                                                                                     ACCEPTED
                                                                                03-14-00671-CV
                                                                                        4379019
                                                                       THIRD COURT OF APPEALS
                                                                                 AUSTIN, TEXAS
                                                                            3/5/2015 8:54:16 AM
                                                                               JEFFREY D. KYLE
                                                                                          CLERK



        NO. 03-14-00671-CV                                      FILED IN
                                                         3rd COURT OF APPEALS
                                                             AUSTIN, TEXAS
                                                         3/5/2015 8:54:16 AM
                   IN THE THIRD COURT OF APPEALS
                                                           JEFFREY D. KYLE
                           AUSTIN, TEXAS                         Clerk




                        STEPHEN M. DANIELS,
                             Appellant,

                                   v.

                         TONY R. BERTOLINO,
                             Appellee.


On Appeal from the 250th Judicial District Court of Travis County, Texas
             Trial Court Cause No. D-1-GN-14-002146


                         BRIEF OF APPELLANT


                          Eleanor Ruffner
                      State Bar No. 24047034
             THE LAW OFFICE OF ELEANOR RUFFNER, P.C.
                       1403 West Sixth Street
                        Austin, Texas 78703
                    (512) 913-7576 (telephone)
                    (512) 681-0800 (facsimile)
                      eruffnerlaw@gmail.com

                       COUNSEL FOR APPELLANT

                    ORAL ARGUMENT REQUESTED
                 IDENTITY OF PARTIES AND COUNSEL



Plaintiff/Appellant:         Stephen M. Daniels

Trial Counsel:               Stephen M. Daniels (pro se)
                             8323 Clays Point
                             San Antonio, Texas 78257

Appellate Counsel:           Eleanor Ruffner
                             State Bar No. 24047034
                             eruffnerlaw@gmail.com
                             THE LAW OFFICE OF ELEANOR RUFFNER, PC.
                             1403 West Sixth Street
                             Austin, Texas 78703
                             (512) 913-7576
                             (512) 681-0800 (fax)



Defendant/Appellee:          Tony Bertolino

Trial & Appellate Counsel:   Tony Bertolino
                             State Bar No. 24038766
                             tbertolino@belolaw.com
                             Hiba Kazim
                             State Bar No. 27076952
                             hkazim@belolaw.com
                             BERTOLINO LLP
                             823 Congress Avenue, Suite 704
                             Austin, Texas 78701
                             (512) 476-5757
                             (512) 476-5758




APPELLANT’S BRIEF                                                     PAGE i
                                        TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL .............................................................i

TABLE OF CONTENTS .......................................................................................... ii

INDEX OF AUTHORITIES.....................................................................................vi

REFERENCES........................................................................................................... x

STATEMENT OF THE CASE .................................................................................xi

INTRODUCTION .................................................................................................. xii

STATEMENT REGARDING ORAL ARGUMENT ........................................... xiii

ISSUES PRESENTED............................................................................................xiv

         ISSUE NO. 1:

         The trial court’s no-evidence summary judgment order stated that it “finally
         disposes of all parties and all claims and is therefore final and appealable.”
         However, the summary judgment motion and the order were by their explicit
         language limited to only one of several theories of recovery. Was the trial
         court’s order erroneous?

         ISSUE NO. 2:

         A no-evidence motion for summary judgment was filed less than two months
         after the case was transferred to Travis County. Just three weeks earlier, the
         moving party had sought to avoid summary judgment by arguing that filing
         such a motion “without providing [him] an opportunity to conduct discovery”
         would deny him of his right to due process of law. Did the trial court abuse
         its discretion in making the threshold finding, twenty-three days later, that the
         no-evidence motion was filed after adequate time for discovery?




APPELLANT’S BRIEF                                                                                           PAGE ii
         ISSUE NO. 3:

         In his no-evidence motion for summary judgment, the movant challenged a
         few elements of the non-movant’s DTPA claim. Evidence on file addressed
         each of the challenged elements, directly and indirectly, but the trial court
         nonetheless granted summary judgment. Did the Plaintiff raise a scintilla of
         evidence on each of the elements of Plaintiff’s DTPA claims?

STATEMENT OF FACTS ........................................................................................ 1

         A.       APPELLANT, STEPHEN DANIELS, HIRES APPELLEE, TONY BERTOLINO,
                  TO FILE A MALPRACTICE LAWSUIT AND PAYS BERTOLINO $9,700. ....... 1

         B.       BERTOLINO TAKES THE MONEY AND DOES NOTHING. ........................... 2

         C.       MR. DANIELS’S SUIT IS PREDICTABLY DISMISSED. ................................ 2

         D.       MR. DANIELS SEEKS JUDICIAL ASSISTANCE TO OBTAIN
                  REIMBURSEMENT FROM BERTOLINO. ..................................................... 3

         E.       BERTOLINO REFUSES TO RESPOND TO DISCOVERY BUT NONETHELESS
                  FILES A NO-EVIDENCE SUMMARY JUDGMENT MOTION.......................... 5

         F.       THE COURT SIGNS AN OVERBROAD ORDER DISMISSING MR. DANIELS’S
                  ENTIRE SUIT. .......................................................................................... 6

SUMMARY OF ARGUMENT ................................................................................. 8

ARGUMENT ............................................................................................................. 9

         A.       THE FINAL ORDER IMPROPERLY DISPOSED OF THE ENTIRE LAWSUIT. ... 9

                  1.       Summary Judgment Orders Can Only Grant Relief on the
                           Specific Grounds Presented in the Motion. ................................ 9

                  2.       An Overbroad Order Should Be Reversed and Remanded. ..... 10



APPELLANT’S BRIEF                                                                                             PAGE iii
                  3.       Judge Strauss’s Order Purported to Be Final, But the Motion
                           Challenged Only Mr. Daniels’s DTPA Claims. ....................... 10

                  4.       Mr. Daniels Had Asserted Several Other Theories of Recovery
                           in His Pleadings. ....................................................................... 11

         B.       THE SUMMARY JUDGMENT MOTION WAS UNTIMELY AND
                  IMPROPER. ............................................................................................ 13

                  1.       Whether the Parties Had Adequate Time for Discover Is
                           Generally Within the Discretion of the Trial Court. ................. 14

                  2.       The Facts and Circumstances in This Case Show that the Trial
                           Court Abused Its Discretion...................................................... 15

                  3.       Bertolino Himself, Just Days Before, Had Asserted that
                           Summary Judgment Would Deprive the Litigants of Due Process
                           of Law. ...................................................................................... 18

                  4.       Permitting a No-Evidence Summary Judgment Prior to
                           Discovery Defeats the Purpose of Summary Judgment. .......... 19

                  5.       Allowing Such Motions Will Allow Defendants to Manipulate
                           the Discovery Process. .............................................................. 20

         C.       THE RECORD CONTAINED SUFFICIENT EVIDENCE TO DEFEAT SUMMARY
                  JUDGMENT. ........................................................................................... 21

                  1.       Plaintiff Is a Consumer who Incurred Damages. ...................... 22

                  2.       Defendant Knew and Withheld Information Concerning His
                           Services, Intending to Induce and in Fact Inducing Plaintiff into
                           a Transaction. ............................................................................ 23

         D.       IN THE ALTERNATIVE, MR. DANIELS SHOULD RETAIN THE RIGHT TO
                  ASSERT ADDITIONAL DTPA CLAIMS AGAINST BERTOLINO. ................ 24

CONCLUSION ........................................................................................................ 25

APPELLANT’S BRIEF                                                                                              PAGE iv
CERTIFICATE OF COMPLIANCE ....................................................................... 26

CERTIFICATE OF SERVICE ................................................................................ 26

APPENDIX .............................................................................................................. 27




APPELLANT’S BRIEF                                                                                              PAGE v
                                   INDEX OF AUTHORITIES


CASES

Akhter v. Schlitterbahn Beach Resort Mgmt., LLC
      No. 03-13-00117-CV, 2013 Tex. App. LEXIS 10522, 2013 WL 4516130
      (Tex. App.—Austin August 22, 2013, no pet.) ............................................. 15

Allen v. Albin
      97 S.W.3d 655 (Tex. App.—Waco 2002, no pet.) ........................................ 16

Casso v. Brand
     776 S.W.2d 551 (Tex. 1989) ......................................................................... 19

Chessher v. Southwestern Bell Tel. Co.
     658 S.W.2d 563 (Tex. 1983) ........................................................................... 9

City of Houston v. Clear Creek Basin Auth.
       589 S.W.2d 671 (Tex. 1979) ......................................................................... 19

Clemons v. Tex. Concrete Materials, Ltd.
     2010 Tex. App. LEXIS 8394, No. 07-09-0032-CV (Tex. App.—Amarillo
     October 19, 2010, no pet.) ............................................................................. 16

D.R. Horton-Tex. Ltd. v. Savannah Props. Assocs., L.P.
      416 S.W.3d 217 (Tex. App.—Fort Worth 2013, no pet.) ............................. 15

Fort Brown Villas III Condo. Ass’n v. Gillenwater
      285 S.W.3d 879 (Tex. 2009) ......................................................................... 19

Iliff v. Iliff
         339 S.W.3d 74 (Tex. 2011) ........................................................................... 14

In re Colonial Pipeline Co.
       968 S.W.2d 938 (Tex. 1998) (orig. proceeding) ........................................... 19



APPELLANT’S BRIEF                                                                                     PAGE vi
In re Guardianship of Patlan
       350 S.W.3d 876 (Tex. App.—San Antonio 2011, no pet.) ........................... 15

King Ranch, Inc v. Chapman
      118 S.W.3d 742 (Tex. 2003) ......................................................................... 21

Lehmann v. Har-Con Corp.
     39 S.W.3d 191 (Tex. 2001) .....................................................................10, 11

Merrell Dow Pharm., Inc. v. Havner
     953 S.W.2d 706 (Tex. 1997) ......................................................................... 22

McConnell v. Southside Indep. Sch. Dist.
    858 S.W.2d 337 (Tex. 1993) ..................................................................... 9, 12

McInnis v. Mallia
     261 S.W.3d 197 (Tex. App.—Houston [14th Dist.] 2010, pet.
     denied) ...............................................................................................14, 15, 19

McKillip v. Employers Fire Ins. Co.
     932 S.W.2d 268 (Tex. App.—Texarkana 1996, no writ) .............................. 12

Natividad v. Alexsis, Inc.
      875 S.W.2d 695 (Tex. 1994) ......................................................................... 21

Restaurant Teams Int’l, Inc. v. MG Secs. Corp.
      95 S.W.3d 336 (Tex. App.—Dallas 2002 no pet.) ........................................ 15

Samlowski v. Wooten
     332 S.W.3d 404 (Tex. 2011) ...................................................................14, 20

Sanders v. Capitol Area Council, BSA
     930 S.W.2d 905 (Tex. App.—Austin 1996, no pet.) ................................. 9, 12

Schlumberger Well Surveying Corp. v. Nortex Oil and Gas Corp.
     435 S.W.2d 854 (Tex. 1968) ......................................................................... 16



APPELLANT’S BRIEF                                                                                        PAGE vii
Spoljaric v. Percival Tours, Inc.
      708 S.W.2d 432 (Tex. 1986) ................................................................... 15-16

Tex. Dep’t of Parks & Wildlife v. Miranda
      133 S.W.3d 217 (Tex. 2004) ......................................................................... 19

Thornbrough v. Columbus & Greenville R.R. Co.
     760 F.2d 633 (5th Cir. 1985) .......................................................................... 16

Tower Contracting Co. v. Flores
     302 S.W.2d 396 (Tex. 1957) ......................................................................... 24

Turner v. Franklin
     325 S.W.3d 771 (Tex. App.—Dallas 2010, pet. denied) .............................. 16

Valence Operating Co. v. Dorsett
      164 S.W.3d 656 (Tex. 2005) ......................................................................... 22

Womack v. Berry
    291 S.W.2d 677 (Tex. 1956) ......................................................................... 14


STATUTES

TEX. BUS. & COM. CODE §17.46 ........................................................................24, 25

TEX. R. APP. P. 9 ...................................................................................................... 26

TEX. R. CIV. P. 63 ..................................................................................................... 24

TEX. R. CIV. P. 64 ..................................................................................................... 11

TEX. R. CIV. P. 65 ..................................................................................................... 11

TEX. R. CIV. P. 69 ..................................................................................................... 12

TEX. R. CIV. P. 71 ..................................................................................................... 12


APPELLANT’S BRIEF                                                                                            PAGE viii
TEX. R. CIV. P. 166a .................................................................................9, 13, 19, 20

TEX. R. CIV. P. 190 .............................................................................................17, 20

TEX. DISC. R. PROF. COND. 1.02 .............................................................................. 25


OTHER AUTHORITIES

Thomas R. Phillips, Texas Supreme Court Update, 60 TEX. B.J. 858 (1997) ... 20-21




APPELLANT’S BRIEF                                                                                          PAGE ix
                               REFERENCES

CR __             Clerk’s Record (by page number)

SCR __            Supplemental Clerk’s Record (by page number)

Appx. __, p. __   Appendix (by tab and page number)




APPELLANT’S BRIEF                                                PAGE x
                          STATEMENT OF THE CASE

Nature of the Case:       After Appellant Tony Bertolino (“Bertolino”) took $9,700
                          from Appellee Stephen M. Daniels (“Mr. Daniels”) to
                          pursue litigation against Gregory Canfield, Bertolino
                          conducted no discovery and secured no experts, resulting
                          in dismissal of the suit against Canfield. Mr. Daniels sued
                          Bertolino for common law fraud, fraudulent inducement,
                          DTPA violations, misrepresentation, and quantum
                          meruit/unjust enrichment.

