                                                                                      ACCEPTED
                                                                                 03-14-00671-CV
                                                                                        4785588
                                                                       THIRD COURT OF APPEALS
                                                                                  AUSTIN, TEXAS
                                                                            4/7/2015 11:01:51 AM
                                                                                JEFFREY D. KYLE
                                                                                          CLERK




NO. 03-14-00671-CV                                              FILED IN
                                                         3rd COURT OF APPEALS
                                                             AUSTIN, TEXAS
                                                         4/7/2015 11:01:51 AM
                                                           JEFFREY D. KYLE
                   IN THE THIRD COURT OF APPEALS                 Clerk
                           AUSTIN, TEXAS


                        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


                        APPELLEE’S BRIEF


                          Tony R. Bertolino
                       Texas Bar No. 24038766
                              Hiba Kazim
                       Texas Bar No. 24076952
                           BERTOLINO LLP
                          823 Congress Ave.
                               Suite 704
                         Austin, Texas 78701
                         Tel: (512) 476-5757
                         Fax: (512) 476-5758
                       Email: info@belolaw.com

                        COUNSEL FOR APPELLEE
                       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
                               THE LAW OFFICE OF ELEANOR RUFFNER, PC.
                               1403 West Sixth Street
                               Austin, Texas 78703
                               Tel: (512) 913-7576
                               Fax: (512) 681-0800
                               Email: eruffnerlaw@gmail.com

Defendant/Appellee:            Tony R. Bertolino

Trial and Appellate Counsel:   Tony R. Bertolino
                               State Bar No. 24038766
                               Hiba Kazim
                               State Bar No. 24076952
                               BERTOLINO LLP
                               823 Congress Ave.
                               Suite 704
                               Austin, Texas 78701
                               Tel: (512) 476-5757
                               Fax: (512) 476-5758
                               Email: info@belolaw.com




                                       2
                                                     TABLE OF CONTENTS

Identity of Parties and Counsel ..................................................................................2
Index of Authorities ...................................................................................................4
Statement of Case.......................................................................................................5
Introduction ................................................................................................................6
Statement of Facts ......................................................................................................7
Statement Regarding Oral Argument ......................................................................10
Issues Presented .......................................................................................................11
   1)     The trial court’s final order granted no-evidence summary judgment on the sole cause
   of action raised in Plaintiff’s amended petition. By doing so, did the trial court dispose of all
   parties and all claims? ............................................................................................................... 11
   2)     Did the trial court abuse its discretion in making the threshold finding that an adequate
   time for discovery had passed where Appellant did not raise this issue before the trial court?
   Also, is this issue properly preserved for appellate review? ..................................................... 11
   3)   Did the Plaintiff raise more than a scintilla of evidence on all of the elements of the
   DTPA claim challenged by Defendant’s successful motion for no-evidence summary
   judgment? .................................................................................................................................. 11
Summary of Argument ............................................................................................12
Argument..................................................................................................................14
   The Trial Court Disposed of All Parties and All Claims by Granting Mr. Bertolino’s Motion
   for No-Evidence Summary Judgment ....................................................................................... 14
   Mr. Daniels did not Properly Preserve his Appellate Complaint that an Adequate Time of
   Discovery had not Passed ......................................................................................................... 16
   The Trial Court did not Abuse its Discretion in Ruling that an Adequate Time for Discovery
   had Passed ................................................................................................................................. 17
   Mr. Daniels did not Raise More than a Scintilla of Evidence on all of the Elements of the
   DTPA claim Challenged by Mr. Bertolino’s Motion ............................................................... 18
Prayer .......................................................................................................................22
Certificate of Compliance ........................................................................................23
Certificate of Service ...............................................................................................23
Appendix ..................................................................................................................24




                                                                       3
                                            INDEX OF AUTHORITIES

Statutes
Tex. Bus. & Com. Code § 17.41 ..............................................................................19
Tex. Bus. & Com. Code § 17.46(b)(24) ..................................................................19
Tex. Bus. & Com. Code § 17.49(c) .........................................................................19
Tex. R. App. P. 33.1(a) ..................................................................................... 15, 17
Tex. R. Civ. P. 62 .....................................................................................................14
Tex. R. Civ. P. 64 .....................................................................................................14
Tex. R. Civ. P. 71 .............................................................................................. 15, 16


Cases
Burns v. Canales, 2006 Tex. App. LEXIS 1551 (Tex.App.--Houston 14th Dist.
  2006) .....................................................................................................................20
City of Houston vs. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979) 20
Eggert v. State, 2013 Tex. App. LEXIS 5107, 9, 2013 WL 1831614 (Tex. App.--
  Austin 2013) .........................................................................................................16
Litton Indus. Prods., Inc. v. Gammage, 668 S.W.2d 319, 321-22 (Tex. 1984).....18
McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993) .....20
Tenneco, Inc. v. Enterprise Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996) ..........16
Wells Fargo Bank, N.A. v. Smuck, 407 S.W.3d 830, 840-41 (Tex. App.—Houston
  [14th Dist.] 2013) .................................................................................................16




                                                              4
                              STATEMENT OF CASE



Nature of the Case:      Appellant filed suit against Appellee regarding Appellee’s
                         previous legal representation of Appellant.

Course of Proceedings: Appellant filed an original petition and then an amended
                       petition stating his claims against Appellee. Appellee filed
                       a motion for no-evidence summary judgment on the sole
                       cause of action raised in the amended petition.

Trial Court:             250th District Court of Travis County, Texas

Presiding Judge:         The Honorable Gus Strauss

Disposition:             Appellee’s Motion for No-Evidence Summary Judgment
                         was granted, finally disposing of all claims.




                                        5
                                        INTRODUCTION1

       Stephen M. Daniels sought a consultation with attorney Tony R. Bertolino to

obtain representation in a legal malpractice claim.                 Mr. Daniels retained Mr.

Bertolino to file suit and pursue the claim. The trial court granted a no-evidence

summary judgment motion filed against the Plaintiff’s legal malpractice claims and

dismissed the suit.

       Mr. Daniels, pro se, then sued Mr. Bertolino for claims relating to Mr.

Bertolino’s representation in the underlying suit. Mr. Daniels filed an original

petition, and then an amended original petition. The amended original petition only

raised one cause of action: violation of sections of the Texas Deceptive Trade

Practices Act (“DTPA”). Mr. Bertolino filed a motion for no-evidence summary

judgment against Mr. Daniels’ DTPA claims. Mr. Daniels filed a response referring

generally to “[e]vidence . . . filed with the Court,” and witness testimony. Clerk’s

Record (hereinafter “CR”) 50. He concurrently filed an affidavit containing the

referenced testimony in support of his response.                 The trial court granted Mr.

Bertolino’s motion for no-evidence summary judgment. Mr. Daniels now appeals

this order of the trial court.


1
  In the Introduction section of Brief of Appellant, Mr. Daniels discusses numerous “facts”
regarding Mr. Bertolino’s representation that are completely unsupported by any admissible
evidence contained in the record. In fact, the nature of Mr. Bertolino’s representation was not fully
developed in the trial record by sworn testimony or otherwise permissible evidence. (It is telling
that the matter was resolved at the no-evidence summary judgment stage.) Appellee here intends
only to point out the misstatements contained within the Introduction.

