John E. Rodarte, Sr. v. Ralph Lopez ( 2015 )

ACCEPTED
04-15-00012-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
8/3/2015 1:15:10 PM
KEITH HOTTLE
CLERK
NO. 04-15-00012-CV
THE COURT OF APPEALS FILED IN
FOR THE FOURTH DISTRICT OF TEXAS4th COURT OF APPEALS
SITTING AT SAN ANTONIO, TEXAS SAN ANTONIO, TEXAS
08/03/15 1:15:10 PM
KEITH E. HOTTLE
Clerk
JOHN E. RODARTE SR.
Appellant,
V.
BEXAR COUNTY, TEXAS AND SHERIFF RALPH LOPEZ, ET AL
Appellees
_________________________________________________________________
BRIEF OF APPELLEES,
BEXAR COUNTY, TEXAS AND SHERIFF RALPH LOPEZ, ET AL
_________________________________________________________________
ORAL ARGUMENT NOT REQUESTED
_________________________________________________________________
Clarkson F. Brown
State Bar No. 00798082
Assistant Criminal District Attorney
-Civil Division
101 W. Nueva, Suite 735
San Antonio, Texas 78205-3030
Telephone: (210) 335-3918
Telecopier: (210) 335-2773
Attorney for Appellees
IDENTITY OF PARTIES AND COUNSEL
Appellant Appellees
John E. Rodarte Sr. Bexar County, Texas And Sheriff
Ralph Lopez, et al
Trial and Appellate Counsel Trial and Appellate Counsel
Pro-Se Clarkson F. Brown
T.D.C.J. 1263270 SBN: 00798082
Clements Unit 101 W. Nueva, Suite 735
9601 Spur 591 Assistant Criminal District
Amarillo, Texas 79107 Attorney—Civil Division
San Antonio, Texas 78205
210-335-3918
cbrown@bexar.org
i
TABLE OF CONTENTS
PAGE(S)
IDENTITY OF PARTIES AND COUNSEL ................................................................... i
TABLE OF CONTENTS .................................................................................................. ii
INDEX OF AUTHORITIES ........................................................................................... iii
BRIEF OF APPELLEES BEXAR COUNTY, TEXAS AND SHERIFF RALPH
LOPEZ, ET AL ........................................................................................................ 1
STATEMENT OF THE CASE ........................................................................................ 1
ISSUES PRESENTED ...................................................................................................... 1
STATEMENT OF THE FACTS ...................................................................................... 2
ARGUMENTS AND AUTHORITIES ............................................................................ 2
A.  Appellant has no grounds for a Bill of Review ........................................................ 2
CONCLUSION .................................................................................................................. 5
PRAYER FOR RELIEF ................................................................................................... 5
CERTIFICATE OF SERVICE ........................................................................................ 6
APPENDIX......................................................................................................................... 7
ii
INDEX OF AUTHORITIES
CASES PAGE(S)
Rodarte v. Bexar County, 2013 Tex. LEXIS 812 (Tex. Sept. 27, 2013)............................. 1
Rodarte v. Bexar County, 2013 Tex. LEXIS 1027 (Tex. Dec. 6, 2013) ............................. 1
Rodarte v. Bexar County, 2013 Tex. App. LEXIS 5576 (Tex. App. San Antonio May 8,
2013) ................................................................................................................................ 1
Mabon Ltd. v. Afri-Carib Enters., 369 S.W.3d 809, 812 .................................................... 2
Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004) (per curiam) .................................. 2, 3
Orion Enterprises, Inc. v. Pope, 927 S.W.2d 654, 658 (Tex. App.--San Antonio 1996,
writ ref’d.) ........................................................................................................................ 4
RULES
Section 101.001 et. al. of the Texas Civil Practice and Remedies Code, and the Texas
Tort Claims Act (“TTCA”) .............................................................................................. 2
iii
BRIEF OF APPELLEES BEXAR COUNTY, TEXAS AND SHERIFF RALPH
LOPEZ, ET AL
TO THE HONORABLE FOURTH COURT OF APPEALS:
Bexar County, Texas and Sheriff Ralph Lopez, et al, appellees and defendants
below, respectfully submits this brief for your consideration.
I.
STATEMENT OF THE CASE
This is an appeal from the denial of a Bill of Review by the Honorable Michael E.
