                                                                                       ACCEPTED
                                                                                  03-14-00671-CV
                                                                                         4835287
                                                                        THIRD COURT OF APPEALS
                                                                                   AUSTIN, TEXAS
                                                                              4/9/2015 5:47:12 PM
                                                                                JEFFREY D. KYLE



No.03-14-00671-CV
                                                                                           CLERK




                                                                 FILED IN
                                                          3rd COURT OF APPEALS
                                                              AUSTIN, TEXAS
                                                          4/9/2015 5:47:12 PM
                   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 250 th Judicial District Court of Travis County, Texas
              Trial Court Cause No. D-I-GN-14-002146


                MOTION FOR SANCTIONS AGAINST
            ELEANOR RUFFNER AND STEPHEN M. DANIELS



                             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
TO THE HONORABLE THIRD COURT OF APPEALS IN AUSTIN, TEXAS:

      Appellee, Tony R. Bertolino ("Appellee"), files this Motion for Sanctions

Against Eleanor Ruffner ("Appellant's Attorney") and Stephen M. Daniels

("Appellant") pursuant to Tex. R. App. P. 10.1 and 45.

      If sanctions are ever appropriate, this is such a case.

                              I.   SUMMARY OF ARGUMENT

      1.     Appellant's actions amount to sanctionable conduct under Rule 45.

      2.     First, Appellant's appeal did not include a reporter's record for the

pivotal hearing that led to this appeal. The Appellant failed to file this reporter's

record in clear contravention of the Appellate Rules' requirement to do so even

after being notified of the reporter's record's location and cost. Although this

failure could have initially been considered harmless, Appellant then pled facts and

positions in his brief in direct contradiction of the representations he made during

the motion for no-evidence summary judgment hearing to the trial court.

Appellant's misleading behavior is properly sanctionable.

      3.      Second, Appellant raises multiple issues for the first time on appeal in

violation of the Texas Rules of Appellate Procedure. Appellant attempts to raise

for the first time on appeal whether an adequate time for discovery had passed and

whether the No-Evidence Motion for Summary Judgment disposed of all parties




Motion for Sanctions Against Eleanor Ruffner and Stephen M Daniels                   2
and claims in the suit. This is but an example of Appellant's indifference to basic

and foundational appellate rules.

      4.      Third, Appellant has failed to comply with multiple appellate rules,

preserve error for appeal, and cite authority or record references in support of his

arguments. In his brief, Appellant raises new issues on appeal, attaches new

evidence for consideration by the Court, and misleads the Court regarding facts in

the record.

      5.      Lastly, Appellant filed a poorly written brief raising no arguable

points of error. In his brief, Appellant either raises new issues on appeal or raises

an argument that is frivolous, supported by misstatements of the record, and

evidence that is either unsupportive or actually damaging to his argument.

       6.     Although sanctions are generally appropriate only in egregious

circumstances, such circumstances are present here where Appellant has filed this

appeal with no reasonable grounds of reversal in an effort to harass the Appellee or

tarnish his good name. Appellee makes frivolous arguments, citing nearly no legal

authority to support the critical parts of his position, and violates several of the

Texas Rules of Appellate Procedure.          Appellant's brief lacks legal merit and

utilizes bizarre procedural tactics and non-sequitur arguments in an attempt to drag

Appellee's good name through the mud because legal remedy is unavailable.

Again, if sanctions under Rule 45 are ever appropriate, this is such a case.



Motion for Sanctions Against Eleanor Ruffner and Stephen M Daniels                  3
                                 II. LEGAL AUTHORITY

      7.     Pursuant to Texas Rule of Appellate Procedure 45, a court of appeals,

on 1notion of a party or its own initiative, after notice and a reasonable opportunity

for response, may award a prevailing party just damages upon determining that an

appeal is frivolous. The purpose of appellate sanctions is to shift the burden of

defending a frivolous appeal to the appellant. Starcrest Trust v. Berry, 926 S.W.2d

343 (Tex. App.-Austin 1996).

