Tex. App.— Houston [14th Dist.] 2008, no pet.
How later courts described this case
- Tex. App.— Houston [14th Dist.] 2008, no pet.
- “A nonmovant . . . does not have a duty to except to a ground not presented in the motion but which the movant might have relied on as a ground for summary judgment”
- “grounds for summary judgment must be expressly presented in the summary judgment motion itself”
- “Since intent to defraud is not APPELLANT’S BRIEF PAGE 15 susceptible to direct proof, it invariably must be proven by circumstantial evidence. ‘Slight circumstantial evidence’ of a fraud . . . is sufficient to support a finding of fraudulent intent.”
Written by the judges who cited it.
The opinion
ACCEPTED
03-14-00671-CV
4379019
THIRD COURT OF APPEALS
AUSTIN, TEXAS
3/5/2015 8:54:16 AM
JEFFREY D. KYLE
CLERK
NO. 03-14-00671-CV FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
3/5/2015 8:54:16 AM
IN THE THIRD COURT OF APPEALS
JEFFREY D. KYLE
AUSTIN, TEXAS Clerk
STEPHEN M. DANIELS,
Appellant,
v.
TONY R. BERTOLINO,
Appellee.
On Appeal from the 250th Judicial District Court of Travis County, Texas
Trial Court Cause No. D-1-GN-14-002146
BRIEF OF APPELLANT
Eleanor Ruffner
State Bar No. 24047034
THE LAW OFFICE OF ELEANOR RUFFNER, P.C.
1403 West Sixth Street
Austin, Texas 78703
(512) 913-7576 (telephone)
(512) 681-0800 (facsimile)
eruffnerlaw@gmail.com
COUNSEL FOR APPELLANT
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Plaintiff/Appellant: Stephen M. Daniels
Trial Counsel: Stephen M. Daniels (pro se)
8323 Clays Point
San Antonio, Texas 78257
Appellate Counsel: Eleanor Ruffner
State Bar No. 24047034
eruffnerlaw@gmail.com
THE LAW OFFICE OF ELEANOR RUFFNER, PC.
1403 West Sixth Street
Austin, Texas 78703
(512) 913-7576
(512) 681-0800 (fax)
Defendant/Appellee: Tony Bertolino
Trial & Appellate Counsel: Tony Bertolino
State Bar No. 24038766
tbertolino@belolaw.com
Hiba Kazim
State Bar No. 27076952
hkazim@belolaw.com
BERTOLINO LLP
823 Congress Avenue, Suite 704
Austin, Texas 78701
(512) 476-5757
(512) 476-5758
APPELLANT’S BRIEF PAGE i
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL .............................................................i
TABLE OF CONTENTS .......................................................................................... ii
INDEX OF AUTHORITIES.....................................................................................vi
REFERENCES........................................................................................................... x
STATEMENT OF THE CASE .................................................................................xi
INTRODUCTION .................................................................................................. xii
STATEMENT REGARDING ORAL ARGUMENT ........................................... xiii
ISSUES PRESENTED............................................................................................xiv
ISSUE NO. 1:
The trial court’s no-evidence summary judgment order stated that it “finally
disposes of all parties and all claims and is therefore final and appealable.”
However, the summary judgment motion and the order were by their explicit
language limited to only one of several theories of recovery. Was the trial
court’s order erroneous?
ISSUE NO. 2:
A no-evidence motion for summary judgment was filed less than two months
after the case was transferred to Travis County. Just three weeks earlier, the
moving party had sought to avoid summary judgment by arguing that filing
such a motion “without providing [him] an opportunity to conduct discovery”
would deny him of his right to due process of law. Did the trial court abuse
its discretion in making the threshold finding, twenty-three days later, that the
no-evidence motion was filed after adequate time for discovery?
APPELLANT’S BRIEF PAGE ii
ISSUE NO. 3:
In his no-evidence motion for summary judgment, the movant challenged a
few elements of the non-movant’s DTPA claim. Evidence on file addressed
each of the challenged elements, directly and indirectly, but the trial court
nonetheless granted summary judgment. Did the Plaintiff raise a scintilla of
evidence on each of the elements of Plaintiff’s DTPA claims?
STATEMENT OF FACTS ........................................................................................ 1
A. APPELLANT, STEPHEN DANIELS, HIRES APPELLEE, TONY BERTOLINO,
TO FILE A MALPRACTICE LAWSUIT AND PAYS BERTOLINO $9,700. ....... 1
B. BERTOLINO TAKES THE MONEY AND DOES NOTHING. ........................... 2
C. MR. DANIELS’S SUIT IS PREDICTABLY DISMISSED. ................................ 2
D. MR. DANIELS SEEKS JUDICIAL ASSISTANCE TO OBTAIN
REIMBURSEMENT FROM BERTOLINO. ..................................................... 3
E. BERTOLINO REFUSES TO RESPOND TO DISCOVERY BUT NONETHELESS
FILES A NO-EVIDENCE SUMMARY JUDGMENT MOTION.......................... 5
F. THE COURT SIGNS AN OVERBROAD ORDER DISMISSING MR. DANIELS’S
ENTIRE SUIT. .......................................................................................... 6
SUMMARY OF ARGUMENT ................................................................................. 8
ARGUMENT ............................................................................................................. 9
A. THE FINAL ORDER IMPROPERLY DISPOSED OF THE ENTIRE LAWSUIT. ... 9
1. Summary Judgment Orders Can Only Grant Relief on the
Specific Grounds Presented in the Motion. ................................ 9
2. An Overbroad Order Should Be Reversed and Remanded. ..... 10
APPELLANT’S BRIEF PAGE iii
3. Judge Strauss’s Order Purported to Be Final, But the Motion
Challenged Only Mr. Daniels’s DTPA Claims. ....................... 10
4. Mr. Daniels Had Asserted Several Other Theories of Recovery
in His Pleadings. ....................................................................... 11
B. THE SUMMARY JUDGMENT MOTION WAS UNTIMELY AND
IMPROPER. ............................................................................................ 13
1. Whether the Parties Had Adequate Time for Discover Is
Generally Within the Discretion of the Trial Court. ................. 14
2. The Facts and Circumstances in This Case Show that the Trial
Court Abused Its Discretion...................................................... 15
3. Bertolino Himself, Just Days Before, Had Asserted that
Summary Judgment Would Deprive the Litigants of Due Process
of Law. ...................................................................................... 18
4. Permitting a No-Evidence Summary Judgment Prior to
Discovery Defeats the Purpose of Summary Judgment. .......... 19
5. Allowing Such Motions Will Allow Defendants to Manipulate
the Discovery Process. .............................................................. 20
C. THE RECORD CONTAINED SUFFICIENT EVIDENCE TO DEFEAT SUMMARY
JUDGMENT. ........................................................................................... 21
1. Plaintiff Is a Consumer who Incurred Damages. ...................... 22
2. Defendant Knew and Withheld Information Concerning His
Services, Intending to Induce and in Fact Inducing Plaintiff into
a Transaction. ............................................................................ 23
D. IN THE ALTERNATIVE, MR. DANIELS SHOULD RETAIN THE RIGHT TO
ASSERT ADDITIONAL DTPA CLAIMS AGAINST BERTOLINO. ................ 24
CONCLUSION ........................................................................................................ 25
APPELLANT’S BRIEF PAGE iv
CERTIFICATE OF COMPLIANCE ....................................................................... 26
CERTIFICATE OF SERVICE ................................................................................ 26
APPENDIX .............................................................................................................. 27
APPELLANT’S BRIEF PAGE v
INDEX OF AUTHORITIES
CASES
Akhter v. Schlitterbahn Beach Resort Mgmt., LLC
No. 03-13-00117-CV, 2013 Tex. App. LEXIS 10522, 2013 WL 4516130
(Tex. App.—Austin August 22, 2013, no pet.) ............................................. 15
Allen v. Albin
97 S.W.3d 655 (Tex. App.—Waco 2002, no pet.) ........................................ 16
Casso v. Brand
776 S.W.2d 551 (Tex. 1989) ......................................................................... 19
Chessher v. Southwestern Bell Tel. Co.
658 S.W.2d 563 (Tex. 1983) ........................................................................... 9
City of Houston v. Clear Creek Basin Auth.
589 S.W.2d 671 (Tex. 1979) ......................................................................... 19
Clemons v. Tex. Concrete Materials, Ltd.
2010 Tex. App. LEXIS 8394, No. 07-09-0032-CV (Tex. App.—Amarillo
October 19, 2010, no pet.) ............................................................................. 16
D.R. Horton-Tex. Ltd. v. Savannah Props. Assocs., L.P.
416 S.W.3d 217 (Tex. App.—Fort Worth 2013, no pet.) ............................. 15
Fort Brown Villas III Condo. Ass’n v. Gillenwater
285 S.W.3d 879 (Tex. 2009) ......................................................................... 19
Iliff v. Iliff
339 S.W.3d 74 (Tex. 2011) ........................................................................... 14
In re Colonial Pipeline Co.
968 S.W.2d 938 (Tex. 1998) (orig. proceeding) ........................................... 19
APPELLANT’S BRIEF PAGE vi
In re Guardianship of Patlan
350 S.W.3d 876 (Tex. App.—San Antonio 2011, no pet.) ........................... 15
King Ranch, Inc v. Chapman
118 S.W.3d 742 (Tex. 2003) ......................................................................... 21
Lehmann v. Har-Con Corp.
39 S.W.3d 191 (Tex. 2001) .....................................................................10, 11
Merrell Dow Pharm., Inc. v. Havner
953 S.W.2d 706 (Tex. 1997) ......................................................................... 22
McConnell v. Southside Indep. Sch. Dist.
858 S.W.2d 337 (Tex. 1993) ..................................................................... 9, 12
McInnis v. Mallia
261 S.W.3d 197 (Tex. App.—Houston [14th Dist.] 2010, pet.
denied) ...............................................................................................14, 15, 19
McKillip v. Employers Fire Ins. Co.
932 S.W.2d 268 (Tex. App.—Texarkana 1996, no writ) .............................. 12
Natividad v. Alexsis, Inc.
875 S.W.2d 695 (Tex. 1994) ......................................................................... 21
Restaurant Teams Int’l, Inc. v. MG Secs. Corp.
95 S.W.3d 336 (Tex. App.—Dallas 2002 no pet.) ........................................ 15
Samlowski v. Wooten
332 S.W.3d 404 (Tex. 2011) ...................................................................14, 20
Sanders v. Capitol Area Council, BSA
930 S.W.2d 905 (Tex. App.—Austin 1996, no pet.) ................................. 9, 12
Schlumberger Well Surveying Corp. v. Nortex Oil and Gas Corp.
435 S.W.2d 854 (Tex. 1968) ......................................................................... 16
APPELLANT’S BRIEF PAGE vii
Spoljaric v. Percival Tours, Inc.
708 S.W.2d 432 (Tex. 1986) ................................................................... 15-16
Tex. Dep’t of Parks & Wildlife v. Miranda
133 S.W.3d 217 (Tex. 2004) ......................................................................... 19
Thornbrough v. Columbus & Greenville R.R. Co.