Mery on October 20, 2014. This same trial court case was appealed to this court and
dismissed for lack of jurisdiction on May 8, 2013 in Rodarte v. Bexar County, 2013 Tex.
App. LEXIS 5576 (Tex. App. San Antonio May 8, 2013). That opinion was appealed to
the Texas Supreme Court and petition for review was denied on September 27, 2013 in
case number 13-0388 at Rodarte v. Bexar County, 2013 Tex. LEXIS 812 (Tex. Sept. 27,
2013) with a motion for rehearing denied at Rodarte v. Bexar County, 2013 Tex. LEXIS
1027 (Tex. Dec. 6, 2013). On July 16, 2015, this Court denied appellees’ Motion to
Dismiss the Appeal.
II.
ISSUES PRESENTED
1. Is appellant entitled to a Bill of Review for the actions taken by Judge Fred
Shannon when he dismissed appellant’s case on December 5, 2015?
No. Appellant makes the incorrect assumption that Judge Shannon acted based on
some motion by the defendants and thus he has a due process claim for failure to be
served. Judge Shannon acted on his own, thus plaintiff has no right to a Bill of Review.
-1-
Judge Shannon was within his powers as a trial judge to review the file and reverse
previous rulings and dismiss the case.
III.
STATEMENT OF THE FACTS
Plaintiff filed suit seeking unspecified damages against Bexar County via his
claim against the Sheriff’s Department, the Adult Detention Center and Sheriff Lopez for
negligence under Section 101.001 et. al. of the Texas Civil Practice and Remedies Code,
and the Texas Tort Claims Act (“TTCA”), for injuries he claims he sustained while riding
on a transport bus from the Bexar County Justice Center to the Bexar County jail.
Plaintiff was an inmate housed at the Bexar County Adult Detention Center.
Plaintiff alleges that on December 1, 2003, he was riding in a county transport bus taking
him from the justice center back to the jail when the bus hit a pothole or curb, which
caused him to fall off his seat and resulted in injury. Plaintiff contends he fell from his
seat because the bench seat was not properly bolted to the floor.
IV.
ARGUMENTS AND AUTHORITIES
A. Appellant has no grounds for a Bill of Review
"A bill of review is an equitable proceeding, brought by a party seeking to set
aside a prior judgment that is no longer subject to challenge by a motion for a new trial or
direct appeal." Mabon Ltd. v. Afri-Carib Enters., 369 S.W.3d 809, 812 (citing Caldwell v.
Barnes, 154 S.W.3d 93, 96 (Tex. 2004) (per curiam)). Ordinarily, a plaintiff must plead
and prove: "(1) a meritorious defense to the underlying cause of action, (2) which the
-2-
plaintiff [was] prevented from making by the fraud, accident or wrongful act of the
opposing party or official mistake, (3) unmixed with any fault or negligence on [its] own
part." Id. (quoting Caldwell, 154 S.W.3d at 96). But "when a bill-of-review plaintiff
claims a due process violation for no service [of process] or notice [of a default
judgment], it is relieved of proving the first two elements" and must only prove that its
own fault or negligence did not contribute to cause the lack of service or notice. Id.
Therefore, appellant must prove that he failed to receive notice of some document
that resulted in an adverse judgment being taken against him. In this case, he cannot
prove this element.
Appellee never filed any document asking Judge Shannon to take the actions he
did on the day of trial. Judge Shannon did this sua sponte. On December 5, 2011, the
same day the case was set to begin trial, trial Judge Shannon reviewed and granted
appellee’s no evidence motion for summary judgment because appellant failed to produce
any summary judgment evidence of injury for the court. (CR 29). Appellees were given
a copy of the Order dismissing the case when they appeared in court for the trial.
Appellant admits on page 13 of his brief that he received Judge Shannon’s order
dismissing the case. Thus, his whole argument is based on the false assumption that he
was not served some document and Judge Shannon’s ruling was based on that. This is
incorrect. As reflected in the CR, there was no document filed seeking any such relief
from Judge Shannon. Nor was there a hearing held that appellant was not a part of.
Judge Shannon used his inherent power to review the file and change previous rulings in
-3-
the case and dismissed the matter.