       8.    Texas courts have established at least two scenanos m which an

appeal is frivolous under Rule 45: (1) from the viewpoint of the appellant, there

was no reasonable ground to believe that the judgment would be reversed; or (2)

the appeal was objectively frivolous and injured the appellee. Glassman v.

Goodfriend, 347 S.W.3d 772, 782 (Tex. App.-Houston [14th Dist.] 2011, pet.

denied); Compass Exploration v. B-E Drilling Co., 60 S.W.3d 273, 279-80 (Tex.

App.-Waco 2001, no pet.); Njuku v. Middleton, 20 S.W.3d 176, 178 (Tex.

App.-Dallas 2000, pet. denied); Mid-Continent Casualty Co. v. Safe Tire

Disposal Corp., 2 S.W.3d 393, 397 (Tex. App.-San Antonio 1999, no pet.).

While only one of these standards need be proven to justify sanctions under Rule

45, both are present in this matter.

       9.     Texas courts of appeals have found several factors relevant in

awarding just damages under Rule 45 (or its predecessor, Rule 84): (1) the



Motion for Sanctions Against Eleanor Ruffner and Stephen M Daniels                   4
unexplained absence of a reporter's record when necessary for appellate review,

Am. Paging of Tex., Inc. v. El Paso Paging, Inc., 9 S.W.3d 237, 241 (Tex. App.-

El Paso 1999, pet. denied); (2) a poorly written brief raising no arguable points of

error, !d.; (3) a conscious indifference to settled rules of law, Bradt v. West, 892

S.W.2d 56, 79 (Tex. App.-Houston [1st Dist.] 1994, writ denied); (4) failure to

cmnply with Appellate Rules, preserve error for appeal, or cite authority or

accurate record references in support of arguments, Casteel-Diebolt v. Diebolt, 912

S.W.2d 302, 306 (Tex. App.-Houston [14th Dist.] 1995, no writ); and (5) raising

an issue for the first time on appeal, Tate v. E. I. du Pont de Nemours & Co., 954

S.W.2d 872, 875 (Tex. App.-Houston [14th Dist.] 1997, no pet.) (citing Bradt,

892 S.W.2d at 79).

       10.   If this Court determines that this appeal is not technically frivolous

under Rule 45, it may still sanction a party or attorney under its inherent powers to

sanction a party or an attorney for egregious conduct in the prosecution of an

appeal. Johnson v. Johnson, 948 S.W.2d 835, 840-841 (Tex. App.-San Antonio

1997, writ denied).

       11.   On the issue of damages, the current Rule 45 imposes no strict limit

other than the requirement that the court of appeals award only "just damages" or

"just sanctions."




Motion for Sanctions Against Eleanor Ruffner and Stephen M Daniels                  5
                                     III.    ARGUMENT


       12.    If sanctions under Rule 45 are ever appropriate, this is such a case.

The Appellant and Appellant's Attorney have committed not just one offense, but

nearly all of the sanctionable offenses listed above. See supra          ~   1.

A.     The unexplained absence of a reporter's record

       13.    The Appellant failed to file a reporter's record in this matter after

being notified of its location and cost despite the Appellate Rules requiring the

filing of a reporter's record. See Tex. R. App. P. 34.1 & 34.6. Due to a mistake,

this Court was given notice by a court reporter that no reporter's record was taken

during the hearing on the Motion for No-Evidence Summary Judgment. (See Court

Reporter's notice to court regarding status of record, filed on January 22, 2015,

attached as Exhibit "A" and incorporated by reference herein.) 1 However, Appellee

sent a letter to the Court, and sent this letter to Appellant's Attorney when she was

later retained by Appellant, noting the court reporter's mistake and indicating that a

reporter's record was taken for that hearing by Sheri Linder. (Appellee's Letter to

the Court dated January 29, 2015, attached as Exhibit "B" and incorporated by

reference herein.? At the time of this filing, Appellant has filed no such record