Trial Court:              250th District Court of Travis County, Texas
                          The Honorable Gus Strauss, Visiting Judge, presiding

Trial Court Disposition: Motion for No-Evidence Summary Judgment granted on
                         Plaintiff’s DTPA claim; order stated that it “finally
                         disposes of all parties and all claims and is therefore final
                         and appealable.”




APPELLANT’S BRIEF                                                            PAGE xi
                                 INTRODUCTION

      When Stephen Daniels lost a judgment in a case he thought he had won, he

asked attorney Tony Bertolino for help. Bertolino proposed that Mr. Daniels pay

him $10,000 up front, assign him 17.5% of his recovery, and pay any additional fees

and expenses he incurred. To induce Mr. Daniels to agree, Bertolino told him he

could recover the value of the judgment plus the fees Mr. Daniels had paid his

attorney in the underlying suit. The damages Bertolino touted were more than Mr.

Daniels had hoped. Once he agreed, however, Bertolino made zero effort to deliver.

Because Bertolino did not earn his fee, Mr. Daniels sued to get that money back,

asserting several alternative theories of recovery. Before discovery could begin in

earnest, Bertolino filed a no-evidence summary judgment. Such a motion was

improper at that point because, by Bertolino’s own assessment, adequate time for

discovery had not passed. In any event, the limited record at that point did contain

more than a scintilla of evidence on each of the elements of the Deceptive Trade

Practices Act claim challenged by Bertolino’s motion. Nonetheless, the trial court

improvidently granted the motion, issuing an order that claimed to be final even

though most of Mr. Daniels’s claims were not addressed by the motion. Mr. Daniels

therefore seeks reversal of the order and the summary judgment and requests that

this Court remand his suit to the trial court to proceed to disposition on the merits.


APPELLANT’S BRIEF                                                             PAGE xii
              STATEMENT REGARDING ORAL ARGUMENT

      This appeal follows from the abrupt termination of a pending lawsuit in the

midst of competing motions for summary judgment. Resolution of this appeal

requires the Court’s consideration of multiple issues and claims against Appellee.

Appellants believe oral argument would be helpful in the Court’s determination of

these issues and crafting an opinion that clarifies the status of the litigation upon

remand to the trial court.




APPELLANT’S BRIEF                                                          PAGE xiii
                              ISSUES PRESENTED

ISSUE NO. 1:

The trial court’s no-evidence summary judgment order stated that it “finally disposes
of all parties and all claims and is therefore final and appealable.” However, the
summary judgment motion and the order were by their explicit language limited to
only one of several theories of recovery. Was the trial court’s order erroneous?

ISSUE NO. 2:

A no-evidence motion for summary judgment was filed less than two months after
the case was transferred to Travis County. Just three weeks earlier, the moving party
had sought to avoid summary judgment by arguing that filing such a motion “without
providing [him] an opportunity to conduct discovery” would deny him of his right
to due process of law. Did the trial court abuse its discretion in making the threshold
finding twenty-three days later that the no-evidence motion was filed after adequate
time for discovery?

ISSUE NO. 3:

In his no-evidence motion for summary judgment, the movant challenged a few
elements of the non-movant’s DTPA claim. Evidence on file addressed each of the
challenged elements, directly and indirectly, but the trial court nonetheless granted
summary judgment. Did the Plaintiff raise a scintilla of evidence on each of the
elements of Plaintiff’s DTPA claims?




APPELLANT’S BRIEF                                                            PAGE xiv
                           STATEMENT OF FACTS

A.    APPELLANT, STEPHEN DANIELS, HIRES APPELLEE, TONY BERTOLINO,                TO
      FILE A MALPRACTICE LAWSUIT AND PAYS BERTOLINO $9,700.

      Mr. Daniels has had a streak of bad luck with attorneys. An acquaintance of

his, Ms. Kanu, borrowed some money and failed to repay him. SCR 114. He

retained the services of Gregory Canfield, an attorney in San Antonio, to pursue his

claims against Ms. Kanu. SCR 114. Although Canfield initially secured a judgment

of $9,875.95 plus attorney fees, Ms. Kanu filed a motion for new trial. SCR 36-37.

Canfield, for reasons that remain unexplained, agreed to the new trial. SCR 37.

Canfield then withdrew from the representation, and Mr. Daniels, proceeding pro se

against a represented party, did not prevail at the new trial. SCR 114-115.

      Dissatisfied with that outcome, Mr. Daniels consulted Tony Bertolino

regarding whether Canfield’s actions and omissions met the applicable standards for

legal malpractice. CR 10; see also Appx. D. At this consultation, for which Mr.

Daniels paid $200, Bertolino inflated Mr. Daniels’s expectations of recovery beyond

merely the judgment that Mr. Canfield did not defend to include thousands of dollars

more. CR 10; see also Appx. D. Bertolino then prepared an engagement agreement,

and pursuant to the terms of that agreement, Mr. Daniels pays Bertolino another

$9,500 over the next twelve months. CR 10-11; SCR 18-21; see also Appx. D.




APPELLANT’S BRIEF                                                             PAGE 1
B.    BERTOLINO TAKES THE MONEY AND DOES NOTHING.

      On August 21, 2012, Bertolino filed suit against Canfield on behalf of Mr.

Daniels, asserting claims for breach of contract, legal malpractice, breach of

fiduciary duties, negligent misrepresentation, and quantum meruit. SCR 67-73.

Bertolino then proceeded to do nothing else to prosecute Mr. Daniels’s claims. SCR

35. Bertolino, whose law firm website advertises that the firm’s “attentiveness” sets

them apart from other firms, conducted no discovery and did not look for the

necessary expert witness to support Mr. Daniels’s claims. SCR 35; Appx. D, p. 2.

C.    MR. DANIELS’S SUIT IS PREDICTABLY DISMISSED.

      Unsurprisingly, Canfield then files for a No-Evidence Summary Judgment

Motion against Mr. Daniels. SCR 114-118. At a court hearing on that motion on

March 1, 2013, the trial court learned that Bertolino had done nothing to advance

Mr. Daniels’s case – “no depositions, no discovery, nothing.” SCR 35; see also

Appx. F, G. Bertolino sought and obtained a continuance, secured some written

discovery, and took a deposition. SCR 36; see also Appx. F. However, Bertolino

still failed to secure an expert, despite being explicitly advised by defense counsel

that such an expert was necessary. SCR 36; see also Appx. F, G.

      Therefore, at the follow-up hearing on Canfield’s No-Evidence Motion for

Summary Judgment on April 15, 2013, the judge was not sympathetic to Bertolino’s



APPELLANT’S BRIEF                                                            PAGE 2
failure to obtain an expert as required. SCR 42; see also Appx. F. Bertolino,

however, was not there to listen to the judge’s admonishments or defend his strategy

for pursuing his client’s case because did not show up at the hearing. SCR 31; see

also Appx. F. Trevor Young, the attorney who did appear on Mr. Daniels’s behalf,

was a recent law school graduate who had been licensed less than six months. In the

attorneys’ arguments to the court, Mr. Young acknowledged that “an expert is

generally necessary to instruct a jury on the issues of standard of care and proximate

cause.” SCR 42; see also Appx. F, G. The judge then promptly granted the motion.

SCR 42; see also Appx. F.

      After losing the summary judgment motion and therefore any chance of

recovery, Bertolino then sent Mr. Daniels an invoice for more than $5,600 over and

above the $9,700 Mr. Daniels had already paid. CR 11; see also Appx. D.

D.    MR. DANIELS SEEKS JUDICIAL ASSISTANCE           TO   OBTAIN REIMBURSEMENT
      FROM BERTOLINO.

      By May of 2013, Bertolino had taken $9,700 from Mr. Daniels, sat idle,

irrevocably lost Mr. Daniels’s case because of his failure to secure an expert as

advised by the court and by opposing counsel, and nonetheless had began looking to

collect another $5,600. Mr. Daniels therefore filed suit against Bertolino, electing

to proceed pro se. CR 12-17. The suit was initiated in Bexar County on December

2, 2013. CR 12. Mr. Daniels’s Original Petition asserted multiple alternative

APPELLANT’S BRIEF                                                             PAGE 3
theories of recovery against Bertolino. CR 12-17. Under the section heading

“Statement of Claims,” Mr. Daniels set out three sets of legal theories. CR 15-16.

The first, in Section A., included common law fraud, fraudulent inducement,

deceptive acts, and unconscionable acts. CR 15. The second, in Section B., set out

a claim for false representation on the basis of the statements Bertolino made

regarding the strength of Mr. Daniels’s claim against Canfield. CR 15. The third,

in Section C., was for unjust enrichment and quantum meruit on the grounds that

Bertolino was unjustly enriched by the fees Mr. Daniels paid him because Bertolino

failed to provide the work he promised Mr. Daniels. CR 15-16.

      Bertolino answered and moved to transfer venue to Austin. That motion was

granted on May 13, 2014, and Travis County received the transferred file on or about

July 1, 2014. CR 18-19.

      On July 10, 2014, Mr. Daniels filed a one-page supplement to his pleadings

to clarify that he was seeking to recover under the DTPA for the misrepresentations

Bertolino made. CR 21. Bertolino did not file any special exceptions at any point

during the pendency of this litigation or otherwise seek judicial clarification of Mr.

Daniels’s pleadings or claims.




APPELLANT’S BRIEF                                                             PAGE 4
E.    BERTOLINO REFUSES TO RESPOND TO DISCOVERY BUT NONETHELESS FILES
      A NO-EVIDENCE SUMMARY JUDGMENT MOTION.

      Mr. Daniels served discovery on Bertolino, but Bertolino failed to respond.

CR 7; CR 36; CR 49; SCR 46. Instead, on August 28, 2014 – less than two months

after the case had been on the Travis County docket – Bertolino filed his No-

Evidence Motion for Summary Judgment and Notice of Hearing. CR 46-47.

Specifically, Bertolino contended that there was no evidence that:

              Mr. Daniels is a consumer that incurred economic
               damages or damages or mental anguish;

              Bertolino knew information concerning goods or
               services at the time of the transaction;

              Bertolino withheld the information;

              Bertolino intended to induce the consumer into a
               transaction; and

              Mr. Daniels would not have entered into the transaction
               had the withheld information been disclosed.

CR 46-47. At this point in the Bertolino litigation, there was no docket control order

or scheduling order governing the pre-trial deadlines.

      In his response, Mr. Daniels noted that Bertolino had failed to respond to

discovery. CR 49. Mr. Daniels also referred the court to the documents already on

file with the court, which by this point included (by way of example only):

              Mr. Daniels’s affidavit (CR 10-11; Appx. D);


APPELLANT’S BRIEF                                                             PAGE 5
             Bertolino’s verified motion (CR 24-34; Appx. E);

             The transcript from the hearing in the Canfield
              litigation (SCR 32-43; Appx. F); and

             The affidavit of Fred. E. Davis, opposing counsel in the
              Canfield litigation (SCR 63-66; Appx. G).
CR 49-51. Collectively, these documents constituted more than a scintilla of

evidence in support of each of the elements that Bertolino identified in his no-

evidence motion for summary judgment. However, the judge disagreed, and by

letter on September 30, 2014, he notified the parties that he would be granting

Bertolino’s motion. CR 54.

F.    THE COURT SIGNS      AN   OVERBROAD ORDER DISMISSING MR. DANIELS’S
      ENTIRE SUIT.

      The court signed its first order on October 21, 2014. CR 68. The order stated

that the motion was properly filed after adequate time for discovery and that Mr.

Daniels could not produce evidence raising a genuine issue of material fact on the

elements of his DTPA claims against Bertolino and that Bertolino’s motion would

therefore be granted. CR 68. However, the court included in the order the following

language:

            This judgment finally disposes of all parties and all claims
            and is therefore final and appealable.

CR 68. This order was entered on October 23, 2014. CR 68.



APPELLANT’S BRIEF                                                          PAGE 6
      For reasons that remain unclear, the court signed a second order on October

30, 2014. SCR 122. This order differed from the October 23 order in two major

respects. CR 68; SCR 122. First, it stated that the DTPA claims were dismissed

with prejudice. CR 68; SCR 122. Second, the first paragraph made no mention of

the specific claims that were the subject of Bertolino’s motion, but the phrase “as to

DTPA” was handwritten and inserted. CR 68; SCR 122. However, as with the

October 23 order, the October 30 order stated:

             This judgment finally disposes of all parties and all claims
             and is therefore final and appealable.

SCR 122. The second order was entered on the day it was signed. SCR 122.

      This appeal followed.




APPELLANT’S BRIEF                                                             PAGE 7
                          SUMMARY OF ARGUMENT

        Mr. Daniels had asserted several theories of recovery against Bertolino, but

Bertolino’s no-evidence summary judgment challenged only one – his DTPA claim

for misrepresentation. Therefore, when the trial court ruled on the motion but issued

an order that purported to fully and finally dispose of all claims as to all parties, the

trial court erroneously terminated Mr. Daniels’s case. The matter must therefore be

reversed and remanded for further proceedings on Mr. Daniels’s remaining claims.

        Moreover, the court abused its discretion in even deciding the order on its

merits by finding that adequate time for discovery had elapsed. Discovery had not

even begun in earnest. Bertolino had claimed only twenty-three days earlier, in a

response to Mr. Daniels’s traditional motion for summary judgment, that the lack of

time for discovery in the case meant that consideration of Mr. Daniels’s motion

would constitute a denial of due process. Finally, despite Bertolino’s best efforts to

prevent discovery on the claims against him, Mr. Daniels did have sufficient

evidence on the record to defeat summary judgment on the challenged elements of

his DTPA claim. The grant of summary judgment should therefore be reversed as

well.