                                                 6
                              STATEMENT OF FACTS

      Stephen M. Daniels approached Tony R. Bertolino seeking legal

representation in a legal malpractice action against his prior attorney, Gregory

Canfield. CR 10, 60. Mr. Canfield had represented Mr. Daniels in a breach of

contract case in which Mr. Canfield won the case at trial, agreed to a new trial and

took $500 in attorneys’ fees, and then withdrew from representation. CR 6-7; SCR

13. Mr. Daniels lost the case on new trial. SCR 36. Mr. Daniels was unhappy with

the outcome of Mr. Canfield’s representation. Mr. Daniels sought to file suit against

Mr. Canfield. CR 10, 60.

      Mr. Daniels participated in an initial consultation with Mr. Bertolino, and then

retained Mr. Bertolino to file suit against Mr. Canfield. C.R. 60. Mr. Bertolino and

his office repeatedly, though unsuccessfully, sought an expert witness in support of

Mr. Daniels’ legal malpractice claim over the course of the proceeding. Mr.

Canfield’s attorney filed a motion for no-evidence summary judgment, which was

granted by the trial court. SCR 42. Mr. Daniels was unhappy with the outcome of

Mr. Bertolino’s representation. Mr. Daniels filed suit against Mr. Bertolino in Bexar

County, Texas. CR 12-17.

      Mr. Daniels filed a number of pleadings that were not immediately served

upon Mr. Bertolino including: an original petition, discovery requests, and a motion


                                          7
for summary judgment. CR 41-42. Mr. Daniels finally obtained service of citation

upon Mr. Bertolino after filing the documents. CR 41. He did not serve the

previously filed documents at this time, save for the original petition. CR 24.

       Mr. Bertolino successfully sought a venue transfer to Travis County by

motion. CR 18. Mr. Daniels filed and served Plaintiff’s Amended Original Petition

containing Mr. Daniel’s identifying information and one claim: violation of the

Deceptive Trade Practices Act. CR 21-22. The Plaintiff’s Amended Original

Petition did not include any other claims. CR 21-22.

       Mr. Daniels set and noticed the hearing on his Motion for Summary Judgment.

CR 24. Mr. Bertolino complained to the Court in writing, by motion for continuance

of the hearing date and motion for sanctions, that Mr. Daniels was sending filed

documents to the wrong address and was not properly serving documents. CR 24.

Mr. Bertolino included discovery requests with his previously filed and served

Motion for Continuance and Motion for Sanctions. CR 26. Mr. Bertolino and his

counsel also complained orally to the Court at the previous hearings of the non-

service of documents.2 Mr. Daniels responded to Mr. Bertolino’s motions. CR 35-

39. The trial court granted the Motion for Continuance. CR 44. Mr. Daniels did

not re-serve the previously filed documents to the correct address.


2
 Mr. Bertolino’s complaints and Mr. Daniels’ corresponding knowledge of problems with service
of previously filed documents would have been included in a reporter’s record, had Appellant
procured it as required by the Texas Rules of Appellate Procedure.

                                             8
         He then served his discovery responses upon Mr. Bertolino.3

       Shortly thereafter, Mr. Bertolino filed a Motion for No-Evidence Summary

Judgment against Mr. Daniels. CR 46-48. Mr. Daniels filed a written response to

the No-Evidence Summary Judgment referring generally to “[e]vidence . . . filed

with the Court,” and witness testimony. CR 49-53. Mr. Daniels concurrently filed

an affidavit containing the referenced witness testimony. SCR 63-66. The trial court

heard Mr. Bertolino’s Motion for No-Evidence Summary Judgment and granted the

motion subsequently by letter.            CR 54.      Mr. Bertolino’s counsel drafted and

circulated a proposed order, approved by both Mr. Daniels and Mr. Bertolino as to

form. CR 68-70. The trial court later signed and entered the Order Granting

Defendant’s Motion for No Evidence Summary Judgment. CR 68.




3
  Although proof of Mr. Daniels’ service of discovery responses is not contained in the Clerk’s
Record (as is typical of routine discovery-related matters), it is important to note that Mr. Daniels
provided these discovery responses to Mr. Bertolino before Mr. Bertolino filed his motion for no-
evidence summary judgment. Brief of Appellant disingenuously contends that Mr. Bertolino asked
the trial court for a continuance of a hearing date to conduct discovery by verified motion and then
filed the no-evidence summary judgment motion 23 days later without conducting discovery.
Presumably, Mr. Daniels is accusing Mr. Bertolino of misleading the trial court in the motion for
no-evidence summary judgment. In fact, Mr. Bertolino received completed discovery responses
from Mr. Daniels during the 23 days and decided not to conduct any further discovery before filing
his motion for no-evidence summary judgment.

                                                 9
                    STATEMENT REGARDING ORAL ARGUMENT


      Oral argument in this matter is unlikely to be helpful in elucidating facts or

legal standards to the Court, which are properly addressed in Appellee’s Brief. Oral

argument will simply allow Appellant another opportunity to waste the Court’s time

and Appellee’s time with frivolous arguments unsupported by fact and unpreserved

at the trial level. Appellee strongly opposes oral argument in this matter unless the

Court finds any issues to be ambiguous or unclear in the appellate briefs and unable

to be clarified by further briefing.




                                         10
                            ISSUES PRESENTED


1)   The trial court’s final order granted no-evidence summary judgment on the
     sole cause of action raised in Plaintiff’s amended petition. By doing so,
     did the trial court dispose of all parties and all claims?

2)   Did the trial court abuse its discretion in making the threshold finding that
     an adequate time for discovery had passed where Appellant did not raise
     this issue before the trial court? Also, is this issue properly preserved for
     appellate review?

3)   Did the Plaintiff raise more than a scintilla of evidence on all of the
     elements of the DTPA claim challenged by Defendant’s successful motion
     for no-evidence summary judgment?




                                     11
                             SUMMARY OF ARGUMENT



      First, Mr. Daniels had one live pleading on file with the Court at the time that

Mr. Bertolino’s Motion for No-Evidence Summary Judgment was filed and heard

by the Court. This live pleading was the Plaintiff’s Amended Original Petition. This

Amended Petition raised only one claim: violation of the DTPA. Mr. Daniels’

Amended Petition was a properly named and filed substitution for his Original

Petition under the Texas Rules of Civil Procedure. When the trial court granted Mr.

Bertolino’s Motion for No-Evidence Summary Judgment regarding Mr. Daniels’

DTPA claim, the trial court finally disposed of all parties and all claims.

      Second, when the trial court granted Mr. Bertolino’s Motion for No-Evidence

Summary Judgment, it made the threshold finding that an adequate time for

discovery had passed before the Motion for No-Evidence Summary Judgment was

filed. Mr. Bertolino had successfully conducted written discovery by the time the

motion was filed. Mr. Daniels did not properly contest the issue of an adequate time

for discovery passing at the trial level. Mr. Daniels did not properly preserve any

appellate complaint for review, and may not raise any such appellate complaint or

have it considered in this appeal. The trial court did not abuse its discretion in

finding that an adequate time for discovery had passed. In fact, Mr. Daniels invited




                                          12
the trial court to find that an adequate time for discovery had passed in previous

filings.