1 This letter is a part of this Court's record, Appellee attaches it to this Motion merely for the
Court's convenience.
2 This letter is a part of this Court's record, Appellee attaches it to this Motion merely for the

Court's convenience. At the time that this letter was filed with the Court, Appellant was
unrepresented by counsel. Due to internal error, Bertolino LLP did not serve this letter upon
Appellant the day that the letter was filed. Staff discovered this error after Appellant retained


Motionfor Sanctions Against Eleanor Rl{/fner and Stephen M Daniels                              6
and Appellant's Attorney has expressed to Appellee that Appellant has no intention

to do so.

       14.    Appellant's entire appeal centers on the trial court's granting a motion

for No-Evidence Summary Judgment.                See (Appellant Br. xiv).        Although the

reporter's record for that hearing may not be essential to the merits of assessing the

challenged judgment, Appellant has argued before this Court "facts" in direct

contradiction with his representations before the trial court. Id. Appellant's failure

to obtain the reporter's record, especially when put on notice of its location,

contradicts the Appellate Rules and is highly suspect. See Tex. App. R. P. 34.1 &

34.6(b).

       15.    Near the conclusion of the hearing on the Motion for No-Evidence

Summary Judgment, the Honorable Judge Gus Strauss asked the parties whether or

not there were any claims other than Plaintiffs DTPA claim at issue in the action.

Appellant then confirmed that this was an action only under the DTP A. 3

       16.     In the Appellant's brief, he claims that the document entitled

"Plaintiffs Amended Original Petition" (and referred to as an "amendment" to the


counsel, and sent the letter to both Appellant and Appellant's Attorney in order to avoid
misrepresentations to this Court. Appellant's Attorney raised this issue to Hiba Kazim of
Bertolino LLP, and the issue was discussed by phone and then by email to the apparent
satisfaction of Appellant's Attorney.
3 Due to the lack of a reporter's record on appeal, Appellee has no direct quotation to provide the

Court. Attorney for Appellee and a law clerk for Bertolino LLP were both present at this hearing
and recall this conversation. They expect the reporter's record would confirm that this
conversation, or a substantially equivalent conversation, took place.


Motionfor Sanctions Against Eleanor Ruffner and Stephen M Daniels                                7
Original Petition two other times in that document) was not intended as an

amendment, but as a supplemental petition. (Appellant Br. 12-13); Clerk's Record

(hereinafter "CR") 21.        Although this argument has almost no merit in itself,

Appellant specifically contradicted it. Had Appellant filed the reporter's record as

required under Rules 34.1 and 34.6, Appellee would have definitive proof that

Appellant's statement is false.

B.     Raising an issue for the first time on appeal

       17.    Appellant raises, for the first time on appeal, the issues of whether an

adequate time for discovery has passed and whether the No-Evidence Motion for

Summary Judgment disposed of all parties and claims in the suit.

       18.    Appellant argues on appeal that an adequate time for discovery had

not passed prior to the hearing on the No-Evidence Motion for Summary

Judgment. (Appellant Br. 13-20). In Appellant's Response to the No-Evidence

Motion for Summary Judgment, he at no point addresses whether or not an

adequate time for discovery has passed. CR at 49-52. To Appellee's recollection,

Appellant did not challenge this point at hearing on that motion either. 4 Further,

the order following the hearing stated that the motion "was properly filed after an

adequate time for discovery had passed." !d. at 68.                  Appellant provided his

signature to approve the order as to form and indicated no objection to this

4Again, this reporter's record is unavailable in the record on appeal because Appellant refused to
obtain it.


Motion for Sanctions Against Eleanor Ruffner and Stephen M Daniels                               8
language at that time either. !d. at 69. At best, Appellant invited the eiTor of

which he complains, as addressed in Appellee's brief, and at worst, he is

presenting frivolous argument to this Comi.