APPELLANT’S BRIEF                                                                PAGE 8
                                  ARGUMENT

A.    THE FINAL ORDER IMPROPERLY DISPOSED OF THE ENTIRE LAWSUIT.

      1.     Summary Judgment Orders Can Only Grant Relief on the Specific
             Grounds Presented in the Motion.

      The order entered by Judge Strauss could not legally dispose of all parties and

all claims because the motion for summary judgment and the order addressed only

Mr. Daniel’s DTPA claims. A motion for summary judgment must “state the

specific grounds therefore.” TEX. R. CIV. P. 166a(a); Sanders v. Capitol Area

Council, BSA, 930 S.W.2d 905, 910 (Tex. App.—Austin 1996, no pet.). In the case

of no-evidence summary judgments in particular, “[t]he motion must state the

elements as to which there is no evidence.” TEX. R. CIV. P. 166a(i); McConnell v.

Southside Indep. Sch. Dist., 858 S.W.2d 337, 338 (Tex. 1993) (“grounds for

summary judgment must be expressly presented in the summary judgment motion

itself”); Sanders, 930 S.W.2d at 910. Moreover, the order on any motion for

summary judgment is limited to the specific grounds for the motion. In fact, “[i]t is

axiomatic that one may not be granted judgment as a matter of law on a cause of

action not addressed in a summary judgment proceeding.” Chessher v. Southwestern

Bell Tel. Co., 658 S.W.2d 563, 564 (Tex. 1983) (reversing and remanding case in

which summary judgment was granted on only one of the plaintiff’s four causes of

action).

APPELLANT’S BRIEF                                                            PAGE 9
      2.     An Overbroad Order Should Be Reversed and Remanded.

      An order that rules on matters outside the summary judgment motion and

hearing is overbroad and therefore erroneous. In cases in which “the judgment

grants more relief than requested, it should be reversed and remanded.” Lehmann v.

Har-Con Corp., 39 S.W.3d 191, 202 (Tex. 2001); see also id. at 204 (“Granting

more relief than the movant is entitled to makes the order reversible”) and Chessher,

658 S.W.2d at 564. By way of example, the Texas Supreme Court has explained:

             If a defendant moves for summary judgment on only one
             of four claims asserted by the plaintiff, but the trial court
             renders judgment that the plaintiff take nothing on all
             claims asserted, the judgment is final – erroneous, but
             final.

Lehmann, 39 S.W.3d at 200.

      3.     Judge Strauss’s Order Purported to Be Final, But the Motion
             Challenged Only Mr. Daniels’s DTPA Claims.

      The Supreme Court’s example in Lehmann is precisely what happened here.

Mr. Daniels had included alternative theories of recovery in his pleadings in addition

to his DTPA claims – specifically, common law fraud, fraudulent inducement,

misrepresentation, and quantum meruit or unjust enrichment. CR 15-16. Bertolino’s

motion for summary judgment did not challenge any of those causes of action. CR

46-47. The greatest relief the court could have granted was summary judgment in



APPELLANT’S BRIEF                                                            PAGE 10
Bertolino’s favor on Mr. Daniels’s DTPA claims because the alternative theories of

recovery were not before the court.

      However, Judge Strauss included language in his order stating that he was

“finally dispos[ing] of all parties and all claims” and thus his intent to enter a final

order was clear. As the Texas Supreme Court has stated:

               [T]he language of an order or judgment can make it final,
               even though it should have been interlocutory, if that
               language expressly disposes of all claims and all parties.

Lehmann, 39 S.W.3d at 200. Dismissing Mr. Daniels’s suit in its entirety was

erroneous; therefore, this Court should reverse and remand the matter for further

proceedings.

      4.       Mr. Daniels Had Asserted Several Other Theories of Recovery in
               His Pleadings.

      Bertolino may have improperly focused only on Mr. Daniels’s “amended”

pleading, perhaps believing that Mr. Daniels effectively nonsuited his alternative

theories of recovery by not including them in the later “amended” pleading.

However, Mr. Daniels’s “amended” pleading was merely misnamed. It was not truly

an amended pleading, which is operates as a substitute for the prior pleading and

should be “entire and complete in itself.” TEX. R. CIV. P. 64 and 65. Rather, it

operated as a supplemental pleading, which does not “repeat allegations formerly

pleaded further than is necessary as an introduction” and operates with the original

APPELLANT’S BRIEF                                                              PAGE 11
petition to “constitute separate and distinct parts of the pleadings of each party.”

TEX. R. CIV. P. 69.

      Mr. Daniels’s Original Petition was a six-page document containing each of

the essential parts of a petition. CR 12-17. The “amended” petition, on the other

hand, contained only the parties’ identity and the assertion that Mr. Daniels was also

seeking relief under the DTPA. CR 21. Clearly the subsequent pleading was a Rule

69 supplement, not a true amended petition. As such, the court should have

“treat[ed] the plea or pleading as if it had been properly designated” as required by

TEX. R. CIV. P. 71.

      At no point did Bertolino challenge the pleadings, request special exceptions

to clarify Mr. Daniels’s causes of action, or otherwise secure a ruling that the

supplemental pleading’s DTPA claims were the only live claims in the litigation.

Moreover, Mr. Daniels was under no duty to object to Bertolino’s failure to include

the other causes of action he pled but that Bertolino excluded from his motion.

McConnell, 858 S.W.2d at 338; Sanders, 930 S.W.2d at 910 (“A nonmovant . . .

does not have a duty to except to a ground not presented in the motion but which the

movant might have relied on as a ground for summary judgment”); McKillip v.

Employers Fire Ins. Co., 932 S.W.2d 268, 271 (Tex. App.—Texarkana 1996, no

writ). Finally, the parties continued their motion practice after the hearing and the


APPELLANT’S BRIEF                                                            PAGE 12
judge’s letter order, but before the order giving rise to this appeal, strongly indicating

that the parties did not believe that the summary judgment that Bertolino secured

disposed of the litigation in its entirety. CR 55-61.

      Because the trial court erroneously granted summary judgment on claims not

identified in Bertolino’s motion for summary judgment, Appellant Stephen M.

Daniels respectfully requests that this Court reverse the trial court’s dismissal of his

non-DTPA claims and remand for further proceedings.

B.    THE SUMMARY JUDGMENT MOTION WAS UNTIMELY AND IMPROPER.

      1.     Whether the Parties Had Adequate Time for Discover Is Generally
             Within the Discretion of the Trial Court.

      The Court abused its discretion in making the threshold determination that

adequate time for discovery had elapsed. A party may move for summary judgment

under TEX. R. CIV. P. 166a(i) only “after adequate time for discovery.” The official

comment to the rule states:

             Paragraph (i) authorizes a motion for summary judgment
             based on the assertion that, after adequate opportunity for
             discovery, there is no evidence to support one or more
             specified elements of an adverse party’s claim or defense.
             A discovery period set by pretrial order should be
             adequate opportunity for discovery unless there is a
             showing to the contrary, and ordinarily a motion under
             paragraph (i) would be permitted after the period but not
             before.



APPELLANT’S BRIEF                                                               PAGE 13
(Emphasis added.) An appellate court “review[s] a trial court’s determination that

there has been an adequate time for discovery on a case-by-case basis, under an

abuse-of-discretion standard.” McInnis v. Mallia, 261 S.W.3d 197, 201 (Tex.

App.—Houston [14th Dist.] 2010, pet. denied). The trial court does not have

unlimited discretion but instead “is required to exercise a sound and legal discretion

within limits created by the circumstances of the particular case.” Womack v. Berry,

291 S.W.2d 677, 683 (Tex. 1956); see also Iliff v. Iliff, 339 S.W.3d 74, 81 (Tex.

2011).   A trial court “abuses its discretion when it renders an arbitrary and

unreasonable decision lacking support in the facts or circumstances of the case” or

“when it acts in an arbitrary or unreasonable manner without reference to guiding

rules or principles.” Samlowski v. Wooten, 332 S.W.3d 404, 410 (Tex. 2011).

      Some courts, including this Court, have identified the following nonexclusive

factors relevant to determining whether the trial court permitted adequate time for

discovery:

             (1) The nature of the case;

             (2) The nature of the evidence necessary to controvert the
                 no-evidence motion;

             (3) The length of time the case was active;

             (4) The amount of time the no-evidence motion was on
                 file;



APPELLANT’S BRIEF                                                            PAGE 14
               (5) Whether the movant had requested stricter deadlines
                   for discovery;

               (6) The amount of discovery that already had taken place;
                   and

               (7) Whether the discovery deadlines in place were specific
                   or vague.

Akhter v. Schlitterbahn Beach Resort Mgmt., LLC, No. 03-13-00117-CV, 2013 Tex.

App. LEXIS 10522, 2013 WL 4516130, *7 (Tex. App.—Austin August 22, 2013,

no pet.) (citing Restaurant Teams Int’l, Inc. v. MG Secs. Corp., 95 S.W.3d 336, 339

(Tex. App.—Dallas 2002 no pet.)); McInnis, 261 S.W.3d at 200 (Tex. App.—

Houston [14th Dist.] 2008, no pet.); D.R. Horton-Tex. Ltd. v. Savannah Props.

Assocs., L.P., 416 S.W.3d 217, 223 (Tex. App.—Fort Worth 2013, no pet.); In re

Guardianship of Patlan, 350 S.W.3d 876, 884 (Tex. App.—San Antonio 2011, no

pet.).

         2.    The Facts and Circumstances in This Case Show that the Trial
               Court Abused Its Discretion.

         None of the above factors support a finding in this case that Mr. Daniels had

been afforded adequate time for discovery. The claims Mr. Daniels had asserted

against Bertolino were comparatively fact-specific, many of which require

investigation into Bertolino’s intent and knowledge. See, e.g., Spoljaric v. Percival

Tours, Inc., 708 S.W.2d 432, 435 (Tex. 1986) (“Since intent to defraud is not



APPELLANT’S BRIEF                                                            PAGE 15
susceptible to direct proof, it invariably must be proven by circumstantial evidence.

‘Slight circumstantial evidence’ of a fraud . . . is sufficient to support a finding of

fraudulent intent.”) (citations omitted); Schlumberger Well Surveying Corp. v.

Nortex Oil and Gas Corp., 435 S.W.2d 854, 858 (Tex. 1968) (because a civil

conspiracy turns on issues of intent, “proof of a conspiracy may be, and usually must

be made by circumstantial evidence”); Allen v. Albin, 97 S.W.3d 655, 664-65 (Tex.

App.—Waco 2002, no pet.) (reversing summary judgment on the grounds that a jury

would be entitled to make an inference from a conversation to support claim that a

dog owner knew that her dog had dangerous propensities); Clemons v. Tex. Concrete

Materials, Ltd., 2010 Tex. App. LEXIS 8394, No. 07-09-0032-CV, *12 (Tex.

App.—Amarillo October 19, 2010, no pet.) (reversing and remanding summary

judgment, citing Thornbrough v. Columbus & Greenville R.R. Co., 760 F.2d 633,

640 (5th Cir. 1985), and stating that summary judgment inappropriate to resolve

claims involving “nebulous questions of motivation and intent”); Turner v. Franklin,

325 S.W.3d 771, 782-83 (Tex. App.—Dallas 2010, pet. denied) (noting that

“because issues of intent are usually best left to the trier of fact to resolve based on

all the evidence and surrounding circumstances, determining that issue by summary

judgment usually will be inappropriate”).        In fact, three of the five elements

challenged in the motion were Bertolino’s knowledge, whether he withheld


APPELLANT’S BRIEF                                                              PAGE 16
information, and his intent in doing so. CR 46. Challenging those elements requires

either the deposition of Bertolino or a substantial amount of circumstantial evidence,

if not both.

      When Bertolino filed his motion, the matter had been on the Travis County

District Court docket for less than two months. CR 18-19; CR 46-48. Discovery

was on hold prior to the transfer to Travis County because of Bertolino’s pending

motion to transfer venue.    At the time of the hearing on Bertolino’s no-evidence

motion, the motion had been on file for just over a month. Although Mr. Daniels

had propounded discovery on Bertolino, he had refused to answer. CR41; CR 49.

      The case had been filed as a Level 2 case pursuant to Rule 190.3, which fixes

the end of the discovery period as either thirty days before trial or nine months after

the date of the first oral deposition or the due date of the first response to written

discovery. CR 12; TEX. R. CIV. P. 190.3(b)(1)(B). No trial date had been set, and

no party had taken a deposition. Bertolino has explained his failure to respond to

Mr. Daniels’s written discovery requests by claiming he never received them. CR

27. If that is true, then the discovery period never began. Consideration of these

factors therefore demonstrates that the two months between the transfer and the

motion cannot in these circumstances reasonably be considered “adequate time for

discovery.”


APPELLANT’S BRIEF                                                             PAGE 17
      3.     Bertolino Himself, Just Days Before, Had Asserted that Summary
             Judgment Would Deprive the Litigants of Due Process of Law.

      Moreover, Bertolino asserted that as of August 5, 2014 – approximately three

weeks before he filed his motion – he had “had no opportunity to conduct reasonable

discovery in this matter.” CR 26. In fact, Bertolino contended that Mr. Daniels’s

             filing of a Motion for Summary Judgment without
             providing [Bertolino] an opportunity to conduct
             discovery that would negate [Mr. Daniels’s] allegations
             and/or establish affirmative defenses denies [Bertolino] of
             his right to due process of law.

CR 26 (emphasis added). Notably, these assertions were contained in a verified

pleading, which means that Bertolino swore that the statements pertaining to the

status of discovery and the effect it would have on his due process were within his

personal knowledge and were true and correct. Additionally, these protestations

were in response to Mr. Daniels’s traditional motion for summary judgment, which

– unlike no-evidence summary judgment motions – are not required to be filed after

an adequate time for discovery.

