                                                                                     ACCEPTED
                                                                                 03-14-00671-CV
                                                                                         5041500
                                                                      THIRD COURT OF APPEALS
                                                                                 AUSTIN, TEXAS
                                                                           4/27/2015 11:54:18 AM
                                                                               JEFFREY D. KYLE
                                                                                          CLERK



        NO. 03-14-00671-CV                                      FILED IN
                                                         3rd COURT OF APPEALS
                                                              AUSTIN, TEXAS
                                                         4/27/2015 11:54:18 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


                     APPELLANT’S REPLY BRIEF


                          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 PREVIOUSLY REQUESTED
                                        TABLE OF CONTENTS

TABLE OF CONTENTS ............................................................................................i

INDEX OF AUTHORITIES.................................................................................... iii

REFERENCES........................................................................................................ vii

SUMMARY OF REPLY .......................................................................................... 1

ARGUMENT ............................................................................................................. 3

         A.       THE SUBSTANCE OF THE PLEADINGS CONFIRMS THAT THE JULY
                  PLEADING WAS A SUPPLEMENT TO THE ORIGINAL PETITION. ................ 3

                  1.       The Substance of the Pleading, Not the Name, Controls. .......... 3

                  2.       There Is No Evidence Either Party Intended the July Pleading to
                           Stand Alone. ................................................................................ 6

                  3.       No Objection or Motion in the Trial Court Was Required to Treat
                           the Supplemental Pleading Appropriately. ................................. 8

         B.       THIS COURT SHOULD REVERSE AND REMAND THE SUMMARY JUDGMENT
                  DESPITE THE ABSENCE OF AN AFFIDAVIT OR A VERIFIED MOTION FOR
                  CONTINUANCE. ....................................................................................... 9

         C.       PRIOR TO APPELLEE’S MOTION, THE RECORD CONTAINED SUFFICIENT
                  EVIDENCE TO DEFEAT SUMMARY JUDGMENT....................................... 14

                  1.       Mr. Daniels’s Motion Directed the Court to Documents Already
                           On File....................................................................................... 14

                  2.       Demanding More Would Unreasonably Require Mr. Daniels to
                           Marshal His Evidence Prior to Trial.. ....................................... 15

         D.       MR. DANIELS’S REQUEST, IF GRANTED IN THE EVENT OF A PARTIAL
                  REMAND, WOULD MERELY REINFORCE HIS RIGHTS AS A LITIGANT. ... 16

APPELLANT’S REPLY BRIEF                                                                                          PAGE i
CONCLUSION ........................................................................................................ 16

CERTIFICATE OF COMPLIANCE ....................................................................... 18

CERTIFICATE OF SERVICE ................................................................................ 18




APPELLANT’S REPLY BRIEF                                                                                    PAGE ii
                                   INDEX OF AUTHORITIES


CASES

Allen v. Albin
      97 S.W.3d 655 (Tex. App.—Waco 2002, no pet.) ........................................ 14

Casso v. Brand
     776 S.W.2d 551 (Tex. 1989) ......................................................................... 11

City of Houston v. Clear Creek Basin Auth.
       589 S.W.2d 671 (Tex. 1979) ......................................................................... 11

City of Houston v. Howard
       786 S.W.2d 391 (Tex. App.—Houston [14th Dist.] 1990, writ denied) .......... 4

Clemons v. Tex. Concrete Materials, Ltd.
     2010 Tex. App. LEXIS 8394, No. 07-09-0032-CV (Tex. App.—Amarillo
     October 19, 2010, no pet.) ............................................................................. 14

Coffee v. Johnson
      143 S.W.3d 414 (Tex. App.—Eastland 2004, no pet.).................................... 4

Flores v. Flores
      225 S.W.3d 651 (Tex. App.—El Paso 2006, pet. denied)............................. 10

Fort Brown Villas III Condo. Ass’n v. Gillenwater
      285 S.W.3d 879 (Tex. 2009) ......................................................................... 12