760 F.2d 633 (5th Cir. 1985) .......................................................................... 16
Tower Contracting Co. v. Flores
302 S.W.2d 396 (Tex. 1957) ......................................................................... 24
Turner v. Franklin
325 S.W.3d 771 (Tex. App.—Dallas 2010, pet. denied) .............................. 16
Valence Operating Co. v. Dorsett
164 S.W.3d 656 (Tex. 2005) ......................................................................... 22
Womack v. Berry
291 S.W.2d 677 (Tex. 1956) ......................................................................... 14
STATUTES
TEX. BUS. & COM. CODE §17.46 ........................................................................24, 25
TEX. R. APP. P. 9 ...................................................................................................... 26
TEX. R. CIV. P. 63 ..................................................................................................... 24
TEX. R. CIV. P. 64 ..................................................................................................... 11
TEX. R. CIV. P. 65 ..................................................................................................... 11
TEX. R. CIV. P. 69 ..................................................................................................... 12
TEX. R. CIV. P. 71 ..................................................................................................... 12
APPELLANT’S BRIEF PAGE viii
TEX. R. CIV. P. 166a .................................................................................9, 13, 19, 20
TEX. R. CIV. P. 190 .............................................................................................17, 20
TEX. DISC. R. PROF. COND. 1.02 .............................................................................. 25
OTHER AUTHORITIES
Thomas R. Phillips, Texas Supreme Court Update, 60 TEX. B.J. 858 (1997) ... 20-21
APPELLANT’S BRIEF PAGE ix
REFERENCES
CR __ Clerk’s Record (by page number)
SCR __ Supplemental Clerk’s Record (by page number)
Appx. __, p. __ Appendix (by tab and page number)
APPELLANT’S BRIEF PAGE x
STATEMENT OF THE CASE
Nature of the Case: After Appellant Tony Bertolino (“Bertolino”) took $9,700
from Appellee Stephen M. Daniels (“Mr. Daniels”) to
pursue litigation against Gregory Canfield, Bertolino
conducted no discovery and secured no experts, resulting
in dismissal of the suit against Canfield. Mr. Daniels sued
Bertolino for common law fraud, fraudulent inducement,
DTPA violations, misrepresentation, and quantum
meruit/unjust enrichment.
Trial Court: 250th District Court of Travis County, Texas
The Honorable Gus Strauss, Visiting Judge, presiding
Trial Court Disposition: Motion for No-Evidence Summary Judgment granted on
Plaintiff’s DTPA claim; order stated that it “finally
disposes of all parties and all claims and is therefore final
and appealable.”
APPELLANT’S BRIEF PAGE xi
INTRODUCTION
When Stephen Daniels lost a judgment in a case he thought he had won, he
asked attorney Tony Bertolino for help. Bertolino proposed that Mr. Daniels pay
him $10,000 up front, assign him 17.5% of his recovery, and pay any additional fees
and expenses he incurred. To induce Mr. Daniels to agree, Bertolino told him he
could recover the value of the judgment plus the fees Mr. Daniels had paid his
attorney in the underlying suit. The damages Bertolino touted were more than Mr.
Daniels had hoped. Once he agreed, however, Bertolino made zero effort to deliver.
Because Bertolino did not earn his fee, Mr. Daniels sued to get that money back,
asserting several alternative theories of recovery. Before discovery could begin in
earnest, Bertolino filed a no-evidence summary judgment. Such a motion was
improper at that point because, by Bertolino’s own assessment, adequate time for
discovery had not passed. In any event, the limited record at that point did contain
more than a scintilla of evidence on each of the elements of the Deceptive Trade
Practices Act claim challenged by Bertolino’s motion. Nonetheless, the trial court
improvidently granted the motion, issuing an order that claimed to be final even
though most of Mr. Daniels’s claims were not addressed by the motion. Mr. Daniels
therefore seeks reversal of the order and the summary judgment and requests that
this Court remand his suit to the trial court to proceed to disposition on the merits.
APPELLANT’S BRIEF PAGE xii
STATEMENT REGARDING ORAL ARGUMENT
This appeal follows from the abrupt termination of a pending lawsuit in the
midst of competing motions for summary judgment. Resolution of this appeal
requires the Court’s consideration of multiple issues and claims against Appellee.
Appellants believe oral argument would be helpful in the Court’s determination of
these issues and crafting an opinion that clarifies the status of the litigation upon
remand to the trial court.
APPELLANT’S BRIEF PAGE xiii
ISSUES PRESENTED
ISSUE NO. 1:
The trial court’s no-evidence summary judgment order stated that it “finally disposes
of all parties and all claims and is therefore final and appealable.” However, the
summary judgment motion and the order were by their explicit language limited to
only one of several theories of recovery. Was the trial court’s order erroneous?
ISSUE NO. 2:
A no-evidence motion for summary judgment was filed less than two months after
the case was transferred to Travis County. Just three weeks earlier, the moving party
had sought to avoid summary judgment by arguing that filing such a motion “without
providing [him] an opportunity to conduct discovery” would deny him of his right
to due process of law. Did the trial court abuse its discretion in making the threshold
finding twenty-three days later that the no-evidence motion was filed after adequate
time for discovery?
ISSUE NO. 3:
In his no-evidence motion for summary judgment, the movant challenged a few
elements of the non-movant’s DTPA claim. Evidence on file addressed each of the
challenged elements, directly and indirectly, but the trial court nonetheless granted
summary judgment. Did the Plaintiff raise a scintilla of evidence on each of the
elements of Plaintiff’s DTPA claims?
APPELLANT’S BRIEF PAGE xiv
STATEMENT OF FACTS
A. APPELLANT, STEPHEN DANIELS, HIRES APPELLEE, TONY BERTOLINO, TO
FILE A MALPRACTICE LAWSUIT AND PAYS BERTOLINO $9,700.
Mr. Daniels has had a streak of bad luck with attorneys. An acquaintance of
his, Ms. Kanu, borrowed some money and failed to repay him. SCR 114. He
retained the services of Gregory Canfield, an attorney in San Antonio, to pursue his
claims against Ms. Kanu. SCR 114. Although Canfield initially secured a judgment
of $9,875.95 plus attorney fees, Ms. Kanu filed a motion for new trial. SCR 36-37.
Canfield, for reasons that remain unexplained, agreed to the new trial. SCR 37.
Canfield then withdrew from the representation, and Mr. Daniels, proceeding pro se
against a represented party, did not prevail at the new trial. SCR 114-115.
Dissatisfied with that outcome, Mr. Daniels consulted Tony Bertolino
regarding whether Canfield’s actions and omissions met the applicable standards for
legal malpractice. CR 10; see also Appx. D. At this consultation, for which Mr.
Daniels paid $200, Bertolino inflated Mr. Daniels’s expectations of recovery beyond
merely the judgment that Mr. Canfield did not defend to include thousands of dollars
more. CR 10; see also Appx. D. Bertolino then prepared an engagement agreement,
and pursuant to the terms of that agreement, Mr. Daniels pays Bertolino another
$9,500 over the next twelve months. CR 10-11; SCR 18-21; see also Appx. D.
APPELLANT’S BRIEF PAGE 1
B. BERTOLINO TAKES THE MONEY AND DOES NOTHING.
On August 21, 2012, Bertolino filed suit against Canfield on behalf of Mr.
Daniels, asserting claims for breach of contract, legal malpractice, breach of
fiduciary duties, negligent misrepresentation, and quantum meruit. SCR 67-73.
Bertolino then proceeded to do nothing else to prosecute Mr. Daniels’s claims. SCR
35. Bertolino, whose law firm website advertises that the firm’s “attentiveness” sets
them apart from other firms, conducted no discovery and did not look for the
necessary expert witness to support Mr. Daniels’s claims. SCR 35; Appx. D, p. 2.
C. MR. DANIELS’S SUIT IS PREDICTABLY DISMISSED.
Unsurprisingly, Canfield then files for a No-Evidence Summary Judgment
Motion against Mr. Daniels. SCR 114-118. At a court hearing on that motion on
March 1, 2013, the trial court learned that Bertolino had done nothing to advance
Mr. Daniels’s case – “no depositions, no discovery, nothing.” SCR 35; see also
Appx. F, G. Bertolino sought and obtained a continuance, secured some written
discovery, and took a deposition. SCR 36; see also Appx. F. However, Bertolino
still failed to secure an expert, despite being explicitly advised by defense counsel
that such an expert was necessary. SCR 36; see also Appx. F, G.
Therefore, at the follow-up hearing on Canfield’s No-Evidence Motion for
Summary Judgment on April 15, 2013, the judge was not sympathetic to Bertolino’s
APPELLANT’S BRIEF PAGE 2
failure to obtain an expert as required. SCR 42; see also Appx. F. Bertolino,
however, was not there to listen to the judge’s admonishments or defend his strategy
for pursuing his client’s case because did not show up at the hearing. SCR 31; see
also Appx. F. Trevor Young, the attorney who did appear on Mr. Daniels’s behalf,
was a recent law school graduate who had been licensed less than six months. In the
attorneys’ arguments to the court, Mr. Young acknowledged that “an expert is
generally necessary to instruct a jury on the issues of standard of care and proximate
cause.” SCR 42; see also Appx. F, G. The judge then promptly granted the motion.
SCR 42; see also Appx. F.
After losing the summary judgment motion and therefore any chance of
recovery, Bertolino then sent Mr. Daniels an invoice for more than $5,600 over and
above the $9,700 Mr. Daniels had already paid. CR 11; see also Appx. D.
D. MR. DANIELS SEEKS JUDICIAL ASSISTANCE TO OBTAIN REIMBURSEMENT
FROM BERTOLINO.
By May of 2013, Bertolino had taken $9,700 from Mr. Daniels, sat idle,
irrevocably lost Mr. Daniels’s case because of his failure to secure an expert as
advised by the court and by opposing counsel, and nonetheless had began looking to
collect another $5,600. Mr. Daniels therefore filed suit against Bertolino, electing
to proceed pro se. CR 12-17. The suit was initiated in Bexar County on December
2, 2013. CR 12. Mr. Daniels’s Original Petition asserted multiple alternative
APPELLANT’S BRIEF PAGE 3
theories of recovery against Bertolino. CR 12-17. Under the section heading
“Statement of Claims,” Mr. Daniels set out three sets of legal theories. CR 15-16.
The first, in Section A., included common law fraud, fraudulent inducement,
deceptive acts, and unconscionable acts. CR 15. The second, in Section B., set out
a claim for false representation on the basis of the statements Bertolino made
regarding the strength of Mr. Daniels’s claim against Canfield. CR 15. The third,
in Section C., was for unjust enrichment and quantum meruit on the grounds that
Bertolino was unjustly enriched by the fees Mr. Daniels paid him because Bertolino
failed to provide the work he promised Mr. Daniels. CR 15-16.
Bertolino answered and moved to transfer venue to Austin. That motion was
granted on May 13, 2014, and Travis County received the transferred file on or about
July 1, 2014. CR 18-19.
On July 10, 2014, Mr. Daniels filed a one-page supplement to his pleadings
to clarify that he was seeking to recover under the DTPA for the misrepresentations
Bertolino made. CR 21. Bertolino did not file any special exceptions at any point
during the pendency of this litigation or otherwise seek judicial clarification of Mr.
Daniels’s pleadings or claims.
APPELLANT’S BRIEF PAGE 4
E. BERTOLINO REFUSES TO RESPOND TO DISCOVERY BUT NONETHELESS FILES
A NO-EVIDENCE SUMMARY JUDGMENT MOTION.
Mr. Daniels served discovery on Bertolino, but Bertolino failed to respond.
CR 7; CR 36; CR 49; SCR 46. Instead, on August 28, 2014 – less than two months
after the case had been on the Travis County docket – Bertolino filed his No-
Evidence Motion for Summary Judgment and Notice of Hearing. CR 46-47.
Specifically, Bertolino contended that there was no evidence that:
Mr. Daniels is a consumer that incurred economic
damages or damages or mental anguish;
Bertolino knew information concerning goods or
services at the time of the transaction;
Bertolino withheld the information;
Bertolino intended to induce the consumer into a
transaction; and
Mr. Daniels would not have entered into the transaction
had the withheld information been disclosed.
CR 46-47. At this point in the Bertolino litigation, there was no docket control order
or scheduling order governing the pre-trial deadlines.
In his response, Mr. Daniels noted that Bertolino had failed to respond to
discovery. CR 49. Mr. Daniels also referred the court to the documents already on
file with the court, which by this point included (by way of example only):
Mr. Daniels’s affidavit (CR 10-11; Appx. D);
APPELLANT’S BRIEF PAGE 5
Bertolino’s verified motion (CR 24-34; Appx. E);
The transcript from the hearing in the Canfield
litigation (SCR 32-43; Appx. F); and
The affidavit of Fred. E. Davis, opposing counsel in the
Canfield litigation (SCR 63-66; Appx. G).
