.App. LEXIS 906
(Tex.App.—Texarkana 2015, orig. proceeding) ................................................15

Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee,
456 U.S. 694 (1982) ............................................................................................23

Mindis Metals, Inc v. Oilfield Motor & Control, Inc., 132 S.W.3d 477
(Tex.App.—Houston [14th Dist.] 2004, pet. denied) ........... 17, 18, 22, 29, 30, 36

Mitchim v. Mitchim, 518 S.W.2d 362 (Tex. 1975) ........................................... 16, 17

Moncrief v. Harvey, 805 S.W.2d 20
(Tex.App.—Dallas 1991, no writ) ....................................................................8, 9

Tracy v. Top Drawer Med. Art, Inc., 2003 Tex.App. LEXIS 8894
(Tex.App.—Dallas 2003, no pet.) ...................................................... 8, 9, 10, 17

vi
Walnut Equip. Leasing Co., Inc. v. Wu, 920 S.W.2d 285 (Tex. 1996) ..... 8, 9, 16, 18

STATUTES AND RULES
FED. R. CIV. P. 4(e)(2) ....................................................................................................... 22

FED. R. CIV. P. 5 ................................................................................................................ 32

FED. R. CIV. P. 12(b).......................................................................................................... 23

FED. R. CIV. P. 12(b)(4) ..................................................................................................... 29

FED. R. CIV. P. 12(h).......................................................................................................... 23

FED. R. CIV. P. 59 .............................................................................................................. 29

FED. R. CIV. P. 60 .............................................................................................................. 21

FED. R. CIV. P. 60(b)(4) ..................................................................................................... 29

FED. R. CIV. P. 60(c)(1) ..................................................................................................... 29

FED. R. CIV. P. 77(d).......................................................................................................... 30

TEX. CIV. PRAC. & REM. CODE Ch. 35, et seq... ................................... ix, 5, 7, 10, 37

TEX. CIV. PRAC. & REM. CODE § 35.003 ...................................................................1

TEX. CIV. PRAC. & REM. CODE § 35.003(a) ........................................................ 7, 10

TEX. CIV. PRAC. & REM. CODE § 35.003(b) ...............................................................7

TEX. CIV. PRAC. & REM. CODE § 35.003(c) ...........................................................3, 8

TEX. R. APP. P. 39.1.................................................................................................. xi

TEX. R. CIV. P. 87(1) ................................................................................................15

TEX. R. CIV. P. 89 .............................................................................................. 14, 15
TEX. R. CIV. P. 120 ............................................................................................................ 24

TEX. R. CIV. P. 306a .................................................................................. 3, 4, 12, 13

vii
TEX. R. CIV. P. 306a(4).............................................................................................12

TEX. R. CIV. P. 308 ...................................................................................................16

TEX. R. CIV. P. 329b .................................................................. 3, 4, 9, 10, 11, 12, 13

TEX. R. CIV. P. 329b(e) ............................................................................................10

viii
TO THE HONORABLE FOURTH COURT OF APPEALS:

COMES NOW Appellant Jack Rettig and files his opening brief,

establishing that the trial court’s orders vacating a properly domesticated foreign

judgment must be reversed. Judgment must be rendered for Rettig. In support,

Rettig would show:

STATEMENT OF THE CASE

This an appeal from orders granting motions, filed by Appellees Mendoza

and Garcia only, to vacate a domesticated foreign judgment (CRII: 1043-1050,

1051-1062 [App. A]). TEX. CIV. PRAC. & REM. CODE Ch. 35, et seq. Appellant

Jack Rettig obtained a final judgment against all five Appellees in a Louisiana

Federal Court in September 2014 (CR 24-45 [App. B]). No defendant filed any

post-judgment motion or appeal.

Rettig filed a copy of the authenticated foreign judgment in the office of the

Clerk of a Harris County District Court, a court of competent jurisdiction in this

state, on October 2, 2014 (CR 20-54 [App. B]). Motions to transfer venue were

filed by some defendants along with motions to vacate (CR 55-60, 126-29). The

Harris County Court granted the venue motions – not the motions to vacate – and

the case was transferred to Webb County and docketed under Cause No. 2015-

CVQ-000699-D2, Rettig v. Bruno, et al., the Hon. Monica Z. Notzon presiding, in

February 2015 (CR 17 [App. C], 275-79).

ix
 On May 7, 2015, long after the trial court lost plenary power over the

foreign judgment, the Webb County Court held a hearing on the motions to vacate

filed by Mendoza and Garcia. Bruno and Williams filed no such motions (CR,

passim). Lopez did file motions to vacate, but did not set them for hearing (CR

121-25 and passim, RR, passim).

Mendoza and Garcia introduced no evidence at the hearing and called no

witnesses (RR, passim). Despite Rettig’s contentions that plenary power had

expired (RR:66), and the court could not grant relief on the merits, the trial court

entered orders granting Mendoza’s and Garcia’s motions and vacated the

domesticated foreign judgment in its entirety on May 8, and May 11, 2015

(CRII:1043-1050, 1051-1062 [App. A]).

Rettig files this appeal (CR 1079-1080) to address the filing and content of

the motions filed by Mendoza (CR 87-120) and Garcia (CR 443-507), the only

motions ruled on and granted by the trial court. All parties are appellees because

the trial court purported to vacate the domesticated foreign judgment in its entirety.

x
 STATEMENT REGARDING ORAL ARGUMENT

Appellant Rettig believes the decisional process would be significantly aided

by oral argument. TEX. R. APP. P. 39.1. Rettig requests oral argument in this cause

to discuss the legal arguments and dispositive issues.

ISSUES PRESENTED

1. The trial court’s plenary power expired before it entered the orders at issue;
those orders are void.

2. Mendoza failed to establish by clear and convincing evidence that the
Louisiana Federal Court judgment was not entitled to full faith and credit.

3. Mendoza failed to present any evidence, let alone clear and convincing
evidence as required, of inadequate service of process.

4. Under the law of the rendering state, Mendoza did not establish, by clear and
convincing evidence as required, that the Louisiana Federal Court judgment is
subject to modification because of some alleged lack of notice of the motion for
summary judgment granted by the federal court.

xi
 STATEMENT OF FACTS AND PROCEDURAL HISTORY

Jack Rettig filed suit on April 30, 2014 against all five Appellees in the

United States District Court for the Eastern District of Louisiana, Cause No.

2:14cv-00996-LMA-SS (CR 26 [App. B]). His Complaint alleged collection of a

promissory note, specifically, monies owed under a Promissory Note and a

Forbearance Agreement executed by all Appellees (CR 26-30). The United States

District Court entered Judgment in favor of Rettig on September 30, 2014, granting

his motion for summary judgment and awarding the unpaid principal and interest

under the Note (CR 24 [App. B]). No defendant filed a post-judgment motion or

an appeal.

On October 3, 2014, Rettig filed an authenticated copy of his foreign

judgment with the Harris County District Clerk, the clerk of a court of competent

jurisdiction in this state, pursuant to TEX. CIV. PRAC. & REM. CODE §35.003

“Enforcement of Judgments of Other States.” (CR 20-54 [App. B])

The first filing in the case thereafter was over two months later, on

December 11, 2014: Garcia and Bruno filed a motion to transfer venue to Travis

County (CR 55).

On December 23, 2014, Mendoza filed a motion to transfer venue to Kendall

County, and a motion to extend post-judgment deadlines, asserting he did not

receive notice of the filed foreign judgment until December 12, 2014 (CR 69-75).

1
On January 12, 2015, Mendoza filed a motion to vacate the foreign judgment,

alleging inadequate service of the suit in federal court (CR 87-120).

On January 13, 2015, Lopez filed a motion to transfer venue to Webb

County, and a motion to extend post-judgment deadlines, asserting he received

notice of the filed foreign judgment on December 16, 2014 (CR 80-86). On

January 14, 2015, Lopez filed a motion to vacate that was identical to Mendoza’s

(CR 121-125).

Garcia then also filed a motion to vacate on January 23, 2015, asserting

alleged improper venue (CR 130).

On January 23, 2015, Mendoza and Garcia supplemented their motions and

requested venue in Webb County (CR 126, 133).

On January 30, 2015, the Harris County District Court entered an order

granting the motion to transfer venue only and transferring the cause to Webb

County (CR 17 [App. C]). The court did not enter an order vacating the foreign

judgment (CR 17 and passim).

The Webb County District Clerk received the file on February 25, 2015 and

sent notice to all parties (CR 275-281). Rettig immediately filed a motion for

discovery sanctions against Mendoza (CR 282) and set that for hearing on March

24, 2015 (CR 412).

On March 6, 2015, Mendoza filed another motion to vacate (CR 286-411).

2
On March 27, Garcia and Lopez filed more motions to vacate as well (CR 443-

507, CRII: 508-559). Mendoza set his motion for April 29, 2015 (CRII: 703) then

moved the hearing to May 7, 2015. Mendoza filed an amendment, then a

supplement (CRII: 560-697, 710-915).

Bruno and Williams never sought to vacate the foreign judgment and filed

no such motions (CR, passim). Lopez did not set his motion for hearing (CR

passim; see also RR: 5 [counsel stating his motion not set for hearing]).

Rettig filed an Amended Response to Mendoza’s Motion to Vacate and

Response to Garcia’s Motion to Vacate (CRII: 916-1042). Rettig challenged the

trial court’s authority to grant the motions given plenary power had long since

expired. Garcia did not file a motion to vacate within 30 days of the filing of the

foreign judgment as required by TEX. CIV. PRAC. & REM. CODE §35.003(c) so any

request for relief was time-barred (“A filed foreign judgment has the same effect

and is subject to the same procedures, defenses and proceedings for reopening,

vacating, staying, enforcing, or satisfying a judgment as a judgment of the court in

which it is filed’); TEX. R. CIV. P. 329b.

As for Mendoza, Rettig put him to his proof on his assertion of late notice of

the filing of the foreign judgment; he had to prove late notice to prove his original

motion to vacate was timely filed. TEX. R. CIV. P. 306a. Otherwise the trial

court’s plenary power over the October 3, 2014 judgment expired 30 days later, on

3
November 2, 2014, because there were no other motions filed that would have

extended plenary power. TEX. R. CIV. P. 329b.

In the alternative, if Mendoza was able to prove late notice, then the trial

court’s plenary power commenced on the date of notice, December 12, 2014. TEX.

R. CIV. P. 306a. 105 days is the maximum for a court’s plenary power. TEX. R.

CIV. P. 329b. 105 days from December 12, 2015 was March 27, 2015. The

hearing held on May 7, 2015, almost 6 weeks later, came far too late.

In addition or in the alternative, in his response, Rettig challenged any

assertion that his Louisiana Federal Court judgment was not entitled to full faith

and credit in Texas (CRII: 916-1042).

At the hearing Mendoza and Garcia presented no testimony, introduced no

evidence into the record, and tendered no exhibits (RR: 4-5 and passim).

On May 8, 2015 the court entered an Order Granting Mendoza’s Amended

Motion to Vacate Judgment which included a “Mother Hubbard” clause (CRII:

1043-1050 [App. A]). On May 11, 2015, the court entered an Order Granting

Garcia’s Motion to Vacate (CRII: 1051-1062 [App. A]).

