                                                                                                    ACCEPTED
                                                                                                04-15-00222-CV
                                                                                    FOURTH COURT OF APPEALS
                                                                                         SAN ANTONIO, TEXAS
                                                                                           6/17/2015 2:53:28 PM
                                                                                                 KEITH HOTTLE
                                                                                                         CLERK

                              CAUSE NO. 04-15-00222-CV
IN THE ESTATE OF                                   §      IN THE FOURTH COURT
                                                              FILED IN
                                                       4th COURT OF APPEALS
CARLOS AGUILAR,                        §    OF APPEALS  SAN ANTONIO, TEXAS
                                                       06/17/15 2:53:28 PM
DECEASED                               §    SAN ANTONIO,     TEXAS
                                                         KEITH E. HOTTLE
________________________________________________________________________
                                                               Clerk

                       MOTION FOR REHEARING
________________________________________________________________________

TO THE HONORABLE FOURTH COURT OF APPEALS:

         NOW COMES Clarissa Aguilar, as the sole surviving parent and Next Friend of

Carlos Aguilar, Jr., Alyssa Aguilar, Andrew Aguilar, Marcus Aguilar, and Kaylee Aguilar,

Minor Children (hereinafter “Movants”), and file the following Motion for Rehearing, and

would show the following:

                                              I.

         On June 4, 2015, this Honorable Court denied Appellee’s Motion for Sanctions.

Appellees respectfully move the Court to reconsider this order because Appellees have

now obtained a reporter’s record of sworn testimony from a court hearing on May 26, 2015,

before the Honorable Jesus Garza. This record is attached to this motion and is filed in this

Court.

         This testimony shows beyond any reasonable doubt sanctions should issue. This

testimony was not considered by this Honorable Court when it denied Appellee’s Motion

for Sanctions because not yet available to be filed in this court.




                                             -1-
                                            II.

       On May 26, 2015, the Honorable Jesus Garza heard Movants’ Motion for Contempt

against Vanessa Arce and Her Counsel, Balmer. David G. Balmer failed or refused to

appear for the hearing. Ryan Anderson did appear and gave sworn testimony concerning

the frivolous appeal filed by David G. Balmer.

       Balmer filed the notice of appeal. He did this the day the discovery compelled by

this order was due to be answered. Furthermore, Balmer refused to answer the discovery.

       Mr. Anderson testified Balmer filed the notice of appeal without first consulting Mr.

Anderson, the appellate attorney for Vanessa Arce. See RR at 14. Mr. Anderson admitted

the trial court order Balmer purported to appeal concerned discovery issues. Id. at 16. Mr.

Anderson agreed with this Honorable Court that no statute declares such an order

appealable under the Probate Code, and that the order does not appear that the order

disposes of all parties or issues in a particular phase of the proceedings. Id. Mr. Anderson

also agreed with this Honorable Court that no other statutory authority permitting a party

to appeal from an interlocutory discovery order could be found. Id.

       Mr. Anderson claimed Balmer’s appeal was the wrong procedural mechanism to

challenge the discovery order. Id. at 17. Anderson also testified all responsive documents

had been produced, leading one to question why appellate intervention in a moot discovery

dispute was warranted.




                                            -2-
                                             III.

       The Rules provide:

       If the court of appeals determines that an appeal is frivolous, it may--on motion of

       any party or on its own initiative, after notice and a reasonable opportunity for

       response--award each prevailing party just damages. In determining whether to

       award damages, the court must not consider any matter that does not appear in the

       record, briefs, or other papers filed in the court of appeals.

Tex. R. App. P. 45. Evidence shows Balmer’s appeal is frivolous. Less egregious appeals

have merited sanctions. Mid–Continent Cas. Co. v. Safe Tire Disposal Corp., 2 S.W.3d

393, 395 (Tex. App.-San Antonio 1999, no pet.); Diana Rivera & Assocs. v. Calvillo, 986

S.W.2d 795, 799 (Tex. App.—Corpus Christi 1999, pet. denied).

       Anderson testified all responsive documents had been produced. This can only mean

there is no arguable basis for mandamus, appeal, or any conceivable appellate intervention.

       This Honorable Court ordered Balmer to file in this court, on or before May 18,

2015, a written response showing cause why his appeal should not be dismissed for want

of jurisdiction. He chose to ignore this Honorable Court’s order and failed to file a

response.

       Objectively, all the evidence, as in 100% of the evidence, shows Balmer lacked any

lawful basis to invoke this Court’s jurisdiction over this discovery dispute. No reason has

been offered by Balmer for filing this notice of appeal or invoking this Court’s jurisdiction.

       This notice of appeal defines frivolity.




                                             -3-
       Movants have suffered damages as a result of Appellate Counsel’s frivolous appeal

in this civil case and therefore request that this Honorable Court exercise its discretion to

sanction Balmer $5,000 for the attorney’s fees and costs incurred in having to respond to

the frivolous appeal filed by Balmer.

                                         PRAYER

       For these reasons, Clarissa Aguilar, as the sole surviving parent and Next Friend of

Carlos Aguilar, Jr., Alyssa Aguilar, Andrew Aguilar, Marcus Aguilar, and Kaylee Aguilar,

Minor Children, asks the appellate court to assess sanctions against Balmer for $5,000, and

grant such other relief as the Court in fairness deems appropriate in this situation.

                                           Respectfully submitted,
                                           BY: “/s/ Ronald Rodriguez”
                                           Ronald Rodriguez
                                           State Bar No. 00788306
                                           ron@ronaldrodriguez.com
                                           Willard Clark
                                           State Bar No. 24087307
                                           will@ronaldrodriguez.com
                                           The Law Offices of Ronald Rodriguez
                                           A Professional Corporation
                                           915 Victoria Street
                                           Laredo, Texas 78040
                                           Tel: (956) 796-1000
                                           Fax: (956) 796-1002

                             CERTIFICATE OF SERVICE
       I certify that a true and correct copy of the foregoing document has been served on

all counsel of record on this June 17, 2015, in accordance with the Texas Rules of Civil

Procedure.

                                           “/s/ Ronald Rodriguez”


                                            -4-
       FILED IN
4th COURT OF APPEALS
 SAN ANTONIO, TEXAS
06/17/15 2:53:28 PM
  KEITH E. HOTTLE
        Clerk