      No material change occurred in the twenty-three days that passed between

Bertolino’s August 5 response and his August 28 motion – except that at the

beginning of the month, Bertolino benefited by claiming lack of adequate time for

discovery, but by the end, the opposite was true.



APPELLANT’S BRIEF                                                          PAGE 18
      4.     Permitting a No-Evidence Summary Judgment Prior to Discovery
             Defeats the Purpose of Summary Judgment.

      As the Supreme Court has stated, “the ultimate purpose of discovery is to seek

the truth, so that disputes may be decided by what the facts reveal, not by what facts

are concealed.” In re Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex. 1998) (orig.

proceeding) (quotations omitted).      The purpose of summary judgment is “to

eliminate patently unmeritorious claims and untenable defenses.” Tex. Dep’t of

Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004); Casso v. Brand,

776 S.W.2d 551, 556 (Tex. 1989); City of Houston v. Clear Creek Basin Auth., 589

S.W.2d 671, 678 n.5 (Tex. 1979). The discovery period is the best indicator of an

adequate time for discovery. McInnis, 261 S.W.3d at 201; see also TEX. R. CIV. P.

166a(i) cmt. For these reasons, the Supreme Court has indicated that “the no-

evidence rule, by its very language, is to be used following discovery.” Fort Brown

Villas III Condo. Ass’n v. Gillenwater, 285 S.W.3d 879, 882 (Tex. 2009).

      No-evidence summary judgment motions are therefore appropriate only when

a defendant reasonably believes that if any evidence were to exist in support of a

plaintiff’s claims, discovery would have uncovered it by the time the movant filed

his motion. As a matter of law, it should not be available at the earliest stages of

litigation as a weapon to catch a pro se plaintiff on his heels. In this case, the

discovery period may not have even begun, much less ended. Under no reasonable

APPELLANT’S BRIEF                                                            PAGE 19
interpretation of Rule 166a(i) should any trial court have allowed Bertolino to

proceed with his motion, much less prevail on it.

      5.     Allowing Such Motions Will Allow Defendants to Manipulate the
             Discovery Process.

      As shown by the foregoing, the trial court’s finding that adequate time for

discovery had elapsed was an arbitrary and unreasonable decision lacking support

in the facts and circumstances of this case. See, e.g., Samlowski, 332 S.W.3d at 410.

If the Court allows Bertolino to use the Rule 166a(i) summary judgment motion in

this way, then defendants will have a tool to usurp the discovery processes that

should be governed by TEX. R. CIV. P. 190. Trial courts routinely limit continuances

to thirty days, so if a defendant wanted to press a plaintiff to hurriedly conduct

discovery, he could simply file a no-evidence motion for summary judgment. A

plaintiff could be rushed to identify experts, take depositions, and otherwise conduct

discovery not on the schedule laid out in Rule 190 or a pretrial scheduling order, but

on a schedule dictated by defendant’s summary judgment motion practice and the

court’s oversight of the parties’ discovery through motions for continuance.

      Such pretrial litigation strategies should not be available. To permit Rule

166a(i) to be used as a sword by an aggressive defendant to close off a plaintiff’s

causes of action runs afoul of former Chief Justice Phillips’s pronouncement

regarding the operation of the no-evidence rule when it was promulgated:

APPELLANT’S BRIEF                                                            PAGE 20
             The bench and the bar should note that the burden will
             never shift to the non-movant to establish a fact issue
             until there has been an adequate opportunity for
             discovery, which ordinarily will not occur until after the
             close of any court ordered discovery period.

Thomas R. Phillips, Texas Supreme Court Update, 60 Tex. B.J. 858, 861-62 (1997)

(emphasis added).

      Appellant Stephen M. Daniels therefore respectfully requests that the Court

reverse the trial court’s grant of summary judgment on the grounds that the trial

court’s conclusion that an adequate time for discovery had elapsed constituted an

abuse of the trial court’s discretion.

C.    THE RECORD CONTAINED SUFFICIENT EVIDENCE              TO   DEFEAT SUMMARY
      JUDGMENT.

      Even if there had been adequate time for discovery, summary judgment would

still have been improper because the record contained sufficient evidence of each of

the challenged elements of Plaintiff’s claims to survive summary judgment. On

appeal, a summary judgment is reviewed de novo. Natividad v. Alexsis, Inc., 875

S.W.2d 695, 699 (Tex. 1994). A no-evidence motion for summary judgment is

equivalent to a pretrial directed verdict. King Ranch, Inc v. Chapman, 118 S.W.3d

742, 750-51 (Tex. 2003). Therefore, on appeal, this Court should consider all the

evidence in the light most favorable to the party against whom the no-evidence

summary judgment was rendered, disregarding all contrary evidence and inferences,

APPELLANT’S BRIEF                                                          PAGE 21
and indulging every reasonable inference and resolving any doubts in the

nonmovant’s favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.

2005); Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).

      1.     Plaintiff Is a Consumer who Incurred Damages.

      Bertolino first contended that Mr. Daniels had no evidence that Mr. Daniels

was a consumer who incurred any damages. However, Bertolino acknowledged in

his original answer that Mr. Daniels was his former client. CR 3. Additionally, the

engagement agreement between Mr. Daniels and Bertolino was made part of the

court’s record on July 10, 2014 and was therefore on file when Bertolino filed his

motion. SCR 18-21; SCR 3. The engagement agreement sets out the terms of the

engagement and includes a payment schedule. SCR 18-21. Finally, Mr. Daniels’s

affidavit in support of his own summary judgment motion demonstrates that he paid

$200 for the initial consultation and made subsequent payments in accordance with

the agreed schedule. CR 10-11. Therefore, more than a scintilla of evidence existed

to support Mr. Daniels’s claim that he was a consumer who incurred damages as a

result of Bertolino’s malfeasance arising out of the attorney-client relationship.




APPELLANT’S BRIEF                                                            PAGE 22
      2.     Defendant Knew and Withheld Information Concerning His
             Services, Intending to Induce and in Fact Inducing Plaintiff into a
             Transaction.

      Bertolino also claimed that no evidence existed that he knew and withheld

information about the services he offered and sold to Mr. Daniels, and that he did so

intending to induce Mr. Daniels into hiring him. Bertolino’s knowledge at the time

of the attorney-client engagement likely requires circumstantial evidence, unless

Bertolino were to decide to be unexpectedly helpful. Nonetheless, the record shows

that at the time of the initial consultation, Bertolino inflated Mr. Daniels’s hopes of

recovery. CR 10. Bertolino is an attorney with over a decade of experience claiming

to “offer honest answers and straightforward advice” and promising that “[i]f we

don’t believe you have a legitimate case, we’ll tell you.” Appx. C, p. 2. Bertolino,

like any attorney claiming the experience he advertises in professional liability

matters, knew that cases such as Mr. Daniels’s require an attorney expert to support

a plaintiff’s claims. SCR 42 (agreeing that “an expert is generally necessary to

instruct a jury on the issues of standard of care and proximate cause”); see also SCR

65. He had no such attorney expert at the time he took Mr. Daniels’s case and his

money, and he did not secure an attorney expert before the second hearing on the

summary judgment that ultimately disposed of the case that Mr. Daniels had hired

him to handle. SCR 42. Bertolino’s absence at that summary judgment hearing – at


APPELLANT’S BRIEF                                                             PAGE 23
which Mr. Daniels was instead represented by Trevor Young, a brand-new attorney

– supports the conclusion that Bertolino held out little hope for Mr. Daniels’s case.

Taken together, this evidence easily raises a scintilla of evidence that Bertolino knew

Mr. Daniels’s case against Canfield was weak if not wholly untenable; that he

withheld that information; that he did so intending for Mr. Daniels to engage his

services and pay money; and that if Mr. Daniels had known Bertolino’s assessment

of the merits of his case, he would not have hired and paid Bertolino.

D.    IN THE ALTERNATIVE, MR. DANIELS SHOULD RETAIN THE RIGHT                       TO
      ASSERT ADDITIONAL DTPA CLAIMS AGAINST BERTOLINO.

      If this case is reversed and remanded, but the court elects not to disturb the

trial court’s grant of summary judgment, Mr. Daniels respectfully requests that he

be permitted to amend his pleadings to assert claims under the DTPA other than

those in his original pleadings. Plaintiffs are generally permitted to amend their

pleadings as the litigation progresses and as discovery develops. TEX. R. CIV P. 63;

see also Tower Contracting Co. v. Flores, 302 S.W.2d 396, 400 (Tex. 1957). For

example, even if this Court affirms the trial court’s order on Bertolino’s no-evidence

summary judgment motion, Mr. Daniels should be permitted to maintain a claim

under TEX. BUS. & COM. CODE §17.46(b)(12) on the grounds that Bertolino

represented that the engagement agreement he prepared confers the right to prevent

Mr. Daniels from accepting a settlement offer without Bertolino’s consent. SCR 19;

APPELLANT’S BRIEF                                                             PAGE 24
TEX. DISC. R. PROF. COND. 1.02(a)(2) cmt 5. Mr. Daniels should also be permitted

to plead a claim under TEX. BUS. & COM. CODE §17.46(b)(22) on the grounds that

Bertolino did not in fact perform the services for which he invoiced Mr. Daniels.

Mr. Daniels therefore requests that if the summary judgment remains undisturbed

then the Court’s order clearly affirm Mr. Daniels’s right to plead and conduct

discovery on DTPA claims that rest on legally and factually distinct grounds from

those that were the subject of Bertolino’s no-evidence motion for summary

judgment.

                                 CONCLUSION

      For the foregoing reasons, Appellant Stephen M. Daniels files this brief asking

the Court to reverse the grant of summary judgment in favor of Appellee Bertolino

and remand this matter for proper determination on the merits. At a minimum, Mr.

Daniels’s non-DTPA claims, which were not challenged by Bertolino’s motion,

must be remanded. Additionally, the DTPA claims should also be remanded because

the motion was filed well before adequate time for discovery had passed and because

more than a scintilla of evidence existed in the record on each of the elements

challenged by Bertolino.



Dated: March 5, 2015


APPELLANT’S BRIEF                                                           PAGE 25
                                      Respectfully submitted,

                                      THE LAW OFFICE OF ELEANOR RUFFNER, P.C.
                                      1403 West Sixth Street
                                      Austin, Texas 78703
                                      (512) 913-7576
                                      (512) 681-0800 (fax)

                                      By:     /s/ Eleanor Ruffner
                                              Eleanor Ruffner
                                              State Bar No. 24047034
                                              eruffnerlaw@gmail.com



                      CERTIFICATE OF COMPLIANCE

Pursuant to TEX. R. APP. P. 9.4, I hereby certify that this brief contains 7,543 words.
This is a computer generated document created in Microsoft Word, using 14 point
typeface for all text. In making this certificate of compliance, I am relying on the
word count provided by the software used to prepare the document.



                          CERTIFICATE OF SERVICE

I hereby certify that on March 5, 2015, I served a copy of the foregoing document
on counsel of record via email as follows:

      Tony Bertolino (tbertolino@belolaw.com)
      Hiba Kazim (hkazim@belolaw.com)
      BERTOLINO LLP
      823 Congress Avenue, Suite 704
      Austin, Texas 78701

                                        /s/ Eleanor Ruffner
                                        Eleanor Ruffner


APPELLANT’S BRIEF                                                             PAGE 26
                                 APPENDIX

Tab Document

A    Order (October 21, 2014)

B    Order (October 30, 2014)

C    Website of Bertolino LLP: www.belolaw.com (accessed on February 24,
     2015)

D    Affidavit of Stephen M. Daniels (February 6, 2014)

E    Bertolino’s Verified Motion for Continuance and Motion for Sanctions
     (August 5, 2015)

F    Reporter’s Record, No Evidence Motion for Summary Judgment in Daniels
     v. Canfield (April 15, 2013)

G    Affidavit of Fred E. Davis (September 19, 2014).