G&H Towing Co. v. Magee
    347 S.W.3d 293 (Tex. 2001) ......................................................................... 11

Horizon/CMS Healthcare Corp. v. Auld
      34 S.W.3d 887 (Tex. 2000) ............................................................................ 4

In re Fifty-One Gambling Devices
       298 S.W.3d 768 (Tex. App.—Amarillo 2009, pet. denied) ........................ 3, 8

APPELLANT’S REPLY BRIEF                                                                              PAGE iii
McInnis v. Mallia
     261 S.W.3d 197 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) ......... 12

Musgrave v. Owen
     67 S.W.3d 512 (Tex. App.—Texarkana 2002, no pet.) ................................ 16

Park Place Hosp. v. Estate of Milo
      909 S.W.2d 508 (Tex. 1995) ......................................................................... 12

Rad v. Calbeck
      No. 03-10-00429-CV, 2011 Tex. App. LEXIS 10240 (Tex. App.—Austin
      December 30, 2011, no pet.).......................................................................... 10

Robinson & Harrison Poultry Co., Inc. v. Galvan
     323 S.W.3d 236 (Tex. App.—Corpus Christi 2010, pet. granted, jdgm’t
     vacated by agr.) ............................................................................................ 3, 8

Schlumberger Well Surveying Corp. v. Nortex Oil and Gas Corp.
     435 S.W.2d 854 (Tex. 1968) ......................................................................... 14

Sixth RMA Partners, L.P. v. Sibley
       111 S.W.3d 46 (Tex. 2003) ............................................................................. 6

Smith v. Adair
      96 S.W.3d 700 (Tex. App.—Texarkana 2003, pet. denied) ............................ 3

Spoljaric v. Percival Tours, Inc.
      708 S.W.2d 432 (Tex. 1986) ......................................................................... 14

State v. $90,235
       390 S.W.3d 289 (Tex. 2013) ......................................................................... 12

State Bar of Texas v. Heard
       603 S.W.2d 829 (Tex. 1980) ....................................................................... 3, 8

TemPay, Inc. v. TNT Concrete & Constr., Inc.
    37 S.W.3d 517 (Tex. App.—Austin 2001, pet. denied) ................................ 10

APPELLANT’S REPLY BRIEF                                                                                    PAGE iv
Tenneco Inc. v. Enterprise Prods. Co.
     925 S.W.2d 640 (Tex. 1996) ...................................................................10, 12

Tex. Dep’t of Parks & Wildlife v. Miranda
      133 S.W.3d 217 (Tex. 2004) ......................................................................... 11

Thornbrough v. Columbus & Greenville R.R. Co.
     760 F.2d 633 (5th Cir. 1985) .......................................................................... 14

Turner v. Franklin
     325 S.W.3d 771 (Tex. App.—Dallas 2010, pet. denied) .............................. 14

Wells Fargo Bank, N.A. v. Smuck
      407 S.W.3d 830 (Tex. App.—Houston [14th Dist.] 2013, pet. denied)....... 5, 6

West v. SMG
      318 S.W.3d 430 (Tex. App.—Houston [1st Dist.] 2010, no pet.).................. 10


STATUTES

TEX. R. CIV. P. 45 ....................................................................................................... 4

TEX. R. CIV. P. 47 ....................................................................................................... 4

TEX. R. CIV. P. 62 ....................................................................................................... 6

TEX. R. CIV. P. 64 ....................................................................................................... 4

TEX. R. CIV. P. 68 ....................................................................................................... 9

TEX. R. CIV. P. 69 ....................................................................................................... 6

TEX. R. CIV. P. 71 ................................................................................................... 3, 8

TEX. R. CIV. P. 90 ....................................................................................................... 9


APPELLANT’S REPLY BRIEF                                                                                          PAGE v
TEX. R. CIV. P. 91 ....................................................................................................... 9

TEX. R. CIV. P. 166a .............................................................. 1, 10 n.2, 11, 12, 13, 15




APPELLANT’S REPLY BRIEF                                                                                         PAGE vi
                             REFERENCES

CR __           Clerk’s Record (by page number)

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

Appx.