Recognizing that the hearing was non-evidentiary, Rettig nonetheless, in an

abundance of precaution, requested findings of fact and conclusions of law (CRII:

1063-64, 1081-82 [Notice of Past Due]). The trial court never complied with the

request and entered no such findings or conclusions (CR, passim).

4
 Rettig filed his Notice of Appeal, as well as a Motion to Vacate, Modify,

Correct or Reform the Orders granting the motions to vacate (CRII: 1065-1078).

SUMMARY OF THE ARGUMENT

The law applicable to the Uniform Enforcement of Foreign Judgments Act,

TEX. CIV. PRAC. & REM. CODE Ch. 35, has been violated in this proceeding.

Retting properly domesticated a foreign judgment. That judgment was enforceable

when it was filed in Harris County. Appellees failed to comply with post-

judgment deadlines and did not file their motions to vacate timely; in addition or in

the alternative the trial court’s plenary power expired long before any such motions

were heard. The trial court’s orders vacating the foreign judgment are void.

In the alternative Appellees had a heavy burden to overcome the

presumption of validity of the foreign judgment and they wholly failed to meet that

burden. The trial court failed to put them to their proof and failed to apply the law

correctly. First, Mendoza and Garcia presented no evidence at the hearing, called

no witnesses, and offered no proof. That alone requires the trial court’s orders

must be reversed. Second, the trial court wrongly stated it was considering the

documents attached to the various filings, over Rettig’s objection that he was

denied his right to cross-examine the witnesses. This too requires reversal. Third,

a review of Mendoza’s proffer shows he tendered no testimonial evidence to show

that he was not served with the federal lawsuit or otherwise deprived of adequate

5
process. That proffer establishes Mendoza was afforded full and complete due

process and, to this day, has never asserted otherwise in federal court.

Fourth, regarding Mendoza’s allegation that he was somehow deprived of

due process regarding the motion for summary judgment that was granted against

him, the record establishes Mendoza was served with the motion, and he was fully

aware – by virtue of multiple Federal Court Orders delivered to him at his

confirmed address—that the motion was filed and pending and he had a right to

respond. He took no action. Declarations attached to Mendoza’s federal court

filings, then attached to supplemental filings in Webb County, were controverted

and failed to provide clear and convincing evidence of a lack of due process as

required. In addition Mendoza failed to show, under the law of the rendering state

(Louisiana Federal Court) that the summary judgment was subject to collateral

attack. The trial court’s orders must be reversed and judgment rendered in favor of

Rettig.

Mendoza’s and Garcia’s motions to vacate are a substantial abuse of the

judicial process. Appellees acknowledged repeatedly they originally executed a

valid and binding Note payable to Rettig, then defaulted. They then executed a

Forbearance Agreement, acknowledging the failure to pay as required, and agreed

to pay again. Still they did not pay. Rettig properly filed suit to collect on the note

in Louisiana Federal Court. He properly obtained judgment on that acknowledged

6
obligation in that foreign court. He then properly domesticated that foreign

judgment in Texas. For Appellees to now suggest that the judgment cannot be

enforced against them in Texas is baseless.

ARGUMENT

I. The Trial Court’s Plenary Power Had Expired When It Granted
Mendoza and Garcia’s Post-Judgment Motions and Vacated this
Domesticated Foreign Judgment in its Entirety1

A. An Authenticated Foreign Judgment Is Treated in the Same Manner
as a Judgment of the Texas Court in Which It is Filed
Texas Civil Practice and Remedies Code Chapter 35 governs “Enforcement

of Judgments of Other States.” TEX. CIV. PRAC. & REM. CODE §§ 35.001, et seq.

(“UEFJA”) “A copy of a foreign judgment authenticated in accordance with an act

of congress or a statute of this state may be filed in the office of the clerk of any

court of competent jurisdiction in this state.” Id. at § 35.003(a).2 “The clerk shall

treat the foreign judgment in the same manner as a judgment of the court in which

the foreign judgment is filed.” Id. at § 35.003(b). “A filed foreign judgment has

the same effect and is subject to the same procedures, defenses, and proceedings

1
As noted in the Statement of Facts, Bruno and Williams filed no motions in the case
whatsoever and have never challenged the enforceability of the Louisiana federal court
judgment in Texas (CR, passim). Lopez filed motions to vacate but never set them for
hearing (CR 121-25, CRII: 508). The only motions heard by the trial court and granted
were filed by Mendoza and Garcia (RR, passim). Therefore, all arguments herein will
focus on the filing and content of Mendoza’s and Garcia’s motions.
2
No party has alleged that the Louisiana Federal Court Judgment in this case was not
properly authenticated.

7
for reopening, vacating, staying, enforcing, or satisfying a judgment as a judgment

of the court in which it is filed.” Id. at § 35.003(c).

A filed foreign judgment comprises both a plaintiff’s original petition and a

final judgment, and it becomes enforceable as a Texas judgment on the date it is

filed. Walnut Equip. Leasing Co., Inc. v. Wu, 920 S.W.2d 285, 286 (Tex. 1996).

“A final judgment of a foreign state must be given the same force and effect to

which the judgment would be entitled in the state in which it was rendered [here,

Louisiana Federal Court].” Tracy v. Top Drawer Med. Art, Inc., 2003 Tex.App.

LEXIS 8894, *3 (Tex.App.—Dallas 2003, no pet.) (emphasis added). Such a

filing “instantly creates an enforcement judgment in Texas.” Id. at *8; Bahr v.

Kohr, 928 S.W.2d 98, 100 (Tex.App.—San Antonio 1996, writ denied); Moncrief

v. Harvey, 805 S.W.2d 20, 22 (Tex.App.—Dallas 1991, no writ).

B. Rule 329b Post-Judgment Motion and Plenary Power Deadlines
Apply to Foreign Judgments
Important here, the appellate timetables applicable to the entry of a state

court judgment apply to foreign judgments. Wu, 920 S.W.2d at 286; Tracy, at * 5.

As this Court makes clear, “The validity of a foreign judgment may be investigated

by a Texas court, but must be done according to the regular timetables for

challenging a Texas judgment.” Bahr, 928 S.W.2d at 22 (emphasis added).

With respect to post-judgment motions, Texas Rule of Civil Procedure 329b

applies to foreign judgments. Tracy, 2003 Tex.App. LEXIS at 8894 **5-7; Bahr,

8
928 S.W.2d at 100; Moncrief, 805 S.W.2d at 23. Any motion filed attacking a

foreign judgment “is procedurally in the same posture as any post-judgment

motion filed after a final judgment in Texas.” Tracy, at *7; Moncrief, 805 S.W.2d

at 23. Appellate deadlines begin to run when the foreign judgment is filed in a

Texas court. Moncrief, 805 S.W.2d at 24.

In Wu, the contesting party did not file a motion attacking the judgment but

rather filed only a general denial. The Supreme Court held that all actions taken by

the trial court beyond thirty days after the filing of the judgment were “nullities”

because a motion for new trial was not timely filed. Id., at 286.

Likewise in Bahr, the contesting party filed a motion for summary judgment

rather than a motion for new trial/motion to vacate. Id., 928 S.W.2d at 100. This

Court held the trial court had no jurisdiction to address the foreign judgment more

than thirty days after it was filed. Id.

With respect to plenary power, “Under Rule 329b, the trial court’s plenary

power to grant a new trial or modify, correct or reform a judgment expires after 30

days [of the filing of the foreign judgment] if no action is taken. Filing a motion

for new trial or other post-judgment motion extends the trial court’s plenary

jurisdiction until 30 days after the motion is overruled.” Tracy, 2003 Tex. App.

LEXIS 8894, *8; accord, Bahr, 928 S.W.2d at 22.

As this Court recognizes, actions taken outside the court’s plenary power

9
are a “nullity.” Bahr, 928 S.W.2d at 22. The trial court cannot address a

judgment outside its plenary power. Id.

In Tracy, after Top Drawer filed its notice of foreign judgment on August

22, 2001, Tracy filed a motion contesting the judgment on September 18, 2001,

less than 30 days later. The Dallas Court held that the motion had to be ruled on

within 75 days of the judgment, or it would be overruled by operation of law. No

order was entered by the 75th day, November 5, 2001, so the motion was overruled

by operation of law. “The trial court’s plenary power expired on December 5,

2001, thirty days after the date Mr. Tracy’s motion was overruled by operation of

law.” Tracy, at *9 (citing TEX. R. CIV. P. 329b(e)). Once the court lost plenary

power, any order attempting to grant Tracy’s motion to vacate “was a nullity.” Id.

(emphasis added)  

C. The Trial Court’s Plenary Power Expired Before It Purported to
Vacate this Foreign Judgment; the Orders are a Nullity
  Rettig filed his Louisiana Federal Court judgment in a Harris County District

Court on October 3, 2014 (CR 20-54 [App. B]). There has never been any

assertion that that court was not a “court of competent jurisdiction in this state.”

TEX. CIV. PRAC. & REM. CODE § 35.003(a). Therefore, pursuant to TEX. CIV.

PRAC. & REM. CODE Chapter 35, TEX. R. CIV. P. 329b and the authorities set forth

above, motions to vacate or otherwise attack that judgment were due 30 days later,

on November 2, 2014. No party filed any such motion by that date (CR, passim).

10
 Garcia filed a motion to transfer venue in Harris County, but not until

December 11, 2014, two months after the judgment was filed, and he filed no

motion to vacate at that time (CR 55). He ultimately filed a motion to vacate on

January 23, 2015 but did not assert late notice of judgment in order to extend post-

judgment deadlines (CR 130). Nor could he, given he filed a motion to transfer

venue on December 11, 2014 and obviously had notice of the judgment by that

time. Garcia’s motion to vacate was out of time and should not have been

considered by the trial court. TEX. R. CIV. P. 329b. The court’s order granting the

motion to vacate, entered on May 11, 2015 is void.

Mendoza filed a motion to extend post-judgment deadlines on December 23,

2014 (CR 69-75), alleging he received late notice of the filed foreign judgment on

December 12, 2014 (CR 71). He filed a motion to vacate on January 12, 2015 (CR

87-120). Mendoza filed another motion to vacate on March 6, 2015 (CR 286-411),

then filed an amended motion on March 27, 2015 (CRII:560-597)3 and a

supplement on May 4, 2015 (CRII:710-915).

Rettig disputed Mendoza’s contentions that he had late notice of the filed

foreign judgment and put him to his proof (CRII: 922, 925). At the hearing

Mendoza’s counsel actually raised the issue of alleged late notice, but then

3
Garcia filed another motion to vacate on that date as well, relying exclusively on the
grounds stated in Mendoza’s motion, arguing that if Mendoza’s motion was granted then
the foreign judgment was not enforceable against Garcia either (CR 443-507).

11
presented no evidence, put on no testimony, and introduced no exhibits to prove

late notice (RR, passim; see, 34-35). Nothing attached to any of Mendoza’s filings

addresses alleged late notice of the filed foreign judgment (CR 69-75 [Mtn to

Extend Deadlines], CRII: 560-697 [Am Mtn to Vacate], 710-915 [First Supp to

Am Mtn to Vacate]). There are no affidavits from Mendoza and no testimonial

evidence of any type that shows he did not receive notice of the foreign judgment

when it was filed on October 3, 2014 (id.). Mendoza never proved he actually

received late notice of the filed foreign judgment such that his motions to vacate,

filed months after October 3, 2014, were timely. Mendoza’s motions to vacate

were out of time and should not have been considered by the trial court.