APPELLANT’S BRIEF                                                     PAGE 27
APPELLANT’S
 APPENDIX

  TAB A
 OCT-06-2014(MON) 12:10                                          DC               BK 14308 PG76




                                                                                                           Pa~. 2 of 3 10108120101 1 l~e
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          oct.    6. 20.14 11:33AM Mail                                                                                No. ~ 629 • P. 2/3
                                                                                                                           Fiftd In The District Court
                                                                                                                            of Travis County, Texas

                                                                                                                                  OCT 23 2014 RT
                                                                   NO. D-J.GN-14-002.1~~                     /4J               ~CtI ~ M.   \0
                                                                                                               Amalia Rodriguez-Mendoza, Clerk
                    STEPltF..N M. DANIELS                                          . § . IN THE DJSTlUCT CO'VRT
                    Plaintiff,                                                      §
                                                                                    §
                    v. .                                                            §     lSOth JUDICIAL DISTlUCT
                                                                                    §
                    TONY R. BERTOLINO                                               §
                    D~rencL"lnt.                                                    § TRAVIS COUNTY, TEXAS


                                                   ORDEn C~T-lNG DEFENnANT'S
                                            MOTION )rORNO E'V1DENCE SUMMARY JUJ)GMnNT



                              On Soplcmber 30, 2014. tlte                 Cour~   ',:onsldcred Deftndant'.! MfJlil)" fiJI' No       .l!\1ide"c~

                    Summary Judgmen(.            The Motion was J)t'operly filed :\fter Iln ;rdcquB1o time for disco\lery bad

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                     of materiaL fact: on li1C   clcmc.n~r      of the Plainliff's Dcccpliw Trade Practicc:s Act claims Gsainst

                     the Dl!rcndllllt. Accordingly. iho Moti~n Is GRANTED,

                              IT IS Tll&R.IUi'ORE OlU1EitED Lhn( PlaIntiff's Deceptive Trude                         Pra~l~c.s    Aot clnlm~



                              1"his judtn1l!nr filllllly    di.~pOGr:s     or:-.II parties and ill! clnLrn.9 and is thclrcforc .finlU and




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                                                                                                     68
 OCT-06-2014(MON) 12:10                                 DC   BK1430B PG77
                                                                                                                         P.003/003


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          oct.    6. 2014 11:33AM Mail                                                             No. 4629          P. 3/3


                                          ,
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                    mNl4038766
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                    A~stint Tcxo.s 78701
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                                                                            69
APPELLANT’S
 APPENDIX

  TAB B
OCT-01-2014(WED) 17:17                    DC              BK14308 PG1125
                                                                                                           P. 003/003




                                            NO. D-l-GN-14-002146
                                                U-I-GN-14-002146

      STEPHEN M. DANIELS                                 §    IN THE DISTRICT COURT
      Plaintiff,                                         §
                                                         §
      v.
      V.                                                 §    250th JUDICIAL DISTRICT
                                                         §
      TONY R. BERTOLINO                                  §
      Defendant.                                         §    TRAVIS COUNTY, TEXAS


                              ORDER GRANTING DEFENDANT'S
                        MOTION FOR NO EVIDE}"JCE
                                      EVIDEl"JCE SUMMARY JUDGMENT




              On September 30, 2014, the Court considered Defendant's Motion for No Evidence

      Summary Judgment.       The Motion was properly filed after an. adequate time for discovery had

      passed. After reviewing the evidence and hearing the arguments made by the Plaintiff and the

      Defendant, the Court finds that the Plaintiff could not produce evidence raising a genuine issue
                                                                                    rT
                                                                                    r7.S5   J> ,.oA
                                                                                                 ,.OA
      of material fact on the eleme!1ts
                              elemlo!!1ts of the
                                             tht:.: Plaintiff's claims against the Defendant/"Accordingly,
                                                                                   Defendantf\Accordingly, the

      Motion is GRANTED.

              IT IS THEREFORE ORDEREU that Plaintiffs claims under the                                 Trade

      Practices Act are hereby DISMISSED WITH PREJUDICE.
           ~
              This judgment finally disposes of all parties and all claims and is therefore final and

      appealable.

              SIGNED on ..:::::.......::::-_ _ _--=--=_, 2014.




                                                                                                                  122
APPELLANT’S
 APPENDIX

  TAB C
212412015                 Family Law Divorce Lawyer Austin Tx : Probate Attorneys Austin Texas: Houston: San Antonio TX: - Bertolino




                                                                                                     HOME           OUR FIRM           CONTACT
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     BERTOLINO                                              THE                                     800-210-0126
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 results-oriented law firm in Texas, Bertolino LLP has an impeccable
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 I was recently asked           "Your case counts.
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This may be your only opportunity for justice. Make the most of it.
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 office. To reach our San Antonio office, call 210-223-5553. Our
 Houston office can be reached at 713-225-7474. The Bertolino Law
 Firm - where success matters.




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                                                                                            STATISTICS ON DIVORCE
                                                                                                    THE I NFOGRAPH IC

                                                                                    Click Here to Download a Printable Version




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                                                                            Antonio
                                                                            Personal injury accidents demand immediate legal
                                                                            action. When you're injured in an accident or a
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                                                                            losses and any other costs associated with the
                                                                            accident. We know that an accident is about more
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                                                                            Personal injury cases can be complicated. We can
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   Serving Austin, Houston and San
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   Earning a professional license in Texas often takes
   many years of training. When someone files a
   formal complaint that could threaten your license
                                                                                                                     "We leave no
   and your career, you need to take decisive,                                                                       stone unturned
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   Probate and estate law in Texas demands highly
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    Lifestyle Cia uses                                       Texas Athlete                                            When Holiday
        in Texas                                            Allegedl y Kills                                          Shopping Gets
       Prenuptial                                           Three in Drunk                                               VIolent
      Agreements                                           Driving Wreck on                                      It's the holiday season once
  Couples divorcing in Austin,
                                                            Christmas Eve
                                                                                                                 again.      That     means          road
  Round       Rock, Cedar Park,                           Two families in El Paso had                            trips for long-awaited visits
  Georgetown              and       San                   to      experience         Christmas                   with          family,             school
  Marcos will need to divide                              with the stunning loss of                              pageants             at           which
  up property and assets. This                            loved      ones     due to the                         hundreds of parents vie for
  process          can          quickly                   foolish decision of one man                            the best spot to hold up
  become        contentious         and                   to get behind the wheel of                             their     cameras           or     smart
  messy, and it can have a big                            a car after drinking. Joel                             phones,          and             endless
  financial impact on your                                Garcia, who is an amateur                              streams of wonderful food
  life. Just recently, the news                           boxer        in     Texas,        was                  at office and home. It also
  has been full of reports of                             arrested on three counts of                            can be the time of crowded
  one of the largest divorce                              intoxication        manslaughter                       stores, impatient shoppers,
  settlements in U.s. history.                            after driving through a red                            and even retail violence as
  An oil tycoon was ordered                               light     going       90mph        on                  people shove and fight to
  to pay his ex close to              S1                  Christmas Eve and plowing                              get access to the hot...
  billion as ...                                          into a 2004 Pontiac that
                                                          was carrying brothers ...
                                                                                                                          READ MORE
            READ MORE
                                                                   READ MORE




                                                               Tony R. Bertolino-
                                                                                                               IJ BERTOLINO LLP
                                                               @BertolinoLaw
                                                                                                                What are Lifestyle Clauses in
                                                               Discover what the Bertolino                      Premarital Agreements?
                                                               Law Firm can do for you.                         belolaw.com/divorce-
                                                               Schedule a consultation now!                     attorney/lifestyle-clauses-in-
                                                               belolaw.com/about/                               texas-pren u ptial-agreemen ts
                                                               a month ago from Tony R.
                                                               Bertolino's Twitter                                                Lifestyle Clauses
                                                                                                                                  in Texas
                                                                                                                                  Prenuptial
                                                                                                                                  Agreements -
                                                                                                                                  Bertolino LLP
                                                                                                                  belolaw.com


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                                                                                                            A family law attorney knows
                                                                                                            that any divorce can lead to
                                                                                                            fighting over what happens
                                                                                                            to your financial affairs.

                                                                                                          Feb 17th 12:S8pm· No
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                  Practice Areas                              Austin Office:                 San Antonio Office: Houston Office:
                                                             Bertolino, LLP                  Bertolino, LLP                 Bertolino, LLP
                  Divorce and Child Custody                                                  4 Dominion Drive               San Felipe Plaza
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                  Medical License Defense                    Avenue                          Bldg 4, Suite 250              5847 San Felipe
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APPELLANT’S
 APPENDIX

  TAB D
       ·,.
....
"
   J                                                                                             11111.~~1~1!11111
                                                                                                 IIII J.~~l~mIIIH
                                                                                                       2013CI19729 -P00013
                                   f)-I-(;i N--1-i-()(12
                                   D-1-C                 1-l(; IN I IIL
                                               14-i H121-lt>        I lL 25()111 f)ISTR ICTUlI
                                                                         25illll DISTRIC  T U ll IRT
                                                                                                 lfH

                                                   NO. 2013-CI-19729
                                                                                                       c;:J~
                                                                                                       c:l                  r;;~            go0
                                                                                                         · )COuKf._ Cl)S!~
                                                                                                                             -
             STEPHEN M. DANIELS                               $                  IN THE DJST
                                                                                        DIST             ;1)CouAj   Cl)~~
             Plaintiff,                                      $                                           ·o
                                                                                                         '0
                                                                                                           f
                                                                                                          I.
                                                                                                                             ~';~".
                                                                                                                             ~~~~
                                                                                                                                   ......,~';xl?'"Tl
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                                                             $                                             ~/ ;;;
                                                                                                           f" ji; -~   'I ;<.> (=;~f
                                                                                                                       ~;o~~f
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                                                                                                           l -, -U r-l~n-1
                                                                                                                   . - (S)CI-I 1"\
              v.                                             $                   AT LAW NO. 0 3RD c                                 ~gp~o
                                                                                                                                    _gp~o
                                                             $
                                                             $5
                                                                                                 ~'
                                                                                                 . .. -<
                                                                                               - ~,   --<-; .  ,
                                                                                                               "~ -:-
                                                                                                                  ..,....
                                                                                                                              ~
                                                                                                                              ~   ~:T-f"\~
                                                                                                                                  ~;T.f1'1~
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                                                                                                                               0 --j~~
                                                                                                                                   .......--.;,;:~
                                                                                                                                •• -:?
                                                                                                                               ..?             f"\f1'1
             TONY R. BERTOLINO                                $                                                    b~ ~        &-;>
                                                                                                                               &";;:-
                                                                                                                               ~
                                                                                                                                                   --<
                                                                                                                                                  ..(
                                                                                                                    I'>        -'
             Defendant,                                       $                  BEXAR COUN                 'rfiXAS
                                                                                                          , '£fXAS

                  STEPHEN M. DANIELS' AFFIDAVIT IN SUPPORT OF THE MOTION FOR
                                      SUMMARY JUDGMENT

                  BEFORE ME, the undersigned authority, on this day personally appeared
             STEPHEN M. DANIELS, who swore or affirmed to teU
                                                            tell the truth and stated as
             follows:

             1. My name is Stephen M. Daniels ("Affiant"). I am of sound mind and capable of
                     this sworn statement. I have personal knowledge of the facts written in this
             making tbis
                                      that if I lie in this statement, I may be held criminally
             statement. I understand tbat
             responsible. This statement is true. I am over 18 years old.

             2. On February 22, 2012, I met with Tony R. Bertolino to discuss filing a legal
                                                     who had filed a previous claim ( the
             malpractice lawsuit against an attorney wbo
             underlying case)on my behalf. The court ruled that tbis
                                                                 this case had no merit. I paid
             him 5200.00 for this
                             tbis consultation.

             3. Tbe
                The reason for filing the
                                      tbe claim was because the previous case had
                                                                              bad no merit.
                                                                       teUing me I was shooting
             Mr. Bertolino encouraged and motivated me to proceed by telling
                                     tbe amount I was asking in damages and that my cbances
             'too low' in regards to the                                            chances
             would be better in District Court in front of a jury.

             4. During this consultation, he
                                          be informed me he would take the case once I paid
             him an initial $3,500.00
                            53,500.00 and agree to pay him $500.00
                                                           5500.00 per month
                                                                       montb for the next twelve
             months.

             S. During tbis                                                    that in order to
                          this consultation, Mr. Bertolino never informed me tbat
             prevail in a legal malpractice lawsuit,
                                             lawsuit. tbe
                                                      the underlying case must have merit.

             6. During this consultation, Mr. Bertolino never mentioned or informed me
             anything about a No-Evidence Motion for Summary Judgment being part oftbe
                                                                                    of the
             process.

             7.       April2,
                   On April 2, 2012, I retained Tony R. Bertolino with
                                                                  witb a retainer of$3,500.00
                                                                                  of 53,soo.00 and




                                     DOCUMENT SCANNED AS FILED
                                                                                                                                                         10
\




    signed a fee agreement tbat
                            that commencing May, tbethe following month, I would start
    making monthly payments of $500.00
                                   5500.00 for the next 12 months. Again, he did not
    address tbe
            the merits of the underlving case or anything about a No-Evidence Motion
    for a Summary Jud2lllent.
                    Jud2!1lent.

    8. On Aprill, 2013, I made my last $500.0
                                       5500.0 payment according to the
    Attorney/Client Fee Agreement.

    9. On AprillS,
          April IS, 2013, a No-Evidence Summary Judgment was granted to the
                                                                        tbe
    Defendant based on the fact that the underlying case had
                                                         bad no merit..

    10. Although tbethe Attorney/Client Fee Agreement specifically stated that S3,SOO.OO
                                                                               53,500.00
    was designated for ~Iegal
                        ~legal work' and the remaining S6,000.00
                                                       $6,000.00 for 'legal
    representation, Mr. Bertolino sent me April and May invoices for legal fees that
    totaled over $5,600.00.
                 55,600.00.

    11. I have personal knowledge ofofthe
                                       the facts
                                           fads stated above, and they are true and
    correct. I have not received compensation of any sort in return for any statement.




                                                               ~=                       Stephen M. Daniels



                                            on
             SUBSCRIBED AND SWORN BEFORE ME 00                                                       ..;;..:...(4
                                                          :--~¥-L-.:..f€_..:::;b;..._:;2:::;..0.;;;;...:...(
                                                          :_......;(p'foL-f€~..;::;b;......:2::;..o             ....._
                                                                                                               :f....~...- ___
                                                                                                                            _ ___


                       l~< JU~ CANIlEI.ARIODAVUA
                         . Q MY COMMISS1ON EXPIRES
                       ~;.
                        '. ,C'it:.'1.~·   JItf 14. 2015




                                 DOCUMENT SCANNED AS FILED
                                                                                                                                    11
APPELLANT’S
 APPENDIX

  TAB E
                                                                                         8/5/20143:58:10
                                                                                         8/5/2014 3:58:10 PM
                                                                                              Amalia Rodriguez-Mendoza
                                                                                                            District Clerk
                                               NO. D-I-GN-14-002146
                                                   D-1-GN-14-002146                                         Travis County
                                                                                                         D-1-GN-14-002146
STEPHEN M. DANIELS                                            §    IN THE DISTRICT COURT
Plaintiff,                                                    §
                                                              §
v.
V.                                                            §    250 th JUDICIAL DISTRICT
                                                                   250th
                                                              §
TONY R. BERTOLINO                                             §
Defendant.                                                    §    TRAVIS COUNTY, TEXAS



                                   DEFENDANT'S MOTION FOR
                            CONTINUANCE AND MOTION FOR SANCTIONS



            NOW COMES, TONY R. BERTOLINO, as Defendant herein, and files this Motionfor
                                                                              Motion for

Continuance and Motion for Sanctions, and shows the Court:

                                         I.       FACTUAL BACKGROUND

            1.       This matter initiated in its proper venue on July 1, 2014 with the filing of the

Original Petition in Travis County.