CR 49-51. Collectively, these documents constituted more than a scintilla of
evidence in support of each of the elements that Bertolino identified in his no-
evidence motion for summary judgment. However, the judge disagreed, and by
letter on September 30, 2014, he notified the parties that he would be granting
Bertolino’s motion. CR 54.
F. THE COURT SIGNS AN OVERBROAD ORDER DISMISSING MR. DANIELS’S
ENTIRE SUIT.
The court signed its first order on October 21, 2014. CR 68. The order stated
that the motion was properly filed after adequate time for discovery and that Mr.
Daniels could not produce evidence raising a genuine issue of material fact on the
elements of his DTPA claims against Bertolino and that Bertolino’s motion would
therefore be granted. CR 68. However, the court included in the order the following
language:
This judgment finally disposes of all parties and all claims
and is therefore final and appealable.
CR 68. This order was entered on October 23, 2014. CR 68.
APPELLANT’S BRIEF PAGE 6
For reasons that remain unclear, the court signed a second order on October
30, 2014. SCR 122. This order differed from the October 23 order in two major
respects. CR 68; SCR 122. First, it stated that the DTPA claims were dismissed
with prejudice. CR 68; SCR 122. Second, the first paragraph made no mention of
the specific claims that were the subject of Bertolino’s motion, but the phrase “as to
DTPA” was handwritten and inserted. CR 68; SCR 122. However, as with the
October 23 order, the October 30 order stated:
This judgment finally disposes of all parties and all claims
and is therefore final and appealable.
SCR 122. The second order was entered on the day it was signed. SCR 122.
This appeal followed.
APPELLANT’S BRIEF PAGE 7
SUMMARY OF ARGUMENT
Mr. Daniels had asserted several theories of recovery against Bertolino, but
Bertolino’s no-evidence summary judgment challenged only one – his DTPA claim
for misrepresentation. Therefore, when the trial court ruled on the motion but issued
an order that purported to fully and finally dispose of all claims as to all parties, the
trial court erroneously terminated Mr. Daniels’s case. The matter must therefore be
reversed and remanded for further proceedings on Mr. Daniels’s remaining claims.
Moreover, the court abused its discretion in even deciding the order on its
merits by finding that adequate time for discovery had elapsed. Discovery had not
even begun in earnest. Bertolino had claimed only twenty-three days earlier, in a
response to Mr. Daniels’s traditional motion for summary judgment, that the lack of
time for discovery in the case meant that consideration of Mr. Daniels’s motion
would constitute a denial of due process. Finally, despite Bertolino’s best efforts to
prevent discovery on the claims against him, Mr. Daniels did have sufficient
evidence on the record to defeat summary judgment on the challenged elements of
his DTPA claim. The grant of summary judgment should therefore be reversed as
well.
APPELLANT’S BRIEF PAGE 8
ARGUMENT
A. THE FINAL ORDER IMPROPERLY DISPOSED OF THE ENTIRE LAWSUIT.
1. Summary Judgment Orders Can Only Grant Relief on the Specific
Grounds Presented in the Motion.
The order entered by Judge Strauss could not legally dispose of all parties and
all claims because the motion for summary judgment and the order addressed only
Mr. Daniel’s DTPA claims. A motion for summary judgment must “state the
specific grounds therefore.” TEX. R. CIV. P. 166a(a); Sanders v. Capitol Area
Council, BSA, 930 S.W.2d 905, 910 (Tex. App.—Austin 1996, no pet.). In the case
of no-evidence summary judgments in particular, “[t]he motion must state the
elements as to which there is no evidence.” TEX. R. CIV. P. 166a(i); McConnell v.
Southside Indep. Sch. Dist., 858 S.W.2d 337, 338 (Tex. 1993) (“grounds for
summary judgment must be expressly presented in the summary judgment motion
itself”); Sanders, 930 S.W.2d at 910. Moreover, the order on any motion for
summary judgment is limited to the specific grounds for the motion. In fact, “[i]t is
axiomatic that one may not be granted judgment as a matter of law on a cause of
action not addressed in a summary judgment proceeding.” Chessher v. Southwestern
Bell Tel. Co., 658 S.W.2d 563, 564 (Tex. 1983) (reversing and remanding case in
which summary judgment was granted on only one of the plaintiff’s four causes of
action).
APPELLANT’S BRIEF PAGE 9
2. An Overbroad Order Should Be Reversed and Remanded.
An order that rules on matters outside the summary judgment motion and
hearing is overbroad and therefore erroneous. In cases in which “the judgment
grants more relief than requested, it should be reversed and remanded.” Lehmann v.
Har-Con Corp., 39 S.W.3d 191, 202 (Tex. 2001); see also id. at 204 (“Granting
more relief than the movant is entitled to makes the order reversible”) and Chessher,
658 S.W.2d at 564. By way of example, the Texas Supreme Court has explained:
If a defendant moves for summary judgment on only one
of four claims asserted by the plaintiff, but the trial court
renders judgment that the plaintiff take nothing on all
claims asserted, the judgment is final – erroneous, but
final.
Lehmann, 39 S.W.3d at 200.
3. Judge Strauss’s Order Purported to Be Final, But the Motion
Challenged Only Mr. Daniels’s DTPA Claims.
The Supreme Court’s example in Lehmann is precisely what happened here.
Mr. Daniels had included alternative theories of recovery in his pleadings in addition
to his DTPA claims – specifically, common law fraud, fraudulent inducement,
misrepresentation, and quantum meruit or unjust enrichment. CR 15-16. Bertolino’s
motion for summary judgment did not challenge any of those causes of action. CR
46-47. The greatest relief the court could have granted was summary judgment in
APPELLANT’S BRIEF PAGE 10
Bertolino’s favor on Mr. Daniels’s DTPA claims because the alternative theories of
recovery were not before the court.
However, Judge Strauss included language in his order stating that he was
“finally dispos[ing] of all parties and all claims” and thus his intent to enter a final
order was clear. As the Texas Supreme Court has stated:
[T]he language of an order or judgment can make it final,
even though it should have been interlocutory, if that
language expressly disposes of all claims and all parties.
Lehmann, 39 S.W.3d at 200. Dismissing Mr. Daniels’s suit in its entirety was
erroneous; therefore, this Court should reverse and remand the matter for further
proceedings.
4. Mr. Daniels Had Asserted Several Other Theories of Recovery in
His Pleadings.
Bertolino may have improperly focused only on Mr. Daniels’s “amended”
pleading, perhaps believing that Mr. Daniels effectively nonsuited his alternative
theories of recovery by not including them in the later “amended” pleading.
However, Mr. Daniels’s “amended” pleading was merely misnamed. It was not truly
an amended pleading, which is operates as a substitute for the prior pleading and
should be “entire and complete in itself.” TEX. R. CIV. P. 64 and 65. Rather, it
operated as a supplemental pleading, which does not “repeat allegations formerly
pleaded further than is necessary as an introduction” and operates with the original
APPELLANT’S BRIEF PAGE 11
petition to “constitute separate and distinct parts of the pleadings of each party.”
TEX. R. CIV. P. 69.
Mr. Daniels’s Original Petition was a six-page document containing each of
the essential parts of a petition. CR 12-17. The “amended” petition, on the other
hand, contained only the parties’ identity and the assertion that Mr. Daniels was also
seeking relief under the DTPA. CR 21. Clearly the subsequent pleading was a Rule
69 supplement, not a true amended petition. As such, the court should have
“treat[ed] the plea or pleading as if it had been properly designated” as required by
TEX. R. CIV. P. 71.
At no point did Bertolino challenge the pleadings, request special exceptions
to clarify Mr. Daniels’s causes of action, or otherwise secure a ruling that the
supplemental pleading’s DTPA claims were the only live claims in the litigation.
Moreover, Mr. Daniels was under no duty to object to Bertolino’s failure to include
the other causes of action he pled but that Bertolino excluded from his motion.
McConnell, 858 S.W.2d at 338; Sanders, 930 S.W.2d at 910 (“A nonmovant . . .
does not have a duty to except to a ground not presented in the motion but which the
movant might have relied on as a ground for summary judgment”); McKillip v.
Employers Fire Ins. Co., 932 S.W.2d 268, 271 (Tex. App.—Texarkana 1996, no
writ). Finally, the parties continued their motion practice after the hearing and the
APPELLANT’S BRIEF PAGE 12
judge’s letter order, but before the order giving rise to this appeal, strongly indicating
that the parties did not believe that the summary judgment that Bertolino secured
disposed of the litigation in its entirety. CR 55-61.
Because the trial court erroneously granted summary judgment on claims not
identified in Bertolino’s motion for summary judgment, Appellant Stephen M.
Daniels respectfully requests that this Court reverse the trial court’s dismissal of his
non-DTPA claims and remand for further proceedings.
B. THE SUMMARY JUDGMENT MOTION WAS UNTIMELY AND IMPROPER.
1. Whether the Parties Had Adequate Time for Discover Is Generally
Within the Discretion of the Trial Court.
The Court abused its discretion in making the threshold determination that
adequate time for discovery had elapsed. A party may move for summary judgment
under TEX. R. CIV. P. 166a(i) only “after adequate time for discovery.” The official
comment to the rule states:
Paragraph (i) authorizes a motion for summary judgment
based on the assertion that, after adequate opportunity for
discovery, there is no evidence to support one or more
specified elements of an adverse party’s claim or defense.
A discovery period set by pretrial order should be
adequate opportunity for discovery unless there is a
showing to the contrary, and ordinarily a motion under
paragraph (i) would be permitted after the period but not
before.
APPELLANT’S BRIEF PAGE 13
(Emphasis added.) An appellate court “review[s] a trial court’s determination that
there has been an adequate time for discovery on a case-by-case basis, under an
abuse-of-discretion standard.” McInnis v. Mallia, 261 S.W.3d 197, 201 (Tex.
App.—Houston [14th Dist.] 2010, pet. denied). The trial court does not have
unlimited discretion but instead “is required to exercise a sound and legal discretion
within limits created by the circumstances of the particular case.” Womack v. Berry,
291 S.W.2d 677, 683 (Tex. 1956); see also Iliff v. Iliff, 339 S.W.3d 74, 81 (Tex.
2011). A trial court “abuses its discretion when it renders an arbitrary and
unreasonable decision lacking support in the facts or circumstances of the case” or
“when it acts in an arbitrary or unreasonable manner without reference to guiding
rules or principles.” Samlowski v. Wooten, 332 S.W.3d 404, 410 (Tex. 2011).
Some courts, including this Court, have identified the following nonexclusive
factors relevant to determining whether the trial court permitted adequate time for
discovery:
(1) The nature of the case;
(2) The nature of the evidence necessary to controvert the
no-evidence motion;
(3) The length of time the case was active;
(4) The amount of time the no-evidence motion was on
file;
APPELLANT’S BRIEF PAGE 14
(5) Whether the movant had requested stricter deadlines
for discovery;
(6) The amount of discovery that already had taken place;
and
(7) Whether the discovery deadlines in place were specific
or vague.
Akhter v. Schlitterbahn Beach Resort Mgmt., LLC, No. 03-13-00117-CV, 2013 Tex.
App. LEXIS 10522, 2013 WL 4516130, *7 (Tex. App.—Austin August 22, 2013,
no pet.) (citing Restaurant Teams Int’l, Inc. v. MG Secs. Corp., 95 S.W.3d 336, 339
(Tex. App.—Dallas 2002 no pet.)); McInnis, 261 S.W.3d at 200 (Tex. App.—
Houston [14th Dist.] 2008, no pet.); D.R. Horton-Tex. Ltd. v. Savannah Props.
Assocs., L.P., 416 S.W.3d 217, 223 (Tex. App.—Fort Worth 2013, no pet.); In re
Guardianship of Patlan, 350 S.W.3d 876, 884 (Tex. App.—San Antonio 2011, no
pet.).
2. The Facts and Circumstances in This Case Show that the Trial
Court Abused Its Discretion.
