                                                                                     ACCEPTED
                                                                                04-15-00053-CV
                                                                     FOURTH COURT OF APPEALS
                                                                          SAN ANTONIO, TEXAS
                                                                            2/5/2015 1:51:36 AM
                                                                                  KEITH HOTTLE
                                                                                         CLERK



                        NO. 04-15-00053-CV
                                                                FILED IN
                                                         4th COURT OF APPEALS
                       In the Court of Appeals            SAN ANTONIO, TEXAS
                                                         2/5/2015 1:51:36 AM
                               for the
                                                           KEITH E. HOTTLE
                           Fourth District                       Clerk

                        San Antonio, Texas

                           THELMA FRANCO,
                                    Appellant
                                   V.

              RODERICK J. SANCHEZ, AS DIRECTOR OF
      DEVELOPMENT SERVICES FOR THE CITY OF SAN ANTONIO,
THE CITY OF SAN ANTONIO, PLANNED PARENTHOOD SOUTH TEXAS, AND
                  DELANTERO INVESTORS, LTD.,
                                  Appellees

 On Appeal from the 288th Judicial District Court of Bexar County, Texas
                      (Cause No. 2015-CI-00039)

                  APPELLANT’S RESPONSE TO
                APPELLEE RODERICK SANCHEZ’
                     MOTION TO DISMISS

                                 DENNIS J. DROUILLARD
                                 State Bar No. 00793641
                                 Riverview Towers
                                 111 Soledad, Suite 339
                                 San Antonio, Texas 78205
                                 Telephone: (210) 299-7680
                                 Facsimile: (210) 299-7780
                                 E-mail:     DennisDrouillard@aol.com
                                 COUNSEL FOR APPELLANT
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

      Comes now Appellant, Thelma Franco, and files this Appellant’s Response

to Appellee Roderick Sanchez’ Motion to Dismiss, and in support thereof would

respectfully show this Court the following:

                                      I. Status

      1.     Regarding the representations of Mr. Sanchez’ counsel at Paragraph 4

of the Motion to Dismiss, the undersigned represents to the Court that he signed

and returned the signature page of the order Mr. Sanchez references. That return

was to Appellees’ respective counsel via e-mail on the evening of February 4,

2015. This was done solely to obviate a jurisdictional battle.

      2.     Therefore, logic would indicate that the trial court’s order Mr.

Sanchez claims to seek should be entered by his counsel on February 5, 2015.

      3.     Nonetheless, Mrs. Franco asserts that for the reasons briefed infra,

this Court has interlocutory jurisdiction over this appeal and the Motion to Dismiss

should be denied.

                                 II. Letter Rulings

      4.     In Tex. Dep’t of Criminal Justice v. Avellaneda, No. 11-05-00414-CV,

2006 WL 1172253, at *2 (Tex. App.—Eastland May 4, 2006, no pet.) the Eleventh

Court of Appeals determined that a letter ruling from a trial court constituted an

appealable order. Id.



                                         2
      5.     In Avellaneda, the letter ruling from which an appeal was taken read

as follows: “Defendant Texas Department of Criminal Justice’s Plea to the

Jurisdiction and/or Motion for Dismissal for Lack of Subject Matter Jurisdiction is

hereby DENIED.” Id. In response to the State’s claim that there was a lack of

appellate jurisdiction based upon the decision in Perdue v. Pattern Corp., 142

S.W.3d 596, 601-03 (Tex. App.—Austin 2004, no pet.), the Avellaneda court

distinguished Perdue from the letter rulings in Champion Int’l Corp. v. Twelfth

Court of Appeals, 762 S.W.2d 898, 898-99 (Tex. 1988) (orig. proceeding) (the

Supreme Court conditionally issued a writ of mandamus when ruling that a trial

court’s “letter order” actually granted a new trial) and Schaeffer Homes, Inc. v.

Esterak, 792 S.W.2d 567, 569 (Tex. App.—El Paso 1990, no writ) (a letter order

granting a new trial was considered an actual order). Id.