       19.    Appellant also argues that the order improper! y dismissed Appellant's

suit although there still re1nained undisposed-of causes of action raised in

Appellant's original petition.      Although Appellant's argument for this claim is

nothing short of ridiculous, 5 this issue was also not raised in the lower court.

Appellant did not seek any ruling on this matter before the trial court. In fact,

Appellant signed the final order himself to indicate approval of its form. CR at 68-

69. The order plainly stated that the judgment "finally disposes of all parties and

all claims and is therefore final and appealable." !d. at 68.

       20.    While Appellant has provided only frivolous arguments on appeal for

the above-mentioned issues, Appellant could have at least raised them at the trial

court level. To save these issues for appeal is improper. Tex. R. App. P. 33.1.

C.     Failure to comply with Appellate Rules, preserve error for appeal, or
       cite legal authority or record references in support of arguments

       21.    Appellant and Appellant's Attorney disregard appellate rules on

multiple occasions throughout Appellant's brief.               The various violations of



5Appellant seeks for this Court to treat Plaintiff's Amended Original Petition as a supplemental
petition. The Amended petition does not meet the requirements of a supplemental pleading, as
addressed in Appellee's Brief. Appellant's argument that he intended the pleading to be
supplemental to the original petition finds no factual support in the record.


Motion for Sanctions Against Eleanor Ruffner and Stephen M Daniels                            9
Appellate Rules rise above mere technicalities or mistake and indicate a severe

disdain for appellate procedure and disrespect for this Court and Appellee.

   1) Raising New Issues on Appeal

      22.    As noted above, Appellant has raised several issues on appeal that he

did not raise in the trial court. Raising new issues on appeal that were not argued

or challenging issues that were not objected to in any way at the trial level is

directly contrary to the Appellate Rules. Tex. R. App. P. 33.1 ("[T]he record must

show that: ( 1) the complaint was made to the trial court by a timely request,

objection, or motion that: (A) stated the grounds for the ruling that the complaining

party sought from the trial court with sufficient specificity to make the trial court

aware of the complaint, unless the specific grounds were apparent from the

context ....").

       23.   As shown above, several of Appellant's points were not complained-

of at the trial level. See   supra~~   17-20. To bring these issues up at the appellate

court level completely disregards Rule 33.1 and puts matters before the appellate

court that could have been dealt with in the trial court and unnecessarily wastes

this Court's valuable time and resources.

   2) Attaching New Evidence for Consideration by the Court ofAppeals

       24.   In an attempt to make something out of nothing, Appellant's Attorney

attaches screenshots of Appellee's business website to show that Appellant had



Motion for Sanctions Against Eleanor Ruffner and Stephen M Daniels                   10
sufficient evidence to overcome Appellee's Motion for No-Evidence Summary

Judgment. (Appellant Br. 23, app. C). Such material is highly improper for an

appellant brief and may not be considered by the Court of Appeals. See e.g., Fox

v. Wardy, 234 S.W.3d 30, 33 (Tex. App.-El Paso 2007, pet. dism'd) (Documents

attached to brief as appendix but not appearing in the record cannot be considered

by the appellate court when reviewing the case). Further, use of this material is not

helpful for Appellant in any way and is included in Appellant's brief in bad faith:

             a.     First, this material was not before the Honorable Judge Gus

             Strauss when he decided the Motion for No-Evidence Summary

             Judgment, nor was it part of the District Court's record and thus

             cannot be considered evidence that the trial court should have

             considered in deciding Appellee's Motion for No-Evidence Summary

             Judgment.

             b.     Second, the material does not support Appellant's points in a

             meaningful way. Appellant appears to use the information to establish

             that Appellee is an experienced attorney who claims to offer honest

             advice to his clients. (Appellant Br. 23). These statements do nothing

             to support Appellant's claims that Appellee deceived him at the time

             of representation.




Motionfor Sanctions Against Eleanor R.4lner and Stephen M Daniels                     11
              c.      Third, this material is irrelevant because, as Appellant's own

              attachment indicates, the screenshots were taken on February 24,

              2015. I d. at App. C. Even if the information contained therein were

              relevant to this case, Appellant provides no proof that the website was

              materially the same at the time of the facts giving rise to Appellant's

              suit.