            2.       On or about July 14, 2014, Plaintiff served Notice of Summary Judgment Hearing

                  mai1. 1 However, Plaintiff has neglected to serve the Motion itself. To this date,
by U.S. certified mail.!

Defendant has not been served a Motion for Summary Judgment in this matter. Prior to receipt

of the Notice of Summary Judgment Hearing, Defendant had not been sent notice that a motion

for summary judgment was filed in this matter.

            3.       Every document Defendant has served on Plaintiff has been served by certified

mail with a return address to a proper address of service for the Defendant.                                Defendant's

signature block contains Defendant's proper address for service. Moreover, Plaintiff has served

at least one filing, Plaintiff's Motion to DENY Transfer of Venue, on Defendant's proper address

for service. Plaintiff is more than aware of the proper address for service on Defendant and yet

1]   The Certificate of Service states that the document was sent on July 12, 2014 via US certified mail.



                                                                                                                          24
has failed to serve the Motion for Summary Judgment.

       4.      No written discovery has been served on either party in this matter at this time.

No depositions have been noticed or conducted at this time. Moreover, this case only has been

on file with the Travis County court for a mere month.

                              II.    MOTION FOR CONTINUANCE

       5.      Defendant requests a continuance of the August 18, 2014 hearing in this matter.

       6.      Under the Texas Rules of Civil Procedure, Plaintiff must serve the Motion for

Summary Judgment at the time of filing it. Tex. R. Civ. P. 21; Tex. R. Civ. P. 21(a). Further, a
                             offiling

motion for summary judgment and any supporting affidavits must be filed and served twenty-

                                                         Tex. R. Civ. P.
one (21) days before the time specified for the hearing. Tex;            166a; Accordingly, July
                                                                      P.166a;

28, 2014, was the last day that such a motion should have been served on Defendant for proper

notice. !d.
        Id.

       7.      According to Travis County's Attorney Access to Records Online, Plaintiff filed

the Motion for Summary Judgment on February 14,2014, when the case was still in the improper
    Motionfor

venue of Bexar County. Moreover, at that time, Plaintiff did not serve the Motion for Summary

Judgment upon Defendant. In fact, Plaintiff had not even served an Original Petition to initiate

the suit. The Motion for Summary Judgment was file-stamped for July 1,2014
              Motionfor                                             1, 2014 in Travis County

presumably as a result of re-filing or the transfer of
                                                    ofthe
                                                       the case from Bexar County. The filing does

not contain a certificate of service and there is no indication that Plaintiff attempted to serve the

Motion lc,'
       ji;,· Summary Judgment. There is no indication that Plaintiff plans to serve this motion

on Defendant in the future beyond the time period such service is required under the Texas Rules

of Civil Procedure.    Instead, Plaintiff apparently sought to have a hearing on a motion that

Defendant was never served. As such, this hearing would be severely prejudicial.



                                                - 2-
                                                  2-
                                                                                                        25
           8.      This matter has only been transferred to the proper venue for roughly one (1)

month as of the time of this filing. Defendant has had no opportunity to conduct reasonable

discovery in this matter.

           9.      Contemporaneously with service of this filing, Defendant is serving upon Plaintiff

requests for disclosure, requests for production, interrogatories, and requests for admission on

Plaintiff. Defendant wishes to conduct this discovery in order to gather evidence in this matter to

properly defend his case on the merits. Plaintiff's filing of a Motion for Summary Judgment

without providing Defendant an opportunity to conduct discovery that would negate Plaintiff's

allegations and/or establish affirmative defenses denies Defendant of his right to due process of

law.

           10.                                ofthis
                   Accordingly, a continuance of this hearing should be granted.

                                     III.     MOTION FOR SANCTIONS

           11.     Multiple statutes authorize a court to sanction a party and order the remedies

requested by Defendant in this matter.                Defendant moves for sanctions against Plaintiff.

Sanctions may be ordered against a party for the filing of a frivolous pleading pursuant to Civil

                                                                     1O.004(c).22 Further,
Practice and Remedies Code chapter 10. Tex. Civ. Prac. & Rem. Code § 10.004(c).

sanctions may be ordered against a party for the filing of a groundless pleading pursuant to Civil

Practice and Remedies Code § 9.011-9.014.                                                 9.012(e). 3
                                                            Tex. Civ. Prac. & Rem. Code § 9.012(e).3

Moreover, sanctions may be granted against a party for a failure to serve or deliver pleadings and

motions pursuant to Texas Rules of Civil Procedure 21b and 215.                                        215.2.44
                                                                                       Tex. R. Civ. P. 215.2.


2
2 Under Chapter 10, the following remedies may be granted: reasonable expenses (including reasonable attorneys'
fees), a penalty to be paid into court, and a directive to the violator to perform or refrain from performing an act.

3
3Under Chapter 9, the following remedies may be granted: striking of pleadings, dismissal of party, and an order to
pay reasor:,,l-,le
    reasor:,1l-,le expenses (inclucling
                            (inclucting attorneys' fees) incurred because of the filing of pleadings

4
4   Under Rule 215, the following remedies, among others, may be granted: an order striking out pleadings or part

                                                        -3-
                                                                                                                        26
Pursuant to this authority, Defendant seeks:

                 a.       the striking of Plaintiff's Amended Original Petition;

                 b.       the striking of Plaintiffs Motionfor
                                                     Motion for Summary Judgment;

                 c.       the striking of any and all plea, pleadings, motions and/or documents on

                          file with the Travis County Court;

                 d.                        Plaintiffss claim; and
                          the dismissal of Plaintiff

                 e.       reasonable and necessary attorneys' fees.

         12.     Plaintiff has apparently continued to improperly serve pleadings and discovery

upon Defendant and assert that service was completed. The following pleadings and discovery

requests have not been served upon Defendant:

                 a.       Motion for Summary Judgment;

                 b.       Plaintiff's First Set ofInterrogatories;

                 c.       Plaintiff's First Request for Admissions;

                 d.
                 d,       Plaintiff's First Request for Disclosure; and

                 e.       Plaintiff's First Request for Production of Documents to Defendant, Tony

                          R. Bertolino.

        Furthermore, pursuant to Texas Rules of Civil Procedure 2Ib     215.2(b)(5), the Motion
                                                                21b and 2IS.2(b)(S),

for Summary Judgment should be stricken as Plaintiff made no attempt to serve it.

        13.      This Motion for Summary Judgment contains false andlor
                                                                 and/or misleading statements

and does not provide evidence for crucial elements of Plaintiff
                                                      Plaintiffss claim. Specifically:

                 a.       Plaintiff alleges that Defendant has failed to comply with interrogatories,

                          requests for disclosure, admissions, and production. Defendant has not


thereof, staying further proceedings until an order is obeyed, dismissing with or without prejudice the action or
proceedings or any part thereof, or rendering a judgment by default against the disobedient party

                                                      - 4-
                                                        4-
                                                                                                                    27
                             been served any of these allegedly served discovery requests as required

                             under Texas Rule of Civil Procedure 21a.         Plaintiffs assertion that

                             Defendant has failed to comply with discovery requests is therefore false.

                      b.     Plaintiff alleges, based on Defendant's alleged failure to respond to

                             discovery requests, that the "information [sought in the requests] would

                             substantiate that Defendant knew, or should have known, and withheld the

                             fact that the Plaintiff would not prevail in a legal malpractice lawsuit."

                             Plaintiff has no reason to assume that discovery responses would

                             substantiate this allegation. Stating that they would is a clear attempt to

                             mislead the Court.

                      c.     Plaintiff further alleges irrelevant facts in section III of his Motion for

                             Summary Judgment claiming that they provide support for his claim.

                             Plaintiff alleges that Defendant did not meet with him in person and

                             assigned an attorney not on the firm's letterhead to his case and that these

                             facts support "defendant's false representation." Even taken as true, these

                             allegations provide no support for Plaintiff
                                                                Plaintiffss claim and are included

                             presumably to mislead the Court.

       14.            Plaintiffs Motion for Summary Judgment is a groundless motion. Plaintiff has

only attached an affidavit alleging general statements regarding his personal knowledge of an

isolated   l~:.!st
           1~:1st    event. While these statements are certainly rebuttable, even taken as true, they

cannot establish (or even allege) anything whatsoever regarding Defendant's mental state, which

is key to Plaintiff
          Plaintiffss assertion that Defendant knowingly and intentionally withheld information.

According to Plaintiff's Amended Original Petition, Plaintiff has only made a claim under the



                                                     -5-
                                                                                                            28
Texas Deceptive Trade Practices Act (DTPA), Tex. Bus. & Com. Code§§
                                                             Code §§ 17.41 and 17.49(c)

based on an alleged misrepresentation and failure to disclose information in violation of §

17 .46(b)(24 ).
        )(24).

             1::>.
             1:>.     A claim under
                              under§§ 17.50 requires the following elements:

                      a.       Plaintiff is a consumer that incurred economic damages or damages for

                               mental anguish from one of the following actions by the Defendant:

                               1.       Employment of a false, misleading, or deceptive act or practice

                                        that is specifically enumerated in § 17.46; and relied on by Plaintiff

                                        to his detriment.

                              u.
                              11.       Breach of an express or implied warranty;

                             111.       Any unconscionable action or course of action by any person; or

                             IV.        The use or employment of an act or practice in violation of Chapter

                                        541, Insurance Code.

             16.     Plaintiff's Amended Original Petition cites § 17.46(b)(24) assumedly for

                        (a)(i)55 above.
satisfaction of element (a)(i)                       That subsection essentially requires four ((4)
                                                                                                 4) different

elements. 6

            17.      Plaintiff's Amended Original Petition makes no factual allegations regarding any

of the elements under § 17.50 or § 17.46(b)(24). Accordingly, Plaintiff's Amended Original

Petition is a groundless motion and should be stricken pursuant to Civil Practice and Remedies

       9. 0 11 , et. seq.
Code § 9.011,

            18.      Moreover, Plaintiffs Motion for Summary Judgment is also a groundless motion

55   For simplicity's sake, reference is made to the enumeration used in this pleading, not the statutory enumeration.

66§ 17.46~~\24) requires that (a) Defendant knew information concerning goods or services at the time of the
transaction; (b) Defendant withheld the information (c) with intent to induce the consumer into a transaction; and (d)
the consumer would not have entered into the transaction had the withheld information been disclosed.

                                                            - 6-
                                                              6-
                                                                                                                         29
because it seeks summary judgment relief on claims not plead in the Plaintiff's Amended

Original Petition. The Motion is silent on a claim under the DTPA and instead lists allegedly

satisfied elements for a claim under theories of "False Representation" and "Quantum Merit"

[sic]. Neither of these claims are present in Plaintiff's Amended Original Petition. Further,

Plaintiffss only evidence is an attached affidavit of his own personal knowledge. This affidavit
Plaintiff

states general facts about past occurrences but provides no indication of Defendant's mental state

which is e1sential to a claim under the DTPA. See the above-enumerated elements of a DTPA

claim under§
      under § 17.46(b)(24) in footnote 6. Elements a and c of
                                                           of§§ 17.46(b)(24) both require proof

of Defendant's mental state.

        19.    Further, even if a claim for False Representation or Quantum Meruit were proper

in this pleading, Plaintiff has not provided evidence to support those claims since he generally

alleges false representation without providing evidence or specific grounds establishing

Defendant's mental state. See Tex. R. Civ. P. 166a(c) ("The motion for summary judgment shall

state the specific grounds therefor.").

       20.     Plaintiff has provided no evidence for the majority of his claims and instead

alleges false and misleading statements.     The fact that Plaintiff has also made no apparent

        tv serve the Motion for Summary Judgment on Defendant is further evidence that this
attempt tu

groundless pleading was filed improperly and in bad faith.

                                           IV.     RELIEF

       21.     Because   Defend~mt   has been given no notice of Plaintiffs Motion for Summary

Judgment prior to the Notice of Summary Judgment Hearing, Plaintiff has repeatedly improperly

served or failed to serve Defendant, and Defendant has had no opportunity to conduct discovery,




                                                 -7-
                                                                                                     30
Defendant respectfully requests that a continuance be granted for the August 18, 2014 hearing on

Plaintiff's Motionfor
            Motion for Summary Judgment.

        22.     Recognizing the Comi's broad authority under § 10.004 of the Texas Civil

Practice and Remedies Code, to make such orders as are just, Defendant respectfully prays that

                   Plaint({f's Amended Original Petition and order Plaintiff to pay attorney's fees
this Court dismiss Plainttfl's

and additional fees the court can charge against Plaintiff and enter such orders in regard to the

Plaintiff's failure as it deems just.

        23.     Recognizing the Court's broad authority under Civil Practice and Remedies Code

§§ 9.011-9.014 and Texas Rule of Civil Procedure215.2(b), to make such orders as are just,

Defendant respectfully submits that this Court strike the instruments in violation of
                                                                                   of§§
                                                                                      §§ 9.011-

9.014 (Plaintiff's Amended Original Petition and Plaintiff's Motion for Summary Judgment),

dismiss the case, and order Plaintiff to pay reasonable expenses, including attorney's fees caused

by Plaintiff's failure and enter such orders in regard to the Plaintiffs failure as the Court deems

just.