None of the above factors support a finding in this case that Mr. Daniels had
been afforded adequate time for discovery. The claims Mr. Daniels had asserted
against Bertolino were comparatively fact-specific, many of which require
investigation into Bertolino’s intent and knowledge. See, e.g., Spoljaric v. Percival
Tours, Inc., 708 S.W.2d 432, 435 (Tex. 1986) (“Since intent to defraud is not
APPELLANT’S BRIEF PAGE 15
susceptible to direct proof, it invariably must be proven by circumstantial evidence.
‘Slight circumstantial evidence’ of a fraud . . . is sufficient to support a finding of
fraudulent intent.”) (citations omitted); Schlumberger Well Surveying Corp. v.
Nortex Oil and Gas Corp., 435 S.W.2d 854, 858 (Tex. 1968) (because a civil
conspiracy turns on issues of intent, “proof of a conspiracy may be, and usually must
be made by circumstantial evidence”); Allen v. Albin, 97 S.W.3d 655, 664-65 (Tex.
App.—Waco 2002, no pet.) (reversing summary judgment on the grounds that a jury
would be entitled to make an inference from a conversation to support claim that a
dog owner knew that her dog had dangerous propensities); Clemons v. Tex. Concrete
Materials, Ltd., 2010 Tex. App. LEXIS 8394, No. 07-09-0032-CV, *12 (Tex.
App.—Amarillo October 19, 2010, no pet.) (reversing and remanding summary
judgment, citing Thornbrough v. Columbus & Greenville R.R. Co., 760 F.2d 633,
640 (5th Cir. 1985), and stating that summary judgment inappropriate to resolve
claims involving “nebulous questions of motivation and intent”); Turner v. Franklin,
325 S.W.3d 771, 782-83 (Tex. App.—Dallas 2010, pet. denied) (noting that
“because issues of intent are usually best left to the trier of fact to resolve based on
all the evidence and surrounding circumstances, determining that issue by summary
judgment usually will be inappropriate”). In fact, three of the five elements
challenged in the motion were Bertolino’s knowledge, whether he withheld
APPELLANT’S BRIEF PAGE 16
information, and his intent in doing so. CR 46. Challenging those elements requires
either the deposition of Bertolino or a substantial amount of circumstantial evidence,
if not both.
When Bertolino filed his motion, the matter had been on the Travis County
District Court docket for less than two months. CR 18-19; CR 46-48. Discovery
was on hold prior to the transfer to Travis County because of Bertolino’s pending
motion to transfer venue. At the time of the hearing on Bertolino’s no-evidence
motion, the motion had been on file for just over a month. Although Mr. Daniels
had propounded discovery on Bertolino, he had refused to answer. CR41; CR 49.
The case had been filed as a Level 2 case pursuant to Rule 190.3, which fixes
the end of the discovery period as either thirty days before trial or nine months after
the date of the first oral deposition or the due date of the first response to written
discovery. CR 12; TEX. R. CIV. P. 190.3(b)(1)(B). No trial date had been set, and
no party had taken a deposition. Bertolino has explained his failure to respond to
Mr. Daniels’s written discovery requests by claiming he never received them. CR
27. If that is true, then the discovery period never began. Consideration of these
factors therefore demonstrates that the two months between the transfer and the
motion cannot in these circumstances reasonably be considered “adequate time for
discovery.”
APPELLANT’S BRIEF PAGE 17
3. Bertolino Himself, Just Days Before, Had Asserted that Summary
Judgment Would Deprive the Litigants of Due Process of Law.
Moreover, Bertolino asserted that as of August 5, 2014 – approximately three
weeks before he filed his motion – he had “had no opportunity to conduct reasonable
discovery in this matter.” CR 26. In fact, Bertolino contended that Mr. Daniels’s
filing of a Motion for Summary Judgment without
providing [Bertolino] an opportunity to conduct
discovery that would negate [Mr. Daniels’s] allegations
and/or establish affirmative defenses denies [Bertolino] of
his right to due process of law.
CR 26 (emphasis added). Notably, these assertions were contained in a verified
pleading, which means that Bertolino swore that the statements pertaining to the
status of discovery and the effect it would have on his due process were within his
personal knowledge and were true and correct. Additionally, these protestations
were in response to Mr. Daniels’s traditional motion for summary judgment, which
– unlike no-evidence summary judgment motions – are not required to be filed after
an adequate time for discovery.
No material change occurred in the twenty-three days that passed between
Bertolino’s August 5 response and his August 28 motion – except that at the
beginning of the month, Bertolino benefited by claiming lack of adequate time for
discovery, but by the end, the opposite was true.
APPELLANT’S BRIEF PAGE 18
4. Permitting a No-Evidence Summary Judgment Prior to Discovery
Defeats the Purpose of Summary Judgment.
As the Supreme Court has stated, “the ultimate purpose of discovery is to seek
the truth, so that disputes may be decided by what the facts reveal, not by what facts
are concealed.” In re Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex. 1998) (orig.
proceeding) (quotations omitted). The purpose of summary judgment is “to
eliminate patently unmeritorious claims and untenable defenses.” Tex. Dep’t of
Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004); Casso v. Brand,
776 S.W.2d 551, 556 (Tex. 1989); City of Houston v. Clear Creek Basin Auth., 589
S.W.2d 671, 678 n.5 (Tex. 1979). The discovery period is the best indicator of an
adequate time for discovery. McInnis, 261 S.W.3d at 201; see also TEX. R. CIV. P.
166a(i) cmt. For these reasons, the Supreme Court has indicated that “the no-
evidence rule, by its very language, is to be used following discovery.” Fort Brown
Villas III Condo. Ass’n v. Gillenwater, 285 S.W.3d 879, 882 (Tex. 2009).
No-evidence summary judgment motions are therefore appropriate only when
a defendant reasonably believes that if any evidence were to exist in support of a
plaintiff’s claims, discovery would have uncovered it by the time the movant filed
his motion. As a matter of law, it should not be available at the earliest stages of
litigation as a weapon to catch a pro se plaintiff on his heels. In this case, the
discovery period may not have even begun, much less ended. Under no reasonable
APPELLANT’S BRIEF PAGE 19
interpretation of Rule 166a(i) should any trial court have allowed Bertolino to
proceed with his motion, much less prevail on it.
5. Allowing Such Motions Will Allow Defendants to Manipulate the
Discovery Process.
As shown by the foregoing, the trial court’s finding that adequate time for
discovery had elapsed was an arbitrary and unreasonable decision lacking support
in the facts and circumstances of this case. See, e.g., Samlowski, 332 S.W.3d at 410.
If the Court allows Bertolino to use the Rule 166a(i) summary judgment motion in
this way, then defendants will have a tool to usurp the discovery processes that
should be governed by TEX. R. CIV. P. 190. Trial courts routinely limit continuances
to thirty days, so if a defendant wanted to press a plaintiff to hurriedly conduct
discovery, he could simply file a no-evidence motion for summary judgment. A
plaintiff could be rushed to identify experts, take depositions, and otherwise conduct
discovery not on the schedule laid out in Rule 190 or a pretrial scheduling order, but
on a schedule dictated by defendant’s summary judgment motion practice and the
court’s oversight of the parties’ discovery through motions for continuance.
Such pretrial litigation strategies should not be available. To permit Rule
166a(i) to be used as a sword by an aggressive defendant to close off a plaintiff’s
causes of action runs afoul of former Chief Justice Phillips’s pronouncement
regarding the operation of the no-evidence rule when it was promulgated:
APPELLANT’S BRIEF PAGE 20
The bench and the bar should note that the burden will
never shift to the non-movant to establish a fact issue
until there has been an adequate opportunity for
discovery, which ordinarily will not occur until after the
close of any court ordered discovery period.
Thomas R. Phillips, Texas Supreme Court Update, 60 Tex. B.J. 858, 861-62 (1997)
(emphasis added).
Appellant Stephen M. Daniels therefore respectfully requests that the Court
reverse the trial court’s grant of summary judgment on the grounds that the trial
court’s conclusion that an adequate time for discovery had elapsed constituted an
abuse of the trial court’s discretion.
C. THE RECORD CONTAINED SUFFICIENT EVIDENCE TO DEFEAT SUMMARY
JUDGMENT.
Even if there had been adequate time for discovery, summary judgment would
still have been improper because the record contained sufficient evidence of each of
the challenged elements of Plaintiff’s claims to survive summary judgment. On
appeal, a summary judgment is reviewed de novo. Natividad v. Alexsis, Inc., 875
S.W.2d 695, 699 (Tex. 1994). A no-evidence motion for summary judgment is
equivalent to a pretrial directed verdict. King Ranch, Inc v. Chapman, 118 S.W.3d
742, 750-51 (Tex. 2003). Therefore, on appeal, this Court should consider all the
evidence in the light most favorable to the party against whom the no-evidence
summary judgment was rendered, disregarding all contrary evidence and inferences,
APPELLANT’S BRIEF PAGE 21
and indulging every reasonable inference and resolving any doubts in the
nonmovant’s favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.
2005); Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).
1. Plaintiff Is a Consumer who Incurred Damages.
Bertolino first contended that Mr. Daniels had no evidence that Mr. Daniels
was a consumer who incurred any damages. However, Bertolino acknowledged in
his original answer that Mr. Daniels was his former client. CR 3. Additionally, the
engagement agreement between Mr. Daniels and Bertolino was made part of the
court’s record on July 10, 2014 and was therefore on file when Bertolino filed his
motion. SCR 18-21; SCR 3. The engagement agreement sets out the terms of the
engagement and includes a payment schedule. SCR 18-21. Finally, Mr. Daniels’s
affidavit in support of his own summary judgment motion demonstrates that he paid
$200 for the initial consultation and made subsequent payments in accordance with
the agreed schedule. CR 10-11. Therefore, more than a scintilla of evidence existed
to support Mr. Daniels’s claim that he was a consumer who incurred damages as a
result of Bertolino’s malfeasance arising out of the attorney-client relationship.
APPELLANT’S BRIEF PAGE 22
2. Defendant Knew and Withheld Information Concerning His
Services, Intending to Induce and in Fact Inducing Plaintiff into a
Transaction.
Bertolino also claimed that no evidence existed that he knew and withheld
information about the services he offered and sold to Mr. Daniels, and that he did so
intending to induce Mr. Daniels into hiring him. Bertolino’s knowledge at the time
of the attorney-client engagement likely requires circumstantial evidence, unless
Bertolino were to decide to be unexpectedly helpful. Nonetheless, the record shows
that at the time of the initial consultation, Bertolino inflated Mr. Daniels’s hopes of
recovery. CR 10. Bertolino is an attorney with over a decade of experience claiming
to “offer honest answers and straightforward advice” and promising that “[i]f we
don’t believe you have a legitimate case, we’ll tell you.” Appx. C, p. 2. Bertolino,
like any attorney claiming the experience he advertises in professional liability
matters, knew that cases such as Mr. Daniels’s require an attorney expert to support
a plaintiff’s claims. SCR 42 (agreeing that “an expert is generally necessary to
instruct a jury on the issues of standard of care and proximate cause”); see also SCR
65. He had no such attorney expert at the time he took Mr. Daniels’s case and his
money, and he did not secure an attorney expert before the second hearing on the
summary judgment that ultimately disposed of the case that Mr. Daniels had hired
him to handle. SCR 42. Bertolino’s absence at that summary judgment hearing – at
APPELLANT’S BRIEF PAGE 23
which Mr. Daniels was instead represented by Trevor Young, a brand-new attorney
– supports the conclusion that Bertolino held out little hope for Mr. Daniels’s case.
Taken together, this evidence easily raises a scintilla of evidence that Bertolino knew
Mr. Daniels’s case against Canfield was weak if not wholly untenable; that he
withheld that information; that he did so intending for Mr. Daniels to engage his
services and pay money; and that if Mr. Daniels had known Bertolino’s assessment
of the merits of his case, he would not have hired and paid Bertolino.