      25.     Consistent with Appellant's past behavior, this appeal was brought to

harass Appellee and damage his name and his business's goodwill. Attaching the

website screenshots is an attempt to ensure that Appellant's brief, which contains

several groundless accusations, will also include in the record Appellee's business

name, logo, contact information, and likeness. As this material is not at all helpful

to Appellant's case and is improper under the appellate rules, this behavior could

only have been committed in a bad faith attempt to tarnish Appellee's name and

reputation.

   3) Misleading the Court of Appeals by Misstating the Contents of the Record
      and/or Presenting Unsworn-to Statements in the Record as Establishing
      Facts

      26.     Appellant or his attorney severely misrepresents the contents of the

record in the Appellant's Brief. (Appellant Br. 1-3) (asserting various occurrences

of the case as established fact by citing to various unsworn-to pleadings);

(Appellant Br. 5-6) (implying that Appellant referred to various specific



Motion for Sanctions Against Eleanor Ruffner and Stephen M Daniels                 12
documents in the trial comi's record in his Response to the Motion for No-

Evidence Summary Judgment when in fact Appellant only referred to one affidavit

and generally to "[ e]vidence supporting the Plaintiff's claims ... filed with the

Court.") CR 50. This distinction is essential since such vague general references to

the court's docket are inadequate for a Response to a motion for no-evidence

summary judgment. J.P. Farms v. Exxon Pipeline Co., 646 S.W.2d 544, 545 (Tex.

App.-Houston [1st Dist.] 1982, no writ)); (Appellant Br. 23).                 This issue is

discussed in further detail in Appellee's brief.

       27.    Appellant uses such misstatements to claim, among other things, that

Appellant refused to comply with Appellee's discovery requests. (Appellant Br.

4-5). At no time were these discovery requests served on Appellee. Appellant

merely continuously asserted in various unsworn-to pleadings that they were

served. CR 7; CR 36; CR 49. Appellee made Appellant aware of the failure to

serve Appellee (CR 27-28), but Appellant never bothered to attempt again to serve

Appellee with such requests and instead insisted that Appellee was served by

stating that the requests were sent and filing mail receipts bearing the incorrect

address with the trial court. 6

       28.    Appellant, with knowledge of these circumstances, has now claimed

as established fact that Appellee was served with discovery requests and refused to

6These filed mail receipts appear to be absent from the record. One would think Appellant
would have requested that they be included in the record had they not contradicted his claims.


Motion for Sanctions Against Eleanor Ruffner and Stephen M Daniels                         13
answer them.      (Appellant Br. 4-5).     Appellant is using this Court to slander

Appellee through this frivolous appeal by including such misstatements of the

underlying facts that cast Appellee in an unfavorable light to this Honorable Court

and the public.

D.    A poorly written brief raising no arguable points of error

      29.    The above points indicate that Appellant and/or Appellant's Attorney

have failed to provide arguable points of error in Appellant's brief. Appellant

makes three primary arguments in the brief: (1) an adequate time for discovery had

not passed prior to the hearing on the Motion for No-Evidence Summary

Judgment; (2) the Order on the Motion for No-Evidence Summary Judgment

improperly stated that it dismissed all parties and claims; and (3) Appellant raised

more than a scintilla of evidence as to each element of his DTPA claim. As the

above has demonstrated, each of these arguments is supported by misstatements of

the record, evidence that is improper on appeal or frivolous arguments that ignore

settled law or fail to cite crucial legal authority. See supra §§ A-C. No essential

argument of Appellant's brief is tenable.

       30.   Appellant has filed this appeal in bad faith. While bad faith need not

be shown for a motion under Rule 45, since the rule imposes "just damages," it is

relevant insofar as it establishes what remedy is just in response to Appellant's

egregious behavior. See Glassman v. Goodfriend, 347 S.W.3d 772, 782 (Tex.