        24.     Due to Plaintiff's acts described herein, Defendant has incurred substantial

expenses, including but not limited to attorneys' fees. Under of the Texas Civil Practice and

Remedies Code§
         Code § 10.004 and Texas Rule of Civil Procedure 21S.2(b)(8),
                                                         215.2(b)(8), Defendant may recover

reasonable expenses, including reasonable attorneys' fees, incurred in obtaining an order for

sanctions. Reasonable attorney's fees for the services rendered and to be rendered is $1000.00.

        2).     The attorney's fees requested in the amount of$I,OOO
                                                            of$1,000 are reasonable based on the

time and labor required, the novelty and difficulty of the questions involved, and the skill

requisite to perform the legal service properly given the fees customarily charged in the locality

for similar legal services, as well as the amount involved and results obtained.



                                                -8-
                                                                                                      31
                                                    v.
                                                    V.       PRAYER

            WHEREFORE, PREMISES CONSIDERED, Defendant prays that the Court:

            26.      grant Defendant's Motion for Continuance of the Summary Judgment hearing

          'set for August 18, 2014.
currently ·set

            27.      set a hearing for the Motion for Sanctions;

            28.      after notice and hearing, impose sanctions on Plaintiff in accordance with Texas

Civil Practice and Remedies Code§
                            Code § 10.001 and/or Civil Practice and Remedies Code §§ 9.011-

9.014 to include:

                     a.       striking Plaintiff's Amended Original Petition pursuant to Tex. Civ. Prac.

                                     Code § 9.012(e)(l);
                              & Rem. Code§

                     b.       striking Plaintiffs Motion for Summary Judgment pursuant to Tex. Civ.

                              Prac. & Rem. Code§
                                           Code § 9.012(e)(l);
                                                  9.012(e)(1);

                     c.       the striking of any and all plea, pleadings, motions and/or documents on

                              file with the Travis County Court;

                     d.       dismissing Plaintiffs claim pursuant to Tex. Civ. Prac. & Rem. Code §

                              9.012(e)(2);

                     e.       granting Defendant reasonable and necessary attorneys' fees in the amount

                              of at least $1000.00 7 incurred in obtaining such order pursuant to Tex.

                              Civ. Prac. & Rem. Code
                                                Code§§ 9.012(e)(3) and§
                                                                   and § 1O.001(c)(3);
                                                                         10.001(c)(3);

                     f.       any and all other relief as the Court deems Defendant is entitled.

            29.      This Motion is not sought solely for delay but that justice may be done.




77   Affidavits and invoices evidencing such expenses will be provided as necessary.

                                                          -9-
                                                                                                           32
                                                   Respectfully submitted,




                                            By: _____,~~--------------------­
                                                      -1~~--------------------­
                                                Tony R.     rtolino
                                                Texas Bar No. 24038766
                                                HibaKazim
                                                Texas Bar No. 24076952
                                                823 Congress Ave.
                                                Suite 704
                                                Austin, Texas 78701
                                                Tel: (512) 476-5757
                                                Fax: (512) 476-5758
                                                Email: info@belolaw.com

                                                   Attorneys for Defendant,
                                                   Tony R. Bertolino


                             CERTIFICATE OF SERVICE

       I certify that on August 5, 2014 a true and correct copy of Defendant's Motion for
Continuance and Motion fw Sanctions was served by regular u.S.
                                                            U.S. mail and CMRRR # 7006
2760 0003 6345 2579 on STEPHEN M. DANIELS at 8323 Clays Point, San Antonio, Texas
78257.




                                          - 10-
                                            10 -
                                                                                            33
                                               for Continuance and Motion (or
 Verification in Support of Defendant's Motion (or                        for Sanctions

       The undersigned states under oath: "I am the attorney for movants in the foregoing
Defendant's Motion for Continuance and Motion for Sanctions. I have read the motion. The
statements contained in paragraphs 1 through 29 in the above motion are within my personal
                           correct"
knowledge and are true and correct."




SUBSCRIBED AND SWORN BEFORE ME on ----"-~_-----'oJ-
                                  -~----->..<--_,
                                            __   '_  s-_.,..J;__w_I__,L{_ _
                                                   _S--.,<,l'--W_I--JL{'----_
                                                    _




                                                     ~~cUL~
                                                     ~({Ld~
                                                   Notary Public, State of Texas




                                          - 11 -
                                                                                             34
APPELLANT’S
 APPENDIX

   TAB F
                       REPORTER'S RECORD
                         VOLUME 1 OF 1
              TRIAL COURT CAUSE NO. 2012-CI-13637


STEPHEN M. DANIELS,                      ) IN THE DISTRICT COURT
                                     )
                  plaintiff(s),
VS.                                  ~   )
                                             BEXAR COUNTY. TEXAS


                                     ~
GREGORY CANFIELD,
                  Defendant(s).              45TH JUDICIAL DISTRICT
                       ~   .

                       • *******************
            NO EVIDENce MOTION FOR SUMMARY JUDGMENT
                       *************.******



                  On the 15th day of April, 2013 the
following proceedings came on to be heard in the
above-entitled and numbered cause before the Honorable
Janet    L~ttlejohn,   Judge of the lS0th District court of
Bexar County, Texas.
                  proceedings reported by Machine Shorthand.




        VICTORIA l. GONZALEZ - OFFICIAL COURT REPORTER
              150TH DISTRICT COURT (210) 335-2570
                           C:X/l)B.I/-       E-   I'

                                                       32
                  A P PEA RAN C E S
     MR. TREVOR YOUNG
     ATTORNEY AT LAW
     660 west FM 2410
     Harker Heights, Texas 16S48
     SBOT II 24084138
     Phone: (210) 313-3001
     ATTORNEY FOR STEPHEN DANIELS

     MR. FRED E. DAVIS
     ATTORNEY AT LAW
     8911 capital of Texas HWV 2
     Austin, Texas 78759    .
     S80T # 054890Sl,Q
     Phone: (512) "615-9963
     ATTORNEY FOR GREGORY CANFIELD
 )

 L
 2
 3
·4

 5
 6
 7
.8
.9




~3

24
25

     VICTORIA L. GONZALEZ - OFFICIAL COURT REPORTER
           lS0TH DISTRICT COURT (210) 335-2570
                           EYilIBJ(   E ·
                                                      31
     'n   __   ;;-=--= ___.



                                                                                 --" 1--- .- -

                                             INDEX
                                                                     PAGE
          -CAPTION ------------------------------~----------              1
          APPEARANCES -------------------------------------               2
          INDEX --~----~------------------------------~---~               3
          PROCEEDINGS -------------------------------------               4
          COURT·S RULING ----------------------------------           11
          REPORTER'S CERTIFICATE --------------------------           12




                         VICTORIA L. GONZALEZ - OFFICIAL COURT REPORTER
                               150TH DISTRICT COURT (210) 335-2570
I'
                                         F#/G/ /-    :E '   34                .1''f,- _
                                      (proceedings)
                              THE BAILIFF:        All rise.     150~h   District
    ..
         . Court is now in session.
                              THE COURT:      All right.
                                                       v'all may be
         seated.     On   the Daniels versus Canfield case.
                               MR. DAVIS:  ReadYt Your Honor.
                               THE COURT:  This is your motion. ;s it,
         sir?
                              MfW,   DAVIS:   It is.
                              THE COURT:      May I see a copy of your
         motion. please.
                              MR.    DAVIS:   (Tendering) .
                              THE COURT:      Thank you.    And    .
                                                                   1S    there a
         response?
                              MR. YOUNG:      Yes, Judge.       (Tendering).
                              THE COURT:      Thank you.       And you're Mr.
         Davis, are you?
                               MR. DAVIS:     I   am~

                               THE COURT:     okay.     Mr.   Davi~.    go ahead
         and tell me what this motion is about.
                          MR. DAVIS: Your Honor, this is a case
t        alleging legal malpractice. we were here before Judge
         stryker on March the 1st. At that point in time
         absolutely nothing had been done on the case. No
i        depositions, no discovery, nothing. And so -- and at

                VICTORIA L. GONZALEZ - OFFICIAL COURT REPORTER
                      150TH DISTRICT COURT (210) 335-2570·
                                          Gil/PI!       C/
         that hearing that day we also had a motion for
         continuance.    Judge striker granted that motion.           Until
    ..
    '


         today, indicated there would be no further continuances
         and I informed counsel that in a case like this, you
         needed a legal expert to support the case.
                             We are back before you today.          since the
         prior hearing, they have taken my client Greg Canfield's
         deposition.    Discovery had been propounded and answered
         and to the extent    ~equired       up to this date.   And there's
         still no expert.
                             The plaintiff seems to be of the opinion
         that if they raise a scintilla of evidence on any point,
         that that's good enough.           And in their response   ~hey   say
~        they have raised a scintilla of evidence as to whether
         when my client agreed to a motion for new trial -- let me
5        back up.
r                            This case was initially filed in the
~        Justice Court by the plaintiff against his stripper
}        girlfriend for money that he had loaned to her.             And he
)        represented himself in the Justice Court, resulting in a
L        take nothing judgment.        He hired my client, Greg
~        canfield, to appeal that take nothing judgment, which
~        Mr. canfield did, pursued judgment for him, obtained a
4        judgment for the amount in controversy.
5                            At that point in time, there was


              VICTORIA L. GONZALEZ - OFFICIAL COURT REPORTER
                    lSOTH DISTRICT COURT (210) 335-2570
                                  ...-1'.          L   I
                                 L-~X#./#/7 E              36
                                                                              --
L       discussion among counsel about a motion for new trial.
        It wound up being agreed to and then my client withdrew
    "
J       from the litigation.
~                             THE COURT:     What was agreed to?
                              MR. DAVIS:     The motion for new trial.
)       My client withdrew from the litigation with permission of
r       the Court, advising the plaintiff that he needed to get
~       other counsel to go forward on the case and he did not do
J       so.     Again. he   wen~·   before the court in a pro se
)       capacity. tried his own ca,e and lost it.            And now he
l       sues Mr. canfield for legal malpractice for, I guess,
~       10s;ng the case after he was no longer counsel.
~                             So with that background, plaintiff seems
~       to be saying that therets a dispute as to whether he
5       instructed Mr. Canfield to agree to the motion for new
5       trial or whether Mr. Canfield merely told him that he was
7       going to lose the motion for new trial.             For purposes of
S       this hearing it doesn't matter which position you take on
9       that.     so as you would in looking at a motion for summary
D       judgment, assume the validity of the plaintiff's
1       argument.     Assume that Mr. canfield merely told him he
2       was going to lose the motion for new trial instead of
3       being instructed to agree to the motion for new trial.
4       It    doesn't matter.       There's no lawyer here saying that
5       that was negligent or a proximate cause of any injuries


                VICTORIA L. GONZALEZ - OFFICIAL COURT REPORTER
                      150TH DISTRICT COURT (210) 335-2570
                                                    \   /
                                          £Xtl/PI/ 3£
                                                                             ----~.--.




              to Mr. oaniels.
                                  The second point plaintiff seems to be
    .'
              raising in an effort to defeat today's motion ;s -- has
              to do with why Mr. canfield withdrew from representation.
              Mr. canfield has testified he withdrew from
              representation under his employment agreement because
              plaintiff was going out, communicating with the other
              side, contrary to his        his advice and that that was a
              provision that he Kid acknowledged in his employment
              contract to authorize withdrawal.      That's why he
              withdrew.
                                   plaintiff says, in attempting to raise
              an issue for today, that there were never any such
              communications at the time of the withdrawal.      what
              difference it makes in a legal malpractice case when
              there's no expert as to why the attorney withdrew, with
              p@rm;ssion of the court, and the case goes on and is lost
~             pro set I·m at a loss to know what that adds to today's
)             hearing.    I   don't think it makes one bit of difference.
)                                  The obligation in the no evidence -- in
L             an attempt to defeat a no evidence motion for summary
)             judgment is to raise a scintilla of evidence about one of
l             the elements that's lacking proof.      The elements that are
~             lacking proof in this case are whether my client Mr.
)             canfield was professionally negligent in his

                   VICTORIA l. GONZALEZ - OFFICIAL COURT REPORTER
                         150TH DISTRICT COURT (210) 335-2570
         JJ                                     M#I#/£    E '
     representation.   And two, whether that caused any damages
     to Mr. Daniels.   There is no expert in this case.        And,
"
     again, we are here basically with the same position we
     were before Judge Stryker on, where she told them they
     needed an expert to support this case and we would
     encourage the motion be granted.
                      THE COURT: Are you saying the plaintiff
     has not designated an expert through the request for
     disclosure?        ~

                       MR. DAVIS:     well, there's no -- there
     has been no request for disclosure that I have filed. but
     when I filed a motion for no evidence summary judgment.
     they have an obligation to refute that by offering up
     probative evidence. summary judgment evidence to show
     that there is, indeed. a credible issue. They have not
     done that and I submit that we are entitled to a
     166(a)(i) motion being granted_
                      THE COURT: Okay. Mr. Bertolino.
                       MR. YOUNG:     Mr. young.
                       THE   COURT:   You're here for
     Mr. Bertolino?
                       MR. YOUNG:     ves, Your Honor.
                       THE COURT:     Okay.   Go    ahead~

