NO. 04-15-00012-CV

THE COURT OF APPEALS FOR THE FOURTH DI STRICT OF TEXAS SITTING AT SAN ANTONIO, TEXAS

JOHN E. RODARTE SR. Appellant,

V.

BEXAR COUNTY, TEXAS AND SH ERIFF RALPH LOPEZ, ET AL Appellees

________________ _________________________________________________
BRIEF OF APPELLEES, BEXAR COUNTY, TEXAS AND SH ERIFF 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 ACCEPTED 04-15-00012-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 8/3/2015 1:15:10 PM KEITH HOTTLE CLERKi IDENTITY OF PART IES 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 A ttorney—Civil Division San Antonio, Texas 78205 210-335-3918 cbrown@bexar.orgii TABLE OF CONTENTS PAGE(S)

IDENTITY OF PART IES 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 ......................................................................................................................... 7iii INDEX OF AUTHORITIES

CASES PAGE(S)

Rodarte v. Bexar County , 2013 Tex. LEXIS 812 (T ex. Sept. 27, 2013) ............................. 1
Rodarte v. Bexar County , 2013 Tex. LEXIS 1027 (T ex. 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. 2 004) (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”) .............................................................................................. 2-1- 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 L opez, 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. Th is same trial court case was appealed to this court and

dismissed for lack of juri sdiction on May 8, 2013 in Rodarte v. Bexar County , 2013 Tex.

App. LEXIS 5576 (Tex. App. San Antonio May 8, 2013). Th at 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, 20 13). On July 16, 20 15, this Court denied appellees’ Motion to

Dismiss the Appeal.

II. ISSUES PRESENTED

1. Is appellant entitled to a Bill of Revi ew for the actions taken by Judge Fred

Shannon when he dismissed appella nt’s case on December 5, 2015?

No. Appellant makes the incorrect assumption that J udge Shannon acted based on

some motion by the defe ndants and thus he has a due pr ocess claim for failure to be

served. Judge Shannon acted on his own, thus plaintiff has no right to a Bill of Review.-2- Judge Shannon was within his powers as a trial judg e 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 Ad ult 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 clai ms he sustained while riding

on a transport bus from the Bexar County Justic e Center to the Bexar County jail.

Plaintiff was an inmate housed at the Bexar County Adult Detention Center.

Plaintiff alleges that on Decem ber 1, 2003, he was riding in a county transport bus taking

him from the justice cen ter 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 cont ends he fell from his

seat because the bench seat was not properly bolted to the floor.

IV. ARGUMENTS AND AUTHORITIES

A. Appellant has no ground s for a Bill of Review

"A bill of review is an equitable proc eeding, brought by a pa rty seeking to set

aside a prior judgment that is no longer subjec t to challenge by a moti on 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)). Ordinar ily, a plaintiff must plead

and prove: "(1) a meritorious defense to the underlying ca use of action, (2) which the-3- plaintiff [was] prevented from making by the fraud, accident or wrongful act of the

opposing party or official mist ake, (3) unmixed with any fau lt or negligence on [its] own

part." Id . (quoting Caldwell , 154 S.W.3d at 96). But "whe n a bill-of-review plaintiff

claims a due process viola tion for no service [of proces s] or notice [of a default

judgment], it is relieved of pr oving 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 pr ove that he failed to receive notice of some document

that resulted in an adverse judgment being ta ken 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 re viewed and granted

appellee’s no evidence motion for summary judg ment 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 rece ived Judge Shannon’s order

dismissing the case. Thus, his whole argument is based on the fals e assumption that he

was not served some document and Judge Shannon’s ruling was based on that. This is

incorrect. As reflected in th e CR, there was no document f iled seeking any such relief

from Judge Shannon. No r was there a hearing held that appellant was not a part of.

Judge Shannon used his inherent power to review the file a nd change previous rulings in-4- the case and dismissed the matter.

A trial court has plenary power over, and th erefore 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 corporatio n, sought a writ of mandamus ordering respondent trial

court judge to exercise his plenary power a nd jurisdiction to reconsider another judge’s

order denying motions to transf er venue in a product s liability and wrongf ul death action.

Id. at 656. The court held that, like any other order, an order de nying 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, comple te, 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 wrongl y assumes Judge Shannon was acting pursuant

some motion filed by appellees is not gro unds for being granted a bill of review.

Appellant also seems to be making so me argument that wh at 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.-5- On October 24, 2014 Judge Michael E. Me ry heard appellant’s bill of review.

Appellant was present and allo wed 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 gr anted. 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 ma de 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 b ill of review. That is, he can not show his due process was

denied due to lack of servic e. 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 s upported the grating of the bill.

VI. PRAYER FOR RELIEF

For these reasons, appellees respectfully re quest that this Court deny this appeal

and uphold the denial of the b ill 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-6- State Bar No. 00798082 Assistant Criminal District Attorney - Civil Division 101 W. Nueva, Suite 735 San Antonio, Te xas 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 co rrect copy of the above and foregoing

document has been served on this 3 rd day of August, 2015 to the following:

John E. Rodarte Sr. CM RRR 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, 3 rd Fl., Suite 3200 San Antonio, Texas 78205

/s/Clarkson F. Brown Clarkson F. Brown-7- NO. 04-15-00012-CV

THE COURT OF APPEALS FOR THE FOURTH DI STRICT OF TEXAS SITTING AT SAN ANTONIO, TEXAS

JOHN E. RODARTE SR. Appellant,

V.

BEXAR COUNTY, TEXAS AND SH ERIFF RALPH LOPEZ, ET AL Appellees

________________ __________________ __________________ _____________
BRIEF OF APPELLEES, BEXAR COUNTY, TEXAS AND SH ERIFF RALPH LOPEZ, ET AL

________________ __________________ __________________ _____________

APPENDIX

1. Judge Shannon’s Order-CR 29 2. Order Denying B ill of Review-CR 49 3. Judge’s Notes regarding B ill of Review Hearing-CR 50294950