       Finally, Mr. Daniels did not sufficiently or specifically point out evidence in

support of his response to Mr. Bertolino’s Motion for No-Evidence Summary

Judgment. Mr. Daniels was not entitled to having the trial court search the entire

record for evidence in support of the elements of his DTPA claim. Additionally, had

Mr. Daniels properly pointed out evidence on the record in support of his response,

he still could not have raised more than a scintilla of evidence in support of the

challenged elements of his DTPA claim. The evidence on the record contained

substantive defects and could not be properly considered in support of Mr. Daniels’

response to the motion for no-evidence summary judgment. Further, the evidence

on the record was either irrelevant or damaging to the sole cause of action contained

in the one live Amended Petition.




                                         13
                                    ARGUMENT

The Trial Court Disposed of All Parties and All Claims by Granting Mr.
Bertolino’s Motion for No-Evidence Summary Judgment

      Mr. Daniels’ complaint regarding the finality of the trial court’s order hinges

on this Court finding that Mr. Daniels’ Amended Original Petition was not a

substitution for, but a supplement to, Mr. Daniels’ Original Petition. Such a finding

is supported by neither law nor fact.

      Mr. Daniels properly filed Plaintiff’s Amended Original Petition as an

amended pleading. This pleading was designated as an “amended” pleading or

“amendment” three times in the title and the body of the document. “The object of

an amendment, as contra-distinguished from a supplemental petition or answer, is to

add something to, or withdraw something from, that which has been previously

pleaded. . .” Tex. R. of Civ. P. 62. Further, amended pleadings must be titled as

such. Tex. R. Civ. P. 64. Mr. Daniels, by naming his pleading Plaintiff’s Amended

Original Petition demonstrated his intention to “add something to” and “withdraw

something from” the Plaintiff’s Original Petition on file. See Tex. R. Civ. P. 62, 64.

Mr. Daniels may not now appeal to this Court to make a finding that he misnamed

his own properly titled pleading.

      As a result of the withdrawal and addition of claims, Mr. Daniels was only

pursuing a DTPA claim at the time Mr. Bertolino’s Motion for No-Evidence

Summary Judgment was filed.         CR 21-22.      Mr. Bertolino did not file any

                                         14
counterclaims against Mr. Daniels.      Mr. Bertolino’s Motion for No-Evidence

Summary Judgment challenged the elements of Mr. Daniels’ DTPA claim, and

thereby challenged Mr. Daniels’ only live, properly pled claim. Therefore, the trial

court’s order granting the Motion for No-Evidence Summary Judgment against Mr.

Daniels’ DTPA claim disposed of all parties and all claims.

      Mr. Daniels contends that Plaintiff’s Amended Original Petition was actually

a misnamed supplemental pleading. Mr. Daniels contends that this Court should

correct the misnomer, that the trial court did not correct, under Texas Rule of Civil

Procedure 71. However, Mr. Daniels never raised this misnomer issue by request,

objection or motion before the trial court. Mr. Daniels did not obtain an implicit or

explicit ruling from the trial court on this matter. As a result, he did not properly

preserve appellate complaint on this issue, and it may not be properly considered for

the first time on appeal. Tex. R. App. P. 33.1(a).

      Additionally, the Plaintiff’s Amended Original Petition did not even meet the

supplemental pleading rules under Texas Rule of Civil Procedure 69, which requires

the supplemental pleading to “[respond] to the last preceding pleading by the other

party,” and to “not repeat allegations formerly pleaded further than is necessary as

an introduction.” The Plaintiff’s Amended Original Petition raised a new claim, was

not filed in response to any pleading, and repeated information from the original

petition that was not necessary by way of introduction. The plain language of the


                                         15
document shows that the Plaintiff’s Amended Original Petition effectively amended

the previous Plaintiff’s Original Petition and should be treated as an amendment.

Indeed, “justice so requires” treatment of the pleading as an amendment rather than

a supplement. Tex. R. Civ. P. 71; see also Wells Fargo Bank, N.A. v. Smuck, 407

S.W.3d 830, 840-41 (Tex. App.—Houston [14th Dist.] 2013).

      Mr. Daniels’ arguments contesting the finality of the trial court’s order have

no basis in fact or law. The trial court disposed of all parties and all claims with its

Order Granting Motion for No Evidence Summary Judgment.



Mr. Daniels did not Properly Preserve his Appellate Complaint that an
Adequate Time of Discovery had not Passed

      Mr. Daniels complains in the Brief of the Appellant that an adequate time for

discovery had not passed at the time Mr. Bertolino’s Motion for No-Evidence

Summary Judgment was filed. However, Mr. Daniels never raised this issue before

the trial court by request, objection or motion. To preserve a complaint that the trial

court’s decision on a summary judgment motion was premature, the party claiming

it did not have adequate time for discovery must file either an affidavit explaining

the need for further discovery or a verified motion for continuance. Tenneco, Inc. v.

Enterprise Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996); Eggert v. State, 2013 Tex.

App. LEXIS 5107, 9, 2013 WL 1831614 (Tex. App.--Austin 2013). Mr. Daniels did

neither.

                                          16
      To be clear, the trial court did implicitly and explicitly rule that an adequate

time for discovery had passed before Mr. Bertolino’s Motion for No Evidence

Summary Judgment was filed. The ruling was not, however, in response to any

objection, request or motion made by Mr. Daniels. As a result, he did not properly

preserve appellate complaint on this issue, and it may not be properly considered for

the first time on appeal. Tex. R. App. P. 33.1(a).




The Trial Court did not Abuse its Discretion in Ruling that an Adequate Time
for Discovery had Passed

      Appellant’s complaint of the trial court’s implicit ruling regarding adequate

time for discovery is not supported by the facts. Mr. Daniels’ Original Petition in

the underlying case had been filed in December of 2013. CR 40-42. Since then, Mr.

Bertolino served discovery requests upon Mr. Daniels. CR 26. Mr. Daniels

contested Mr. Bertolino’s motion for continuance to pursue additional discovery

stating that “[d]ocuments support the fact [Mr. Bertolino] had substantial time to

comply with [the discovery requests served on the wrong address] and conduct

reasonable discovery himself.”      CR 36.      Further, Mr. Daniels states “[Mr.

Bertolino’s] non-compliance with discovery request is not a negative factor since

[Mr. Daniels] is in possession off [sic] all evidence supporting his claim.” CR 37.

Mr. Daniels did not contest that an adequate time for discovery had passed at the


                                         17
trial level. He brings this issue for the first time to the appellate court, apparently

contending that the trial court should have ignored the arguments and pleadings of

both Mr. Bertolino and Mr. Daniels, and instead have conducted its own

investigation as to whether an adequate time for discovery had passed. Mr. Daniels

seems to further contend that the trial court should have, in this sua sponte

investigation, found Mr. Bertolino’s statements regarding the need for additional

time for discovery in reference to a separate motion to be dispositive over all else.

Clearly, the trial court did not abuse its discretion in deciding against reaching such

a conclusion. Even if the trial court abused its discretion, Mr. Daniels’ previous

pleadings and statements to the trial court invited such error and he should not be

permitted to complain of it upon appeal. For example, a party cannot urge the trial

court to enter a judgment on the jury’s verdict and then complain about the jury’s

verdict on appeal. Litton Indus. Prods., Inc. v. Gammage, 668 S.W.2d 319, 321-22

(Tex. 1984).