In the alternative, if Mendoza truly did receive late notice of the October 3,

2014 judgment, then all post-judgment motion and plenary power deadlines ran

from the date of alleged notice. TEX. R. CIV. P. 306a(4). His motion to vacate had

to be ruled on within 75 days of his notice of judgment or the motion was

overruled by operation of law. TEX. R. CIV. P. 306a, 329b.

75 days from Mendoza’s alleged notice of the judgment on December 12, 2014

was February 25, 2015. No order was entered on Mendoza’s motion to vacate by

that date. 105 days was March 27, 2015. The court lost power to rule on that day.

The court’s order granting the motion to vacate, entered on May 8, 2015, is void.

In sum, Mendoza and Garcia filed their motions to vacate too late. In the

12
alternative the trial court lost plenary power over the foreign judgment long before

it entered orders vacating that judgment on May 8 and 11, 2015. The court’s

orders vacating the foreign judgment must be reversed and judgment rendered

enforcing the foreign judgment.

D. The Transfer of Venue Does Not Affect Post-Judgment Deadlines
and Plenary Power
In the Webb County trial court Mendoza and Garcia argued that the transfer of

venue from Harris County to Webb County somehow re-started post-judgment

motion and plenary power deadlines.

But Mendoza’s actions in Harris County belie that assertion. He was obviously

clearly aware that Rule 306a and 329b judgment deadlines applied to the October

3, 2014 foreign judgment: he filed a Rule 306a motion to extend Rule 329b post-

judgment motion deadlines based on alleged late notice of the judgment (CR 69-

75), and sought to shorten the venue hearing notice period (CR 259, 261).

Further, when the motion to transfer venue was granted in Harris County, the

foreign judgment filing was simply transferred to Webb County. The Harris

County court did not vacate the foreign judgment, it merely transferred the pending

action (CR 17 [App. C]). The original filing of foreign judgment was simply

transferred and continued in Webb County.

The Rules of Procedure make this clear. “If a motion to transfer venue is

sustained, the cause shall not be dismissed, but the court shall transfer said cause

13
to the proper court.” TEX. R. CIV. P. 89 (emphasis added). So the foreign

judgment was not dismissed, it was simply transferred. This very circumstance

was considered by the Fourteenth Court of Appeals:

It would similarly seem that a judgment creditor under the UEFJA
could toll limitations governing enforcement by filing the judgment in
any court of competent jurisdiction, regardless of whether venue is
proper in that county or court; thus, the ability to file the judgment in
"any" Texas court of competent jurisdiction is not rendered
meaningless simply because the general venue statutes also apply.

Cantu v. Grossman, 251 S.W.3d 731, 740 (Tex.App.—Houston [14th Dist.] 2008,

pet. denied) (emphasis added).

Clearly, the filing of the foreign judgment in “any court of competent

jurisdiction,” even if venue is allegedly improper, is a valid and enforceable action

under the UEFJA. The filing of this foreign judgment in Harris County, a court of

competent jurisdiction, was a proper UEFJA filing which triggered post-judgment

deadlines, venue notwithstanding. The judgment was not vacated when venue was

transferred. The deadlines to vacate the judgment, which began running when the

judgment was filed in Harris County, continued to run when the case was

transferred to Webb County.

Mendoza and Garcia had ample opportunity to have their motions heard in

Webb County (assuming they were timely, which Rettig denies) before plenary

power expired. First, “The determination of a motion to transfer venue shall be

made promptly by the court,” and leave of court can be obtained to determine the

14
motion more rapidly than the time prescribed by the Rules. TEX. R. CIV. P. 87(1).

Indeed Mendoza sought that relief in Harris County:

8. To the extent necessary, Defendant requests the Court exercise its discretion to grant

leave to hear the venue transfer motions on less than 45 days notice. See Tex. R. Civ. P. 87(1). Due to

the unique procedure of the Uniform Enforcement of Foreign Judgments Act, the Court is well within

its discretion to hear all venue transfer motions at the scheduled time (even if on less than the typical45-

days notice), particularly where any additional time before the hearing cannot have any impact upon

the resolution of the motions.

(CR 261).

Second, the order granting a motion to transfer venue is effective on entry, it is

not dependent on when the file is physically transferred to the transferee county.

TEX. R. CIV. P. 89; In re Kenneth Vern Gibbs, 2015 Tex.App. LEXIS 906, **5-6

(Tex.App.—Texarkana 2015, orig. proceeding). Here, the order transferring venue

to Webb County was signed on January 30, 2015, two months before the 105-day

plenary power period expired (if Mendoza’s late notice of judgment date of

December 12, 2014 can be taken as true) (CR 17). Notice to counsel that the

papers were filed in Webb County was sent on February 25, 2015, 30 days before

plenary power expired (CR 275-281). If the motions to vacate were timely filed,

the parties had until March 27, 2015 to have those motions heard.

Rettig had a hearing on his motion for discovery sanctions set for March 24,

2015 (CR 412), which was within the court’s 105-day plenary power, but no party

15
noticed a hearing on a motion to vacate on that date (CR passim). Rather,

Mendoza set his motion to vacate for hearing on April 29, 2015 (CR 433), over 30

days too late, then re-set his motion to May 7, 2015, even further past 105 days.

E. Summation Regarding Expiration of Plenary Power
The trial court had long since lost plenary power to do anything except enforce

the filed foreign judgment when the motions to vacate were heard on May 7, 2015

and granted on May 8 and 11, 2015. The court retained statutory and inherent

authority to enforce its judgments even after its plenary power had 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) (in UEFJA case, holding court

had power to enforce filed foreign judgment filed nearly 10 months earlier). The

court should have enforced the foreign judgment, not vacated it. The orders

vacating the judgment are void and they are a nullity.

II. Mendoza’s Motion to Vacate Fundamentally Has No Merit: He
Failed to Prove this Foreign Judgment is Not Entitled to Full Faith
and Credit By Presenting No Evidence at the Hearing
When an authenticated copy of a foreign judgment is filed, as here, the

burden shifts to the judgment debtor to establish why the judgment cannot be given

full faith and credit. Wu, 920 S.W.2d at 926 (citing Mitchim v. Mitchim, 518

S.W.2d 362, 364 (Tex. 1975) (“foreign judgment that appears valid and final

makes prima facie case for party seeking to enforce it, and burden is on resisting

16
party to prove judgment is not valid or final”); Bahr, 928 S.W.2d at 100; Tracy,

2003 Tex.App. LEXIS at *4.

Once a judgment creditor files an authenticated copy of a foreign judgment

pursuant to the UEFJA, a prima facie case for enforcement is presented. Mindis

Metals, Inc v. Oilfield Motor & Control, Inc., 132 S.W.3d 477, 484 (Tex.App.—

Houston [14th Dist.] 2004, pet. denied) (citing Mitchim, supra). The judgment

should be given full faith and credit unless an exception can be proved. Id. Those

exceptions are: (1) the foreign judgment is interlocutory (not argued here); (2) the

foreign judgment is subject to modification under the law of the rendering state;

(3) the rendering state lacked jurisdiction (that is, service of process was

inadequate under the rules of the sister state, or the sister state’s exercise of in

personam jurisdiction offends the due process of law [second circumstance not

argued here]); (4) the foreign judgment was procured by extrinsic fraud (not

argued here); and (5) the time to file the domestication action has expired (not

argued here). Id. at 484-485.

The trial court has no discretion in applying the law to the established facts.

Mindis Metals, 132 S.W.3d at 486. Importantly, “[N]o defense that goes to the

merits of the original controversy shall be recognized.” EnviroPower, LLC v.

Bear, Stearns & Co., Inc., 265 S.W.3d 16, 20 (Tex.App.—Houston [1st Dist.] 2008,

pet. denied); accord, Mindis Metals, 132 S.W.3d at 486, n. 7. Substantial argument

17
made by Mendoza’s counsel at the motion to vacate hearing (with no evidence in

support, either) was therefore improper and should not have been brought before

the court (RR: 13-15, 18).

“The presumption of validity can only be overcome by clear and

convincing evidence to the contrary.” Mindis Metals, 132 S.W.3d at 484

(emphasis added); accord, EnviroPower, 265 S.W.3d at 20. That is, to vacate the

judgment, the contesting party must prove by clear and convincing evidence that

an exception applies.

As stated above, Mendoza presented no evidence at the hearing; it was not

evidentiary and there was no trial. See, e.g., Wu, 920 S.W.2d at 285 (“the parties

tried the case . . . .”); Enviropower, 265 S.W.3d at 18 (“After an evidentiary

hearing . . . .”). Mendoza did not testify at the hearing on his motion to vacate and

proffered no witnesses or other testimony, despite repeated objections and

pronouncements by Rettig that he should do so (RR, passim, see, e.g., 17

[objection to arguing facts outside the record], 56 [objection to evidence not in the

record], 64 [“There’s no evidence before this court, judge. This is an adversary

hearing. They have no evidence that they have presented to you. . . . you have not

offered those….”]; 66 [“That’s not evidence before the court.”]). When Mendoza’s

counsel attempted, at the last, to admit two Declarations attached to a federal court

filing attached to his Supplement (discussed below), Rettig’s counsel objected that

18
it gave him no opportunity to cross-examine (RR:68). The court said (improperly),

“I’ll take a look at everything. I have all the documents in before me.” (RR 68-69)

Mendoza had the burden to prove by clear and convincing evidence that the

Louisiana federal court judgment was not entitled to full faith and credit. By

failing to prosecute an evidentiary hearing, Mendoza fundamentally failed to

overcome the prima facie case for enforcement of the Louisiana Federal Court

judgment. His arguments on the merits should be rejected out of hand for this

reason alone. The trial court’s orders should be reversed.

III. Mendoza’s Argument that He Was Denied Due Process Regarding
Service of the Lawsuit is Baseless

If this Court determines that the trial court properly reviewed the “evidence”

attached to the pleadings on file, Mendoza likewise failed to meet his burden to

show by clear and convincing evidence that he could prevail.

A. No Testimonial Evidence Regarding Adequate Process Was
Filed
In his First Amended Motion to Vacate (CRII: 560-569), Mendoza alleged

Rettig “failed to properly serve him” (CRII: 560, 564) with the original Louisiana

Federal Court lawsuit. He contends that the person cited as his agent for service

was not his agent and therefore he was not actually served with the suit (CRII:

564). Notably, Mendoza does not say he did not know about the lawsuit. Rather,

he relies on a technicality that, under federal law, is without merit.

19
 Mendoza offered no testimonial evidence or similar proof of lack of service.

Rather, attached to his Amended Motion to Vacate are pleadings and orders from

the state court litigation (CRII: 638-51, 683) and federal court. The federal court

documents include PACER filings (CRII: 570-76), Rettig’s Complaint (CRII: 577-

581) with Promissory Note and Forbearance Agreement signed by all judgment

defendants (including Mendoza) attached (CRII: 582-583, 584-601), Rettig’s

Motion for Summary Judgment (CRII: 612-629), and the Federal Court Order

granting that motion (CRII: 630-637). Notably, the Court pronounced in the

Summary Judgment Order, “Co-defendants Sergio Lopez, Patrick G. Mendoza, or

Troy J. Williams did not join in the opposition or file separate oppositions,” and

“Counsel did not enroll to represent defendants Sergio Lopez, Patrick G.