APPELLANT’S REPLY BRIEF                                        PAGE vii
                             SUMMARY OF REPLY

      Appellant Stephen M. Daniels files this Reply to respond to some of the points

raised in Appellee’s Brief. First, Appellee asserts that only the pleading entitled

“Plaintiff’s Amended Original Petition” filed July 10, 2014 (also called the “July

pleading”) was live at the time of Appellee’s no-evidence summary judgment

motion at issue in this appeal. However, the substance of the pleading, not its title,

controls whether it is an amended petition that stands alone or a supplemental

pleading to be read with the original petition. In this case, the content of the July

pleading clearly shows it cannot stand alone as the sole live pleading. Because the

original petition asserted alternative theories not addressed in the no-evidence

motion, Judge Strauss’s “final” judgment was erroneous.

      Appellee also contends that Mr. Daniels failed to preserve for appeal the issue

of whether adequate time for discovery had passed because he did not file an

affidavit or a verified motion contending that additional discovery was required.

However, as the specifics of this case illustrate, requiring a non-movant to disprove

that adequate time for discovery has passed to defeat a no-evidence summary

judgment motion improperly grants a presumption in favor of a movant on an issue

of fact that a movant should be required to prove to show itself to be entitled to

summary judgment. Rule 166a(i) is by its own terms only available to litigants after


APPELLANT’S REPLY BRIEF                                                       PAGE 1
adequate time for discovery has elapsed. Whether adequate time for discovery has

elapsed is a fact issue. Placing the burden on the non-movant to disprove that a

movant has met this explicit requirement is improper. Mr. Daniels therefore requests

that the Court return the burden to the movant to show that he is entitled to the

summary judgment he seeks and modifying any existing applicable case law to the

contrary.

      Finally, for the reasons set forth in Appellant’s Brief and Reply, Appellant

again requests this Court to overturn the trial court’s summary judgment order and

remand for further proceedings.




APPELLANT’S REPLY BRIEF                                                     PAGE 2
                                    ARGUMENT

A.    THE SUBSTANCE OF THE PLEADINGS CONFIRMS THAT THE JULY PLEADING
      WAS A SUPPLEMENT TO THE ORIGINAL PETITION.

      1.     The Substance of the Pleading, Not the Name, Controls.

      Appellee’s contention – that the inclusion of the word “amended” in the

heading is dispositive as to whether the July pleading is an amended or supplemental

petition – is without legal support. On the contrary, Texas law states, “Courts must

read a pleading for its content rather than its label.” Robinson & Harrison Poultry

Co., Inc. v. Galvan, 323 S.W.3d 236, 241 (Tex. App.—Corpus Christi 2010, pet.

granted, jdgm’t vacated by agr.) (holding that appellant’s “second and third motions

for entry of judgment were not intended to supersede the original motion” and

construing them as “supplemental motions to be read in conjunction with its first-

filed motion”). In discussing TEX. R. CIV. P. 71, the Texas Supreme Court has

specifically directed courts to “look to the substance of a plea for relief to determine

the nature of the pleading, not merely at the form of title given to it.” State Bar of

Texas v. Heard, 603 S.W.2d 829, 833 (Tex. 1980); see also In re Fifty-One

Gambling Devices, 298 s.W.3d 768, 772 (Tex. App.—Amarillo 2009, pet. denied)

(“It is the substance of a motion that determines its nature, not merely its title”) and

Smith v. Adair, 96 S.W.3d 700, 705 (Tex. App.—Texarkana 2003, pet. denied)

(stating that Rule 71 “requires the court to look past titles to substance” and

APPELLANT’S REPLY BRIEF                                                         PAGE 3
confirming that “[t]he content of the documents is the critical factor, and whatever

is contained within those documents is accordingly before this Court on appeal”).