Mr. Daniels did not Raise More than a Scintilla of Evidence on all of the
Elements of the DTPA claim Challenged by Mr. Bertolino’s Motion

      Mr. Daniels claims that he raised more than a scintilla of evidence on all of

the elements of the DTPA claim challenged by Mr. Bertolino’s Motion for No

Evidence Summary Judgment. Mr. Bertolino’s motion specifically challenged the

DTPA claim element requiring proof that Mr. Bertolino knew and withheld

                                          18
information concerning his services, intending to induce and in fact inducing Mr.

Daniels into a transaction. CR 46-48; see Tex. Bus. & Com. Code § 17.46(b)(24);

see also Tex. Bus. & Com. Code §§ 17.41, 17.49(c). Mr. Daniel’s responded to the

motion before the trial court by making factually conclusory statements, referring

generally to “[e]vidence . . . filed with the Court,” and witness testimony. CR 49-

53. Mr. Daniels concurrently filed an affidavit containing the referenced witness

testimony.     SCR 63-66.        This substantively defective affidavit contains

unsubstantiated factual and legal conclusions and opinions offered on issues

unrelated to the initial conversations resulting in the alleged inducement to transact.

SCR 63-66.

      Mr. Daniels now presents on appeal: his own affidavit, Mr. Bertolino’s law

firm’s current website screenshots, and a hearing transcript from a hearing at which

Mr. Bertolino was not present. None of these pieces of “evidence” can show Mr.

Bertolino’s knowledge or prove withholding of information.             For one, Mr.

Bertolino’s website screenshots are presented for the first time on appeal, and may

not be considered. Secondly, Mr. Daniels’ affidavit speaks to his interactions with

Mr. Bertolino prior to transacting with him, but does not (and cannot) speak to Mr.

Bertolino’s knowledge or mental state. It also does not address the issue of

inducement. Thirdly, the hearing transcript also does not provide any information

as to knowledge, mental state, or even inducement to transact.


                                          19
      Perhaps most importantly, “[t]he written answer or response to [a motion for

no-evidence summary judgment] must fairly apprise the movant and the court of the

issues the non-movant contends should defeat the motion.” City of Houston vs.

Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); see McConnell v.

Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993) (mere reference to

summary judgment evidence is not sufficient; non-movants arguments against the

motion must be expressly presented by written response). Here, Mr. Daniels’

response failed to meet that burden.

      The trial court “is not required, sua sponte, to assume the role of one’s

advocate and supply his arguments for him; . . . the party seeking to avoid the effects

of a well-pleaded no-evidence motion for summary judgment bears the burden to

file a written response that raises issues preventing summary judgment, and that

points to evidence supporting those issues, and where the nonmovant fails to meet

that burden, the trial court is not required to supply the deficiency, but instead must

grant the motion, under Tex. R. Civ. P. 166a(i). Burns v. Canales, 2006 Tex. App.

LEXIS 1551 (Tex.App.--Houston 14th Dist. 2006). It follows, then, that the trial

court did not commit any error in granting Mr. Bertolino’s Motion for No-Evidence

Summary Judgment where Mr. Daniels’ response fell far short of its burden. The

trial court’s Final Order Granting Motion for No Evidence Summary Judgment

should not be disturbed on appeal.


                                          20
      Mr. Daniels has requested the opportunity to assert additional DTPA claims

against Mr. Bertolino should this appeal fail. This requested is unsupported by

Texas law. Mr. Daniels has not cited any authority that would remotely permit this

thwarting of res judicata should the appeal fail.




                                          21
                                     PRAYER

      Appellee prays that this Court affirm the trial court’s Final Order Granting

Motion for No Evidence Summary Judgment. Further, Appellee prays that this

Court deny Appellant leave to plead additional related DTPA violations against

Appellee.



      Appellee prays for such other and further relief that Appellee has requested

and/or relief to which Appellee may be entitled.



                                           Respectfully submitted,

                                          BERTOLINO LLP



                                      By: /s/ Hiba Kazim
                                         Tony R. Bertolino
                                         Texas Bar No. 24038766
                                         Hiba Kazim
                                         Texas Bar No. 24076952
                                         823 Congress Ave.
                                         Suite 704
                                         Austin, Texas 78701
                                         Email: info@belolaw.com
                                         Telephone: (512) 476-5757
                                         Facsimile: (512) 476-5758

                                          Attorneys for Appellee




                                        22
                          CERTIFICATE OF COMPLIANCE


       I certify that this brief contains 4,171 words, as calculated by the word count
of the computer program used to prepare this document.




                                       /s/ Hiba Kazim
                                       Hiba Kazim


                             CERTIFICATE OF SERVICE

      I certify that a true copy of the foregoing document was served in accordance
with rule 9.5 of the Texas Rules of Appellate Procedure on the following via email:
on April 6, 2015.
Eleanor Ruffner
eruffnerlaw@gmail.com



                                       /s/ Hiba Kazim
                                       Hiba Kazim




                                         23
                                      APPENDIX

This appendix contains the following:

      1.     Texas Business & Commerce Code § 17.41;

      2.     Texas Business & Commerce Code § 17.46(b)(24);

      3.     Texas Business & Commerce Code § 17.49(c);

      4.     Texas Rule of Appellate Procedure 33.1(a);

      5.     Texas Rule of Civil Procedure 62;

      6.     Texas Rule of Civil Procedure 64; and

      7.     Texas Rule of Civil Procedure 71.

In addition, Appellee relies on the clerk's record filed in this matter.




                                           24
25
            This document is current throllgh tIle 2013 3rd Called Session

Texas Statutes and C~odes > BUSINESS AIVD CONlll1ERCiE ClODE > 1-11~LE 2. ('OMPETITION AND
TRADE PRACTICES > CHAPTER 17. DECEPTIVE TRADE PRACTICES > SUBCHAPTER E.
DECEPTIVE TRADE PRACTICES AND CONSUMER PROTECTION

§ 17.41. Short Title

This subchapter may be cited as the Deceptive Trade Practices-Co'nsllmer Protection
Act.

History
Enacted by Acts 1973, 63rd Leg., ch. 143 (H.B. 417), § 1, effective May 21, 1973.
LexisNexis ® Texas Annotated Statutes
Copyright © 2015 by Matthew Bellder & Company, Inc. a melnber of the LexisNexis Group All rights
reserved.
            This document is current through the 2013 3rd Called Session

Texas Statutes alld Codes > BUSINESS; AND (lOMNIER("E CODE > TITLE 2. COMPETITION AND
TRADE PRACTICES > CHAPTER 17. DECEPTIVE TRADE PRACTICES > SUBCHAPTER E.
DECEPTIVE TRADE PRACTICES AND CONSUMER PROTECTION