      6.     The Avellaneda court stated that in Perdue the letter ruling itself

contained a request for the drafting of a written order. Avellaneda, 2006 WL

1172253, at *2. Therefore, within the four corners of the Perdue letter was a clear

intent by the trial court that the letter did not constitute the “operative order”. Id.

In contrast, the letter ruling in Avellaneda was analogous to those in Champion and

Esterak in that it was in present-tense language, did not contain requests for further

orders, and was file-stamped. Id.




                                          3
       7.      In Schroeder v. Haggard, No. 04-06-00508-CV, 2007 WL 1423968 at

*2 (Tex. App.—San Antonio, May 16, 2007, no pet.)—this Court considered a

letter ruling in light of the Supreme Court’s decision in Goff v. Tuchscherer, 627

S.W.2d 397, 398-99 (Tex. 1982). While acknowledging that the Supreme Court

stated in Goff that “[l]etters to counsel are not the kind of documents that constitute

a judgment, decision or order from which an appeal may be taken”—this Court

also acknowledged that in Goff1 the letter ruling therein also “requested counsel

prepare and present an order reflecting that ruling.”                  Schroeder, 2007 WL

1423968, at *2. This Court then went on to acknowledge the opinions in Esterak

and Perdue referenced supra when this Court then determined that a January 4th

letter in Schroeder, “although filed, anticipated further action and therefore did not

extend the appellate deadlines.” Schroeder, 2007 WL 1423968, at *2.

       8.      In essence, this Court acknowledged in Schroeder that a letter ruling

can serve as an appealable order consistent with the opinion in Esterak when this

Court’s decision in Schroeder did not turn on an outright prohibition of letter

rulings but turned instead on the factual contents of the letter ruling itself as

anticipating “further action”. Id.



1
 This Court’s treatment of Goff is important. Though Mr. Sanchez cites to Goff in his Motion to
Dismiss at Paragraph 6, he does not describe in his motion this Court’s treatment of Goff. As can
be noted from the briefing herein, Mrs. Franco believes that this Court’s treatment of Goff is very
different from that which Mr. Sanchez implies at Paragraph 6 of his Motion to Dismiss.



                                                4
      9.        Accepting the rationale for this Court’s decision in Schroeder means

that this Court appears to concur with recognizing that in certain instances a letter

ruling is appealable. Therefore, Mrs. Franco now turns to the application in the

instant case.

           III. The Letter Ruling in the Instant Case Confers Jurisdiction

      10.       Generally, an appellate court may not consider documents outside the

record. Fox v., Wardy, 234 S.W.3d 30, 33 (Tex. App.—El Paso 2007, pet. dism’d)

(affidavit attached to a brief could not be considered because it was outside the

record). Nonetheless, an appellate court may consider documents outside the

record when determining its own jurisdiction. Sabine Offshore Serv. V. City of

Port Arthur, 595 S.W.2d 840, 841 (Tex. 1979).

      11.       Attached hereto as Exhibit “A” is a partial listing of documents filed

with the Bexar County Clerk in the underlying case and obtained from the internet.

Though the Clerk’s Record is being prepared, from the attached Exhibit “A” one

can determine that at Sequence P00017 and P00018 are the Judge’s Notes and the

Judge’s Letter, respectively, that form the letter ruling made the basis of this

appeal. Since those documents are filed with the District Clerk, it can be assumed

that they are file-stamped by the Clerk.




                                            5
      12.    The trial court’s letter clearly referenced the Judge’s Notes and

conveyed the ruling by reference therein. The letter further contained a statement

that the Judge’s Notes were being enclosed with the letter. When looking toward

the Judge’s Notes, it reads: “Request for Temp Inj as prayed for in Petitioner’s 1st

Supp. App for Writ of Mandamus + Orig. Petition + App. For TRO + Temp. Inj. Is

Denied.”