Mendoza, or Troy J. Williams, who are presently pro se and did not file any

responses to the pending motions.” (id. at 630, n. 3, and 632, n. 18). Mendoza also

attached the Federal Court Judgment which lists him as a defendant (CRII: 637,

accord 652-653).

Mendoza further attached the Federal Court Summons of lawsuit issued to

him along with the Proof of Service (CRII: 684-85) and the Answer filed in federal

court on behalf of all defendants, including Mendoza (CRII: 686-689). Finally, he

attached the Motion to Withdraw filed by the attorney for all defendants in the

federal suit after the Answer was filed, the order granting same, and the Notice of

20
Submission of motion for summary judgment (CRII:690-97). No affidavits,

deposition testimony, or other testimonial evidence was attached.

Mendoza then filed a “First Supplement to First Amended Motion to

Vacate” (CRII: 710-915) which did nothing more than attach his Opposition to a

request for injunction filed by Rettig in federal court, and his Rule 60 Motion filed

in federal court (CRII: 714-867). Important here, in the Opposition Mendoza

complains only about the alleged failure to serve him with the federal court motion

for summary judgment (CRII: 714-15). Indeed he attaches to the Opposition

Declarations from himself and an attorney named Adriana Midkiff, but neither

says anything about service of the federal court lawsuit and instead only address

some alleged lack of notice of the motion for summary judgment (CRII: 865-66,

867). He did not argue that he was not served with the lawsuit in that federal

court filing (id.). Therefore, nothing attached to that portion of the Supplement

provides any evidence of lack of service of the suit.

Mendoza also attached to his Supplement his federal court Motion for Relief

from Judgment (FED. R. CIV. P. 60) (CRII: 869-907). But that Motion only

attaches a bank statement, an adversary proceeding involving a non-party, and the

same two Declarations. Again, in the Rule 60 Motion, Mendoza complains about

the alleged failure to serve him with the federal court motion for summary

judgment (CRII: 873-74). He does not argue that he was not served with the

21
lawsuit or that he was denied adequate service. (id.)

Finally, Mendoza attached to the Supplement the federal court’s order

denying Rettig’s injunction request, which makes no findings whatever about

Mendoza’s various filings (CRII: 908-915).

In sum, Mendoza filed no affidavits or testimonial evidence to show he was

deprived of adequate service of the federal court lawsuit. He wholly failed to meet

his burden to prove, by clear and convincing evidence, that the federal court

judgment could not be afforded full faith and credit on that basis. The trial court’s

orders must be reversed.

B. Mendoza was Afforded Adequate Process

1. Applicable Law

In the alternative, if any of the above can be considered some evidence on

the issue, then the trial court failed to consider or apply the law applicable to

Mendoza’s arguments, that is, the “law of the rendering state.” Mindis Metals, 132

S.W.3d at 484. In federal court, “[A]n individual . . . may be served in a judicial

district of the United States by . . . delivering a copy of [the summons and of the

complaint] to an agent authorized for appointment . . . to receive service of

process.” FED. R. CIV. P. 4(e)(2).

Critical here, “A party waives any defense [to service] by . . . failing to

either: (i) make [the defense] by motion under [Rule 12]; or (ii) include it in a

22
responsive pleading . . . .” FED. R. CIV. P. 12(b), (h) (emphasis added). Due

process does not require actual notice, it requires notice reasonably calculated to

apprise interested parties of the pendency of the action and afford them an

opportunity to respond. Blanco River, LLC. v. Green, 457 F. Appx. 431, 436-37

(5th Cir. 2012). Federal Rule 12(b) requires that “[e]very defense to a claim for

relief in any pleading must be asserted in the responsive pleading.” Under Federal

Rule 12(h), a party waives any defense of lack of personal jurisdiction, insufficient

process, and insufficient service of process by omitting it from a responsive

pleading. The Fifth Circuit holds:

“Where the defendant has appeared in the original action, the
judgment in that cause is res judicata on the issue of personal
jurisdiction, whether the defendant actually litigated the question
or merely permitted it to pass without objection. Defense to an
adverse judgment on the basis of the failure of the rendering court to
obtain jurisdiction of the person is therefore foreclosed, unless . . . the
defendant ma[de] no appearance . . . .”

Hazen Research, Inc. v. Omega Minerals, Inc., 497 F.2d 151, 153–54 (5th Cir.

1974) (emphasis added); accord, Ins. Corp. of Ireland, Ltd. v. Compagnie des

Bauxites de Guinee, 456 U.S. 694, 703 (1982) (“Because the requirement of

personal jurisdiction represents first of all an individual right, it can, like other such

rights, be waived.”).

In addition, pursuant to federal court authority, an attorney who enters an

appearance for a party is presumed to have the power and authority to do so. Gray

23
v. First Nat’l Bank of Dallas, 393 F.2d 371, 384 n. 17 (5th Cir. 1986). When the

appearance of the attorney is presumed authorized, the failure of the party to

contend otherwise and assert insufficient service of process in a Rule 12 pleading

operates as a waiver of that defense. Bethlehem Steel Corp. v. Devers, 389 F.2d

44, 46 (4th Cir. 1968). Texas Rules provide similarly. TEX. R. CIV. P. 120 (“The

defendant may, in person, or by attorney, or by his duly authorized agent, enter an

appearance in open court. Such appearance shall be noted by the judge upon his

docket and entered in the minutes, and shall have the same force and effect as if the

citation had been duly issued and served as provided by law.”)

“A litigant, who has full knowledge that a suit is pending against them,

cannot simply sit back . . . without taking any action to follow up on the status of

the suit . . . . If they do so, they will be at their peril.” Green v. Johnson, Richards

& Co., 2011 WL 5190282, * 4 (M.D. La. 2011).

2. Mendoza’s Proffer

A review of Mendoza’s proffer, if it is evidence, shows he was served with

the lawsuit and he was not denied adequate process. The Forbearance Agreement

on which the foreign lawsuit was filed and judgment entered establishes the

relationship of the parties: a Note had been previously executed by Defendants,

payable to Rettig, and had to be satisfied and paid in full by November 30, 2013

(CRII: 584 at ¶¶ 1(a)-(c)). Defendants failed to satisfy the Note and defaulted (id.

24
at ¶ 1(d)). As of January 27, 2014, Defendants owed Rettig over $2.5 Million (id.

at ¶ 1(e)). The parties executed a Forbearance Agreement, in which “Lender is

willing to forbear from further actions authorized under the Loan Documents as a

result of the Existing Default, subject to the terms and conditions set forth herein.”

(id. at ¶ 1(f))

Under the Forbearance Agreement, Defendants agreed to repay the loan with

partial payments due on February 28, 2014, March 31, 2014, April 30, 2014, May

31, 2014, and June 30, 2014 (CRII: 585 at ¶ 5). During that period, Rettig agreed

not to exercise his rights and remedies under the Loan documents, e.g., the

“forbearance period” (CRII: 585 at ¶ 4). “Provided however, upon expiration of

the forbearance period or the occurrence of any default,” Lender would be

permitted without notice to enforce the Loan Documents (id.) (emphasis added).

During the forbearance period -- that is, through June 30, 2014 -- the

Borrowers “hereby irrevocably designate and appoint Jay D. Crutcher, Crutcher &

Christiansen, PLLC, as their agent for service of process as to any lawsuit that

Lender may initiate in connection with this Agreement and/or the Loan

Documents.” (CRII: 586 at ¶ 16)

Defendants defaulted on the Forbearance Agreement by failing to pay in

February and March 2014, so Rettig filed suit in federal district court, Eastern

District of Louisiana, on April 30, 2014 (CRII: 577-581). Rettig served all

25
defendants by serving Jay Crutcher as the irrevocably designated and appointed

agent for service for all defendants pursuant to the Forbearance Agreement. (CRII:

580-81, 684-85 [Summons on Mendoza and Proof of Service], 823-35

[correspondence to Crutcher from counsel for Rettig]). Clearly the lawsuit Rettig

initiated was “in connection with this [Forbearance] Agreement and/or the Loan

Documents.” (CRII: 586 at ¶ 16) The suit was filed during the forbearance period,

which did not expire until June 30, 2014 pursuant to the Agreement (CRII: 585 at

¶¶ 4, 5).

The documents show Crutcher, as agent for Mendoza and all defendants,

accepted service of the lawsuit and retained counsel for Mendoza and all

defendants in attorney William Kelly (CRII: 686-689; see also CRII: 850-52

[correspondence between Crutcher, Kelly, and Rettig’s lawyers regarding service

of suit, retention of Kelly for all defendants, and request for extension of time to

file Answer on behalf of all Defendants]). As evidenced by the Federal Court

Docket Entries, all Defendants – Mendoza included – were represented in the

litigation (CRII: 572-574, Dkt # 9, 10, 11, 12, 13, 14, 18, 20, 27, 28). Attorney

Kelly filed an Answer on behalf of all defendants – Mendoza included -- after

seeking and obtaining an extension of time on their behalf to do so (CRII: 856-858

[Extension Request], 686-689, 869-862 [Answer]).

The litigation ensued, with no complaint by any defendant – Mendoza

26
included -- that Crutcher was not their agent for service or that attorney Kelly had

no authority to seek meaningful relief and file an answer on their behalf (see

Federal Court Docket Entries – CRII: 572-575: no motions filed by Mendoza at

all). Mendoza admits he never filed any motions in federal court complaining

about lack of service. As stated, his recently-filed Rule 60 Motion does not

complain about lack of service of the lawsuit (CRII: 873-74).

Finally, it is important that in the aforementioned Declaration of Mendoza,

Mendoza CONFIRMS William J. Kelly represented him in the federal court

lawsuit and relied on Kelly’s representations on his behalf: “I never received a

copy of Rettig’s [MSJ] via U.S. Mail or any other method of delivery at 209

Timberview Drive, Boerne, Texas 78006. That was the address provided to the

Court and all parties in William J. Kelly’s motion to withdraw as counsel.

(Docket No. 19).” (CRII: 867) (emphasis added).

3. Conclusion

Under the Forbearance Agreement, Crutcher was Mendoza’s authorized

agent for service. Crutcher accepted service as that authorized agent, then obtained

counsel who filed an answer to the lawsuit. William Kelly entered an appearance

for all defendants, Mendoza included, and obtained an extension of time to file an

Answer, and filed that Answer. At no time did Mendoza argue that Kelly had no

authority to act for him. Mendoza was well aware of the filing of Kelly’s motion

27
to withdraw, as stated in his Declaration above. He then sat back and took no

action. He did so at his peril. The federal court Order and Judgment make clear

that Mendoza was a party defendant, and a party to the judgment (CRII:630-37).

The judgment is res judicata on the issue of jurisdiction. Hazen Research, 497

F.2d at 153-54. Mendoza did not file – and has never filed – any motion in federal

court complaining about lack of service of the lawsuit.

Mendoza failed to establish by clear and convincing evidence that the

Louisiana Federal Court judgment is not entitled to full faith and credit on the

grounds of inadequate service of process. The trial court could not have vacated

the domesticated foreign judgment on that basis.

C. The Foreign Judgment is Not Subject to Modification Because of
Some Alleged Lack of Notice of the Summary Judgment Motion4
Mendoza asserted for the first time, in his amended motion to vacate filed on

March 27, 2015, that he had no notice of Rettig’s federal court motion for

summary judgment and thus his due process rights were violated and the federal

judgment is void. This is patently erroneous, as the record shows.

