No. 4-04-00582-CV
IN THE
COURT OF APPEALS FOR THE
FOURTH
COURT OF APPEALS DISTRICT
SAN ANTONIO, TEXAS
_____________________________________
RONALD F AVERY
APPELLANT
VS.
GUADALUPE-BLANCO RIVER AUTHORITY
MR. WILLIAM E. WEST JR.; MR. DAVID WELSCH
APPELLEES
____________________________________
ON APPEAL
FROM THE 25TH JUDICIAL DISTRICT COURT
GUADALUPE COUNTY, TEXAS
THE
HONORABLE B. B. SCHRAUB, JUDGE PRESIDING
_____________________________________
APPELLANT’S MOTION
TO RECONSIDER
GRANTING OF
ORAL ARGUMENT
_____________________________________
Ronald F. Avery
Pro Se
1955 Mt.
Vernon
Seguin, Texas
78155
Phone & Fax: 830/372-5534
E-Mail: ronavery@ev1.net
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNCEL
Pursuant to Rule 38.1 (a) of the Texas Rules
of Appellate Procedure, the Appellant, Ronald F. Avery, certifies to the best
of his knowledge, the following is a complete list of all persons or entities
with an interest in this appeal:
1. Appellant
- Ronald F. Avery - Pro Se.
1955
Mt. Vernon
Seguin, Texas
78155
2. Appellee
- Guadalupe-Blanco
River Authority (GBRA).
Guadalupe-Blanco River Authority
933
E. Court Street
Seguin, Texas
78155
3. Appellee
- Mr. William E. West Jr. (General Manager of GBRA).
4. Appellee
- Mr. David Welsch (Project Manager of GBRA).
The Attorney of record for Appellees is:
William
S. Helfand SBOT# 09388250 & Kevin D. Jewell
Chamberlain,
Hrdlicka, White, Williams & Martin
Attorneys
at Law
1200 Smith Street Suite
1400
Houston, Texas
77002
Ph: 713/658-1818
Fax: 713/658-2553
REQUEST FOR ORAL ARGUMENT
Pursuant to Rule 9.4 (g) and 39.1 of the
Texas Rules of Appellate Procedure, Appellant requests oral argument.
TABLE OF CONTENTS
IDENTITY OF PARTIES AND
COUNCEL i
REQUEST FOR ORAL ARGUMENT i
TABLE OF CONTENTS ii
POINTS OF APPELLANT’S MOTION TO RECONSIDER GRANTING OF
ORAL ARGUMENT 1
REFERENCE CONVENTIONS: 1
MOTION ARGUMENT 1
RELIEF SOUGHT: 6
CERTIFICATE OF REASONABLE ATTEMPT TO CONFER 6
CERTIFICATE OF SERVICE 6
POINTS OF APPELLANT’S MOTION TO RECONSIDER GRANTING OF
ORAL ARGUMENT
1. Motion Points List: 2
2. Motion
Points: 2
2.1. One issue eclipsed by the magnitude of the only issue
on Appeal needs oral argument. 2
2.2. Appellees unharmed. 3
2.3. Possible confusion of what really is on appeal needs
oral argument to avoid injustice. 4
2.4. Importance of Appeal to every Texan, alone, merits
Oral Argument. 5
REFERENCE CONVENTIONS:
1.
The note (F-12) refers to page 12 of the clerk’s
Files;
2.
The note (H-12) refers to page 12 of the Hearing
transcript;
3.
The note (A-12) refers to page 12 of the separate
Appellant’s Second Amended Appendix.
MOTION ARGUMENT
TO THE HONORABLE COURT OF
APPEALS:
Now comes Appellant, Ronald F. Avery, and respectfully submits
Appellant’s Motion for Reconsideration of Granting Oral Argument. This is an
appeal from the 25th Judicial District Court, Honorable B. B.
Schraub, Presiding, in Cause No. 04-0499-CV, in which Ronald F. Avery was the
Plaintiff and Guadalupe-Blanco River Authority (GBRA), William E. West Jr., and
David Welsch were the Defendants.
1.
Motion Points List:
1.1.
One issue eclipsed by the magnitude of the only
issue on Appeal needs oral argument.
1.2.
Appellees unharmed.
1.3.
Possible confusion of what really is on appeal
needs oral argument.
1.4.
Importance of Appeal to every Texan, alone,
merits Oral Argument.
2.
Motion Points:
2.1.
One issue eclipsed by the magnitude of the only
issue on Appeal needs oral argument.