§ 17.46. Deceptive Trade Practices Unlawful
  (a) False, misleading, or deceptive acts or practices in the conduct of any trade or
     commerce are 11ereby declared unlawful and are subject to action by the consumer
     protection division ul1der Sections 17.47, 17.58, 17.60, and 17.61 of this code.
  (b) Except ,18 provided in Subsection (d) of this section, the term "fa.1se, Inisleading,
     or deceptive acts or practices" incllldes, but is not limited to, the followlllg acts:
     (1) passing off goods or services as those of another;
     (2) causing confusion or misullder8tanding as to the source, sponsorship, approval,
         or certification of goods or services;
     (3) causing confusion or mis·understanding as to affiliation, connection, or
         association with, or certification by, another;
     (4) llsing deceptive representations or designations of geographic origin In
         connectiol1 with goods or services;
     (5) representing that goods or services have spon.sorship, approval, characteristics,
         ingredients, llses, benefits, or quantities which they do not have or that a
         person has a Spol1sorship, apprQval, status, affiliation, or connection which he
         does not;
     (6) representing that goods are original or new if they are deteriorated,
         reconditioned, reclaimed, used, or secondhand;
     (7) representing that goods or services are of a particular standard, quality, or
         grade, or that goods are of a particular style or model, if they are of another;
     (8) dispclraging the goods, services, or business of another by false or misleading
         representation of facts;
     (9) advertising goods or services with intent not to sell them as advertised;
     (10) advertising goods or services with intent not to supply a reasonable
         expectable public demand, unless the adveltisements disclosed a limitation of
         quantity;
     (11) making false or misleading statements of fact concerning the reasons for,
         existence of, or amount of price reductions;
                                                                              Page 2 of 4
                            Tex. Bus. & Con1. Code § 17.46


(12) representing that an agreement confers or involves rights, remedies, or
   obligations which it does not have or il1volve, or which are prohibited by law;
(13) krlowingly makillg false or misleading statenlellts of fact concerning tile need
   for parts, replacemellt, or repair service;
(14)misrepresellting the authority of a salesman, represelltative or agent to
   negotiate the final terms of a consumer transaction;
(15) basing a charge for the repair of any item in whole or in part on a guaranty
   or warranty instead of on the value of the actual          Inade or work
   performed on the iteln withollt stating separately the charges for the work and
   the charge for the warranty or guaranty, if any~
(16) disconnecting, tllrning back, or resetting the odometer of anynl0tor vehicle
    so as to reduce the number of miles indicated on the odometer gauge;
(17) advertising of any sale by fralldll1ently representing that a persoll is going Ollt
   of business;
(18) advertising, selling, or distributing a card which purports to be a prescription
   drug identification card issued under                                           in
   accorda-nce with rules adopted by the commissioner of insurance, wl1ich offers
   a discount on the purchase of health care goods or services froln a third party
   provider, and which is not evidence of" insurance coverage, unless:
   (A) the discount is authorizedun.der an_ agreement between the seller of the
      card alld the provider of those goods and services or the discount or card
      is offered to members of the seller;
   (B) the seller does not represent that the card provides insurance coverage of
      any kind; and
   (C) the discount is not false, lnisleading, or deceptive;
(19) using or employing a chain referral sales plan in connectioll with the sale or
   offer to sell of goods, Inercl1andise, or anything of vallIe, which uses the sales
   technique, plan, arrangement, or agreement in which the buyer or prospective
   buyer is offered the opportunity to purchase merchandise or goods alld in
   cOl111ection with the purchase receives the seller's prolnise or representation
   that the buyer shall have the right to receive c-ompensation or consideration in
   any form for furnishing to the seller the names of other prospective buyers if
   receipt of the compensation or consideration is contingent upon the occurrence
   of an event subsequent to the time the buyer pllrchases tIle merchandise or
   goods;
(20) representing that a guarantee or warranty confers or involves rights or
                                                                                Page 3 of 4
                            Tex. Bus. & Con1. Code § 17.46


   remedies wlliell it does not have or involve, provided, however, tllat nothing in
   this Sllbcllapter shall be construed to expand the implied warranty of
   merchanto_bility as defined in Sections 2.314 through 2.318 and Sections
   2A.212 through 2A.216 to involve obligations ill excess of those which are
   appropriate to the goods;
(21) prolTIoting a pyramid prolTIotional SCllelTI.e,     as defil1ed by Section 17.461
(22) representing that work or services l1ave been performed on, or parts replaced
   in, goods when tIle work or services were not perforlned or the parts replaced;
(23) filing Sllit fOlIndedupon a written contractllal obligation of and signed by tIle
   defendallt to pay mOlley arising out of or based on a con.Sllrner transaction for
   goods, services, loans, or extensions of credit intended primarily for personal,
   family, housell0ld, or agricultural use in allY county other than in the county in
   which the defe]ldant resides at the time of the commencement of the actiol1 or
   in the county i]l which the defendant in fact signed the contract; provided,
   however, that a violation of this subsection shall not occur where it is shown
   by the person filing such suit he neither knew or Ilad reason to know that the
    county in which such suit was filed was neither the county in which tIle
    defendant resides at the COlnmenCelTI.ent of tIle Sllit nor tIle county in Wllich the
    defel1dant in fact siglled the cOl1tract;
(24) failing to disclose infoflnation_ concerning goods or services which was
   l(nown at the time of the transaction if such failure to disclose SliCh informatioll
   was intended to induce the consumer into a transaction into which the
   consumer wO'uld not have elltered had the information been disclosed;
(25) llsing the term "corporation," "incorporated," or an abbreviation of either of
   those terlTIS in the name of a business entity that is not incorporated under the
   laws of this state or another jurisdiction;
(26) selling, offering to sell, or illegally promoting an annuity contract llnder
   Chapter 22, Acts of the 57th Legislature, 3rd Called Session, 1962 (Article
   6228a-5, Vernon's TeX~lS Civil Statutes), with the intent that the annuity
   contract will be the subject of a salary reduction agreement, as defined by that
   Act, if the annuity contract is not an eligible qualified investmentUJlder that
   Act or is not registered with the Teacher Retirement Systeln of Texas as
   required by Section 8A of that Act; or
(27) taking advantage of a disaster declared by the governor under Chapter 418,
   Government Code, by:
    (A) selling or leasing fuel, food, medicine, or another necessity at an
       exorbitant or excessive price; or
                                                                                                                                                                  Page 4 of 4
                                                                 Tex. Bus. & Com. Code § 17.46


                  (B) demanding an exorbitant or excessive price in connection witl1 the sale or
                     lease of fuel, food, Inedicine, or another necessity.
    (c)
           (1)      It is the intent of the legislature that ill construing Subsection (a) of this
                  section in suits brought under Section 17.47 of this subchapter tIle courts to the
                  extent possible will be gllided by Subsection (b) of this sectioll and the
                  interpretations given by the Federal Trade Commission and federal courts to
                  Section 5(a)(1) of the Federal Trade Commission Act                            1)].
           (2)      In constrLling tIllS sllbchapter the COlIrt shall not be prohibited from
                  considering relevant and pertinent decisions of COllrts in other jllrisdictions.
    (d) For the purposes of the relief authorized in Subdivisio'n (1) of Subsectioll (el) of
       Sectio·n 17.50 of this subch,:lpter, the term "f~llse, misleading, Of deceptive acts or
       practices" is limited to the acts ellumerated in specific subdivisions of Subsection
       (b) of this section.