                       MR. YOUNG:     First of     all, I would like   :   I


      to argue that a legitimate issue of material fact is

        VICTORIA L. GONZALEZ - OFFICIAL COURT REPORTER
              lS0TH DISTRICT COURT (210) 335-2570
    ~_____________________)SK   __._#/_~_I_r__~_~_~________~~J
     presented in the agreement for new trial.       As Mr. Davis
     stated t his client actually obtained a judgment of
."
     $7.500, in addition to $2.500 of attorney's fees in favor
     of our client, Mr. Daniels.      Our client's assertion is
     that he did not   1ns~ruct   or agree to enter an agreed new
     trial.
                       THE COURT:     HOw is that negligence on
     the part of Mr. Canfield?
                       MMt. YOUNG:    Because he had --
                       THE COURT:     I mean, you can have a
     dispute about whether or not a new trial should have been
     granted or whether or not it's agreed to or not, but
     you'~e very familiar with the fact that in the

     professional negligence case. not only do you have to
     prove malpractice by the attorney, but that your client
     would prevail on the underlying case.
                      Now, letts     just presume that because he
     prevailed on the first case     and if a new trial had not
     been granted. he would have     been successful. what is the
     negligence that occurred by     this attorney in representing
     his client?
                        MR. YOUNG:The negligence that occurred
     is that he deprived his client of the opportunity to
     enforce the judgment that was awarded to him.
                        THE COURT:    okay.    And how is that


          VICTORIA L. GONZALEZ - OFFICIAL COURT REPORTER
                lSOTH DISTRICT COURT (210) 335-2570
                          ..EJ2#/B;)-   '£,/    40               51
                                                                -.   ---.
                                                                        ;,
                                                                             --



    proved up?
                       MR. YOUNG:   By his entering into the
    'agreed order.   Mr. Canfield actually obtained S500 in
    legal fees in exchange for that agreement.
                     THE COURT: I'm sorry. You lost me
    there. why is the payment of S500 evidence that there's
    been professional negligence?
                     MR. YOUNG: An additional reason for Mr.
    Canfield's w1thdrawtl was due to Mr. Davis -- my
    apologies, Mr. Daniels' delinquency in payment. Given
    that Mr. canfield asserts that the plaintiff instructed
    him to enter into a motion for new trial, which would
    vacate and set aside the judgment of nearly
    S10.000 awarded to him, for what purpose, I don't know.
    And certainly our cltent, Mr. Daniels, does not
    understand why Mr. canfield did that.
                     THE COURT: Anything else?
                     MR. YOUNG: Additionally. the movant's
    motion for no evidence summary judgment is not
    sufficiently specific. The defendant is required to be
    specific in challenging the evidentiary support for an
    element. Mr. Davis challenged every element of every
    single claim. including the existence of an
~   attorney/client relationship, the existence of a
i   contract, all of which were readily knowable by both him

         VICTORIA l. GONZALEZ - OFFICIAL COURT REPORTER
               150TH DISTRICT COURT (210) 335-2570
                              B~~/~#
                                                               J9
                                                           I,




    and hi s eli ent.
                        THE COURT:   the -- and so wha~
                                     Has
    exper~ opinions have been offered by Mr. Daniels ~hat

    this amounts to professional negligence?
                     MR. YOUNG: Your Honor. an expert
    opinion has not been offered. but one is also not
    required in this case~ It is true that an expert is
    generally necessary to instruct a jury on the issues of
    standard of care a~d proximate cause, where the causal
    link is beyond the jury's common understanding~
                     In this case, I think it's pretty clear
    to a jury that they are going to understand that our
    client was not willing to give up a judgment near
    S10.000 to enter into a new trial .
                           . COURT' 5 RULING
                        THE COURT:      okay. Motion for
                                     Sure~

    su~mary judgme~t is granted.  Do you have an order. sir?
                     MR. DAVIS: Yes.
                     THE COURT: show it to Mr. Young and see
)   if he has any objections to the form and I will be glad
L   to sign it. Okay. If you want to make copies of this
~   you can take it and just bring it back to Shirley, our
~   clerk~  Thank you. Viall may be excused.
l                  (proceedings adjourned)
)




          VICTORIA L. GONZALEZ - OFFICIAL COURT REPORTER
                150TH DISTRICT COURT (210) 335-2570
1    STATE OF TEXAS          )

2    COUNTY OF BeXAR        )
3                 It VICTORIA L. GONZALEZ, Official court
4    Reporter in and for the 150th District court of Bexar
5    county, State of Texas, do hereby certify that the above
6    and foregoing contains a true and correct transcription
7    of all   portio~~   of evidence and other proceedings
8    requested in writing by counsel for the parties to be
9    included in this volume of the Reporter's Record, in the
.0   above-styled and numbered cause. all of which occurred in
.1   open   court or in chambers and were reported by me .
.2                I further certify that this Reporter's Record
.3   of the   proceedi~gs   truly and correctly reflects the
.4   exhibits, if any, admitted by the respective parties .
.5                I further certify that the total cost for the
.6   preparation of this Reporter's Record is $60.00 and was .
.7   paid/will be paid by Mr. Stephen Daniels.
~8

L9                 /5/ VICTORIA GONZALEZ
~O                 VICTORIA GONZALEZ:-fexaS-CSR #1714
                   Ex~iration Date 12/31/13
~1                 Official court Reporter, 150th District
                   Bexar county. Texas
~2                 100 Dolorosa Street
                   San Antonio. Texas 78205
~3                 (210) 335-2570
~4

~5



            VICTORIA L. GONZALEZ - OFFICIAL COURT REPORTER
                  150TH DISTRICT COURT (210) 335-2570
                                         8t1I/.B/ )-   "£ ,.   </1
APPELLANT’S
 APPENDIX

  TAB G
.   .




                                             AFFIDAVIT OF FACTS



            STATE OF TEXAS

            COUNTY OF TRAVIS

                  BEFORE ME, the undersigned authority, on this day personally appeared
            Fred E. Davis who, being by me duly sworn, upon his oath deposed and stated as
            follows:

                  I am a duly licensed Attorney at Law and have been actively practicing law
            in Austin, Travis County, Texas for the past forty-three (43)
                                                                     {43) years. Most of my
            litigation experience has been in defendin~ professional liability lawsuits, '"either
            medical, legal or pharmaceutical.

                  I was retained in 2012 by North American Risk Service to represent Gregory
            w. Canfield in a legal malpractice case brought against him by Stephen Dao
            W.                                                                        niels of
                                                                                   Da.niels
        . San Antonio. North American Risk Services was acting as Third Party
        °




            Administrator of Torus Nationallnsuro
                                   Nationallnsur.ance Company, the professional liability
            carrier of a policy issued to Mr. Canfield. The specific lawsuit was Cause No. 2012-
                               th
                                11
            CI-13637 in the 45t
                            45 Judicial District Court of Bexar County, Texas and was styled
            Stephen M. Daniels v. Gregory Canfield (see Exhibit
                                                        Exhibit## 1). The Attorney
            representing Mr. Daniels in bringing that cause was Tony R. Bertolino of
            BERTOLINO LLP. The lawsuit alleged legal malpractice by Mr. Canfield in an
            BERTOliNO LlP.
                                          time~ Mr. Canfield had represented Mr. Daniels
            underlying cause where, for a time,
            (Stephen M. Daniels v. Adama Kanu).

                   In that initial Kanu case, Mr. Daniels had represented himself (in JP Court)
            and had had a Directed Verdict rendered against him; and after retaining Mr.
            Canfield, that Directed Verdict was set aside and instead, Mr. Daniels was
            awarded a judgment of $9,875.95 plus attorney fees against Mr. Kanu. After a
            Motion for New Trial was granted, Mr. Canfield withdrew from further




                                                                                                    103
representation·with permission of the Court, and Mr. Daniels chose to again
representation,with
represent himself as a pro se litigaf:lt.
                       prose

         tria" Mr. Daniels lost his:case against Mr. Kano and that is where all
      At triat
further Ijtigation
        litigation should have ended. However, Mr. Daniels contacted Mr.
Bertolino about bringing a legal malpractice case against Mr. Canfield and the
                                       the. payment of a (reported)
representation in question began after the,              {reported) $10,000
                                                  agr~ed to file suit on Mr.
retainer. Mr. Bertolino accepted the retainer and agreed
Daniels behalf in Cause No 2012-CI-13637. The fact that it was a case of legal
malpractice, Plaintiff needed ~m ex'
                                 ex.p ert witness to e~tablish any actional claim
against Mr. Canfield (even though the malpractice suit was being re-cast with
superfluous allegations. II felt then, and still do, that the case he filed against my
client was meritless.

       From that point forward, basically nothing happened until 1
                                                                 I filed a No
Evidence Motion for Summary Judgment. Prior to that filing, Mr. Bertolino had
not diligently pursued the case against my client through either written discovery
                                                         credi~le expert witness.
or deposition testimony or by producing the opinion of a credible
                                       s·u mmary Judgment (see Exhibit t!
Thus, I filed a No-Evidence Motion for S'                              4! 2)."
                                                                          2): Mr.
Bertolino attempted to raise a scintilla of evidence to defeat the No Evidence,
                                                                      Evidence.
Motion through his own 'Affidavit and one from his Associate, but was
                   own-Affidavit
unsuccessful. Thus, the Sum~ary Judgmen~ was granted, and then was not
appealed by Mr. Bertolino.

       [Aithqugh Mr. Daniels made a subsequent effort in a pro
       [Althqugh                                               se capacity to
                                                           prose
again sue Mr. Canfield, the ·sexar
                            'Bexar County District Judge held that any claim he
might have had was now barred by the judgment in Cause         No. 2012-0 -13637
                                                                   2012-CI-13637
which was not appealed and ·was
                           'was now fina\.
                                    final. (See Exhibit
                                                Exhibit## 3 and #4}.)
                                                                #4).) .,

                           filed~
       Mr. Daniels has now filed ~ legal malpractice suit against Mr. Bertolino
                                                                      B~rtolino in
Cause No D-1-GN-14-002146
         D-l-GN-14-002146 in Travis County, Texas. He has provided me a copy
of Defendant's No-Evidence Motion and a copy of his pro se response. (I do not
                                                    prose
re~resent Mr. Daniels in !l:Lat
reJ!~~~~nt               that la\y~.uit        any.~1her capacity; he.
                                la\V~Uit or in any_~~her           he, has merely-
                                                                           merelY-
contacted me to see if I would provide an Affidavit which he could use in resp'
                                                                          resp·onse
to a No -Evidence Motion for Summary Judgment filed by Mr. Bertolino, and 1
                                                                          I am.



                                                                                         104
not being compensated for even the time needed to research my file and·
                                                                   and ,pregare
                                                                        preRare
~his                  ~oing so because
this Affidavit.) I am doing              I believe that malpractice was committed
by Mr. Bertolino in the case he filed
                                filed.,against
                                       against my client, Gregory W. Canfield. More
specifically, I.1. would point to the following matters which I believe constitute
negligence/malpractice in the context of the above facts:
                                                   facts;

      (1) Advising a client to file a legal malpractice claim prior to having the ca'se
                                                                                  ca·se
           reviewed by a competent legal expert who is available to testify at trial
                                                          negligenc~, (* except in the
           in support of that position is, in my opinion, negligence.(*
           medical malpracti~e field where statutorily, the claimant is given a post-
          filing period of time to file an expert report or face having his case
           dismissed). It is my understanding that at the time of filing of the case,
           Mr. Bertolino had no such expert witness retained to support the case.
       {2} Failing to diligently pursue discovery by the propounding of written
           discovery and the taking of depositions, at a minimum the deposition of
           the Defendant he was suing. Pursuing a case of legal malpractice
                                                                         against~
           requires a certain degree of aggressiveness since it is filed against ~
           peer, and in this case, the Court made the threshold finding that
           adequate time for discovery had elapsed (and it was obvious that no
                                      ,prior to the No Evidence Motion being
           discovery had been pursued .prior
                    Defendant),.
           filed by Defendant)·
       (3) When during the course of the case a No~Evidence
                                                No~ Evidence Motion for Summary
                                                                        Summary,
           Judgment was filed, alleging that Plaintiff had no competent evidence
           from a qualified legal expert to testify to the issues of negligence and
           proximate cause, the Plaintiff's Attorney would
                                                     \fYOUid be under a duty to
           retain a qualified expert to defeatthe
                                        defeat the Defendant's No Evidence MSJ.
           These are both .matters
                          ,matters upon which Plaintiff had the burden of proof at
           trial and the absence of such evidence formed the basis for the Court to
           grant the MSJ. That was not done by Mr. Bertolino in the underlying
           case and therefore, the failure to consult and retain appropriate expert
           witnesses to support the case constituted negligence on his part.
       (4) Then, when the No Evidence MSJ was granted, there was still an
           opportunity to challenge it on appeal under Rule 166aJ           was·not
                                                            166a J but that was'




                                                                                          105
•




               done either. I was not privy to any discussions between Mr. Bertolino
               and Mr. Daniels as to payment of the costs of appeal so I do not know if
               that was discussed or not; but having advised his client to file the suit
               without an expert, having a No-Evidence MSJ granted against the client,
               and having charged ·the
                                  -the client for that representation, I would opine
               that there should have been some effort made by Mr. Bertolino to
               appeal and reverse the MSJ if at all possible. Whether that was
               malpractice or not would depend upon facts that are not presently
               known to me and I offer no such opinion.



                     f(l'!iday of September, 2014.
          Dated this /<J'!!day




                                                          Davisj Affiant
                                                  Fred E. Davis,



          Si?t1'!1O
          Si?f~O AND SUBSCRIBED BEFORE ME, the undersigned authority, on .-
    this the     :r~ay of September 2014.
                 r~ay




               e
               * ."
                      ALYSON KCHAKV
                      "tYSON KCHAKY
                       NOTARY PI,lBUC
                       NOTARV      PI,JBUC
                         SlalellfTSCIRI
                         SlabIlfTSIIIi
                      Comm. ~.
                      Gomm. ~- (19/1!1/2016
                                  \l9I1!i,l2016

                                                                 state of Texas
                                                  Notary Public, State

                                                  My Commission Expires:    #o
                                                                            0/40If(    If'




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