A trial court has plenary power over, and therefore the jurisdiction and authority to
reconsider, not only its judgment, but also its interlocutory orders until 30 days after the
date a final judgment is signed. Orion Enterprises, Inc. v. Pope, 927 S.W.2d 654, 658
(Tex. App.--San Antonio 1996, writ ref’d.). In Orion, relators, a corporation, its
employee and another corporation, sought a writ of mandamus ordering respondent trial
court judge to exercise his plenary power and jurisdiction to reconsider another judge’s
order denying motions to transfer venue in a products liability and wrongful death action.
Id. at 656. The court held that, like any other order, an order denying a motion to transfer
may be considered at any time within the trial court’s plenary power. See id. at 658-59
(stating “[p]lenary power is that which is full, entire, complete, absolute, perfect,
unqualified”).
Similar to the situation in Orion, Judge Shannon exercised his plenary power and
reconsidered and reversed a previously denied motion prior to final judgment. (CR 29).
Judge Shannon’s December 5, 2011 Order granting appellee’s no evidence motion for
summary judgment was a proper exercise of the trial court’s plenary power. The fact that
appellant does not like the ruling or wrongly assumes Judge Shannon was acting pursuant
some motion filed by appellees is not grounds for being granted a bill of review.
Appellant also seems to be making some argument that what occurred at the
hearing on his bill of review somehow entitles him to a bill of review. While it is unclear
from his brief what he is arguing, whatever it is does not entitle him to a bill of review.
-4-
On October 24, 2014 Judge Michael E. Mery heard appellant’s bill of review.
Appellant was present and allowed to make his arguments. (CR 49-50) Judge Mery
denied the bill of review, a fact appellant acknowledges on page 7 of his brief.
Therefore, he has no basis to contend the bill of review hearing occurred without his
participation or that he did not know of the ruling. Judge Mery heard the arguments and
ruled that the bill of review should not be granted. This was the proper ruling based on
the arguments set forth above. Thus, nothing occurring on October 24, 2014 entitles him
to a bill of review. The ruling Judge Mery made was correct and should be upheld.
V.
CONCLUSION
This Court should deny this appeal. Plaintiff cannot meet the one element needed
to prove his entitlement to a bill of review. That is, he cannot show his due process was
denied due to lack of service. His mistaken belief that Judge Shannon acted based on
some motion filed by appellees is not grounds for a bill of review. Judge Mery correctly
denied the bill of review because no facts supported the grating of the bill.
VI.
PRAYER FOR RELIEF
For these reasons, appellees respectfully request that this Court deny this appeal
and uphold the denial of the bill of review. Further, appellees pray that this court grant
all other relief to which it is entitled in law and equity.
Respectfully submitted,
/s/Clarkson F. Brown
Clarkson F. Brown
-5-
State Bar No. 00798082
Assistant Criminal District Attorney
- Civil Division
101 W. Nueva, Suite 735
San Antonio, Texas 78205-3030
Telephone: (210) 335-3918
Telecopier: (210) 335-2773
Attorney for Defendants –Appellees Bexar
County, Texas and Sheriff Ralph Lopez, et al
CERTIFICATE OF SERVICE
I do hereby certify that a true and correct copy of the above and foregoing
document has been served on this 3rd day of August, 2015 to the following:
John E. Rodarte Sr. CMRRR 7014 1200 0001 2586 7820
TDCJ 1263270
Clements Unit
9601 Spur 591
Amarillo, TX 79107-9606
Pro Se
Fourth Court of Appeals By Efile
300 Dolorosa, 3rd Fl., Suite 3200
San Antonio, Texas 78205
/s/Clarkson F. Brown
Clarkson F. Brown
-6-
NO. 04-15-00012-CV
THE COURT OF APPEALS
FOR THE FOURTH DISTRICT OF TEXAS
SITTING AT SAN ANTONIO, TEXAS
JOHN E. RODARTE SR.
Appellant,
V.
BEXAR COUNTY, TEXAS AND SHERIFF RALPH LOPEZ, ET AL
Appellees
_________________________________________________________________
BRIEF OF APPELLEES,
BEXAR COUNTY, TEXAS AND SHERIFF RALPH LOPEZ, ET AL
_________________________________________________________________
APPENDIX
1. Judge Shannon’s Order-CR 29
2. Order Denying Bill of Review-CR 49
3. Judge’s Notes regarding Bill of Review Hearing-CR 50
-7-
29
49
50