History

Enacted by Acts 1973, 63rd Leg., ch. 143 (H.B. 417), § 1, effective May 21, 1973;
am. Acts 1977, 65th Leg., ch. 216 (S.B. 664), §§ 2, 3~ effective May 23, 1977; am..
Acts 1977, 65th Leg., ch. 336 (H.B. 2059), § 1, effective Augllst 29, 1977; am. Acts
 1979, 66th Leg., ch. 603 (S.B. 357), § 3, effective August 27, 1979; a·m. --"--~-----'----.l­
~~~~~~~~~~7 § ], e~ctive Septe~ber 1, 1987; a~. ~~~~~~
==...:::::-f~"::::""::"''''''''''';:;''''''''''''::''''''''':;:;'''';::':'::''''''':~.....:::::-."l7 § 6, effective September 1, 1993; am,. ~~~--J.-.--""";;""";
                                                                                                     § 3, effective September 1, 1995; alTI. ---'-"----'-----'---~-...L-~...;....;..
~~~-----"--=~~...........:----'----'-~, § 1, effective September 1, 1995; aln. ~~~-=:.....J.-~":'-':'"
=..::.-.f~"::::""':-;'~:""::=-~~~~' § 1, effective September 1, 2001; a1n. -'-----'-----'--..............z~-'--'-.
~~~~~~~~~, § 27, e~ctiveJune 1,2002; am..~~~~~~~~~
~---:::::.-...J~::::::""':"'':::::'''''''':~' § 4.001(,1), effective September 1, 2003~ am. _ _--"--.k..--~-....:c.
~~--':::'--;""~-"""--~----'---+--7§ 11.101, effective September 1 2005; (lm~ ~~~:......;l­
~~~~~~~~~~~~7§ 26, e~ctive September 1,2007.

LexisNexis ® Texas Annotated Statutes
Copyrig11t © 2015 by Matthew Bender & Company, Inc. a member of the LexisNexis Group All rights
reserved.
              This document is curre,nt through the 2013 3rd Called Session

Texas Statutes alld Codes > BUSINESS' AiVD COil11vlERCE CfODE > I1TLE 2. COMPETITION AND
TRADE PRACTICES > CHAPTER 17. DECEPTIVE TRADE PRACTICES > SUBCHAPTER E.
DECEPTIVE TRADE PRACTICES AND CONSUMER PROTECTION

§ 17.49. Exemptions

  (a) Nothil1g in this subchapter shall apply to the owner or eluployees of a regularly
        published newspaper, magazine, or telepll0ne directory, or broadcast station, or
        billboard~ whereill any advertiselnent in violation of this subc11apter is published
        or disseminated, unless it is established that the owner or eluployees of the
        advertisil1gmedium l1ave l<nowledge of the f(llse, deceptive, ormisleadillg acts or
        practices declared to be uillawfu.l by this subchapter, or had a direct or substantial
        finallcial interest in the sale or distriblltion of the unlawfully advertised good or
        service. Financial interest as used in this section relates to an expectation which
        wo'uld be the direct result of such advertisement.
  (b)     N'othing in this subchapter shall apply to acts or practices authorized under
        specific rtlles or regulations promulgated by the Federal Trade COffilnission tInder
        Section 5(a)(1) of tIle Federal Trade Commission Act                          1)]. The
        provisions of this sllbchapter do apply to any act or practice prohibited or 110t
        specifically authorized by a rule or reglllation of th.e Feder,tl Trade Commission.
        An act or practice is not specifically authorized if no fllle or regulatiollh,lS been
        issued on the act or practice.
  (c) Nothing in this subchapter shall apply to a clailTI for dalTIages based on the
     rendering of a professional service, the essence of which is the providing of
     advice, judgment, opinion, or silnilar professional skill. This exemption does not
     apply to:
        (1) an express misrepresentation of cllnaterial fact that cannot be characterized as
            advice, juclgment, or opinion;
        (2) a failure to disclose informatioll in violation of Section 17.46(b)(24);
        (3) an unconscionable action or course of action that cannot be characterized as
            advice, judgment, or opinion;
        (4) breach of an express warranty that cannot be characterized as advice,
            judgment, or opinion; or
        (5) a violation of Section 17 .46(b)(26).
  (d)     Subsection (c) applies to a cause of action brought against the person who
                                                                                        Page 2 of 3
                                    Tex. Bus. & COlll. Code § 17.49


       provided the professional service and a cause of action brollgllt against any entity
       that could be fOUlld to be vicariously liable for the person's conduct.
 (e)    Except as specifically provided by Subsections (b) clnd (h)~ Sectio1117.50,
       nothing in this subch,lpter shall 'lpply to ,1 cause of action for bodily injury or de,lt11
       or for the illtlictiol1 of mental angllisll.
 (f) Nothing in the sllbchapter shall apply to a claim arising out of a written contract
     if:
       (1) the contract relates to a transaction, a project, or a set of transactions related
           to the same project involving total consideration by tIle consumer of more than
           $ 100,000;
       (2) in negotiating the contract the consumer is represented by legal cou.llsel who
           is not directly or indirectly identified, suggested, or selected by the defendant
           or an agent of the defendant; and
       (3) the contract does not involve the consumer's residence.
 (g)     N otl1ing in this subchapter shall apply to a cause of action arISIng from a
       transaction, a project, or a set of transactions relating to the same project,
       involving total consideration by the conSllmer of more than $ 500,000, other tl1an
       a calIse of action involving a cOl1sumer's residence.
 (h) A person who violates Section 17.46(b)(26) is jointly and severally liable under
    that subdivision for actual damages, court costs, and attorney's fees. Subject to
    Chapter 41, Civil Practice and Remedies Code, exemplary damages maybe
    awarded in the event of fraud or malice.
  (i) Nothing in this subchapter shall apply to a claim against a person licensed as a
      broker or salesperson under Chapter 1101, Occupations Code, arising from an act
      or omission by the person while acting as a broker or salesperson. This exemption
      does not apply to:
       (1) an express misrepresentation of a Inaterial fact that cannot be characterized as
           advice, judgment, or opinion;
       (2) a failure to disclose information in violation of Section] 7.46(b)(24); or
       (3) an unconscionable action or course of action that cannot be characterized as
           advice, judgment, or opinion.