D. IN THE ALTERNATIVE, MR. DANIELS SHOULD RETAIN THE RIGHT TO
ASSERT ADDITIONAL DTPA CLAIMS AGAINST BERTOLINO.
If this case is reversed and remanded, but the court elects not to disturb the
trial court’s grant of summary judgment, Mr. Daniels respectfully requests that he
be permitted to amend his pleadings to assert claims under the DTPA other than
those in his original pleadings. Plaintiffs are generally permitted to amend their
pleadings as the litigation progresses and as discovery develops. TEX. R. CIV P. 63;
see also Tower Contracting Co. v. Flores, 302 S.W.2d 396, 400 (Tex. 1957). For
example, even if this Court affirms the trial court’s order on Bertolino’s no-evidence
summary judgment motion, Mr. Daniels should be permitted to maintain a claim
under TEX. BUS. & COM. CODE §17.46(b)(12) on the grounds that Bertolino
represented that the engagement agreement he prepared confers the right to prevent
Mr. Daniels from accepting a settlement offer without Bertolino’s consent. SCR 19;
APPELLANT’S BRIEF PAGE 24
TEX. DISC. R. PROF. COND. 1.02(a)(2) cmt 5. Mr. Daniels should also be permitted
to plead a claim under TEX. BUS. & COM. CODE §17.46(b)(22) on the grounds that
Bertolino did not in fact perform the services for which he invoiced Mr. Daniels.
Mr. Daniels therefore requests that if the summary judgment remains undisturbed
then the Court’s order clearly affirm Mr. Daniels’s right to plead and conduct
discovery on DTPA claims that rest on legally and factually distinct grounds from
those that were the subject of Bertolino’s no-evidence motion for summary
judgment.
CONCLUSION
For the foregoing reasons, Appellant Stephen M. Daniels files this brief asking
the Court to reverse the grant of summary judgment in favor of Appellee Bertolino
and remand this matter for proper determination on the merits. At a minimum, Mr.
Daniels’s non-DTPA claims, which were not challenged by Bertolino’s motion,
must be remanded. Additionally, the DTPA claims should also be remanded because
the motion was filed well before adequate time for discovery had passed and because
more than a scintilla of evidence existed in the record on each of the elements
challenged by Bertolino.
Dated: March 5, 2015
APPELLANT’S BRIEF PAGE 25
Respectfully submitted,
THE LAW OFFICE OF ELEANOR RUFFNER, P.C.
1403 West Sixth Street
Austin, Texas 78703
(512) 913-7576
(512) 681-0800 (fax)
By: /s/ Eleanor Ruffner
Eleanor Ruffner
State Bar No. 24047034
eruffnerlaw@gmail.com
CERTIFICATE OF COMPLIANCE
Pursuant to TEX. R. APP. P. 9.4, I hereby certify that this brief contains 7,543 words.
This is a computer generated document created in Microsoft Word, using 14 point
typeface for all text. In making this certificate of compliance, I am relying on the
word count provided by the software used to prepare the document.
CERTIFICATE OF SERVICE
I hereby certify that on March 5, 2015, I served a copy of the foregoing document
on counsel of record via email as follows:
Tony Bertolino (tbertolino@belolaw.com)
Hiba Kazim (hkazim@belolaw.com)
BERTOLINO LLP
823 Congress Avenue, Suite 704
Austin, Texas 78701
/s/ Eleanor Ruffner
Eleanor Ruffner
APPELLANT’S BRIEF PAGE 26
APPENDIX
Tab Document
A Order (October 21, 2014)
B Order (October 30, 2014)
C Website of Bertolino LLP: www.belolaw.com (accessed on February 24,
2015)
D Affidavit of Stephen M. Daniels (February 6, 2014)
E Bertolino’s Verified Motion for Continuance and Motion for Sanctions
(August 5, 2015)
F Reporter’s Record, No Evidence Motion for Summary Judgment in Daniels
v. Canfield (April 15, 2013)
G Affidavit of Fred E. Davis (September 19, 2014).
APPELLANT’S BRIEF PAGE 27
APPELLANT’S
APPENDIX
TAB A
OCT-06-2014(MON) 12:10 DC BK 14308 PG76
Pa~. 2 of 3 10108120101 1 l~e
From: POSTAL EXPRESS Faa: (877\ '131-0&97 To: +161::!"76~76a
oct. 6. 20.14 11:33AM Mail No. ~ 629 • P. 2/3
Fiftd In The District Court
of Travis County, Texas
OCT 23 2014 RT
NO. D-J.GN-14-002.1~~ /4J ~CtI ~ M. \0
Amalia Rodriguez-Mendoza, Clerk
STEPltF..N M. DANIELS . § . IN THE DJSTlUCT CO'VRT
Plaintiff, §
§
v. . § lSOth JUDICIAL DISTlUCT
§
TONY R. BERTOLINO §
D~rencL"lnt. § TRAVIS COUNTY, TEXAS
ORDEn C~T-lNG DEFENnANT'S
MOTION )rORNO E'V1DENCE SUMMARY JUJ)GMnNT
On Soplcmber 30, 2014. tlte Cour~ ',:onsldcred Deftndant'.! MfJlil)" fiJI' No .l!\1ide"c~
Summary Judgmen(. The Motion was J)t'operly filed :\fter Iln ;rdcquB1o time for disco\lery bad
passod. After revi=win~ the -:vidcncc nnd hcarlJ\~ 1l1e :11'gumcnt..~ made by !.he Phuntiffand the
.
._ ._ " . _ -Defcnd:ln t,-th~·COuft-L111ds-~hat-tbc-PJ ailltiffco\lld-nDt'prodtlc~-evide~~B'Il'Iifi\s~nuiiiiiliiSuc"--- ---
of materiaL fact: on li1C clcmc.n~r of the Plainliff's Dcccpliw Trade Practicc:s Act claims Gsainst
the Dl!rcndllllt. Accordingly. iho Moti~n Is GRANTED,
IT IS Tll&R.IUi'ORE OlU1EitED Lhn( PlaIntiff's Deceptive Trude Pra~l~c.s Aot clnlm~
1"his judtn1l!nr filllllly di.~pOGr:s or:-.II parties and ill! clnLrn.9 and is thclrcforc .finlU and
SIONBDOll ~~?-_'''''__
68
OCT-06-2014(MON) 12:10 DC BK1430B PG77
P.003/003
From; PO::TAI. EXPRESS FaK: 18rn 'nl-OlIa' P_go ~ of:S 1010612Ql~ 11:38
oct. 6. 2014 11:33AM Mail No. 4629 P. 3/3
,
APPN.OVED AS "to FOnM:
i'OllY It BCl1oIino
mNl4038766
HibllI{wll'l
TEN 24076~S2
823 Congress A'Vel'luc
Suite 704
A~stint Tcxo.s 78701
Tel. (512) 416~S7S7
FlU(, (Sl:2.) 476-S758
EmIlU; tbertolino@b::!olll.w,eom
~ro 51: }'llaintJrr
8323 CI a.ys Point
_ _ _--tilSanAntoniu.-Tcx!lS-1B2~7._:_-----------------.-~------
"., .
2
69
APPELLANT’S
APPENDIX
TAB B
OCT-01-2014(WED) 17:17 DC BK14308 PG1125
P. 003/003
NO. D-l-GN-14-002146
U-I-GN-14-002146
STEPHEN M. DANIELS § IN THE DISTRICT COURT
Plaintiff, §
§
v.
V. § 250th JUDICIAL DISTRICT
§
TONY R. BERTOLINO §
Defendant. § TRAVIS COUNTY, TEXAS
ORDER GRANTING DEFENDANT'S
MOTION FOR NO EVIDE}"JCE
EVIDEl"JCE SUMMARY JUDGMENT
On September 30, 2014, the Court considered Defendant's Motion for No Evidence
Summary Judgment. The Motion was properly filed after an. adequate time for discovery had
passed. After reviewing the evidence and hearing the arguments made by the Plaintiff and the
Defendant, the Court finds that the Plaintiff could not produce evidence raising a genuine issue
rT
r7.S5 J> ,.oA
,.OA
of material fact on the eleme!1ts
elemlo!!1ts of the
tht:.: Plaintiff's claims against the Defendant/"Accordingly,
Defendantf\Accordingly, the
Motion is GRANTED.
IT IS THEREFORE ORDEREU that Plaintiffs claims under the Trade
Practices Act are hereby DISMISSED WITH PREJUDICE.
~
This judgment finally disposes of all parties and all claims and is therefore final and
appealable.
SIGNED on ..:::::.......::::-_ _ _--=--=_, 2014.
122
APPELLANT’S
APPENDIX
TAB C
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Lifestyle Cia uses Texas Athlete When Holiday
in Texas Allegedl y Kills Shopping Gets
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Agreements Driving Wreck on It's the holiday season once
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Round Rock, Cedar Park, Two families in El Paso had trips for long-awaited visits
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to pay his ex close to S1 Christmas Eve and plowing get access to the hot...
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IJ BERTOLINO LLP
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What are Lifestyle Clauses in
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APPELLANT’S
APPENDIX
TAB D
·,.
....
"
J 11111.~~1~1!11111
IIII J.~~l~mIIIH
2013CI19729 -P00013
f)-I-(;i N--1-i-()(12
D-1-C 1-l(; IN I IIL
14-i H121-lt> I lL 25()111 f)ISTR ICTUlI
25illll DISTRIC T U ll IRT
lfH
NO. 2013-CI-19729
c;:J~
c:l r;;~ go0
· )COuKf._ Cl)S!~
-
STEPHEN M. DANIELS $ IN THE DJST
DIST ;1)CouAj Cl)~~
Plaintiff, $ ·o
'0
f
I.
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$ ~/ ;;;
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TONY R. BERTOLINO $ b~ ~ &-;>
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Defendant, $ BEXAR COUN 'rfiXAS
, '£fXAS
STEPHEN M. DANIELS' AFFIDAVIT IN SUPPORT OF THE MOTION FOR
SUMMARY JUDGMENT
BEFORE ME, the undersigned authority, on this day personally appeared
STEPHEN M. DANIELS, who swore or affirmed to teU
tell the truth and stated as
follows:
1. My name is Stephen M. Daniels ("Affiant"). I am of sound mind and capable of
this sworn statement. I have personal knowledge of the facts written in this
making tbis
that if I lie in this statement, I may be held criminally
statement. I understand tbat
responsible. This statement is true. I am over 18 years old.
2. On February 22, 2012, I met with Tony R. Bertolino to discuss filing a legal
who had filed a previous claim ( the
malpractice lawsuit against an attorney wbo
underlying case)on my behalf. The court ruled that tbis
this case had no merit. I paid
him 5200.00 for this
tbis consultation.
3. Tbe
The reason for filing the
tbe claim was because the previous case had
bad no merit.
teUing me I was shooting
Mr. Bertolino encouraged and motivated me to proceed by telling
tbe amount I was asking in damages and that my cbances
'too low' in regards to the chances
would be better in District Court in front of a jury.
4. During this consultation, he
be informed me he would take the case once I paid
him an initial $3,500.00
53,500.00 and agree to pay him $500.00
5500.00 per month
montb for the next twelve
months.
S. During tbis that in order to
this consultation, Mr. Bertolino never informed me tbat
prevail in a legal malpractice lawsuit,
lawsuit. tbe
the underlying case must have merit.
6. During this consultation, Mr. Bertolino never mentioned or informed me
anything about a No-Evidence Motion for Summary Judgment being part oftbe
of the
process.
7. April2,
On April 2, 2012, I retained Tony R. Bertolino with
witb a retainer of$3,500.00
of 53,soo.00 and
DOCUMENT SCANNED AS FILED
10
\
signed a fee agreement tbat
that commencing May, tbethe following month, I would start
making monthly payments of $500.00
5500.00 for the next 12 months. Again, he did not
address tbe
the merits of the underlving case or anything about a No-Evidence Motion
for a Summary Jud2lllent.
Jud2!1lent.