      13.    There is neither a request nor directive within the four corners of the

letter ruling and its enclosure for further action or the drafting of another order. It

is written in present-tense language and unequivocally articulates the denial of a

temporary injunction as prayed for by Mrs. Franco in her filing titled Petitioner’s

First Supplemental Application for Writ of Mandamus and Original Petition and

Application for Temporary Restraining Order and Temporary Injunction. The trial

court filed its letter ruling in the District’s Clerk’s record and this Court will see it

as part of the Clerk’s Record once the Clerk’s Record arrives.

      14.    Therefore, based upon the requirement established by this Court in

Schroeder and based upon the requirement used by the Eighth Court of Appeals in

Esterak, the letter ruling about which Mr. Sanchez complains actually is an

appealable interlocutory order. As an appealable interlocutory order, this Court

retains jurisdiction over Mrs. Franco’s appeal.




                                           6
                     IV. Appellee Sanchez Conflates Issues

      15.    Mr. Sanchez cited to In re Rivera, No. 04-12-00025-CV, 2012 WL

219591, at *1 (Tex. App.—San Antonio Jan. 25, 2012, orig. proceeding) (mem.

op.) and to State v. Fuller, No. 04-96-00898-CR, 1997 WL 136541, at *1 (Tex.

App.—San Antonio 1997, no pet.) (not designated for publication) for the

proposition that judge’s notes are not appealable orders. For the proposition that

docket entries or oral renditions are not appealable, he then cited to Ex Parte

Garcia, No. 04-14-00809-CR, 2015 WL 179383, at *1 (Tex. App.—San Antonio

Jan. 14, 2015, no pet. h.) (mem. op.); Shaw v. State, 4 S.W.3d 875, 878 (Tex.

App.—Dallas 1999, no pet.); and Ex parte Wiley, 949 S.W.2d 3, 4 (Tex. App.—

Fort Worth 1996, no pet.).

      16.    Excepting   the   Goff   case—which      this   Court   discussed   and

distinguished in Schroeder as briefed supra—in none of the cases that Mr. Sanchez

cited regarding judge’s notes, docket entries and oral renditions was there a

reference to a letter ruling. In none of the cases cited by Mr. Sanchez as referenced

in Paragraph 15 supra did the trial court adopt and incorporate the judge’s notes

into a letter ruling. In fact, the proposition in In re Rivera and Fuller supra that

judge’s notes are only for the benefit of the judge is belied by the judge who adopts

and incorporates by reference those notes in a letter and then sends the compiled

letter and notes to counsel of record. Logic would indicate at that point that the



                                         7
notes no longer stand alone and that they are being used by the judge for more than

his own benefit. At that point, the notes are being used as a compiled letter ruling

for the benefit of the parties.

                     V. Response to Appellee Sanchez’ Claims

         17.   Beyond the briefing about the existence of this Court’s jurisdiction

over the appeal, there is a need to respond to Mr. Sanchez’ ancillary allegations

contained within his Motion to Dismiss.

         18.   At Paragraph 3 of the Motion to Dismiss, Mr. Sanchez claims that

counsel “for one of the defendants telephoned staff at the 288th Judicial District

Court and received direction . . . to prepare an order for the judge’s signature[.]”

Mrs. Franco now objects to this statement as unsworn hearsay.

         19.   The likely reason that Mr. Sanchez incorporates this type of hearsay

within his Motion to Dismiss is because if the trial court wanted further action

beyond the letter ruling then Mr. Sanchez seems to believe that such a desire might

work against this Court’s jurisdiction under the holdings in Schroeder and Esterak

supra.

         20.   Respectfully, Mr. Sanchez conflates the concept of further action

regarding a ruling with the requirement that such an intent of further action be

contained within the four corners of the letter ruling.




                                           8
      21.    The holdings in Schroeder and Esterak specifically require

determining whether a trial court wanted further action based solely upon a reading

of the four corners of the letter ruling—not based upon unsworn, off-the-record

comments.