History

Enacted by Acts 1973, 63rd Leg., ch. 143 (H.B. 417), § 1, effective May 21, 1973;
am.                                          § 4, effective September 1, 1995; am.
                                                                                          Page 3 of 3
                                   Tex. Bus. & Con1. Code § 17.49


~~~~~~~~~~~~~~~7                                  § 28,   e~ctive   June 1, 2002;   a~.
~~~~~~~~~~~~~7                                § 4.001(b),    e~ctive Septe~er       1, 2003; am.
~~~~~~~~~~~~~~~~~~7                               § 1 e~ctive~ay 28,2011.
LexisNexis ® Texas Annotated Statutes
Copyright © 2015 by Matthew Bender & COlnpany, Inc. a melnber of the LexisNexis Grollp All rights
reserved.
                                RULE 56. SPECIAL DAMAGE

When items of special damage are claimed, they shall be specifically stated.


                            RULE 57. SIGNING OF PLEADINGS

Every pleading of a party represented by an attorney shall be signed by at least one attorney of
record in his individual name, with his State Bar of Texas identification number, address, telephone
number, email address, and if available, fax number. A party not represented by an attorney shall
sign his pleadings, state his address, telephone number, email address, and, ifavailable, fax nUluber.


                           RULE 58. ADOPTION BY REFERENCE

Statements in a pleading may be adopted by reference in a different part of the same pleading or in
another pleading or in any motion, so long as the pleading containing such statements has not been
superseded by an amendment as provided by Rule 65.


                            RULE 59;···· EXHIBITS··AND···PLEADING

Notes, accounts, bonds, mortgages, records, and all other written instruments, constituting, in whole
or in part, the claim sued on, or the matter set up in defense, may be made a part ofthe pleadings by
copies thereof, or the originals, being attached or filed and referred to as such, or by copying the
same in the body of the pleading in aid and explanation of the allegations in the petition or answer
made in reference to said instruments and shall be deemed a part thereof for all purposes. Such
pleadings shall not be deemed defective because ofthe lack ofany allegations which can be supplied
from said exhibit. No other instrument of writing shall be made an exhibit in the pleading.


                           RULE 60. INTERVENOR'S PLEADINGS

Any party may intervene by filing a pleading, subject to being stricken out by the court for sufficient
cause on the motion of any party.


         RULE 61. TRIAL: INTERVENORS: RULES APPLY TO ALL PARTIES

These rules of pleading shall apply equally, so far as it may be practicable to intervenors and to
parties, when more than one, who may plead separately.


                              RULE 62. AMENDMENT DEFINED

The object of an amendment, as contra-distinguished from a supplemental petition or answer, is to
add something to, or withdraw something from, that which has been previously pleaded so as to
perfect that which is or may be deficient, or to correct that which has been incorrectly stated by the
party making the amendment, or to plead new matter, additional to that formerly pleaded by the
amending party, which constitutes an additional claim or defense permissible to the suit.


               RULE 63. AMENDMENTS AND RESPONSIVE PLEADINGS

Parties may amend their pleadings, respond to pleadings on file of other parties, file suggestions of
death and make representative parties, and file such other pleas as they may desire by filing such
pleas with the clerk at such time as not to operate as a surprise to the opposite party; provided, that
any pleadings, responses or pleas offered for filing within seven days of the date of trial or
thereafter, or after such time as may be ordered by the judge under Rule 166, shall be filed only after
leave of the judge is obtained, which leave shall be granted by the judge unless there is a showing
that such filing will operate as a surprise to the opposite party.


                             RULE 64. AMENDED INSTRUMENT

The party amending shall point out the instrument amended, as "original petition," or "plaintiffs first
supplemental petition," or as "original answer," or "defendant's first supplemental answer" or other
instrument file by the party and shall amend by filing a substitute therefor, entire and complete in
itself, indorsed "amended original petition," or "amended first supplemental petition," or "amended
original answer," or "amended first supplemental answer," accordingly as said instruments of
pleading are designated.


        RULE 65. SUBSTITUTED INSTRUMENT TAKES PLACE OF ORIGINAL

Unless the substituted instrument shall be set aside on exceptions, the instrument for which it is
substituted shall no longer be regarded as a part of the pleading in the record of the cause, unless
some error of the court in deciding upon the necessity of the amendment, or otherwise in
superseding it, be complained of, and exception be taken to the action of the court, or unless it be
necessary to look to the superseded pleading upon a question of limitation.


                                RULE 66. TRIAL AMENDMENT

If evidence is objected to at the trial on the ground that it is not within the issues made by the
pleading, or ifduring the trial any defect, fault or omission in a pleading, either of form or substance,
is called to the attention ofthe court, the court may allow the pleadings to be amended and shall do
so freely when the presentation of the merits of the action will be subserved thereby and the
objecting party fails to satisfy the court that the allowance of such amendment would prejudice him
in maintaining his action or defense upon the merits. The court may grant a postponement to enable
the objecting party to meet such evidence.
                  RULE 67. AMENDMENTS TO CONFORM TO ISSUES
                            TRIED WITHOUT OBJECTION

When issues not raised by the pleadings are tried by express or implied consent of the parties, they
shall be treated in all respects as if they had been raised in the pleadings. In such case such
amendment of the pleadings as may be necessary to cause them to conform to the evidence and to
raise these issues may be made by leave of court upon motion of any party at any time up to the
submission of the case to the Court or jury, but failure so to amend shall not affect the result of the
trial of these issues; provided that written pleadings, before the time of submission, shall be
necessary to the submission of questions, as is provided in Rules 277 and 279.


                       RULE 68. COURT MAY ORDER REPLEADER

The court, when deemed necessary in any case, may order a repleader on the part of one or both of
the parties, in order to make their pleadings substantially conform to the rules.


                   RULE 69. SUPPLEMENTAL PETITION OR ANSWER

Each supplemental petition or answer, made by either party, shall be a response to the last preceding
pleading by the other party, and shall not repeat allegations formerly pleaded further than is
necessary as an introduction to that which is stated in the pleading then being drawn up. These
instruments, to wit, the original petition and its several supplements, and the original answer and its
several supplements, shall respectively, constitute separate and distinct parts ofthe pleadings ofeach
party; and the position and identity, by number and name, with the indorsement of each instrument,
shall be preserved throughout the pleadings of either party.


                           RULE 70. PLEADING: SURPRISE: COST

When either a supplemental or amended pleading is of such character and is presented at such time
as to take the opposite party by surprise, the court may charge the continuance of the cause, if
granted, to the party causing the surprise if the other party satisfactorily shows that he is not ready
for trial because of the allowance of the filing of such supplemental or amended pleading, and the
court may, in such event, in its discretion require the party filing such pleading to pay to the
surprised party the amount of reasonable costs and expenses incurred by the other party as a result
of the continuance, including attorney fees, or make such other order with respect thereto as may
be just.


                            RULE 71. MISNOMER OF PLEADING

When a party has mistakenly designated any plea or pleading, the court, ifjustice so requires, shall
treat the plea or pleading as if it had been properly designated. Pleadings shall be docketed as
originally designated and shall remain identified as designated, unless the court orders redesignation.
Upon court order filed with the clerk, the clerk shall modify the docket and all other clerk records
to reflect redesignation.


                       [RULE 72. Repealed effective September 1, 1990]


                       [RULE 73. Repealed effective September 1, 1990]


                      RULE 74. FILING WITH THE COURT DEFINED

The filing of pleadings, other papers and exhibits as required by these rules shall be made by filing
them with the clerk of the court, except that the judge may permit the papers to be filed with him,
in which event he shall note thereon the filing date and time and forthwith transmit them to the
office of the clerk.


                      RULE 75. FILED PLEADINGS; WITHDRAWAL

All filed pleadings shall remain at all times in the clerk's office or in the court or in custody of the
clerk, except that the court may by order entered on the minutes allow a filed pleading to be
withdrawn for a limited time whenever necessary, on leaving a certified copy on file. The party
withdrawing such pleading shall pay the costs of such order and certified copy.


     RULE 75a. FILING EXHIBITS: COURT REPORTER TO FILE WITH CLERK

The court reporter or stenographer shall file with the clerk of the court all exhibits which were
admitted in evidence or tendered on bill of exception during the course of any hearing, proceeding,
or trial.


                       RULE 75b. FILED EXHIBITS: WITHDRAWAL

All filed exhibits admitted in evidence or tendered on bill of exception shall, until returned or
otherwise disposed of as authorized by Rule 14b, remain at all times in the clerk's office or in the
court or in the custody of the clerk except as follows:

        (a)     The court may by order entered on the minutes allow a filed exhibit to be withdrawn
                by any party only upon such party's leaving on file a certified, photo, or other
                reproduced copy of such exhibit. The party withdrawing such exhibit shall pay the
                costs of such order and copy.

        (b)     The court reporter or stenographer ofthe court conducting the hearing, proceedings,
                or trial in which exhibits are admitted or offered in evidence, shall have the right to
TEXAS RULES OF APPELLATE PROCEDURE                                                                                                   Page 37


            (2)   the date of filing of any   contest~                           (1)   whether a reporter's record has been or will be
                                                                                       requested, and whether the trial was electronically
            (3)   the date of any order on the contest; and                            recorded;