8. On Aprill, 2013, I made my last $500.0
5500.0 payment according to the
Attorney/Client Fee Agreement.
9. On AprillS,
April IS, 2013, a No-Evidence Summary Judgment was granted to the
tbe
Defendant based on the fact that the underlying case had
bad no merit..
10. Although tbethe Attorney/Client Fee Agreement specifically stated that S3,SOO.OO
53,500.00
was designated for ~Iegal
~legal work' and the remaining S6,000.00
$6,000.00 for 'legal
representation, Mr. Bertolino sent me April and May invoices for legal fees that
totaled over $5,600.00.
55,600.00.
11. I have personal knowledge ofofthe
the facts
fads stated above, and they are true and
correct. I have not received compensation of any sort in return for any statement.
~= Stephen M. Daniels
on
SUBSCRIBED AND SWORN BEFORE ME 00 ..;;..:...(4
:--~¥-L-.:..f€_..:::;b;..._:;2:::;..0.;;;;...:...(
:_......;(p'foL-f€~..;::;b;......:2::;..o ....._
:f....~...- ___
_ ___
l~< JU~ CANIlEI.ARIODAVUA
. Q MY COMMISS1ON EXPIRES
~;.
'. ,C'it:.'1.~· JItf 14. 2015
DOCUMENT SCANNED AS FILED
11
APPELLANT’S
APPENDIX
TAB E
8/5/20143:58:10
8/5/2014 3:58:10 PM
Amalia Rodriguez-Mendoza
District Clerk
NO. D-I-GN-14-002146
D-1-GN-14-002146 Travis County
D-1-GN-14-002146
STEPHEN M. DANIELS § IN THE DISTRICT COURT
Plaintiff, §
§
v.
V. § 250 th JUDICIAL DISTRICT
250th
§
TONY R. BERTOLINO §
Defendant. § TRAVIS COUNTY, TEXAS
DEFENDANT'S MOTION FOR
CONTINUANCE AND MOTION FOR SANCTIONS
NOW COMES, TONY R. BERTOLINO, as Defendant herein, and files this Motionfor
Motion for
Continuance and Motion for Sanctions, and shows the Court:
I. FACTUAL BACKGROUND
1. This matter initiated in its proper venue on July 1, 2014 with the filing of the
Original Petition in Travis County.
2. On or about July 14, 2014, Plaintiff served Notice of Summary Judgment Hearing
mai1. 1 However, Plaintiff has neglected to serve the Motion itself. To this date,
by U.S. certified mail.!
Defendant has not been served a Motion for Summary Judgment in this matter. Prior to receipt
of the Notice of Summary Judgment Hearing, Defendant had not been sent notice that a motion
for summary judgment was filed in this matter.
3. Every document Defendant has served on Plaintiff has been served by certified
mail with a return address to a proper address of service for the Defendant. Defendant's
signature block contains Defendant's proper address for service. Moreover, Plaintiff has served
at least one filing, Plaintiff's Motion to DENY Transfer of Venue, on Defendant's proper address
for service. Plaintiff is more than aware of the proper address for service on Defendant and yet
1] The Certificate of Service states that the document was sent on July 12, 2014 via US certified mail.
24
has failed to serve the Motion for Summary Judgment.
4. No written discovery has been served on either party in this matter at this time.
No depositions have been noticed or conducted at this time. Moreover, this case only has been
on file with the Travis County court for a mere month.
II. MOTION FOR CONTINUANCE
5. Defendant requests a continuance of the August 18, 2014 hearing in this matter.
6. Under the Texas Rules of Civil Procedure, Plaintiff must serve the Motion for
Summary Judgment at the time of filing it. Tex. R. Civ. P. 21; Tex. R. Civ. P. 21(a). Further, a
offiling
motion for summary judgment and any supporting affidavits must be filed and served twenty-
Tex. R. Civ. P.
one (21) days before the time specified for the hearing. Tex; 166a; Accordingly, July
P.166a;
28, 2014, was the last day that such a motion should have been served on Defendant for proper
notice. !d.
Id.
7. According to Travis County's Attorney Access to Records Online, Plaintiff filed
the Motion for Summary Judgment on February 14,2014, when the case was still in the improper
Motionfor
venue of Bexar County. Moreover, at that time, Plaintiff did not serve the Motion for Summary
Judgment upon Defendant. In fact, Plaintiff had not even served an Original Petition to initiate
the suit. The Motion for Summary Judgment was file-stamped for July 1,2014
Motionfor 1, 2014 in Travis County
presumably as a result of re-filing or the transfer of
ofthe
the case from Bexar County. The filing does
not contain a certificate of service and there is no indication that Plaintiff attempted to serve the
Motion lc,'
ji;,· Summary Judgment. There is no indication that Plaintiff plans to serve this motion
on Defendant in the future beyond the time period such service is required under the Texas Rules
of Civil Procedure. Instead, Plaintiff apparently sought to have a hearing on a motion that
Defendant was never served. As such, this hearing would be severely prejudicial.
- 2-
2-
25
8. This matter has only been transferred to the proper venue for roughly one (1)
month as of the time of this filing. Defendant has had no opportunity to conduct reasonable
discovery in this matter.
9. Contemporaneously with service of this filing, Defendant is serving upon Plaintiff
requests for disclosure, requests for production, interrogatories, and requests for admission on
Plaintiff. Defendant wishes to conduct this discovery in order to gather evidence in this matter to
properly defend his case on the merits. Plaintiff's filing of a Motion for Summary Judgment
without providing Defendant an opportunity to conduct discovery that would negate Plaintiff's
allegations and/or establish affirmative defenses denies Defendant of his right to due process of
law.
10. ofthis
Accordingly, a continuance of this hearing should be granted.
III. MOTION FOR SANCTIONS
11. Multiple statutes authorize a court to sanction a party and order the remedies
requested by Defendant in this matter. Defendant moves for sanctions against Plaintiff.
Sanctions may be ordered against a party for the filing of a frivolous pleading pursuant to Civil
1O.004(c).22 Further,
Practice and Remedies Code chapter 10. Tex. Civ. Prac. & Rem. Code § 10.004(c).
sanctions may be ordered against a party for the filing of a groundless pleading pursuant to Civil
Practice and Remedies Code § 9.011-9.014. 9.012(e). 3
Tex. Civ. Prac. & Rem. Code § 9.012(e).3
Moreover, sanctions may be granted against a party for a failure to serve or deliver pleadings and
motions pursuant to Texas Rules of Civil Procedure 21b and 215. 215.2.44
Tex. R. Civ. P. 215.2.
2
2 Under Chapter 10, the following remedies may be granted: reasonable expenses (including reasonable attorneys'
fees), a penalty to be paid into court, and a directive to the violator to perform or refrain from performing an act.
3
3Under Chapter 9, the following remedies may be granted: striking of pleadings, dismissal of party, and an order to
pay reasor:,,l-,le
reasor:,1l-,le expenses (inclucling
(inclucting attorneys' fees) incurred because of the filing of pleadings
4
4 Under Rule 215, the following remedies, among others, may be granted: an order striking out pleadings or part
-3-
26
Pursuant to this authority, Defendant seeks:
a. the striking of Plaintiff's Amended Original Petition;
b. the striking of Plaintiffs Motionfor
Motion for Summary Judgment;
c. the striking of any and all plea, pleadings, motions and/or documents on
file with the Travis County Court;
d. Plaintiffss claim; and
the dismissal of Plaintiff
e. reasonable and necessary attorneys' fees.
12. Plaintiff has apparently continued to improperly serve pleadings and discovery
upon Defendant and assert that service was completed. The following pleadings and discovery
requests have not been served upon Defendant:
a. Motion for Summary Judgment;
b. Plaintiff's First Set ofInterrogatories;
c. Plaintiff's First Request for Admissions;
d.
d, Plaintiff's First Request for Disclosure; and
e. Plaintiff's First Request for Production of Documents to Defendant, Tony
R. Bertolino.
Furthermore, pursuant to Texas Rules of Civil Procedure 2Ib 215.2(b)(5), the Motion
21b and 2IS.2(b)(S),
for Summary Judgment should be stricken as Plaintiff made no attempt to serve it.
13. This Motion for Summary Judgment contains false andlor
and/or misleading statements
and does not provide evidence for crucial elements of Plaintiff
Plaintiffss claim. Specifically:
a. Plaintiff alleges that Defendant has failed to comply with interrogatories,
requests for disclosure, admissions, and production. Defendant has not
thereof, staying further proceedings until an order is obeyed, dismissing with or without prejudice the action or
proceedings or any part thereof, or rendering a judgment by default against the disobedient party
- 4-
4-
27
been served any of these allegedly served discovery requests as required
under Texas Rule of Civil Procedure 21a. Plaintiffs assertion that
Defendant has failed to comply with discovery requests is therefore false.
b. Plaintiff alleges, based on Defendant's alleged failure to respond to
discovery requests, that the "information [sought in the requests] would
substantiate that Defendant knew, or should have known, and withheld the
fact that the Plaintiff would not prevail in a legal malpractice lawsuit."
Plaintiff has no reason to assume that discovery responses would
substantiate this allegation. Stating that they would is a clear attempt to
mislead the Court.
c. Plaintiff further alleges irrelevant facts in section III of his Motion for
Summary Judgment claiming that they provide support for his claim.
Plaintiff alleges that Defendant did not meet with him in person and
assigned an attorney not on the firm's letterhead to his case and that these
facts support "defendant's false representation." Even taken as true, these
allegations provide no support for Plaintiff
Plaintiffss claim and are included
presumably to mislead the Court.
14. Plaintiffs Motion for Summary Judgment is a groundless motion. Plaintiff has
only attached an affidavit alleging general statements regarding his personal knowledge of an
isolated l~:.!st
1~:1st event. While these statements are certainly rebuttable, even taken as true, they
cannot establish (or even allege) anything whatsoever regarding Defendant's mental state, which
is key to Plaintiff
Plaintiffss assertion that Defendant knowingly and intentionally withheld information.
According to Plaintiff's Amended Original Petition, Plaintiff has only made a claim under the
-5-
28
Texas Deceptive Trade Practices Act (DTPA), Tex. Bus. & Com. Code§§
Code §§ 17.41 and 17.49(c)
based on an alleged misrepresentation and failure to disclose information in violation of §
17 .46(b)(24 ).
)(24).
1::>.
1:>. A claim under
under§§ 17.50 requires the following elements:
a. Plaintiff is a consumer that incurred economic damages or damages for
mental anguish from one of the following actions by the Defendant:
1. Employment of a false, misleading, or deceptive act or practice
that is specifically enumerated in § 17.46; and relied on by Plaintiff
to his detriment.
u.
11. Breach of an express or implied warranty;
111. Any unconscionable action or course of action by any person; or
IV. The use or employment of an act or practice in violation of Chapter
541, Insurance Code.
16. Plaintiff's Amended Original Petition cites § 17.46(b)(24) assumedly for
(a)(i)55 above.
satisfaction of element (a)(i) That subsection essentially requires four ((4)
4) different
elements. 6
17. Plaintiff's Amended Original Petition makes no factual allegations regarding any
of the elements under § 17.50 or § 17.46(b)(24). Accordingly, Plaintiff's Amended Original
Petition is a groundless motion and should be stricken pursuant to Civil Practice and Remedies
9. 0 11 , et. seq.
Code § 9.011,
18. Moreover, Plaintiffs Motion for Summary Judgment is also a groundless motion
55 For simplicity's sake, reference is made to the enumeration used in this pleading, not the statutory enumeration.
66§ 17.46~~\24) requires that (a) Defendant knew information concerning goods or services at the time of the
transaction; (b) Defendant withheld the information (c) with intent to induce the consumer into a transaction; and (d)
the consumer would not have entered into the transaction had the withheld information been disclosed.