4
Mendoza alleged as an alternative in his motion to vacate that a bankruptcy stay
was required (CRII: 566-67). That request was necessarily denied given the court went
forward with the case and vacated the foreign judgment. The request was also baseless:
the Bankruptcy Court had already refused Mendoza’s request to grant a stay by order
dated March 9, 2015 (CRII: 980, Bankruptcy Court Order, In re Nogal Energy LLC,
Cause No. 14-50226, Southern District of Texas).

28
 Mendoza appears to attempt to trigger the exception to the full faith and

credit doctrine that a foreign judgment subject to modification under the law of the

rendering state is not binding. Mindis Metals, 132 S.W.3d at 482. First, Mendoza

filed no standard post-judgment motion and no appeal from the September 2014

judgment. It was not until May 2015 that Mendoza filed a Rule 60 Motion (CRII:

873-884) asserting as the sole ground lack of notice of the motion for summary

judgment, which he said was a due process violation that rendered the judgment

void. FED. R. CIV. P. 60(b)(4). Such a motion must be filed “within a reasonable

time.” Id. at 60(c)(1). The foreign judgment was filed on October 3, 2014.

Mendoza says he received notice December 12, 2014. If that is true, the Rule 60

motion was not filed until five months later, and only after Rettig vehemently

opposed his motion to vacate in Texas. The Rule 60 motion was not filed “within

a reasonable time.”

Second, under the law of the rendering state, a litigant who contends he was

afforded insufficient process -- which would apply to the alleged failure to serve

the litigant with a dispositive motion -- must assert that defense in court prior to the

entry of judgment or it is waived. FED. R. CIV. P. 12(b)(4). A party must timely

file a motion for new trial or a motion to alter or amend the judgment after a

nonjury trial to raise grounds for a rehearing. FED. R. CIV. P. 59. “A litigant who

has full knowledge that a suit is pending against them, cannot simply sit back . . .

29
without taking any action to follow up on the status of the suit (regardless of what

‘agreements’ they may have with their co-defendants as to who is ‘handling’ the

suit).” Green, 2011 WL 5190282 at *4.

Mindis Metals v. Oilfield, supra is on point. There, a motion to vacate a

filed foreign judgment was granted based on Oilfield’s contention that it did not

receive proper notice of a motion for summary judgment ultimately granted by a

Georgia Court. Only one of three defendants was named in the certificate of

service and Oilfield was not one of them. Id., 132 S.W.3d at 488. Just as in this

case, Oilfield originally had counsel, who filed an answer to the lawsuit, then that

counsel withdrew before the motion for summary judgment was filed. Id. The

Houston Court of Appeals held that any defect in service of the motion could have

been cured, or certainly objected to, before judgment on the motion for summary

judgment was final. Id. at 488-489. The court reversed the order vacating the

foreign judgment holding, “under Georgia law, it was Oilfield’s obligation to

monitor the litigation to which it was a party, or suffer the consequences.” Id. at

489, n. 15. Mendoza waived any assertion of inadequate process regarding the

motion for summary judgment.

In addition, Mendoza cannot legitimately contend he was deprived of due

process in federal court. Under FED. R. CIV. P. 77(d), “Immediately after entering

an order or judgment, the clerk must serve notice of the entry, as provided by Rule

30
5(b), on each party who is not in default for failing to appear.” The record shows

that the Federal Court Clerk’s Office sent multiple Orders related to the case and

the filing of the motion for summary judgment, as well as deadlines to file

responses and extensions thereof, to Mendoza at the address he confirmed, in his

Declaration, was his last known address: 209 Timber View Drive, Boerne, Texas

(CRII: 867). The federal court clerk delivered notice of the following documents,

with those documents attached, to Mendoza at his now confirmed address in

Boerne, Texas:

 “ORDER Granting Motion to Withdraw as Attorney” - August 18, 2014
(CRII: 1009).

 “ORDER Granting in Part MOTION to Continue; All defendants may
file an opposition to the motion for summary judgment on or before
8/29/2014” – August 27, 2014 (CRII: 1012)

 “ORDER re MOTION for Summary Judgment; ORDERED that all
defendants may file an opposition to the motion for summary judgment on
or before noon CST on 9/2/2014.” – August 29, 2014 (CRII: 1015)

 “ORDERED that Plaintiff’s Motion for leave to file a reply is
GRANTED. ORDERED that the motion to stay and the motion for
summary judgment are taken under submission and the motion to expedite is
MOOT.” – September 4, 2014 (CRII: 1018)

 “ORDER AND REASONS denying MOTION to stay; granting
MOTION for Summary Judgment. FURTHER ORDERED that the parties
shall comply with the Court’s minute entry of this date addressing attorneys’
fees and costs” – September 22, 2014 (CRII: 1021)

 “JUDGMENT entered in favor of Jack Rettig against Christopher Garcia,
Patrick G. Mendoza, Ronald E. Bruno, Sergio Lopez, Troy J. Williams.” –
September 30, 2014 (CRII: 1034)

31
  “JUDGMENT on Attorneys Fees in favor of Jack Rettig against
Christopher Garcia, Patrick G. Mendoza, Ronald E. Bruno, Sergio Lopez,
Troy J. Williams.” – October 16, 2014 (CRII: 1037)

Mendoza cannot deny that he was provided with repeated notices – directly

from the federal court – that a motion for summary judgment was pending, that a

response was due on one date, then a later date, that the motion was to be

submitted, and that the motion was decided. Mendoza cannot legitimately allege

that he was denied any due process rights relative the pending motion for summary

judgment. He had every notice and opportunity to respond.

Finally, under FED. R. CIV. P. 5, service of a mid-litigation document on a

party can be through his counsel. The motion for summary judgment was served

by Rettig on attorney Adriana Midkiff, who at that time was apparently

representing Mendoza and the other defendants and confirmed that she transmitted

a copy of the motion to Mendoza and the other defendants by email the day it was

filed and served on her (CRII: 999-1001, 1002-1008). The record includes

authenticated emails between Midkiff and counsel for Rettig indicating that she

received the motion and forwarded it to the defendants as requested (CRII: 1002-

1008).

Midkiff has since signed a Declaration stating she did not represent

Mendoza at the time (CRII: 865-66). Notably, she does not say that she did not

transmit the motion to Mendoza as her emails to Rettig’s counsel indicate. All she

32
says is she did not represent Mendoza. Her emails belie that assertion. But even if

she did not represent Mendoza, she did accept service of the motion and did

transmit it to Mendoza and the other defendants that very day (CRII: 1002-1008).

Midkiff’s Declaration is not clear and convincing evidence standing alone, let

alone in light of the balance of the record.

So too for Mendoza’s Declaration, which very carefully chooses its words:

“I never received a copy of Rettig’s motion for summary judgment via U.S. mail or

any other method of delivery at 209 Timber View Drive, Boerne, Texas 78006.

That was the address provided to the Court and all parties in William J. Kelly’s

motion to withdraw as counsel (Docket No. 19).” (CRII:867) He does not say he

never received a copy at all, or that he had no notice that the motion was filed. He

also confirms, “Midkiff and I did communicate through email. However I have no

recollection of receiving the motion for summary judgment that Jack Rettig filed in

this lawsuit.” (CRII:867) “Having no recollection” is very different from not

actually, truly receiving the document, or having no notice of the document at all.

As an interested witness, Mendoza’s credibility is immediately in question. Of

course Rettig objected to the admission of these Declarations at the hearing

because he was deprived of his right to cross examine and the court admitted them

anyway. That was error.

A complete review of this record establishes Mendoza was not deprived of

33
his due process rights. He cannot show that he had no notice of the motion for

summary judgment.

Mendoza failed to meet his burden to present clear and convincing evidence

that the federal Louisiana judgment is not entitled to full faith and credit in Texas.

The trial court abused its discretion by vacating that filed foreign judgment.

III. Garcia, Lopez, Bruno and Williams
Garcia did nothing more than piggy-back Mendoza’s motion to vacate,

asserting that if Mendoza prevailed on his motion, Garcia somehow prevailed as

well (CR 443-507). Garcia raised no independent grounds to vacate the judgment

(id.), nor could he, given that he fully participated in the federal court action,

including filing a response to the motion for summary judgment after seeking an

extension of time to do so. The Federal Court Order Granting Summary Judgment

states the following:

On April 30, 2014, plaintiff filed this lawsuit against defendants to enforce the note. 13

Defendants filed a joint answer in which they did not assert any affirmative defenses, but

"reserve[d] the right to amend their Answer and to add Affirmative Defenses to assert

such additional facts, theories or defenses as may become known during the course of this

litigation."14

After plaintiff obtained leave to file a motion for summary judgment, 15 defendants'

then- counsel sought and obtained leave to withdraw.16 Plaintiff filed the instant motion

for summary judgment to enforce the promissory note on August 19, 2014. 17
On the day

oppositions to the motion for summary judgment were due, present counsel moved to enroll

34
 on behalf of defendants Bruno and Garcia and moved to continue the submission date of

the motion for summary judgment. 18 The Court granted the motion to enroll, 19 extended

the time to file an opposition, but maintained the submission date of the motion for

summary judgment.20 After a second extension of the opposition deadline/ 1 defendants

Bruno and Garcia filed their opposition to the motion for summary judgment on September

2, 2014.22

On September 2, 2014, Bruno and Garcia also filed (1) a demand for arbitration against

plaintiff and a corporate entity he allegedly controls based on purported fraud in

connection with a sale of oil and gas equipment, and (2) a motion23 to stay this case

pending resolution of that arbitration. Plaintiff filed an opposition to the motion to stay

and a reply in support of his motion for summary judgment.24

(CRII: 631-32) (footnotes omitted). Clearly Garcia fully participated in federal

court.

Mendoza’s counsel conceded the same at the motion to vacate hearing, with

no objection from Garcia’s counsel (RR: 25). Mendoza’s counsel reiterated that

the “due process argument is made primarily by Mr. Mendoza.” (RR:29) Indeed

Garcia presented no evidence at the hearing on the motion to vacate (RR, passim).

His disingenuous position that he is entitled to vacate the judgment fails out of

hand.

Garcia next contended that if Mendoza’s motion to vacate was granted, the

foreign judgment was somehow rendered interlocutory, which he contends is one

35
of the exceptions to the full faith and credit rule (see, e.g., RR: 29 [Mendoza

counsel urges same argument: “If the Court determines there’s a problem with due

process . . . you have an interlocutory judgment, which means it cannot be

domesticated at this point.”]). The argument is misplaced. The only significance

to whether a judgment is interlocutory has to do with the foreign judgment as set

forth in the argument and case law above: if the foreign judgment is interlocutory,

it is not amenable to full faith and credit. Mindis Metals, 132 S.W.3d at 484. The

foreign judgment is not interlocutory.

And Garcia’s counsel conceded that the Webb County Court could not affect

the federal court judgment: “I would like to just point out that we’re asking you to

do is not to vacate the federal judgment. Nothing will happen to that. That will

stay pending in Louisiana;” “This doesn’t challenge the federal court judgment

directly.” (RR: 28, accord, 29).