Motion for Sanctions Against Eleanor Ruffner and Stephen M Daniels                14
App.-Houston [14th Dist.] 2011) (stating that a party's bad faith may be

considered in assessing the amount of just damages to award under Rule 45) (citing

Smith v. Brown, 51 S.W.3d 376, 381 (Tex. App.-Houston [1st Dist.] 2001)).

      31.    When representing himself at the trial level, Appellant consistently

filed ranting motions and responses accusing Appellee of outrageous behavior with

little or no supporting factual or legal suppmi.        See e.g., CR 35-38 (alleging

without any evidentiary support several dishonest acts. None of these allegations

are supported by exhibits, sworn to, or especially relevant to motion at issue).

Appellee expended substantial time, effort, and resources in responding to these

groundless accusations in his motions. See e.g., CR 27-28. Appellant's Attorney

has demonstrated similar behavior at the appellate stage of this litigation and seems

to believe that such is appropriate practice before this Court. While Appellant may

have sincerely (albeit mistakenly) believed that this behavior was appropriate when

representing himself pro se at the trial court level, Appellant's Attorney at the

appellate stage has no such excuse.

       32.    Instead, Appellant's Attorney attempts to disguise the Appellant

Briefs lack of necessary authority by citing several cases and other authority to

support basic legal propositions such as standards for summary judgment (See

(Appellant Br. 9-16, 19-22, 24-25)); however, when it comes to Appellant's more

outlandish claims, Appellant provides no authority justifying these arguments.



Motion for Sanctions Against Eleanor Ruffner and Stephen M Daniels                 15
Below are a few examples of Appellant's unsuppmied and outlandish factual

assertions, legal arguments, and requests:

             a.     Appellant's Attorney argues that the document entitled

             "Plaintiffs Amended Original Petition" and refened to as an

             "amendment" in three different places (CR 21) and treated as an

             amended pleading by the parties operated as a supplemental petition

             and was merely misnamed. (Appellant Br. 11-12). Appellant cites

             only Texas Rule of Civil Procedure 71 for misnamed pleadings and

             supplies no authority showing that the trial court should have

             interpreted a clearly-entitled amended pleading as anything other than

             an amended pleading. Jd.         Appellant cannot cite anywhere in the

             record where a judge in the trial court treated the amended pleading as

             anything other than an amended pleading.                Further Appellant's

             Attorney fails to explain why Appellant did not take issue to treatment

             of the pleading as an amended pleading in the trial court.

             b.     Appellant's Attorney argues that the discovery period under

             Level 2 does not begin until written discovery requests are served or

             an oral deposition is conducted. Id. at 17. Appellant cites a rule

             regarding the close of discovery, then makes assertions regarding




Motion for Sanctions Against Eleanor Ruffner and Stephen M Daniels                    16
             when discovery did or did not begin. Id. This severely misrepresents

             the law.

             c.     If the lower court judgment is affirmed, Appellant requests that

             the Court confirm that Appellant may open a new suit under the

             DTPA.ld. at 24-25. Appellant merely seeks another bite at the apple

             and asks for the Austin Court of Appeals to pre-empt any future trial

             judge frmn dismissing Appellant's next frivolous suit for res judicata

             reasons. Appellant's Attorney provides no real basis in law or fact for

             granting this request.

      33.    Without the above critical pieces, the pnmary arguments m

Appellant's Brief crumble and fall apart. While there is no requirement for every

statement in Appellant's brief to be supported by legal authority, Appellant's

method of citing only ancillary authority to support outlandish factual and legal

claims creates the illusion of a good faith brief that is in fact without merit on

central issues. In short, it was prepared and filed in bad faith. Such deception is

especially troubling as it not only commits sanctionable behavior, but then

attempts to bury it behind a wall of citations unhelpful to Appellant's pivotal

claims and argument.