- 6-
6-
29
because it seeks summary judgment relief on claims not plead in the Plaintiff's Amended
Original Petition. The Motion is silent on a claim under the DTPA and instead lists allegedly
satisfied elements for a claim under theories of "False Representation" and "Quantum Merit"
[sic]. Neither of these claims are present in Plaintiff's Amended Original Petition. Further,
Plaintiffss only evidence is an attached affidavit of his own personal knowledge. This affidavit
Plaintiff
states general facts about past occurrences but provides no indication of Defendant's mental state
which is e1sential to a claim under the DTPA. See the above-enumerated elements of a DTPA
claim under§
under § 17.46(b)(24) in footnote 6. Elements a and c of
of§§ 17.46(b)(24) both require proof
of Defendant's mental state.
19. Further, even if a claim for False Representation or Quantum Meruit were proper
in this pleading, Plaintiff has not provided evidence to support those claims since he generally
alleges false representation without providing evidence or specific grounds establishing
Defendant's mental state. See Tex. R. Civ. P. 166a(c) ("The motion for summary judgment shall
state the specific grounds therefor.").
20. Plaintiff has provided no evidence for the majority of his claims and instead
alleges false and misleading statements. The fact that Plaintiff has also made no apparent
tv serve the Motion for Summary Judgment on Defendant is further evidence that this
attempt tu
groundless pleading was filed improperly and in bad faith.
IV. RELIEF
21. Because Defend~mt has been given no notice of Plaintiffs Motion for Summary
Judgment prior to the Notice of Summary Judgment Hearing, Plaintiff has repeatedly improperly
served or failed to serve Defendant, and Defendant has had no opportunity to conduct discovery,
-7-
30
Defendant respectfully requests that a continuance be granted for the August 18, 2014 hearing on
Plaintiff's Motionfor
Motion for Summary Judgment.
22. Recognizing the Comi's broad authority under § 10.004 of the Texas Civil
Practice and Remedies Code, to make such orders as are just, Defendant respectfully prays that
Plaint({f's Amended Original Petition and order Plaintiff to pay attorney's fees
this Court dismiss Plainttfl's
and additional fees the court can charge against Plaintiff and enter such orders in regard to the
Plaintiff's failure as it deems just.
23. Recognizing the Court's broad authority under Civil Practice and Remedies Code
§§ 9.011-9.014 and Texas Rule of Civil Procedure215.2(b), to make such orders as are just,
Defendant respectfully submits that this Court strike the instruments in violation of
of§§
§§ 9.011-
9.014 (Plaintiff's Amended Original Petition and Plaintiff's Motion for Summary Judgment),
dismiss the case, and order Plaintiff to pay reasonable expenses, including attorney's fees caused
by Plaintiff's failure and enter such orders in regard to the Plaintiffs failure as the Court deems
just.
24. Due to Plaintiff's acts described herein, Defendant has incurred substantial
expenses, including but not limited to attorneys' fees. Under of the Texas Civil Practice and
Remedies Code§
Code § 10.004 and Texas Rule of Civil Procedure 21S.2(b)(8),
215.2(b)(8), Defendant may recover
reasonable expenses, including reasonable attorneys' fees, incurred in obtaining an order for
sanctions. Reasonable attorney's fees for the services rendered and to be rendered is $1000.00.
2). The attorney's fees requested in the amount of$I,OOO
of$1,000 are reasonable based on the
time and labor required, the novelty and difficulty of the questions involved, and the skill
requisite to perform the legal service properly given the fees customarily charged in the locality
for similar legal services, as well as the amount involved and results obtained.
-8-
31
v.
V. PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendant prays that the Court:
26. grant Defendant's Motion for Continuance of the Summary Judgment hearing
'set for August 18, 2014.
currently ·set
27. set a hearing for the Motion for Sanctions;
28. after notice and hearing, impose sanctions on Plaintiff in accordance with Texas
Civil Practice and Remedies Code§
Code § 10.001 and/or Civil Practice and Remedies Code §§ 9.011-
9.014 to include:
a. striking Plaintiff's Amended Original Petition pursuant to Tex. Civ. Prac.
Code § 9.012(e)(l);
& Rem. Code§
b. striking Plaintiffs Motion for Summary Judgment pursuant to Tex. Civ.
Prac. & Rem. Code§
Code § 9.012(e)(l);
9.012(e)(1);
c. the striking of any and all plea, pleadings, motions and/or documents on
file with the Travis County Court;
d. dismissing Plaintiffs claim pursuant to Tex. Civ. Prac. & Rem. Code §
9.012(e)(2);
e. granting Defendant reasonable and necessary attorneys' fees in the amount
of at least $1000.00 7 incurred in obtaining such order pursuant to Tex.
Civ. Prac. & Rem. Code
Code§§ 9.012(e)(3) and§
and § 1O.001(c)(3);
10.001(c)(3);
f. any and all other relief as the Court deems Defendant is entitled.
29. This Motion is not sought solely for delay but that justice may be done.
77 Affidavits and invoices evidencing such expenses will be provided as necessary.
-9-
32
Respectfully submitted,
By: _____,~~--------------------
-1~~--------------------
Tony R. rtolino
Texas Bar No. 24038766
HibaKazim
Texas Bar No. 24076952
823 Congress Ave.
Suite 704
Austin, Texas 78701
Tel: (512) 476-5757
Fax: (512) 476-5758
Email: info@belolaw.com
Attorneys for Defendant,
Tony R. Bertolino
CERTIFICATE OF SERVICE
I certify that on August 5, 2014 a true and correct copy of Defendant's Motion for
Continuance and Motion fw Sanctions was served by regular u.S.
U.S. mail and CMRRR # 7006
2760 0003 6345 2579 on STEPHEN M. DANIELS at 8323 Clays Point, San Antonio, Texas
78257.
- 10-
10 -
33
for Continuance and Motion (or
Verification in Support of Defendant's Motion (or for Sanctions
The undersigned states under oath: "I am the attorney for movants in the foregoing
Defendant's Motion for Continuance and Motion for Sanctions. I have read the motion. The
statements contained in paragraphs 1 through 29 in the above motion are within my personal
correct"
knowledge and are true and correct."
SUBSCRIBED AND SWORN BEFORE ME on ----"-~_-----'oJ-
-~----->..<--_,
__ '_ s-_.,..J;__w_I__,L{_ _
_S--.,<,l'--W_I--JL{'----_
_
~~cUL~
~({Ld~
Notary Public, State of Texas
- 11 -
34
APPELLANT’S
APPENDIX
TAB F
REPORTER'S RECORD
VOLUME 1 OF 1
TRIAL COURT CAUSE NO. 2012-CI-13637
STEPHEN M. DANIELS, ) IN THE DISTRICT COURT
)
plaintiff(s),
VS. ~ )
BEXAR COUNTY. TEXAS
~
GREGORY CANFIELD,
Defendant(s). 45TH JUDICIAL DISTRICT
~ .
• *******************
NO EVIDENce MOTION FOR SUMMARY JUDGMENT
*************.******
On the 15th day of April, 2013 the
following proceedings came on to be heard in the
above-entitled and numbered cause before the Honorable
Janet L~ttlejohn, Judge of the lS0th District court of
Bexar County, Texas.
proceedings reported by Machine Shorthand.
VICTORIA l. GONZALEZ - OFFICIAL COURT REPORTER
150TH DISTRICT COURT (210) 335-2570
C:X/l)B.I/- E- I'
32
A P PEA RAN C E S
MR. TREVOR YOUNG
ATTORNEY AT LAW
660 west FM 2410
Harker Heights, Texas 16S48
SBOT II 24084138
Phone: (210) 313-3001
ATTORNEY FOR STEPHEN DANIELS
MR. FRED E. DAVIS
ATTORNEY AT LAW
8911 capital of Texas HWV 2
Austin, Texas 78759 .
S80T # 054890Sl,Q
Phone: (512) "615-9963
ATTORNEY FOR GREGORY CANFIELD
)
L
2
3
·4
5
6
7
.8
.9
~3
24
25
VICTORIA L. GONZALEZ - OFFICIAL COURT REPORTER
lS0TH DISTRICT COURT (210) 335-2570
EYilIBJ( E ·
31
'n __ ;;-=--= ___.
--" 1--- .- -
INDEX
PAGE
-CAPTION ------------------------------~---------- 1
APPEARANCES ------------------------------------- 2
INDEX --~----~------------------------------~---~ 3
PROCEEDINGS ------------------------------------- 4
COURT·S RULING ---------------------------------- 11
REPORTER'S CERTIFICATE -------------------------- 12
VICTORIA L. GONZALEZ - OFFICIAL COURT REPORTER
150TH DISTRICT COURT (210) 335-2570
I'
F#/G/ /- :E ' 34 .1''f,- _
(proceedings)
THE BAILIFF: All rise. 150~h District
..
. Court is now in session.
THE COURT: All right.
v'all may be
seated. On the Daniels versus Canfield case.
MR. DAVIS: ReadYt Your Honor.
THE COURT: This is your motion. ;s it,
sir?
MfW, DAVIS: It is.
THE COURT: May I see a copy of your
motion. please.
MR. DAVIS: (Tendering) .
THE COURT: Thank you. And .
1S there a
response?
MR. YOUNG: Yes, Judge. (Tendering).
THE COURT: Thank you. And you're Mr.
Davis, are you?
MR. DAVIS: I am~
THE COURT: okay. Mr. Davi~. go ahead
and tell me what this motion is about.
MR. DAVIS: Your Honor, this is a case
t alleging legal malpractice. we were here before Judge
stryker on March the 1st. At that point in time
absolutely nothing had been done on the case. No
i depositions, no discovery, nothing. And so -- and at
VICTORIA L. GONZALEZ - OFFICIAL COURT REPORTER
150TH DISTRICT COURT (210) 335-2570·
Gil/PI! C/
that hearing that day we also had a motion for
continuance. Judge striker granted that motion. Until
..
'
today, indicated there would be no further continuances
and I informed counsel that in a case like this, you
needed a legal expert to support the case.
We are back before you today. since the
prior hearing, they have taken my client Greg Canfield's
deposition. Discovery had been propounded and answered
and to the extent ~equired up to this date. And there's
still no expert.
The plaintiff seems to be of the opinion
that if they raise a scintilla of evidence on any point,
that that's good enough. And in their response ~hey say
~ they have raised a scintilla of evidence as to whether
when my client agreed to a motion for new trial -- let me
5 back up.
r This case was initially filed in the
~ Justice Court by the plaintiff against his stripper
} girlfriend for money that he had loaned to her. And he
) represented himself in the Justice Court, resulting in a
L take nothing judgment. He hired my client, Greg
~ canfield, to appeal that take nothing judgment, which
~ Mr. canfield did, pursued judgment for him, obtained a
4 judgment for the amount in controversy.
5 At that point in time, there was
VICTORIA L. GONZALEZ - OFFICIAL COURT REPORTER
lSOTH DISTRICT COURT (210) 335-2570
...-1'. L I
L-~X#./#/7 E 36
--
L discussion among counsel about a motion for new trial.
It wound up being agreed to and then my client withdrew
"
J from the litigation.
~ THE COURT: What was agreed to?
MR. DAVIS: The motion for new trial.
) My client withdrew from the litigation with permission of
r the Court, advising the plaintiff that he needed to get
~ other counsel to go forward on the case and he did not do
J so. Again. he wen~· before the court in a pro se
) capacity. tried his own ca,e and lost it. And now he
l sues Mr. canfield for legal malpractice for, I guess,
~ 10s;ng the case after he was no longer counsel.
~ So with that background, plaintiff seems
~ to be saying that therets a dispute as to whether he
5 instructed Mr. Canfield to agree to the motion for new
5 trial or whether Mr. Canfield merely told him that he was
7 going to lose the motion for new trial. For purposes of
S this hearing it doesn't matter which position you take on
9 that. so as you would in looking at a motion for summary
D judgment, assume the validity of the plaintiff's
1 argument. Assume that Mr. canfield merely told him he
2 was going to lose the motion for new trial instead of
3 being instructed to agree to the motion for new trial.