      Looking only at the content of the July pleading, Mr. Daniels clearly intended

to supplement, not amend, his original petition. An amended pleading is a substitute

for the original pleading, “entire and complete in itself.” TEX. R. CIV. P. 64. In

Texas, pleadings must, at a minimum, “consist of a statement in plain and concise

language of the plaintiff’s cause of action” and include “a short statement of the

cause of action sufficient to give fair notice of the claim involved.” TEX. R. CIV. P.

45(b) and 47(a). A petition must give a defendant fair notice of the facts relied upon,

enabling the defendant to prepare a defense. Horizon/CMS Healthcare Corp. v.

Auld, 34 S.W.3d 887, 896-97 (Tex. 2000). The test of fair notice is “whether an

opposing attorney of reasonable competence, with the pleadings before him, can

determine the nature of the controversy and the testimony that would probably be

relevant.” Coffee v. Johnson, 143 S.W.3d 414, 417 (Tex. App.—Eastland 2004, no

pet.) (citing City of Houston v. Howard, 786 S.W.2d 391, 393 (Tex. App.—Houston

[14th Dist.] 1990, writ denied)).

      On its own, the “amended” pleading is clearly insufficient to give Appellee

notice of the claims against him. None of the discovery, party identification, service,

jurisdictional, venue, factual, legal, or damages allegations are present. Compare


APPELLANT’S REPLY BRIEF                                                        PAGE 4
CR 21 and CR 12-17. It states no facts whatsoever other than the last three digits of

the parties’ social security numbers.1 CR 21. Finally, the prayer included with the

July pleading is a request that the “Court file this amendment with the Plaintiff’s

Original Petition.” Id. If this pleading was to stand alone, this prayer has no

meaning. Therefore, absent the inclusion of the word “amended” in the pleading,

there is no other basis to conclude that the July pleading is a true amended pleading.

      Appellee has provided no authority supporting his application of the rules of

procedure and the case law to the facts or to support the conclusion that the July

pleading nonsuited claims Mr. Daniels previously asserted. The sole case that

Appellee cites for this issue in his brief is Wells Fargo Bank, N.A. v. Smuck, 407

S.W.3d 830 (Tex. App.—Houston [14th Dist.] 2013, pet. denied). That case was

essentially the reverse of this one – a party had filed a pleading entitled “Plaintiffs’

Supplemental Petition” that read as an amended original petition, rather than a



1
  Appellee – the one to whom the pleadings are supposed to provide notice –
recognized that the July pleading had no factual allegations and in fact cited this as
a reason that the court should strike the pleading. See App’ee’s Brief, p. 15. If
Appellee had sought a ruling on this request and the trial court had struck the July
pleading, the sole operative pleading would have been the Original Petition, and the
alternative theories of recovery would have undoubtedly have been live. The result
would have been the same if Appellee had sought to have the July pleading struck
as an improper supplement on the grounds that it was not responsive to a pleading
by the other party – it would have left the Original Petition as the sole live pleading,
not affirmatively dispose of the claims asserted in the Original Petition.

APPELLANT’S REPLY BRIEF                                                         PAGE 5
supplemental one. Wells Fargo, 407 S.W.3d at 840. In that case, the Fourteenth

Court of Appeals determined that “despite the misnomer, the ‘supplemental’ petition

constituted an operative petition for purposes of pleading claims.” Id. at 841 (citing

Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 54-55 (Tex. 2003) (“though a

pleading may be denominated a supplement it may actually constitute an amendment

or set up a counter-claim or cross-action, and, if not excepted to but allowed to stay

in the case until judgment, may be considered for all that it means instead of what it

is called”)). Essentially, the court in Wells Fargo did exactly what the Mr. Daniels

is requesting the Court to do in this case – treat the pleading consistent with its

substance.

      2.     There Is No Evidence Either Party Intended the July Pleading to
             Stand Alone.

      Appellee’s argument in his brief relies in part on Appellee’s interpretation of

Mr. Daniels’s intent in filing the second pleading. App’ee’s Brief at 14 (“Mr.