Motion for Sanctions Against Eleanor Ruffner and Stephen M Daniels                17
                                   IV. CONCLUSION

      34.    It is unfortunate that Appellant's disappointment with the results of

his underlying case have led him to seek repeated unjustified judicial relief against

Appellee.    Regardless, Appellant has at no point demonstrated wrongdoing on

Appellee's part.    Instead, Appellant has sought frivolous judicial proceedings

against Appellee which have asserted much and uncovered nothing.               Now,

Appellant has employed Eleanor Ruffner to assist him in pursuing this frivolous

appeal against Appellee.

      35.    In hopes of being done with this matter sooner, Appellee did not

previously pursue monetary or other relief against Appellant other than dismissal

of his frivolous actions.     However, now that Appellant and his attorney have

insisted on prolonging this litigation and wasting the time and resources of the

Honorable Justices of this Court of Appeals, sanctions are more than warranted.

Glassman v. Goodfriend, 347 S.W.3d 772, 783 (Tex. App.-Houston [14th Dist.]

2011) ("No litigant has the right to put an opposing party to needless burden and

expense or to waste [the Court of Appeals'] time, which otherwise would be spent

on the important task of adjudicating valid disputes.").

       36.    Further, if sanctions are not imposed, Appellant will likely seek a

frivolous appeal to the Supreme Court of Texas and/or attempt to bring the same or

a similar frivolous action in a lower court, as he did against Gregory Canfield. See



Motion for Sanctions Against Eleanor Ruff'ner and Stephen M Daniels                18
(Appellant Br. 24-25); Supp. Clerk's Record at 77-88.                Such relentless re-

litigation is an abuse of the judicial system and a substantial waste of judicial and

party resources.

                                      V.PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellee prays that the Court:

      37.    Grant Appellee's Motion for Sanctions Against Eleanor Ruffner and

Stephen M Daniels.

      38.    Impose sanctions and "just damages" on Appellant and Appellant's

attorney in accordance with Texas Rule of Appellate Procedure 45 to include:

             a.     dismissing Appellant's appeal;

             b.     granting Appellee reasonable and necessary attorneys' fees in

                    the amount $5000.00 in preparation for defending this frivolous

                    appeal and preparing a Motion for Sanctions; and

             c.     any and all other relief as the Court deems Appellee is entitled.

                                                Respectfully submitted,

                                                BERTOLINO LLP

                                             By: Is/ Hiba Kazim
                                                Tony R. Bertolino
                                                Texas Bar No. 24038766
                                                Hiba Kazim
                                                Texas Bar No. 24076952
                                                823 Congress Ave.
                                                Suite 704
                                                Austin, Texas 78701


Motion for Sanctions Against Eleanor Ruffner and Stephen M Daniels                    19
                                               Tel: (512) 476-5757
                                               Fax: (512) 476-5758
                                               Email: info@belolaw.com

                                               Attorneys for Appellee,
                                               Tony R. Bertolino

                       CERTIFICATE OF CONFERENCE

      I certify that I spoke with Eleanor Ruffner, Appellant's Attorney, via phone
on April 8, 2015, regarding Appellant's position on the foregoing motion, and she
indicated that she would be opposed to the foregoing motion.

                                        Is/ Tony R. Bertolino
                                        Tony R. Bertolino

     I certify that I spoke with Eleanor Ruffner, Appellant's Attorney, via phone
on April 9, 2015, and she indicated that she would be opposed to the foregoing
motion.