            (4)   whether the contest was sustained or overruled~                (m) the name of the court reporter;

      (1)   whether the appellant has filed or will file a                       (n)   (1)   the dates of fil ing of any motion and affidavit
            supersedeas bond~ and                                                            of indigence;

      (m) any other information the appellate court requires.                          (2)   the date of any    hearing~


32.2. Criminal Cases                                                                   (3)   the date of any    order~   and

       Upon perfecting the appeal in a criminal case, the                              (4)   whether the motion was granted or denied; and
appellant must file in the appellate court a docketing statement
that includes the following infonnation:                                         (0)   any other information the appellate court requires.

      (a)   (1)   if the appellant has counsel, the name of the            32.3. Supplemental Statements
                  appellant and the name, address, telephone
                  number, fax number, if any, and State Bar of                   Any party may file a statement supplementing or
                  Texas identification number of the appellant's           correcting the docketing statement.
                  counsel, and whether the counsel is appointed
                  or retained~ or                                          32.4. Purpose of Statement

            (2)   if the appellant is not represented by an                      The docketing statement is for administrative purposes and
                  attorney, that party's name, address, telephone          does not affect the appellate court's jurisdiction.
                  number, and fax number, if any~
                                                                                                Notes and Comments
      (b)   the date the notice of appeal was filed in the trial
            court and, if mailed to the trial court clerk, the date              Comment to 1997 change: The rule is new.
            of mailing;

      (c)   the trial court's name and county, and the name of                         Rule 33. Preservation of Appellate
            the judge who tried the case~                                                         Complaints
      (d)   the date the trial court imposed or suspended                  33.1. Preservation; How Shown
            sentence in open court, or the date the judgment or
            order appealed from was signed;                                      (a)   In General. As a prerequisite to presenting a
                                                                                       complaint for appellate review, the record must show
      (e)   the date of filing any motion for new trial, motion in                     that:
            arrest ofjudgment, or any other filing that affects the
            time for perfecting the appeal ~                                           (1)   the complaint was made to the trial court by a
                                                                                             timely request, objection, or motion that:
      (f)   the offense charged and the date of the offense;
                                                                                              (A) stated the grounds for the ruling that the
      (g)   the defendant's plea;                                                                 complaining party sought from the trial
                                                                                                  court with sufficient specificity to make
      (h)   whether the trial was jury or nonjury;                                                the trial court aware of the complaint,
                                                                                                  unless the specific grounds were apparent
      (i)   the punishment assessed;                                                              from the context; and

      (j)   whether the appeal is from a pretrial order;                                      (B) complied with the requirements of the
                                                                                                  Texas Rules of Civil or Criminal
      (k)   whether the appeal involves the validity of a statute,                                Evidence or the Texas Rules of Civil or
            ordinance, or rule;                                                                   Appellate Procedure; and

                                                                                       (2)   the trial court:

                                                                      37
Page 38                                                                             TEXAS RULES OF APPELLATE PROCEDURE

                  (A) ruled on the request, objection, or motion,                          n1ust    after notice and hearing -     do one of
                      either expressly or implicitly; or                                   the following things:

                  (B) refused to rule on the request, objection,                           (A) sign the bill of exception and file it with
                      or motion, and the complaining party                                     the trial court clerk if the judge finds that
                      objected to the refusal.                                                 it is correct;

      (b)   Ruling by Operation of LQ11J • In a civil case, the                            (B) suggest to the complaining party those
            overruling by operation of law of a motion for new                                 corrections to the bill that the judge
            trial or a motion to modify the judgment preserves                                 believes are necessary to make it
            for appellate review a complaint properly made in                                  accurately reflect the proceedings in the
            the motion, unless taking evidence was necessary to                                trial court, and if the party agrees to the
            properly present the complaint in the trial court.                                 corrections, have the corrections made,
                                                                                               sign the bill, and file it with the trial court
      (c)   Formal Exception andSeparate OrderNotRequired.                                     clerk; or
            N either a formal exception to a trial court ruling or
            order nor a signed, separate order is required to                              (C) if the complaining party will not agree to
            preserve a complaint for appeal.                                                   the corrections suggested by the judge,
                                                                                               return the bill to the complaining party
      (d)   Sufficiency of Evidence Complaints in Nonjury                                      with the judge's refusal written on it, and
            Cases. In a nonjury case, a complaint regarding the                                prepare, sign, and file with the trial court
            legal or factual insufficiency of the evidence -                                   clerk such bill as will, in the judge's
            including a complaint that the damages found by the                                opinion, accurately reflect the
            court are excessive or inadequate, as distinguished                                proceedings in the trial court.
            from a complaint that the trial court erred in refusing
            to amend a fact finding or to make an additional                         (3)   Ifthe complaining party is dissatisfied with the
            finding of fact - may be made for the first time on                            bill of exception filed by the judge under
            appeal in the complaining party's brief.                                       (2)(C), the party may file with the trial court
                                                                                           clerk the bill that was rejected by the judge.
33.2. Formal Bills of Exception                                                            That party must also file the affidavits of at
                                                                                           least three people who observed the matter to
      To complain on appeal about a matter that would not                                  which the bill of exception is addressed. The
otherwise appear in the record, a party must file a formal bill of                         affidavits must attest to the correctness of the
exception.                                                                                 bill as presented by the party. The matters
                                                                                           contained in that bill of exception may be
      (a)   Form. No particular form of words is required in a                             controverted and maintained by additional
            bill of exception. But the objection to the court's                            affidavits filed by any party within ten days
            ruling or action, and the ruling complained of, must                           after the filing of that bill. The truth of the bill
            be stated with sufficient specificity to make the trial                        of exception will be determined by the
            court aware of the complaint.                                                  appellate court.

      (b)   Evidence. When the appellate record contains the                  (d)    Conflict. If a formal bill of exception conflicts with
            evidence needed to explain a bill of exception, the                      the reporter's record, the bill controls.
            bill itself need not repeat the evidence, and a party
            may attach and incorporate a transcription of the                 (e)    Time toftle.
            evidence certified by the court reporter.
                                                                                     (1)   Civil Cases. In a civil case, a formal bill of
      (c)   Procedure.                                                                     exception must be filed no later than 30 days
                                                                                           after the filing party's notice of appeal is filed.
            (1)   The complaining party must first present a
                  formal bill of exception to the trial court.                       (2)   Criminal Cases. In a criminal case, a formal
                                                                                           bill of exception must be filed:
            (2)   Ifthe parties agree on the contents of the bill of
                  exception, the judge must sign the bill and file                          (A) no later than 60 days after the trial court
                  it with the trial court clerk. If the parties do not                          pronounces or suspends sentence in open
                  agree on the contents of the bill, the trial judge                            court; or



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