                                                                                        ACCEPTED
                                                                                    04-15-00350-CV
                                                                        FOURTH COURT OF APPEALS
                                                                             SAN ANTONIO, TEXAS
                                                                                7/6/2015 4:33:08 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 TEXAS7/6/2015 4:33:08 PM
                             SAN ANTONIO             KEITH E. HOTTLE
                                                           Clerk



                                 Jack Rettig,
                                                Appellant
                                       v.

               Patrick Mendoza and Christopher Garcia,
                                       Appellees

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


                    APPELLEE CHRISTOPHER GARCIA’S
                  RESPONSE TO MOTION TO ABATE APPEAL



BECKSTEAD TERRY, PLLC

Jana K. Terry
State Bar No. 24003041
9442 N. Capital of Texas Hwy
Arboretum Plaza One, Suite 500
Austin, TX 78759
(512) 827-3574; (855) 845-3262 fax
jterry@becksteadterry.com

Attorneys for Appellee
Christopher Garcia




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TO THE HONORABLE FOURTH COURT OF APPEALS:

      COMES NOW Appellee Christopher Garcia and files this Response to Motion

to Abate Appeal, and for cause would show:

                         FACTUAL BACKGROUND

      In 2014, Appellant Rettig filed suit against Appellees Garcia and Mendoza

(and three other individuals) in the United States District Court for the Eastern

District of Louisiana (the “Federal Court”) in Civil Action No. 14-996 (the

“Louisiana Action”). On August 19, 2014, Rettig filed a motion for summary

judgment but did not serve it on the five individual defendants, who were then

proceeding pro se. The Federal Court granted the motion for summary judgment on

September 22, 2014 even though Appellee Mendoza had not filed any response and,

according to the certificate of service of Rettig’s counsel, Mendoza had not been

served with the motion for summary judgment. On September 30, 2014, the Federal

Court entered a judgment against all of the individual defendants in the amount of

$2,692,895.23, plus 14% interest and attorneys’ fees to be determined later (the

“Foreign Judgment”).

      Rettig then sought to domesticate the Foreign Judgment in Texas under the

Uniform Enforcement of Foreign Judgments Act by filing a certified copy of the

Foreign Judgment in Cause No. 2014-57941 in the Harris County District Court.

Thereafter, Appellees Mendoza and Garcia timely filed motions to transfer venue

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and, subject thereto, motions to vacate the judgment. As venue was improper, the

Harris County District Court granted the motions to transfer to Webb County, which

had the effect of vacating the judgment that had been automatically entered in the

Harris County District Court because improper venue is never harmless and always

reversible error.

      Upon the docketing of the case in Webb County, which had the effect of again

automatically entering a new domesticated judgment, Appellees again filed motions

to vacate the judgment. The Webb County District Court’s orders granting Garcia’s

and Mendoza’s motions to vacate the judgment are the orders at issue in Rettig’s

appeal. Pursuant to Federal Rule of Civil Procedure 60(b), Appellee Mendoza has

also filed a motion in the Louisiana Action to vacate the Foreign Judgment.

      APPELLEE GARCIA OPPOSES THE REQUESTED ABATEMENT,
    TO THE EXTENT RELATED TO THE FEDERAL COURT ACTION

      Appellant Rettig is asking that this Court abate the appeal until such time as

the Federal Court determines Mendoza’s pending Rule 60 motion. However, in

connection with Rettig’s earlier unsuccessful attempt to have the Federal Court

enjoin the case in Webb County, Rettig argued that the Webb County District Court’s

ruling would have a res judicata effect upon the Federal Court, not vice versa.

      Specifically, in a Memorandum in Support of his Motion for Preliminary

Injunction (the “Memorandum”), Rettig argued that, if the Webb County Action

were permitted to proceed, he would be unable to have recourse in the Federal Court.
                                         3
See Memorandum (Docket No. 50-3), at 27. Citing United States Supreme Court

and local authority, Rettig explained that if the Webb County District Court granted

Appellees’ motions to vacate, the Federal Court would “no longer be permitted to

protect or effectuate its judgment, but must instead sit by as its authority is

determined by another sovereign.” Id. (citing Parsons Steel, Inc. v. First Ala. Bank,

474 U.S. 518, 525 (1986) and Raj v. Tomasetti, No. 03-1993, 2008 WL 2718905, at

*3 (E.D. La. July 11, 2008 (Vance, J.)).

      As stated by Rettig, “[t]he U.S. Supreme Court has explained that

‘[c]hallenges to the correctness of a state court’s determination as to the conclusive

effect of a federal judgment must be pursued by way of appeal through the state-

court system and certiorari from [the U.S. Supreme Court].’” Memorandum, at 27

(quoting Parsons Steel, Inc. v. First Ala. Bank, 474 U.S. 518, 525 (1986)) (emphasis

added). In reply briefing that Rettig filed with the Federal Court, Rettig argued

further that “any ruling by the Webb County District Court w[ould] be res judicata

and entitled to full faith and credit by all other courts, including [the Federal] Court.”

Reply to Defendants’ Oppositions to Plaintiff’s Motion for Preliminary Injunction

(Docket No. 63-2), at 3 (emphasis added).

      Notwithstanding these arguments, the Federal Court denied Appellant’s

motion for preliminary injunction and permitted the Webb County action to proceed.

See the Federal Court’s April 29, 2015 Order and Reasons (Docket No. 71).

                                            4
Thereafter, the Webb County District Court did, indeed, vacate the judgment as

domesticated in Texas. Rettig’s challenge to the Webb County District Court’s

rulings, per his own arguments and the cases he cited, belongs in the Texas state court

appeal process – and the Federal Court does not disagree. Accordingly, the Federal

Court action in Louisiana is no basis for an abatement of this Court’s proceedings.

                                       PRAYER

       WHEREFORE, Appellee Christopher Garcia prays the Court to DENY

Appellant Rettig’s motion to abate this appeal until the foreign court – the Louisiana

federal court -- rules on Appellee Mendoza’s pending Rule 60 motion. Garcia prays

for all other relief to which he is entitled.

                                   Respectfully submitted,

                                   /s/ Jana K. Terry
                                   Jana K. Terry
                                   State Bar No. 24003041
                                   Beckstead Terry, PLLC
                                   9442 N. Capital of Texas Hwy
                                   Arboretum Plaza One, Suite 500
                                   (512) 827-3574; (855) 845-3262 fax
                                   jterry@becksteadterry.com
                                   Attorneys for Christopher Garcia




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                         [VERIFICATION – see attached]



                          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 _6th       day of July, 2015.


Audrey Mullert Vicknair – counsel for Appellant Rettig
LAW OFFICE OF AUDREY MULLERT VICKNAIR
802 N. Carancahua Ste. 1350
Corpus Christi, Texas 78401-0022

C.M. Henkel III – counsel for Appellant Rettig
Fritz Byrne Head & Fitzpatrick PLLC
500 North Shoreline, Suite 901
Corpus Christi, Texas 78401

Lance H. Beshara – counsel for Appellee Mendoza
PULMAN CAPPUCCIO
PULLEN BENSON & JONES, LLP
2161 N.W. Military Hwy., Suite 400
San Antonio, Texas 78213

By tex.gov electronic filing system


                                        /s/ Jana K. Terry
                                        Jana K. Terry




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