This is true: the Webb County Court could not order a new trial in the

foreign court or otherwise affect that judgment; that court was only presiding over

the domestication action. Mindis Metals, 132 S.W.3d at 483, and n. 4. In federal

court, Mendoza made the following concession, which is binding upon Garcia,

who is relying entirely on Mendoza for relief:

Regardless of what happens in the Webb County Domestication Suit,
Rettig will still have his judgment from this Court unless and until this
Court vacates or modifies its judgment.” (CRII: 719) “Contrary to
Rettig's arguments, the Webb County Domestication Suit - the lawsuit

36
 that Rettig himself filed - cannot result in the vacatur of this Court's
judgment entered in this civil action. If Mendoza or the other
defendants are successful with their motions, then the Texas court will
simply vacate the Texas judgment that Rettig obtained by virtue of the
domestication action Rettig filed pursuant to the Texas Uniform
Enforcement of Foreign Judgments Act, TEX. CIV. PRAC. & REM.
CODE Chapter 35. While Rettig may not have a Texas judgment if that
happens, Rettig will still have the judgment this Court entered in this
civil action unless and until this Court vacates or modifies its
judgment. Thus, the Webb County Domestication Suit does not
frustrate this Court's jurisdiction, . . . .

(CRII: 720)

Simply because the judgment is not enforceable in Texas as to Mendoza

(which position Rettig denies) does not render the judgment unenforceable in

Texas as to Garcia (and Lopez, Bruno and Williams). The foreign judgment was

not rendered interlocutory in Webb County by virtue of a ruling on Mendoza’s

motion. The foreign judgment is full and final and it is binding on Garcia, who has

never provided an independent basis in any court to refuse to give it full faith and

credit, and on Lopez, Bruno and Williams.

As for Lopez, he never obtained a hearing on his motion to vacate (CR,

passim; RR: 5). Although, it is noteworthy that the trial court’s order granting

Mendoza’s motion states, “all relief not expressly granted is denied” and “this

judgment disposes of all parties and all claims, causes of action and requests for

affirmative relief, and therefore is final and appealable.” (CRII: 1044) Lopez’s

request for relief was therefore denied under the terms of the Order signed by the

37
trial court. Otherwise, it is moot. Either way, the foreign judgment is binding on

him and it is enforceable in Texas.

Similarly, Rettig would point out that given the Mother Hubbard clause in

the Order granting Mendoza’s motion to vacate signed on May 8, 2015, Garcia’s

motion to vacate, which was still pending at the time, could be construed as denied.

Bruno and Williams filed no motions attacking the foreign judgment in

Texas at all (CR, passim). That foreign judgment is likewise binding on them in

Texas.

CONCLUSION AND PRAYER

The trial court’s orders are void because they were entered after plenary

power expired. In the alternative the trial court failed to follow guiding rules and

principles and failed to properly consider the record (or lack thereof) when it found

that this foreign judgment was not entitled to full faith and credit. Mendoza

proffered no evidence, let alone clear and convincing evidence, to show that he

was deprived of adequate process or due process in the proceedings below. The

balance of the Appellees either filed no motions to vacate, or did not have them

heard, or failed to establish that the federal judgment to which they are parties was

not entitled to full faith and credit.

WHEREFORE, Appellant Jack Rettig prays the Court to REVERSE the trial

court’s orders and RENDER judgment in his favor. Rettig prays for all other relief

38
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 Appellant Jack Rettig

39
 CERTIFICATE OF COMPLIANCE
The undersigned certifies, pursuant to TEX. R. APP. P. 9.4(i)(2)(B), that this
computer-generated brief is 9,602 words long according to the word count of the
computer program used to prepare this document (Microsoft Office Word
2003/2007), from the Statement of Facts through the end of the Prayer. Typeface
font is 14-point in the body and 13-point in the footnotes.

/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 14th day of September, 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
Carlos Evaristo Flores – counsel for appellee Lopez
PERSON,WHITWORTH, BORCHERS &MORALES, LLP
602 E. Calton Road, 2nd Floor
P.O. Drawer 6668
Laredo, Texas 78042-6668
Darrell W. Cook – counsel for appellee Williams
Darrell W. Cook & Associates, P.C.
One Meadows Building
5005 Greenville Ave., Ste. 200
Dallas, Texas 75206

40
Above by tex.gov electronic filing system

Ronald E. Bruno – pro se appellee
2838 Woodside Street
Dallas, Texas 75204
And/or
2304 Matador Circle
Austin Texas 78746

By US Mail

/s/ Audrey Mullert Vicknair
Audrey Mullert Vicknair

41
 No. 04-15-00350-CV

IN THE COURT OF APPEALS FOR THE
FOURTH JUDICIAL DISTRICT OF TEXAS
SAN ANTONIO

Jack Rettig,
Appellant
v.

Ronald Bruno, et al,
Appellees

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

APPENDIX TO APPELLANT JACK RETTIG’S BRIEF

A - Webb County Orders Granting Mendoza and Garcia's Motions to
Vacate (CRII: 1043-1050, 1051-1062)

B - Foreign Judgment Filed by Jack Rettig in Harris County (CR 20-54)

C - Harris County Court Order Granting Motion to Transfer Venue
(CR 17)

42
 NO. 2015CVQ000699 D2

JACK RETTIG, §
§
Plaintiff, §
§
v. §
§
RONALD E. BRUNO, ET AL. §
§
Defendants §

ORDER GRANTING CHRISTOPHER GARCIA'S MOTION TO VACATE JUDGMENT

On this day came to be considered the Motion to Vacate Judgment filed by Defendant

Christopher Garcia. Defendant Garcia seeks to vacate the judgment entered in this cause pursuant

to the Uniform Enforcement of Foreign Judgment Act based upon the September 30, 2014

Judgment rendered in Civil Action No.2: 14-cv-00996-LMA-SS in the United States District Court

for the Eastern District of Louisiana, which judgment was first unsuccessfully domesticated in

Texas in Cause No. 2014-59941 in the District Court of Harris County, Texas, I 89th Judicial

District (collectively, however styled and numbered, the "Judgment").

After considering the pleadings, the motion, and the response, if any, the Court is of the

opinion that the Motion to Vacate Judgment should be, and hereby is, GRANTED.

It is, therefore, ORDERED that the Judgment is hereby VACATED and declared NULL,

VOID and WITHOUT EFFECT. The Judgment is not recognized and shall not be subject to

enforcement in Texas under the Texas Uniform Enforcement of Foreign Judgments Act or

otherwise.

With regard to any and all abstracts of the Judgment, which Plaintiff Jack Rettig has filed

1051
for recording in any Texas county prior to this date (including without limitation the Abstract of

Judgments electronically recorded in Dallas County, Texas as Instrument Number 201400260 153

(a copy of which is attached to this ORDER as Exhibit A)) (collectively, the "Abstracts"), IT IS

FURTHER ORDERED that the Abstracts are likewise NULL, VOID and WITHOUT EFFECT as

a result of this Order.

2

1052
1053
 ELECTRONICALLY RECORDED 201400260153
10/09/2014 04:28:12 PM AJ 1/3
NO. 2014-67941

JACK RETTIG IN THE DISTRICT COURT OF

v. BARRIS COUNTY, TEXAS

RONALD E. BRUNO, ET AL. 189TH JUDICIAL DISTRICT

ABSTRACTOFJUQGMOONT

STATE OF TEXAS §
§
COUNTY OF HARRIS §

Plaintiff Jack Rettig files this Abstract of Judgment pursuant to Texas

Property Code sections 52.002 et seq.t and shows as follows:

1. The Plaintiff is Jack Rettig..

2. The Defendant is Christopher Garcia.

3. The Defendant's birth date is unknown.

4. The last three numbers of the Defendanrs driver's license are unknown.

5. The last three numbers of the Defendant's social security n\unber are 401.

6. The number of the suit in which the judgment was rendered is Civil Action

number 2~14-cv-00996-LMA-SS in the United States District Court for the Eastern

District of Louisiana, entitled Jack Rettig v. Ronald E. Bruno, et al.

7. The address of the Defendant is as follows:

Christopher Garcia
5906 Velasco Avenue
Dallas, Texas 75206

1054
 T1;te a«;ldress of the. Plaintift'.i!4 as follows:

Jadc~~g
C/o Marc G. Matthews
Pheip~ .Dunbar, Lt.P
500 Dallas Street, Suite 1300
HO~n, Texas 77002
Telephone (7i3) 877-5623
Telecopier (718) 626-1388
matc.matthews@phelps.com

8. The judgment was rendered-and entered. on Septeml:Jer 30~ 2014.

9. The,_ judgment was rendered against: the Defendant in tl:le tota1 ~o~t ·of

$2,692,896.28. The balance due as of OCtober 7, 2014 is $2,692,896.28.

10. No amount of the. balance due is for child support ~age.

11. The rate of poat-judgm,ent .interest is 14.0% per annum.

VERIFlCATION

Befure me. the undersigned ..notary public, on this day_per~ndly ~ppeared
M.are G. Matthews and, after I. verified :hi8 identity through~ presentation of a
government-issued identification card ·that contained. h.i8. photograph and after.
being duly ~o~ by me, he verifi~d that he prepared the at;tached Abstract o(
Judgment, and thai it is true and correct based o · · personal knowledge.

~·) .·

.... ~
SWORN TO AND SllaSCRIBED be.fore me. the !t:_ ~y of October.
2014.

-2-- 1055
 Mire G. Mattb.ews
Texas Bar NQ~ 24065921
matc;matthewa@pbelps.grun
.Andfew B. Brown ·
Texas Bar No..UQ78264
Andrew ;brown@phelps.com
500 Dallas Street, Stiite 1800
Houston, Texas. 7-7002
Telephone: (7l8) ()26-1386
Telecopier: (713) 626-1388

ATTORNEYS FOR PLAINTIFF
JACK'REtTlG .

Filed and Recorded
Official Public Records
John F. Warren, County Clerk
Dallas· County, TEXAS
10/09/2014 04:28:12 PM
$34.00
201400260153

fJ-8

1056
1M"\ t "'OC"t1"f 1
 \
\

CAUSE No. 2015CVQ000699 D2

JACK RETTIG, IN THE DISTRICT COURT
PLAINTIFF,

v.

RONALD E. BRUNO, ET AL.,
DEFENDANTS.

ORDER ON PATRICK MENDOZA'S FIRST AMENDED MOTION TO VACATE JUD~
-<
AND/OR STAY ENFORCEMENT, & FINAL JUDGMENT

On this day came to be considered Patrick Mendoza's First Amended Motion to

Judgment and/or Stay Enforcement (the "Motion"). After considering the Motion, the response, if

any, and the arguments of counsel, the Coutt is of the opinion that the Motion should be GRANTED

as set forth herein. It is therefore

ORDERED that the Motion is hereby GRANTEn as set forth herein. lt is further

FOUND that Patrick Mendoza was not actually, constructively, or validly served with process

in the civil action styled and numbered Retlig v. Bruno, et al.; Civil Action No. 2: 14-cv-00996-

LMA-SS; in the United States District Court for the Eastern District of Louisiana (the "Louisiana

Action"). It is further

FoUND that Patrick Mendoza was not actually, constructively, or validly served with the

motion for summary judgment that was filed and ultimately granted in the Louisiana Action, which

gave rise to the judgment that the plaintiff has submitted for domestication in this cause (the

"Louisiana Judgment"). It is further

ORDERED, AI>.J UDGEn, and DECI~EEn that the Louisiana Judgment is not entitled to full faith

and credit under the applicable constitutions and Jaws. It is further

1043
 ORnERED, An.JUDGED, and DECREED that the judgment entered automatically in thi s cause

pursuant to the Uniform Enforcement of Foreign Judgments Act, Tex. Civ. Prac. & Rem. Code

Chapter 35, by virtue of the docketing of this cause by the Webb County District Clerk on February

25 , 20 12, or otherwise is VACATEn. ft is further

ORDERED, AI>.JUDGED, and DECREE Dthat plaintifftakc nothing on plaintiffs claims, causes

of action, and requests for affirmative rei ief. It is further

ORDERED, ADJUDGED, and DECREED that costs arc taxed against plaintiff. ft is further

ORDERED, ADJUDGED, and DECREEJ> that the District Clerk shall, upon demand and

payment, duly prepare and issue all writs and other process necessary to enforce this judgment. It

is further

ORDERED, AD.JUDGED, and DECREED that the appropriate government official, including

a sheriff or constable or a deputy of either, shall, upon payment, duly serve all writs and other

process in accordance with the law and prepare and file a return ofthe same identifying how it was

executed. It is further

ORDERED, ADJUDGED, and 0 ECREEOthat all relief not expressly granted here in is DENlEU.