                                         /s/ Hiba Kazim
                                         HibaKazim

                          CERTIFICATE OF SERVICE

      I certify that on April 9, 20 15 a true and correct copy of Motion for
Sanctions Against Eleanor Ruffner and Stephen M Daniels was served on the
following party by e-mail:

Eleanor Ruffner
The Law Office of Eleanor Ruffner, P.C.
1403 West Sixth Street
Austin, Texas 78703
(512) 913-7576
(512) 681-0800
eruffnerlaw@gmail.com
Attorney for Appellant
                                     /s/ Hiba Kazim
                                     HibaKazim



Motionfor Sanctions Against Eleanor Ruffner and Stephen M Daniels                20
Exhibit A
                                                                                                F!LE COPY




                                      COURT OF APPEALS
                                           'T'TTTRD
                                            i fill    DISTRI"T
                                                            \...., 0"
                                                                    T   'T'r'<T   A"
                                                                         i D.i\..1-L:J
                                           P 0 BOX 12547, AUSTIN, TEXAS 78711-2547
                                                 www.txcourts.gov/3rdcoa.aspx
                                                        (512) 463-1733

JEFF L ROSE. CHIEF JUSTICE                                                        JEFFREY D. KYLE, CLERK
DAVID PURYEAR, JUSTICE
BOB PEMBERTON, JUSTICE
MELISSA GOODWIN, JUSTICE
SCOTT K FIELD, JUSTICE
CINDY OLSON BOURLAND, JUSTICE
                                         January 22, 2015

Stephen M. Daniels                                      Mr. Tony R. Bertolino
8323 Clays Point                                        Bertolino LLP
San Antonio, TX 78250                                   823 Congress Avenue Suite 704
                                                        Austin, TX 78701
                                                        *DELIVERED VIA E-MAIL*


RE:      Court of Appeals Number:    03-14-00671-CV
         Trial Court Case Number:    D-1-GN-14-002146

Style:    Stephen M. Daniels
          v. Tony R. Bertolino



Dear Counsel:
      This Court received notice on January 22, 2015 that a reporter's record was not taken.
Accordingly, this Court will expect the appellant's briefto be filed on or before February 23, 2015.


                                                      Very truly yours,

                                                      JEFFREY D. KYLE, CLERK




                                                            Chris Knowles, Deputy Clerk


cc:      Ms. LaSonya Thomas
Exhibit B
                                                                                                               :SAN ANTONIO Offl(Sif;t-' I t:.U
                TBERTOLINO@BELOLA W.COM                                                                          22211 IH ~6-~71-CV
                                                                                                                               ;   ~ ~~1944889
                     HIBA KAZIM, EsQ.                                                                           THI~f!'(§t~~~~:lF APPEAU
                                                                                                             SAN ANTONIO, A~!fJ.&'::§7AS

                                                               BERTOLINOLLP
                   HKAziM@BELOLAW .COM
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                                                                            January 29, 2015

                    Court of Appeals                                                                    Via Electronic Filing
                    Third District of Texas
                    P.O. Box 12547
                    Austin, Texas 78711-2547

                                 Re:      Court of Appeals Number 03-14-00671-CV; Trial Court Case Number D-1-GN-
                                          14-002146; Stephen M Daniels v. Tony R. Bertolino


                     Dear Clerk of the Court:

                             I write in response to your letter dated January 22, 2015. In your letter, you indicated that
                     a reporter's record was not taken in trial court case No. D-1-GN-14-002146. However, after
                     further inquiry, an oral hearing did take place at the Trial Court of Travis County, Texas on
                     September 30, 2014.

                             We also found the court reporter that took the record for that hearing. Her name is Sheri
                     Linder and she was the court reporter for a visiting judge, Judge Gus Strauss. Ms. Linder's
                     contact information is P.O. Box 845, Lockhart, Texas, 78644, (512) 227-5001, and the cost for
                     the transcript is $175.00.

                             We also respectfully request that the Plaintiff, Stephen M. Daniels, obtain the transcript
                     for the hearing held in this matter on May 13, 2014, in the District Court of Bexar County, Cause
                     Number 2013CI19729. In that hearing, the Court Reporter was Kayleen Rivera and her phone
                     number is (210) 335-2081, and the cost for the transcript is $140.

                            I request that the Plaintiff-Appellant be required to make both transcripts part of the
                     Appellate Court's file.
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Page 2




                                                         Respectfully,




TRB/ra

 cc:                     Mr. Stephen M. Daniels (Via US. First Class Mail)

                         Client file
