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


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



                                  Jack Rettig,
                                                 Appellant
                                       v.

               Patrick Mendoza and Christopher Garcia,
                                       Appellees

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


                        APPELLANT JACK RETTIG’S
                        MOTION TO ABATE APPEAL



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

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


Attorneys for Appellant Jack Rettig




                                       1
TO THE HONORABLE FOURTH COURT OF APPEALS:

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

and for cause would show:

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

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

Rettig obtained a final judgment against Appellees Patrick Mendoza and

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

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

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

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

was transferred to Webb County in February 2015.

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

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

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

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

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

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

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

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

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



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

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

May 11, 2015.

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

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

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

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

County should be set aside.

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

been docketed.

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

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

trial court’s orders in Webb County.

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

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

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

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

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

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

it.



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

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

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

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

on Rettig’s Motion to Vacate.

                                     PRAYER

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

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

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

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

entitled.

                                 Respectfully submitted,

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

                                          4
                         [VERIFICATION – see attached]



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

                                              /s/ Audrey Mullert Vicknair
                                              Audrey Mullert Vicknair




                          CERTIFICATE OF SERVICE

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

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


                                        /s/ Audrey Mullert Vicknair
                                        Audrey Mullert Vicknair



                                          5