This judgment disposes of all parties and all claims, causes of action, and requests for

affi rmative relief, and therefore is FINA;~d APPEALABLE.

~ • ~a
1
RENDERED and SIGN ED this of May, 20 15 .

HE H ON. MONICA Z. NOTZON, PRESIDING JUDGE

- 2-
1044
 10/3/2014 5:07:46 PM
Chris Daniel · District Clerk Harris County
Envelope No. 2721330
2014-57941 I Court: 189 By: Nelson Cuero
Filed: 10/3f2014 5:07:46 PM
~.0/SQ_VQOOR LLP
~-

/~/· ~·':'C'·'=~'~::"
.• .

: ·/;;< .../.-: .' ..
BY: /4x"?.;~~--··":-. :-: ;.~""'-~.;;;;;;;;,;..~~ ..,.,.~-.,....
.Mru·c G. Matthe\ys
:r~xas J3ar:N(}. ~40559~1
.Email': mar.c. matthe\vs@pl;lelps.coh1
Ai1drew B. Brown. -
Einaii': illldi-hv:browii@pheips·.com
Texas Bar No. 24078264
.. 500 OiToR
JAC:I{ RF.,:TTIG

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CERTIFICATE.OFSERVJCE
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Lhereby c,;,er.~fy th.elow.~ (in Oct()ber}, 2014, ·
R01iald E. Bruno
:2838 Woods!de·Street
Qallas;
-.-- .-.- .. .Texas
- .. .. 75204
-- . . - - -.-·

Christopher.Qfu.'ci£1
59·0·6 Vdasco Aveime
Diillas, texas _?5206

$ergio I::,gpez
...,. ~927 Mahlli()m
Laredo, Texas 78045

B~~d9.k a~ Meryd.~~
j'534 Stcep.le Drive
. ·-· ... Texas 78256
Sai1 Antonio, - , ' - --- --- - -

Troy J. Willii:uns
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 ..' I, Chris Daniel, District Clerk of Harris
'-.~ :-:· County, Texas cenify that this is a true and
correct copy of the original record tiled and or
recorded in my oftlce, electwnically or hard
copy, as it appears on this date.
.. \v1tness my official hand and seal of office
l this Febma.rv 18.2015

Certified Document Number: 62629766

., ..
.•

Chris Daniel, DISTRICT CLERK
HARRIS COUNTI', TL"'(.'\S

...

In accordance with Texas Gonmment Code 406.013 electronically transmitted authenticated
documents are Yalid. If there is a que.srion regarding the validity of this document and or seal
please e-mail support@hcdistrictclerk.com
23
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JUDGMENT

Qonsiderjt1g: the re~ord, th~ law, and the Coort's S_ept_e.m.bc.r- 27! ~0 14 cH'der .arid r asons
gnmo'n~ the.motion for ~Ulhtnar)'ji.l(jgjn_~·nt filed;~y p!ain~iff, J~ck Re.~tig ..

IT {S '()gD~RED, A~JUDGED, ;\ND DE9R.EED that ju_qgm~_pt is.. entered ill favor of

pi :,tint iff, )ack Rettig, and against defendants, Ronnld E. Bnmo,. Christopher'Garci!\; S.ergip Lopez;
.

Pat.t~ick. q~ M~ndoza; mi_d Tf()y l \yilfiah1s, jqi_nl]y and se.\'eru.H;>, f9r the unpaid pril}_cipal. of and

ijnerc~t l!ndcr the protnissory note i11 t~e=amount of$2~692~_~95.23 as.of A'ugU.~l) i,? 2014.jogethe:r

\vith:;lnterest accrlliilgfromSeptemberl, 20!4, at the rate qfi4% per unri4.nl con1pQ.un.de:ct OJ 2014
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i JUD_GE: :>< -lao
RONALD'
. E. BRUNO
... . .. ... .. . ' CHlUSTOPHER
.. . . . . ..
. . .· .. .. .. .
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GARCIA, SERGIO LOPE'Z~ PATRict{JG' (f'

MEND.OZA, AND TROY J. 'VILLIAMS,

Defe~d:l_nts.

' .

COMPLAINT
• ·r:
NOW. INTO COURT, ~ll.rou&h undersigned cqunsei, con1_~s pt_~in~ff he¥ R~~ig, and

1. Plaintiff, JacicRettin~,is an individual of the full age ofmajoricy doiniciled ir.i the

Staie ofFlorida;

2. 'Petendant Rqnald E. Srtll1() Js 4n il14iy!<:lu.~l of the fuJl a&e ofmajority domiciled

1n the State _of TexaS'.
3, J)cf~q(ft\11( Gh,ris~opher Garcia. i~ fill tlldiyidtf~ o.f the full age of majority

domiciled in, tile State ofTexas.

4, Petei1dani: Sergio Lopez is at) individu.al of t,ll._e fu.ll ag~ ofmujority domiciled. in

tlly State of Texas.

5: Defei)dant' ,Patrick G, ~i~ndoza is an indiyidual of th~ full age of majority

...... EXHIBIT
i 'l~~~- ..
t:: 26
llJ
U,
C·
 Case 2:14-cv-00996-LMA-SS Document 1 Filed 04/30/14 Page 2 of 5

6. All of the defendants are domiciled in the State of Texas; none are domiciled in

the State of Florida.

JURISDICTION AND VENUE

7. Jurisdiction in this matter is based upon diversity of citizenship, pursuant to 28

U.S.C. § 1332(a)(l) and (2) because: (A) on one hand, plaintiff, Jack Rettig, and all of the

defendants, on the other hand, are citizens of different states; and (B) the amount in controversy,

~-i . as set forth below, exceeds $75,000, exclusive of interest and costs.
'
'
8. Venue is properly placed in the Eastern District of Louisiana by agreement of the

parties.
-
•, •
.......

FACTS

9. Plaintiff is the holder and owner of a good and valuable promissory note made

and subscribed by the defendants on November 15, 2013, for a principal sum of $3,346,123.89

payable to Jack Rettig, bearing interest at 12.5% per annum, compounded monthly, with

· principal originally due on November 30, 2013. A true and accurate copy of the promissory note

is attached as Exhibit A and hereafter referred to as the "Note.''

10. Under the tenns of the Note, defendants Bruno, Garcia, Lopez, Mendoza, and

Williams are bound solidarily. See Exhibit A.

11. Defendants defaulted under the Note and, on February 27, 2014, the parties
V)

"-
0 entered into a Forbearance Agreement, by which plaintiff promised to forbear in the exercise of
N

its rights and remedies under the Note provided that defendants promised to pay the remainder of

the loan by June 30, 2014, in monthly installments bearing interest at 14% per annum. A true

and accurate copy of the Forbearance Agreement is attached as Exhibit B.

12. According to the terms of the Forbearance Agreement, defendants promised to

make payments on February 28, 2014, March 31,2014, April30, 2014, May 31,2014, and June

2
PD.ll371949.3
27
 Case 2:14-cv-00996-LMA-SS Document 1 Filed 04130/14 Page 3 of 5

30, 2014 in the amount of $534,452.35. Defendants defaulted by failing to pay the March

installment due under the Forbearance Agreement. Defendants also failed to pay the entirety of

the amounts coming due on February 28, 20 14.

COUNT I
..
·

Collection of Promissory Note

13. Plaintiff realleges and incorporates each and every allegation in paragraphs 1

through 12, inclusive.

14. The terms of the Forbearance Agreement required defendants Bruno, Garcia,

Lopez, Mendoza, and Williams to make monthly payments to Plaintiff.

15. Defendants Bruno, Garcia, Lopez, Mendoza, and Williams have defaulted in

making the installment payments they agreed to make in the Forbearance Agreement.

16. As of April 21, 2014, defendants Bruno, Garcia, Lopez, Mendoza, and Williams

are indebted solidarily to plaintiff under the Note and Forbearance Agreement in the principal

amount of $2,516,324.43, together with accrued interest in the amount of $47,165.52, interest

which continues to accrue at the rate of 14% per annum from and after that date, and all such

other amounts due under the Note and Forbearance Agreement, including attorney's fees and all

costs of collection.

WHEREFORE, plaintiff, Jack Rettig, prays that after due proceedings are had, this Court

enter judgment:

A. Against defendants Ronald E. Bruno, Christopher Garcia, Sergio Lopez, Patrick

G. Mendoza and Troy J. Williams, each to be bound solidarily, in the principal amount of

$2,516,324.43, together with accrued interest in the amount of $47,165.52 through April 21,

2014, interest which continues to accrue from and after April 21, 2014 at the rate of 14% per

3
PD.ll371949.3
28
..,
;.

Case 2:14-cv-00996-LMA-SS Document 1 Filed 04/30/14 Page 4 of 5

...;.'"".

annum, and all such other amounts due under the Note and Forbearance Agreement, including

attorney's fees and all costs of collection, and all court costs incurred in this proceeding~ and

B. Plaintiff further pleads for all such other relief to which he may show himself

justly entitled in law or equity.