      22.    At Paragraph 4 of the Motion to Dismiss, Mr. Sanchez stated that

“[a]s of this date, all counsel except counsel for Appellant Franco have signed the

order and returned it for signature and entry.” Such a statement incorrectly implies

a long period of time to circulate an order and implies that an order was circulated

prior to Mrs. Franco filing her notice of appeal. Such implications are incorrect.

      23.    The Clerk’s Record will show that Mrs. Franco electronically filed her

notice of interlocutory appeal on February 3, 2015 at 4:53 p.m.—over five days

after the hour at which the trial court issued its letter ruling. Exhibit 2 to Mr.

Sanchez’ Motion to Dismiss indicates that Mr. Sanchez’ counsel did not circulate

an order until February 4, 2015 at 9:46 a.m.—which is almost 17 hours after Mrs.

Franco took her appeal.

                            VI. Time Is of the Essence

      24.    As briefed in the Motion for Temporary Stay filed by Mrs. Franco on

February 4, 2015, Mr. Sanchez and the City of San Antonio are likely to issue a

Certificate of Occupancy in the near future that—based upon changed

circumstances—would deprive this Court of jurisdiction by March 1, 2015.



                                          9
      25.    The effect of waiting days to circulate a one-page order and then

complain when Mrs. Franco relies upon a valid letter ruling to appeal the denial of

injunction to this Court is: for the reasons briefed in the Motion for Temporary

Stay, the closer to March 1, 2015 that the parties get, the less likely that this Court

can retain jurisdiction without imposing a temporary stay.

                             CONCLUSION AND PRAYER

      Based upon the foregoing, this Court has existing jurisdiction over the

interlocutory appeal of the letter ruling. Based upon the representations of Mr.

Sanchez’ attorney and the undersigned, entry of an order that Mr. Sanchez seeks

logically should occur on February 5, 2015 and obviate the need for a jurisdictional

battle. Under either manner, Mrs. Franco requests that this Court deny the Motion

to Dismiss and grant any other relief to which she may be justly entitled.




                                          10
Respectfully submitted,




_______________________________
DENNIS J. DROUILLARD
State Bar No. 00793641

Law Office of Dennis Drouillard
Riverview Towers
111 Soledad, Suite 339
San Antonio, Texas 78205
Telephone: (210) 299-7680
Facsimile: (210) 299-7780

ATTORNEY FOR PLAINTIFF,
THELMA FRANCO




 11
                         CERTIFICATE OF SERVICE

     The undersigned certifies that a true and correct copy of the foregoing
motion was delivered to following in accordance with the Texas Rules of
Appellate Procedure by the method indicated on February 5, 2015:

     Counsel for Appellee Roderick Sanchez, As Director of Development
     Services for the City of San Antonio:

           Mr. Shawn Fitzpatrick
           FITZPATRICK & KOSANOVICH, P.C.
           Post Office Box 831121
           San Antonio, Texas 78283-1121
           Via E-file to skf@fitzkoslaw.com

     Counsel for Appellee City of San Antonio:

           Ms. Deborah Lynne Klein
           Assistant City Attorney
           OFFICE OF THE CITY ATTORNEY FOR THE
             CITY OF SAN ANTONIO
           Litigation Division
           111 Soledad, Tenth Floor
           San Antonio, Texas 78205
           Via E-file to Deborah.Klein@sanantonio.gov

     Counsel for Appellee Planned Parenthood South Texas:

           Mr. Mark G. Sessions
           STRASBURGER & PRICE, LLP
           2301 Broadway
           San Antonio, TX 78215-1157
           Via E-file to Mark.Sessions@strasburger.com




                                     12
                     CERTIFICATE OF SERVICE

Counsel for Appellee Delantero Investors, Ltd.

      Mr. Merritt Clements
      STRASBURGER & PRICE, LLP
      2301 Broadway Street
      San Antonio, TX 75215
      Via E-file to Merritt.Clements@strasburger.com

Signed on February 5, 2015.




                                      Dennis J. Drouillard
                                      Attorney for Appellant




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