Daniels, by naming his pleading Plaintiff’s Amended Original Petition demonstrated

his intention to ‘add something to’ and ‘withdraw something from’ the Plaintiff’s

Original Petition on file.”) However, this argument presupposes that Mr. Daniels

had these legal definitions in mind when preparing and filing his pleading. That

presupposition is unwarranted.       The distinction between “amendment” and

“supplement” drawn by TEX. R. CIV. P. 62 and 69 is not a distinction carried into

APPELLANT’S REPLY BRIEF                                                       PAGE 6
common English. The legal “amendments” with which many non-lawyers may be

most familiar are the amendments to the United States Constitution. However, the

27th Amendment, which prevents congressmen from changing their own pay until

the next seating of the House of Representatives, did not come to represent the

entirety of the U.S. Constitution and the twenty-six prior amendments upon its

passage. Given that Mr. Daniels was representing himself pro se when he filed his

July pleading, it is reasonable that his understanding of an amendment would be

consistent with a non-lawyer’s understanding of legal amendments, rather than that

of the Texas Rules of Civil Procedure.

      Moreover, as noted in Appellant’s brief at pp. 12-13, both Mr. Daniels and

Appellee continued their motion practice after the hearing and the judge’s letter

order, but before the order giving rise to this appeal. CR 55-61. Plaintiff had filed

a traditional motion for summary judgment on February 12, 2014, on his claims as

set out in his Original Petition. CR 6-11. Mr. Daniels set this motion for hearing on

August 18, 2014 and served notice of the hearing on Appellee on July 14, 2014, four

days after filing his “amended” petition. CR 24. At this time, if Mr. Daniels had

intended to nonsuit the causes of action asserted in his original petition, or had

effectively nonsuited those causes of action, the motion for summary judgment

would be moot. Nonetheless, the day after the letter order was filed, and three days


APPELLANT’S REPLY BRIEF                                                      PAGE 7
after it was signed and sent to Appellee and Mr. Daniels, Appellee executed an

affidavit and filed a response to Mr. Daniels’s Motion for Summary Judgment. CR

54; CR 55-61. Neither party indicated by their conduct that they believed that the

no-evidence motion ended the case in its entirety. As such, the Original Petition was

merely supplemented, not supplanted, and the purported final judgment was in error.

      3.     No Objection or Motion in the Trial Court Was Required to Treat
             the Supplemental Pleading Appropriately.

      Appellee suggests that because Mr. Daniels never raised the misnomer issue

to the trial court or obtained a ruling, he may not assert this grounds to the appellate

court. App’ee’s Brief, p. 15. However, TEX. R. CIV. P. 71 does not require a motion

or ruling but simply instructs the court on how to treat the pleading. The cases cited

in Section A.1 above all concerned pleadings that had not been clarified through

special exceptions or otherwise in the lower court but nonetheless were treated in

accordance with their substance, not their title. See, e.g., State Bar of Texas, 603

S.W.2d at 833; Smith, 96 S.W.3d at 705; Fifty-One Gambling Devices, 298 S.W.3d

at 772; and Robinson & Harrison Poultry Co., Inc., 323 S.W.3d at 241. Because

Rule 71 and the Texas Supreme Court have dictated that content controls, not titles,

Mr. Daniels was not required to move the court to follow the guidance of the Texas

Supreme Court and the Texas Rules of Civil Procedure. Determination of this issues



APPELLANT’S REPLY BRIEF                                                         PAGE 8
is therefore not precluded by the absence of a particular objection or motion in the

trial court.

       On the contrary, if Appellee preferred his interpretation to govern the

pleadings, he could have sought a ruling on special exceptions pursuant to TEX. R.

CIV. P. 91 or request a repleader pursuant to TEX. R. CIV. P. 68. Appellant did

neither. Therefore, to the extent that he contends that a disparity in title and content

constitutes a defect in Mr. Daniels’s pleadings, any such defect is waived. TEX. R.