Respectfully submitted,

PHELPS DUNBAR LLP

,.
.. BY: Is/ S. Ault Hootsell III
S. Ault Hootselllll (Bar No. 17630)
BryantS. York (BarNo. 34165)
Canal Place
365 Canal Street • Suite 2000
New Orleans, Louisiana 70130-6534
Telephone: (504) 566-1311
Telecopier: (504) 568-9130
Email: ault.hootsell @phelps.com
bryant.york@phelps.com

ATTORNEY FOR PLAJNTIFF,
JACK RETTIG

PLEASE ISSUE SUMMONS TO:

Ronald E. Bruno
By his duly designated agent for service of process
Jay D. Crutcher
Crutcher & Christiansen PLLC
2838 Woodside, Suite 200
Dallas, TX 75204

Christopher Garcia
By his duly designated agent for service of process
Jay D. Crutcher
Crutcher & Christiansen PLLC
2838 Woodside, Suite 200
Dallas, TX 75204

4
PD.II371949.3
29
 Case 2:14~cv-00996-LMA-SS Document 1 Filed 04/30/14 Page 5 of 5

Sergio Lopez
By his duly designated agent for service of process
Jay D. Crutcher
Crutcher & Christiansen PLLC
2838 Woodside, Suite 200
Dallas, TX 75204

Patrick G. Mendoza
By his duly designated agent for service of process
Jay D. Crutcher
Crutcher & Christiansen PLLC
283 8 Woodside, Suite 200
Dallas, TX 75204

Troy J. Williams
By his duly designated agent for service of process
Jay D. Crutcher
Crutcher & Christiansen PLLC
283 8 Woodside, Suite 200
Dallas, TX 75204

· ..
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I, Chris Daniel, District Clerk of Harris
County, Texas cc:nify that this is a true and
correct copy of the original record filed and or
recorded in my office, electronically or hard
copy, as it appears on this date.
\"Vl.tness mv oftl.cial hand and seal of oftlce
this Februarv 18. 2015

Certified Document Number: 6262976S

·~

-.
·-:··

Chris Daniel, DISTRICT CLERK
HARRIS COUNTY, TEXAS

.·

In accordance with Texas Government Code 406.013 electronically transmitted authenticated
documents are ,-alid. If there is a question regarding the validity of this document and or seal
please e-mail support@hcdisrricrclerk.com
31
 2014-57941 I Court: 189

m
NO. _______________ -<
f 0-:1
~~ ~-~ ...
JACK RETTIG § IN THE DISTRICT COIRT ~~
§
~P1
§
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§
v. §
HARRIS COUNTY, TEXAS ;;:1
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§ --< (f)
§
§
RONALD E. BRUNO, ET AL. § ____ JUDICIAL DISTRICT

AFFIDAVIT

STATE OF TEXAS §
§
COUNTY OF HARRIS §

Marc G. Matthews appeared before me and, after I confirmed his identity through his

presentation of a government-issued identification that included his photograph, he stated under

oath:

1. I am counsel for Jack Rettig, the judgment creditor in the judgment signed and

rendered on September 30, 2014 in the case styled Jack Rettig v. Ronald E. Bruno, eta/., filed as

case nwnber 2:14-cv-00996-LMA-SS in the United States District Court for the Eastern District

of Louisiana against Ronald E. Bruno, Christopher Garcia, Sergio Lopez, Patrick G. Mendoza,

and Troy 1. Williams, jointly and severally.

2. The last known post office address of Ronald E. Bruno is 2838 Woodside Street,

Dallas, Texas 75204.

3. The last known post office address of Christopher Garcia is 5906 Velasco Avenue,

Dallas, Texas 75206.

4. The last known post ofiice address of Sergio Lopez is 2927 Mahlhorn, Laredo, Texas

78045.
EXHIBIT

-4- 32
PD.l2543579.1
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9; The l,.:.•;~':""'

&~'
l'v1arc G:)\-fatthe~s
.MtrJ_r[ley for Juagfl1ei1t .Cre .••
..................
I, Chris Daniel, District Clerk of Harris
County, Texas cenify that this is a nue and
correct copy of the original record filed and or
recorded in my office, electronically or hard
copy, as it appears on this date_
\v"'itness my official hand and seal of office
this F ebmarv 1S. 2015

Certified Document !'umber: 62629769

Chris Daniel, DiSTRICT CLERK
HARRIS COUNIT, TEXA.S

In accm·dance with Texas Gonmment Code 406.013 electronically transmitted authenticated
documents are ,-alid. If there is a question regarding the validity of this document and or seal
please e-mail support@hcdistrictclerk.com
34
 10/8/2014 3:20:16 PM
Chris Daniel - District Clerk Harris County
Envelope No. 2764865

[}_() [SQ.VQCSlJD
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By: PAUL SWEENEY
Filed: 1018/20143:20:16 PM

NO. 2014-57941

JACK RETTIG § IN THE DISTRICT COURT OF
§
§
§
v.. §
HARRISCOUNTY,TEXAS
§
§
§
RONALD E. BRUNO, ET AL. § 189TH JUDICIAL DISTRICT

PROOF OF NOTICE TO DEBTORS OF
THE FILING OF A FOREIGN JUDGMENT

COMES NOW Judgment Creditor Jack Rettig ("Judgment Creditor"), by and through his

attorney of record, Marc G. Matthews, providing the Court with Proof of Notice to Debtors of

the Filing of a Foreign Judgment pursuant to the Uniform Enforcement of Foreign Judgments

Act, Texas Civil Practice & Remedies Code section 35.001 et seq., and respectfully shows the

Court as follows_

1. On October 3, 2014, Judgment Creditor filed a pleading entitled "Filing of

Foreign Judgment" with the Harris County District Clerk. The case was given Cause No. 2014-

57941, and assigned to this Honorable Court for proceedings. See file-stamped copy of Filing of

Foreign Judgment attached as Exhibit I. The Filing of Foreign Judgment contained an

authenticated copy of the judgment (Exhibit A), a copy of the Complaint in the underlying action

(Exhibit B), and the Affidavit required by Texas Civil Practice and Remedies Code section

35.004 (Exhibit C). See Exhibit 1.

2. On October 6, 2014, Judgment Creditor caused to be mailed to the Judgment

Debtors named in the judgment at their last known addresses a full and complete copy of the

Filing of Foreign Judgment including all attachments described above, via certified mail, return

receipt requested, as evidenced by the ring-dated U.S. Postal Service Certified Mail Receipts

35
PD.l2633729.1
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attached a~J~x.lli.hit ?.· .It1 ~ddition~ a' d11plicatc c,opy of:!be Filing_ ofF or~~gn_. Jl~dgme~t was ~e.nqo

cadi Jiiq~ni~nt Del>to.r at Jli~ last kil9~'ll a9dress via t]rst~dass U,S; M(lil, prop~fly ad<:}r~sse!d

....

... Email: nl_arc·.rnat1hews@phe1p~ .com
... Andre\~· .B. Brcnvn .
En1ai l: andfe\v. ~to\vil@phelps,corri
TeJI:l;l§ BarN""'.-·.· A ·.'-. 1.0c .·.
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I, Chris Dan.id, District Clerk of Hanis
County, Texas cettify that this is a true and
correct copy of the original record tiled and or
recorded in my oftice, electronically or hard
copy, as it appears on this date.
\\tituess my official hand and seal of oftl.ce
this F ebmarv 1S. 2015

Certified Document Number: 626SOi57

Chris Daniel, DISTRICT CLERK
HARRIS COUNTI', TEX.-\S

, .l·.

In accordance with Texas Gon>mment Code 406.013 electronically transmitted authenticated
documents are Yalid. If there is a question regarding the validity of this document and or seal
please e-mail support@hcdistrictclerk.com
38
 c
--·
101312014 5:07:46 PM
Chris Daniel - District Clerk Harris County
Envelope No. 2721330
By: Nelson Cuero
Filed: 10/3/2014 5:07:46 PM

~~p
JACK RETTIG § IN THE DISTRICT COURTJlF~
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RONALD E. BRUNO, ET AL. § 1
----r.; JUDICIAL DISTrucf~. u
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FILING OF FOREIGN JUDGMENT

Judgment Creditor Jack Rettig, by and through his attorney of record, Marc G. Matthews,

files an authenticated copy of a judgment for domestication under the Uniform Enforcement of

Foreign Judgments Act, Tex. Civ. Prac & Rem. Code § 35.001 et seq. The judgment was

rendered and signed on Civil Action number 2:14-cv-00996-LMA-SS in the United States

District Court for the Eastern District of Louisiana, and awarded Jack Rettig damages in the

amount of $2,692,895.23 (including prejudgment interest from September 1, 2014) against the

judgment debtors. A copy of the judgment, with authentication in accordance with an Act of

Congress, is attached as Exhibit A. The judgment disposes of all parties and claims, as shown by

the latest.Iive Complaint in the underlying action, which is: attached as Exhibit B. Although the

judgment leaves reasonable attorneys' fees and costs to be determined later, "an wuesolved issue

<....
of attorneys' fees for the litigation does not prevent judgment on the merits from being final."
0

Ray Haluch Gravel Co. v. Cent. Pension Fund of Jnt'l Union Fund of Operating Eng'rs &

00 Participating Employers, 134 S. Ct. 773, 781 (2014). TI1erefore, Exhibit A constitutes a valid
V)
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\.0 final judgment entitled to full faith and credit in this Court.
C"l
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u The affidavit required by Texas Civil Practice and Remedies Code section 35.004 is
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 Respectfully submitted,

-~
Marc G. Matthews
Texas BarNo. 24055921
Email: marc.matthews@phelps.com
Andrew B. Brown
Email: andrew.brown@phelps.com
Texas Bar No. 24078264
500 Dallas Street, Suite 1300
Houston, Texas 77002
Telephone: 713-626-1386
Telecopier: 713-626-1388
ATTORNEYS FOR JUDGMENT CREDITOR
JACK RETTIG

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CERTIFICATE OF SERVICE
....'
I hereby certify that a true and correct copy of the above Filing of Foreign Judgment has
been mailed via U.S. Mail, certified mail, return receipt requested, and by regular first class U.S.
Mail, to Judgment Debtors as listed below, on October 3, 2014.

Ronald E. Bruno
2838 Woodside Street
DaJlas, Texas 75204

Christopher Garcia
5906 Velasco Avenue
- Dallas, Texas 75206
.. Sergio Lopez
2927 Mahlhom
Laredo, Texas 78045

Patrick G. Mendoza
7534 Steeple Drive
San Antonio, Texas 78256

Troy J. Williams
6150 Deer Run Circle
Sandia, Texas 78383

Marc G. Matthews

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I, Chris Daniel, District Clerk of Harris
Com1ty, Texas certify that this is a true and
correct copy of the original record tiled and or
recorded in my office, electronically or hard
copy, as it appears on this date_
Witness my official hand and seal of oftice
this Febtuai-v 18. 2015

Certified Document Number: 62680759

.•.
Chris Daniel, DISTRICT CLERK
HARRIS COUNTI', TEX..~S

In accordance with Texas Government Code 406.013 electronically transmitted authenticated
documents are Yalid. If there is a question regarding the Yalidity of this document and or seal
please e-mail support@hcdistrictclerk.com
54
.'

a--
&l{j
1

;LOI5~V QOOOtpqq D:&
NO. 2014-57941

JACK RETTIG, § IN THE DISTRICT..:COURt
r"r]
§
Plaintiff, §
§
v. §
§
RONALD E. BRUNO, ET AL §
§
Defendants § 189TH JUDICIA.

ORDER )

On this day, came on to be considered the Motion to Transfer Venue ofChrist~her Garcia
\
and the supplementation thereto. After considering the evidence and hearing the arguments of

counsel, it appears to the Court that the Motion should be GRANTED.

[! ikL
IT IS ORDERED that this case be transferred to Webb County .
....-..

SIGNEDon~,20~~
JUDGE PRESIDING

._
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17
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I, Chris Daniel , District Clerk of Ranis
Comuy, Texas certify that tlus is a true and
correct copy of the original record tiled and or
recorded in my office, electronically or hcu·d
copy, as it appears on this date.
Witness mv official hand and seal of office
::: this F ebmarv 18. 2015

Certified Document Number: 64116818
.::..
;

Chris Daniel, DISTRICT CLERK
H.-\RRIS COUNTI', TEXAS

,__.

In accordance with Texas Gonmment Code 406.013 electronically transmitted authenticated
documents are \·alid. If there is a que.srion regarding the validity of this document and or seal
please e-mail support@hcdistrictclerk.com
18