4 It doesn't matter. There's no lawyer here saying that
5 that was negligent or a proximate cause of any injuries
VICTORIA L. GONZALEZ - OFFICIAL COURT REPORTER
150TH DISTRICT COURT (210) 335-2570
\ /
£Xtl/PI/ 3£
----~.--.
to Mr. oaniels.
The second point plaintiff seems to be
.'
raising in an effort to defeat today's motion ;s -- has
to do with why Mr. canfield withdrew from representation.
Mr. canfield has testified he withdrew from
representation under his employment agreement because
plaintiff was going out, communicating with the other
side, contrary to his his advice and that that was a
provision that he Kid acknowledged in his employment
contract to authorize withdrawal. That's why he
withdrew.
plaintiff says, in attempting to raise
an issue for today, that there were never any such
communications at the time of the withdrawal. what
difference it makes in a legal malpractice case when
there's no expert as to why the attorney withdrew, with
p@rm;ssion of the court, and the case goes on and is lost
~ pro set I·m at a loss to know what that adds to today's
) hearing. I don't think it makes one bit of difference.
) The obligation in the no evidence -- in
L an attempt to defeat a no evidence motion for summary
) judgment is to raise a scintilla of evidence about one of
l the elements that's lacking proof. The elements that are
~ lacking proof in this case are whether my client Mr.
) canfield was professionally negligent in his
VICTORIA l. GONZALEZ - OFFICIAL COURT REPORTER
150TH DISTRICT COURT (210) 335-2570
JJ M#I#/£ E '
representation. And two, whether that caused any damages
to Mr. Daniels. There is no expert in this case. And,
"
again, we are here basically with the same position we
were before Judge Stryker on, where she told them they
needed an expert to support this case and we would
encourage the motion be granted.
THE COURT: Are you saying the plaintiff
has not designated an expert through the request for
disclosure? ~
MR. DAVIS: well, there's no -- there
has been no request for disclosure that I have filed. but
when I filed a motion for no evidence summary judgment.
they have an obligation to refute that by offering up
probative evidence. summary judgment evidence to show
that there is, indeed. a credible issue. They have not
done that and I submit that we are entitled to a
166(a)(i) motion being granted_
THE COURT: Okay. Mr. Bertolino.
MR. YOUNG: Mr. young.
THE COURT: You're here for
Mr. Bertolino?
MR. YOUNG: ves, Your Honor.
THE COURT: Okay. Go ahead~
MR. YOUNG: First of all, I would like : I
to argue that a legitimate issue of material fact is
VICTORIA L. GONZALEZ - OFFICIAL COURT REPORTER
lS0TH DISTRICT COURT (210) 335-2570
~_____________________)SK __._#/_~_I_r__~_~_~________~~J
presented in the agreement for new trial. As Mr. Davis
stated t his client actually obtained a judgment of
."
$7.500, in addition to $2.500 of attorney's fees in favor
of our client, Mr. Daniels. Our client's assertion is
that he did not 1ns~ruct or agree to enter an agreed new
trial.
THE COURT: HOw is that negligence on
the part of Mr. Canfield?
MMt. YOUNG: Because he had --
THE COURT: I mean, you can have a
dispute about whether or not a new trial should have been
granted or whether or not it's agreed to or not, but
you'~e very familiar with the fact that in the
professional negligence case. not only do you have to
prove malpractice by the attorney, but that your client
would prevail on the underlying case.
Now, letts just presume that because he
prevailed on the first case and if a new trial had not
been granted. he would have been successful. what is the
negligence that occurred by this attorney in representing
his client?
MR. YOUNG:The negligence that occurred
is that he deprived his client of the opportunity to
enforce the judgment that was awarded to him.
THE COURT: okay. And how is that
VICTORIA L. GONZALEZ - OFFICIAL COURT REPORTER
lSOTH DISTRICT COURT (210) 335-2570
..EJ2#/B;)- '£,/ 40 51
-. ---.
;,
--
proved up?
MR. YOUNG: By his entering into the
'agreed order. Mr. Canfield actually obtained S500 in
legal fees in exchange for that agreement.
THE COURT: I'm sorry. You lost me
there. why is the payment of S500 evidence that there's
been professional negligence?
MR. YOUNG: An additional reason for Mr.
Canfield's w1thdrawtl was due to Mr. Davis -- my
apologies, Mr. Daniels' delinquency in payment. Given
that Mr. canfield asserts that the plaintiff instructed
him to enter into a motion for new trial, which would
vacate and set aside the judgment of nearly
S10.000 awarded to him, for what purpose, I don't know.
And certainly our cltent, Mr. Daniels, does not
understand why Mr. canfield did that.
THE COURT: Anything else?
MR. YOUNG: Additionally. the movant's
motion for no evidence summary judgment is not
sufficiently specific. The defendant is required to be
specific in challenging the evidentiary support for an
element. Mr. Davis challenged every element of every
single claim. including the existence of an
~ attorney/client relationship, the existence of a
i contract, all of which were readily knowable by both him
VICTORIA l. GONZALEZ - OFFICIAL COURT REPORTER
150TH DISTRICT COURT (210) 335-2570
B~~/~#
J9
I,
and hi s eli ent.
THE COURT: the -- and so wha~
Has
exper~ opinions have been offered by Mr. Daniels ~hat
this amounts to professional negligence?
MR. YOUNG: Your Honor. an expert
opinion has not been offered. but one is also not
required in this case~ It is true that an expert is
generally necessary to instruct a jury on the issues of
standard of care a~d proximate cause, where the causal
link is beyond the jury's common understanding~
In this case, I think it's pretty clear
to a jury that they are going to understand that our
client was not willing to give up a judgment near
S10.000 to enter into a new trial .
. COURT' 5 RULING
THE COURT: okay. Motion for
Sure~
su~mary judgme~t is granted. Do you have an order. sir?
MR. DAVIS: Yes.
THE COURT: show it to Mr. Young and see
) if he has any objections to the form and I will be glad
L to sign it. Okay. If you want to make copies of this
~ you can take it and just bring it back to Shirley, our
~ clerk~ Thank you. Viall may be excused.
l (proceedings adjourned)
)
VICTORIA L. GONZALEZ - OFFICIAL COURT REPORTER
150TH DISTRICT COURT (210) 335-2570
1 STATE OF TEXAS )
2 COUNTY OF BeXAR )
3 It VICTORIA L. GONZALEZ, Official court
4 Reporter in and for the 150th District court of Bexar
5 county, State of Texas, do hereby certify that the above
6 and foregoing contains a true and correct transcription
7 of all portio~~ of evidence and other proceedings
8 requested in writing by counsel for the parties to be
9 included in this volume of the Reporter's Record, in the
.0 above-styled and numbered cause. all of which occurred in
.1 open court or in chambers and were reported by me .
.2 I further certify that this Reporter's Record
.3 of the proceedi~gs truly and correctly reflects the
.4 exhibits, if any, admitted by the respective parties .
.5 I further certify that the total cost for the
.6 preparation of this Reporter's Record is $60.00 and was .
.7 paid/will be paid by Mr. Stephen Daniels.
~8
L9 /5/ VICTORIA GONZALEZ
~O VICTORIA GONZALEZ:-fexaS-CSR #1714
Ex~iration Date 12/31/13
~1 Official court Reporter, 150th District
Bexar county. Texas
~2 100 Dolorosa Street
San Antonio. Texas 78205
~3 (210) 335-2570
~4
~5
VICTORIA L. GONZALEZ - OFFICIAL COURT REPORTER
150TH DISTRICT COURT (210) 335-2570
8t1I/.B/ )- "£ ,. </1
APPELLANT’S
APPENDIX
TAB G
. .
AFFIDAVIT OF FACTS
STATE OF TEXAS
COUNTY OF TRAVIS
BEFORE ME, the undersigned authority, on this day personally appeared
Fred E. Davis who, being by me duly sworn, upon his oath deposed and stated as
follows:
I am a duly licensed Attorney at Law and have been actively practicing law
in Austin, Travis County, Texas for the past forty-three (43)
{43) years. Most of my
litigation experience has been in defendin~ professional liability lawsuits, '"either
medical, legal or pharmaceutical.
I was retained in 2012 by North American Risk Service to represent Gregory
w. Canfield in a legal malpractice case brought against him by Stephen Dao
W. niels of
Da.niels
. San Antonio. North American Risk Services was acting as Third Party
°
Administrator of Torus Nationallnsuro
Nationallnsur.ance Company, the professional liability
carrier of a policy issued to Mr. Canfield. The specific lawsuit was Cause No. 2012-
th
11
CI-13637 in the 45t
45 Judicial District Court of Bexar County, Texas and was styled
Stephen M. Daniels v. Gregory Canfield (see Exhibit
Exhibit## 1). The Attorney
representing Mr. Daniels in bringing that cause was Tony R. Bertolino of
BERTOLINO LLP. The lawsuit alleged legal malpractice by Mr. Canfield in an
BERTOliNO LlP.
time~ Mr. Canfield had represented Mr. Daniels
underlying cause where, for a time,
(Stephen M. Daniels v. Adama Kanu).
In that initial Kanu case, Mr. Daniels had represented himself (in JP Court)
and had had a Directed Verdict rendered against him; and after retaining Mr.
Canfield, that Directed Verdict was set aside and instead, Mr. Daniels was
awarded a judgment of $9,875.95 plus attorney fees against Mr. Kanu. After a
Motion for New Trial was granted, Mr. Canfield withdrew from further
103
representation·with permission of the Court, and Mr. Daniels chose to again
representation,with
represent himself as a pro se litigaf:lt.
prose
tria" Mr. Daniels lost his:case against Mr. Kano and that is where all
At triat
further Ijtigation
litigation should have ended. However, Mr. Daniels contacted Mr.
Bertolino about bringing a legal malpractice case against Mr. Canfield and the
the. payment of a (reported)
representation in question began after the, {reported) $10,000
agr~ed to file suit on Mr.
retainer. Mr. Bertolino accepted the retainer and agreed
Daniels behalf in Cause No 2012-CI-13637. The fact that it was a case of legal
malpractice, Plaintiff needed ~m ex'
ex.p ert witness to e~tablish any actional claim
against Mr. Canfield (even though the malpractice suit was being re-cast with
superfluous allegations. II felt then, and still do, that the case he filed against my
client was meritless.
From that point forward, basically nothing happened until 1
I filed a No
Evidence Motion for Summary Judgment. Prior to that filing, Mr. Bertolino had
not diligently pursued the case against my client through either written discovery
credi~le expert witness.
or deposition testimony or by producing the opinion of a credible
s·u mmary Judgment (see Exhibit t!
Thus, I filed a No-Evidence Motion for S' 4! 2)."
2): Mr.
Bertolino attempted to raise a scintilla of evidence to defeat the No Evidence,
Evidence.
Motion through his own 'Affidavit and one from his Associate, but was
own-Affidavit
unsuccessful. Thus, the Sum~ary Judgmen~ was granted, and then was not
appealed by Mr. Bertolino.
[Aithqugh Mr. Daniels made a subsequent effort in a pro
[Althqugh se capacity to
prose
again sue Mr. Canfield, the ·sexar
'Bexar County District Judge held that any claim he
might have had was now barred by the judgment in Cause No. 2012-0 -13637
2012-CI-13637
which was not appealed and ·was
'was now fina\.
final. (See Exhibit
Exhibit## 3 and #4}.)
#4).) .,
filed~
Mr. Daniels has now filed ~ legal malpractice suit against Mr. Bertolino
B~rtolino in
Cause No D-1-GN-14-002146
D-l-GN-14-002146 in Travis County, Texas. He has provided me a copy
of Defendant's No-Evidence Motion and a copy of his pro se response. (I do not
prose
re~resent Mr. Daniels in !l:Lat
reJ!~~~~nt that la\y~.uit any.~1her capacity; he.
la\V~Uit or in any_~~her he, has merely-
merelY-
contacted me to see if I would provide an Affidavit which he could use in resp'
resp·onse
to a No -Evidence Motion for Summary Judgment filed by Mr. Bertolino, and 1
This text is long and has been trimmed here. Open the source document for the complete record.