Thelma Franco 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. ( 2015 )


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  •                                                                                      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
    13