IN THE COURT OF APPEALS FOR THE
FOURTH COURT OF APPEALS DISTRICT
RONALD F AVERY
GUADALUPE-BLANCO RIVER AUTHORITY
MR. WILLIAM E. WEST JR.; MR. DAVID WELSCH
ON APPEAL FROM THE 25TH JUDICIAL DISTRICT COURT
THE HONORABLE B. B. SCHRAUB, JUDGE PRESIDING
APPELLANT’S MOTION TO RECONSIDER
GRANTING OF ORAL ARGUMENT
Ronald F. Avery
Phone & Fax: 830/372-5534
ORAL ARGUMENT REQUESTED
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.
933 E. Court Street
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
POINTS OF APPELLANT’S MOTION TO RECONSIDER GRANTING OF ORAL ARGUMENT
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;
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.
1.3. Possible confusion of what really is 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.
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.
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.
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.
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.
F. Avery Pro
Se __________________________ 1955
Ronald F. Avery
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.
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