CIV. P. 90 (“Every defect, omission or fault in a pleading either of form or of

substance, which is not specifically pointed out by exception in writing and brought

to the attention of the judge . . . shall be deemed to have been waived”). Mr. Daniels

therefore respectfully requests that this Court treat the July pleading consistent with

its content – that is, as a supplemental pleading – and reverse the erroneous final

ruling of the trial court.

B.     THE COURT SHOULD REVERSE AND REMAND THE SUMMARY JUDGMENT
       DESPITE THE ABSENCE OF AN AFFIDAVIT OR VERIFIED MOTION FOR
       CONTINUANCE.

       Appellee contends that because Mr. Daniels did not file an affidavit

explaining the need for further discovery or a verified motion for continuance, Mr.




APPELLANT’S REPLY BRIEF                                                         PAGE 9
Daniels failed to preserve this issue for appeal. Appellee is correct2 that some cases

have held that to preserve on appeal the argument that inadequate time for discovery

has elapsed, a party must file either an affidavit explaining the need for further

discovery or a verified motion for continuance. App’ee’s Brief, p. 16; see also

TemPay, Inc. v. TNT Concrete & Constr., Inc., 37 S.W.3d 517, 520-21 (Tex. App.—

Austin 2001, pet. denied) (citing Tenneco Inc. v. Enterprise Prods. Co., 925 S.W.2d

640, 647 (Tex. 1996)); and Rad v. Calbeck, No. 03-10-00429-CV, 2011 Tex. App.

LEXIS 10240 *13 (Tex. App.—Austin December 30, 2011, no pet.) (citing Tenneco

Inc., 925 S.W.2d at 647, West v. SMG, 318 S.W.3d 430, 433 (Tex. App.—Houston

[1st Dist.] 2010, no pet.) and Flores v. Flores, 225 S.W.3d 651, 654-55 (Tex. App.—

El Paso 2006, pet. denied)). Appellee is further correct that Mr. Daniels did neither.3




2
  Although Appellee’s statement of law on this point is basically correct in his brief,
the case law he cites is not directly on point because it addresses traditional motions
under TEX. R. CIV. P. 166a(b) and (c), not no-evidence summary judgment motions
under TEX. R. CIV. P. 166a(i). As explained more fully in the body of this Reply,
this distinction is important because no-evidence summary judgments are limited by
the requirement that an adequate time for discovery has passed, whereas traditional
summary judgments are not so limited.
3
 Although Mr. Daniels did not include an affidavit describing the need for additional
discovery, nor did he file a verified motion for continuance, he did point out in his
response that discovery was not complete – in part because the case had been on file
in Travis County less than two months before Appellee’s motion, and because
Appellee had not responded to discovery requests. CR 49.

APPELLANT’S REPLY BRIEF                                                       PAGE 10
      However, the Court should eliminate this requirement as it applies to no-

evidence summary judgment. Traditional summary judgments are not constrained

by the requirement that an adequate time for discovery must have elapsed, but no-

evidence motions are (or should be). Compare TEX. R. CIV. P. 166a(a), (b), and (c)

with 166a(i). Traditional summary judgments motions are available to parties early

in litigation when there is no genuine issue of fact that justifies the continuation of

the litigation or to eliminate patently unmeritorious claims and untenable defenses.

See, e.g., Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex.

2004); G&H Towing Co. v. Magee, 347 S.W.3d 293, 296-97 (Tex. 2001); Casso v.

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

Auth., 589 S.W.2d 671, 678 n.5 (Tex. 1979). The traditional summary judgment

motion, among other uses, allows the parties to avoid the expense of discovery in

suits involving claims that, for one reason or another, are destined to fail.