The issue of defamation has been mentioned by both Appellant (Appellant’s 2nd Amended Brief
p.28-29 at 4.10 & 4.13) and Appellees. Yet the issue was not elaborated
upon by either party. If the Trial Court had mentioned the issue of the statute
of limitations regarding defamation in his cover letter the Appellant would
have exhaustively treated it as he did the “sovereign and governmental immunity”
issues. But the Trial Court dismissed the defamation issues right along with
the rest based upon “sovereign or governmental immunity” related to
“intentional torts” not “waived” by the state. The issue of the Statute of
Limitations on defamation is eclipsed by the magnitude of the only real issue
on appeal (sovereign and/or governmental immunity) as determined by the Trial Judge
cover letter or essentially his “conclusions of law.”
The issue of defamation contains one allegation of libel back
in 1994 (F-116, 134, 157, 160) and three
allegations of slander per se in 2004 (F-133,
171) only 7 days prior to the filing of the suit on appeal. Therefore, the Statute
of Limitations could not cover three allegations of defamation. Yet, the
Appellees leave the false and misleading impression that all defamation (libel
and slander) allegations occurred from 1988 to 1994 (Appellees’ Brief p.12 footnote 3).
The libel allegation was brought with full knowledge of the
statute of limitations but under the legal theory of civil conspiracy being
revived several years later when the Appellant revived his plan to build an RV
Park. Therefore, the statute of limitations does not apply to conspiracies that
are reactivated years later to achieve the same ends.
2.2.
Appellees unharmed.
It would be appropriate for the Appellees to file a Motion for
Summary Judgment on any of the defamation issues, if they had merit, when this case
is remanded to the Trial Court where it can be argued and briefed adequately by
both parties. Therefore, the Appellees remain unharmed and their avenues for
obtaining proper rulings on the law remain open.
2.3.
Possible confusion of what really is on appeal
needs oral argument to avoid injustice.
It is not hard to conceive that the issue of defamation has
many points that have been eclipsed by the much bigger and sole issue on
appeal. Both the Appellant and Appellees have focused on “sovereign and/or
governmental immunity.” It would be an injustice to the Appellant for the
Appellate Court to find anything for the Appellees regarding defamation and the
statute of limitations as it is not on appeal as clearly shown by the Trial
Court’s cover letter (A-74) or
“conclusions of law” and the insufficiently briefed issues related to
defamation and the proper application of the Statute of Limitations by both
Appellant and Appellees. These simple points were going to be brought out
clearly by Appellant in Oral Argument to clarify the fact that the Statute of
Limitations on defamation is not and cannot be on appeal which is the
appropriate purpose of oral argument under TRAP
39.2.
2.4.
Importance of Appeal to every Texan, alone,
merits Oral Argument.
The discussion of the necessity of purging repugnant ancient
monarchial common law and overturning 158 years of bad case law founded upon it
to restore the state’s perception of the truth that each citizen of Texas owns
their life, liberty and possessions is of no small importance to the people of
Texas and for this reason alone the oral argument should be allowed. However,
the Appellant agrees with the Appellate Court Order that Oral Argument is not
needed to aid the Court in determining the facts and legal issues on appeal
related to sovereign or governmental immunity, but is needed for issues that may
cloud the real point of error.
The Appellant, however, sees no harm in permitting the Appellant’s
“right” (TRAP-39.1) to oral argument
on any of the issues related to “sovereign or governmental immunity” and other
issues that Appellees have mentioned that may cloud the matter on appeal.
RELIEF SOUGHT:
The Appellant prays that the Court of Appeals Grant the
Appellant’s Request for Oral Argument. Appellant further prays for any other relief
that he may be entitled to.
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Respectfully
Submitted,
Ronald
F. Avery
Pro
Se
__________________________
1955
Mt. Vernon
Seguin, Texas
78155
830/372-5534
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CERTIFICATE OF REASONABLE ATTEMPT
TO CONFER
In accordance with TRAP 10.1 (5), I hereby certify that a reasonable
attempt was made to confer with both Mr. Helfand and Mr. Jewell at 9:30 AM
March 10, 2005. Both were out and a message was left with Mr. Jewell’s
secretary of my intention to file this motion and my desire to know if he would
be opposed to Oral Argument.
______________________________
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was
forwarded by certified mail,
return receipt requested # 7099 3220 0001 5083 3455, on
this the _______ day of ____________ , 2005 to the following:
William S. Helfand &/or Kevin D. Jewell
Chamberlain, Hrdlicka, White, Williams & Smith
Attorneys at Law
1200 Smith Street,
Suite 1400
Houston, Texas 77002
______________________________