      The newer no-evidence motion, on the other hand, is distinct in that it permits

summary judgment in cases in which a genuine issue of fact, a meritorious claim, or

a tenable defense is implicated; however, summary judgment is appropriate because

after discovery has occurred, no admissible evidence exists to support the issue,

claim, or defense. By its very terms, the no-evidence motion is available only after

an adequate time for discovery. TEX. R. CIV. P. 166a(i). Although the rule is


APPELLANT’S REPLY BRIEF                                                         PAGE 11
somewhat vague regarding what is considered “adequate,” most courts have

interpreted this to mean after the discovery period. Fort Brown Villas III Condo.

Ass’n v. Gillenwater, 285 S.W.3d 879, 882 (Tex. 2009); McInnis v. Mallia, 261

S.W.3d 197, 201 (Tex. App.—Houston [14th Dist.] 2010, pet. denied); see also TEX.

R. CIV. P. 166a(i) cmt.

      This distinction is important because a party moving for summary judgment

traditionally bears the burden of showing that he is entitled to the judgment. See,

e.g., State v. $90,235, 390 S.W.3d 289, 292 (Tex. 2013) (“A party moving for

traditional summary judgment has the burden to prove . . . it is entitled to judgment

as a matter of law. The nonmovant has no burden to respond or present evidence

regarding the motion until the movant has carried its burden”); see also Park Place

Hosp. v. Estate of Milo, 909 S.W.2d 508, 510 (Tex. 1995) (“In reviewing a summary

judgment, we must accept as true evidence favoring [the plaintiff], indulging every

reasonable inference and resolving all doubts in [the plaintiff’s] favor.”). The case

law requiring a verified motion for continuance or affidavits arises out of TEX. R.

CIV. P. 166a(g), which predates the inclusion of TEX. R. CIV. P. 166a(i) in 1997. See,

e.g., Tenneco Inc., 925 S.W.2d at 647. In traditional summary judgments, then, if a

nonmovant contended that the motion was premature, the nonmovant bore the

responsibility of showing why.


APPELLANT’S REPLY BRIEF                                                      PAGE 12
      However, a party moving for no-evidence summary judgment is only entitled

to summary judgment if the requirements of Rule 166a(i) are satisfied – including

the explicit requirement that an adequate time for discovery has passed. By placing

the burden on the non-movant to show what additional discovery is needed, a party

moving for summary judgment effectively shifts to the non-movant the requirement

to show why summary judgment is improper without doing anything more than

merely filing a motion. This construction of the rules is diametrically opposed to

the philosophy underlying traditional summary judgment and no longer affords the

non-movant any indulgence or resolution of doubt in his favor, nor does it prevent a

nonmovant from having the burden of a response until the movant carried his burden

to show his entitlement to summary judgment. Rather, it effectively creates a

presumption in favor of the movant that adequate time for discovery has elapsed.

For this reason, the extension of the requirements of Rule 166a(g) to motions under

Rule 166a(i) is inconsistent with the plain language of Rule 166a(i). Mr. Daniels

therefore asks this Court to confirm that parties seeking summary judgment,

including no-evidence summary judgment, bear the burden to show that they are

entitled to such judgment before the nonmovant is required to respond or present

evidence.




APPELLANT’S REPLY BRIEF                                                    PAGE 13
C.      PRIOR TO APPELLEE’S MOTION, THE RECORD CONTAINED SUFFICIENT
        EVIDENCE TO DEFEAT SUMMARY JUDGMENT.

        1.   Mr. Daniels’s Response Directed the Court to the Documents
             Already on File.

        Appellee contends that the evidence on file cannot show Appellee’s

knowledge or prove that Appellee withheld information, which is required under the

DTPA. As noted in Appellant’s Brief, investigation in to Appellee’s intent and

knowledge requires only slight circumstantial evidence and is usually inappropriate

for summary judgment. See, e.g., Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432,

435 (Tex. 1986); Schlumberger Well Surveying Corp. v. Nortex Oil and Gas Corp.,

435 S.W.2d 854, 858 (Tex. 1968); Allen v. Albin, 97 S.W.3d 655, 664-65 (Tex.

App.—Waco 2002, no pet.); 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.) (citing Thornbrough v. Columbus & Greenville R.R. Co., 760 F.2d

633, 640 (5th Cir. 1985)); and Turner v. Franklin, 325 S.W.3d 771, 782-83 (Tex.

App.—Dallas 2010, pet. denied). Direct evidence, such as a defendant’s statement

under oath that he in fact withheld information and intended to defraud a plaintiff, is

rare.

        The evidence identified in the record in Appellant’s Brief in Section C

constitutes at least slight circumstantial evidence. Together with the affidavit of Mr.


APPELLANT’S REPLY BRIEF                                                       PAGE 14
Davis4, either Appellee knew that Mr. Daniels’s case was hopeless and took his

money anyway, or he advised Mr. Daniels that he had knowledge and expertise that

he later showed himself to lack. In either case, more than a scintilla of evidence

supports Mr. Daniels’s claims.

      2.     Demanding More Would Unreasonably Require Mr. Daniels to
             Marshal His Evidence Prior to Trial.

      Appellee also takes issue with Mr. Daniels’s response to his no-evidence

motion on the grounds that it should have more fully marshaled his evidence.

However, Mr. Daniels was not required to marshal his proof; his response “need

only point out evidence that raises a fact issue on the challenged elements.” TEX. R.

CIV. P. 166a(i) cmt. Mr. Daniels’s response met this minimum requirement by

directing the court’s attention to his previously filed documents and particularly the

affidavit of Mr. Davis. Even if the summary judgment motion was otherwise proper




4
  Appellee states that Mr. Davis’s affidavit is substantively defective because it
contains unsubstantiated factual and legal conclusions and opinions. Mr. Davis has
four decades of experience defending professional liability lawsuits and is qualified
to speak to the knowledge that an attorney advertising himself for representation in
legal malpractice claims should have, as well as the applicable standards of
professional conduct. Moreover, as opposing counsel in the suit in which Appellee
represented Mr. Daniels, he has first-hand knowledge of Appellee’s conduct
throughout that litigation and is competent to provide testimony on that subject.

APPELLANT’S REPLY BRIEF                                                      PAGE 15
– which it was not for the reasons identified in Section B of this Reply and Section

B of Appellant’s Brief – Mr. Daniels’s response was adequate to defeat the motion.

D.    MR. DANIELS’S REQUEST, IF GRANTED IN THE EVENT OF A PARTIAL
      REMAND, WOULD MERELY REINFORCE HIS RIGHTS AS A LITIGANT.

      Appellee contends that res judicata would preclude Mr. Daniels from filing

additional DTPA claims this appeal is reversed and remanded but the summary

judgment ruling remains intact. Res judicata applies only to claims that arise from

the same transaction and are based on the same “nucleus of operative facts.”

Musgrave v. Owen, 67 S.W.3d 512, 519 (Tex. App.—Texarkana 2002, no pet.). The

fact that a claim may fall under the DTPA does not necessarily mean that the

operative facts are identical. If the court had entered a non-final (and therefore not

erroneous) summary judgment, Mr. Daniels would have remained free to amend his

pleadings as the litigation progressed and discovery developed. Mr. Daniels is

therefore only requesting that this Court specifically secure to him the rights to

which he is entitled as a Texas litigant.

                                   CONCLUSION

      For the foregoing reasons, and for the reasons identified and discussed in

Appellant’s Brief, Appellant Stephen M. Daniels asks 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

APPELLANT’S REPLY BRIEF                                                      PAGE 16
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: April 27, 2015

                                    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




APPELLANT’S REPLY BRIEF                                                 PAGE 17
                      CERTIFICATE OF COMPLIANCE

Pursuant to TEX. R. APP. P. 9.4, I hereby certify that this brief contains 4,744 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 April 27, 2015, I served a copy of the foregoing document
on counsel of record via email and/or E-File Texas 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 REPLY BRIEF                                                       PAGE 18
