                                                                                                              ACCEPTED
                                                                                                         05-13-00191-CV
                                                                                               FIFTH COURT OF APPEALS
                                                                                                         DALLAS, TEXAS
                                                                                                   1/26/2015 10:22:18 PM
                                                                                                              LISA MATZ
                                                                                                                  CLERK

                                    IN THE COURT OF APPEALS
                               FIFTH DISTRICT OF TEXAS AT DALLAS
                                                                                        FILED IN
                                                                                 5th COURT OF APPEALS
                                                                                      DALLAS, TEXAS
                                       CASE NO. 05-13-00191-CV                   1/26/2015 10:22:18 PM
                                                                                        LISA MATZ
                                                                                          Clerk
                                         BALTASAR D. CRUZ,
                                             Appellant,

                                                     v.

                        JAMES VAN SICKLE, KARL-THOMAS MUSSELMAN D/B/A
                        BURNT ORANGE REPORT and KATHERINE HAENSCHEN,
                                            Appellees.


                              On Appeal from the 160th Judicial District Court
                                          Dallas County, Texas
                                Trial Court Cause No. DC-12-09275-H-R


              APPELLANT’S SECOND MOTION FOR EN BANC RECONSIDERATION OF
                     COURT OF APPEALS’ OPINION OF DECEMBER 3, 2014




Baltasar D. Cruz                                  ORAL ARGUMENT IS REQUESTED
Texas Bar No. 05196150
P.O. Box 600823
Dallas, Texas 75360
email: BaltasarDCruz@aol.com
telephone: (214) 369 - 9058
telecopier: (732) 875 - 0792

APPELLANT PRO SE’

APPELLANT’S SECOND MOTION FOR EN BANC RECONSIDERATION OF
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TO THE HONORABLE COURT OF APPEALS:

              NOW COMES BALTASAR D. CRUZ, Appellant, and pursuant to Rule 49.7 of the

Texas Rules of Appellate Procedure files this, Appellant’s Second Motion for En Banc

Reconsideration of Court of Appeals’ Opinion of December 3, 2014, and in support of same

respectfully shows:

                                                      I.

                                                 Background

              Appellant was an unsuccessful candidate for Judge of the 162nd District Court in the 2012

Dallas County Democratic Party Primary.

              Appellee VAN SICKLE wrote1 an article2 stating, in relevant part, that Appellant was

“thrown out ... by the police of an Elizabeth Edwards book signing event in Dallas several years

ago”, which was first published on the “Burnt Orange Report” website on September 6, 2011 and

continues to be published thereon at:

http://www.burntorangereport.com/diary/11353/whos-on-first-2012-dallas-county-edition

              The above-referenced article also contains the following statement written by Appellee

MUSSELMAN: “OK Dallas readers - time to chime in and tell us how you feel about this! -

promoted by Karl-Thomas Musselman.” (CR p. 53)

              “Burnt Orange Report” is an assumed name used by Appellee MUSSELMAN.3

              The “Burnt Orange Report” website is, and was at all relevant times, edited by Appellee


              1
                  See Appellee VAN SICKLE’s responses to Requests for Admission Nos. 1 and 2 (CR p.
184).
              2
                  CR pp. 53-55
              3
                  See Appellee MUSSELMAN’s response to Request for Admission No. 3 (CR p. 168).

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HAENSCHEN4 and owned by Appellee MUSSELMAN.5

              Appellees MUSSELMAN and HAENSCHEN have the ability to alter the content of the

above-referenced article or to remove it altogether from the Burnt Orange Report website. (RR,

Vol. 3, at 41:12-42:7)

              The assertion that Appellant was “thrown out ... by the police of an Elizabeth Edwards

book signing event in Dallas several years ago” is entirely false.6

              Appellant’s assertion, in the Statement of Facts of Appellant’s Amended Brief, that the

statement that Appellant was “thrown out ... by the police of an Elizabeth Edwards book signing

event in Dallas several years ago” is entirely false was uncontradicted by Appellees in their

briefs.

              This Court issued its Opinion in this case on December 3, 2014.

              Appellant filed Appellant’s Motion for En Banc Reconsideration of Court of Appeals’

Opinion of December 3, 2014 in this cause on December 18, 2014.

              This Court denied Appellant’s Motion for En Banc Reconsideration of Court of Appeals’

Opinion of December 3, 2014 in this cause in an Order issued on January 9, 2015.

              This motion is being filed on the Monday following the Saturday expiration of 15 days

after the issuance of this Court’s Order of January 9, 2015, denying Appellant’s Motion for En


              4
                  See Appellee HAENSCHEN’s response to Request for Admission No. 10 (CR p. 178).
              5
                  See Appellee MUSSELMAN’s Response to Request for Admission No. 5 (CR p. 168).
              6
         See the Affidavit of Baltasar D. Cruz, attached as Exhibit “A” (CR pp. 163-164, par. 5)
to Plaintiff’s Objections and Response to Defendant James Van Sickles’ Motion to Dismiss
Under Citizen’s Participation Act and to Defendants Karl-Thomas Musselman d/b/a Burnt
Orange Report’s and Katherine Haenschen’s Motion to Dismiss Pursuant to Chapter 27 of the
Texas Civil Practice and Remedies Code (CR pp. 140-187, Appendix 28 [to Appellant’s
Amended Brief]).

APPELLANT’S SECOND MOTION FOR EN BANC RECONSIDERATION OF
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Banc Reconsideration of Court of Appeals’ Opinion of December 3, 2014.

                                                       II.

                                                   Argument

              Appellant respectfully requests reconsideration en banc by this Court of Appellant’s

appeal and this Court’s Opinion of December 3, 2014 because:

              (A) the trial court’s award of attorney’s fees to Appellee VAN SICKLE, which was

affirmed by this Court in its Opinion of December 3, 2014, was based on no evidence whatsoever

that VAN SICKLE incurred any attorneys’ fees or expenses, as contemplated under Sec.

27.009(a)(1) TCPRC, presented at the hearing (SRR at pp. 3-93) on VAN SICKLE’s attorney’s

fees nor in the affidavit of Melissa Bellan7, which was filed but never introduced into evidence at

the hearing on Appellees’ attorneys’ fees;

              (B) no copy of VAN SICKLE’s attorney fee agreement was attached to the affidavit of

Melissa Bellan8 nor produced by VAN SICKLE in response to Appellant’s requests for

disclosure, and this Court has failed to address whether the trial court abused its discretion in

overruling Appellant’s objections that the failure to attach a copy of VAN SICKLE’s attorney fee

agreement to Melissa Bellan’s affidavit9 and to produce same renders her affidavit testimony

concerning VAN SICKLE’s purported attorney’s fees inadmissible pursuant to the “best

evidence” rule (i.e., Rule 1002 Tex.R.Ev.) in its Opinion of December 3, 2014;

              (C) Appellant adequately preserved his objections to the introduction by Appellee VAN


              7
                  Third Supplemental Clerk’s Record (“CSR3”) at pp. 27-29 and attachments at pp. 30-
71.
              8
                  CSR3 at pp. 27-29 and attachments at pp. 30-71.
              9
                  CSR3 at pp. 27-29 and attachments at pp. 30-71.

APPELLANT’S SECOND MOTION FOR EN BANC RECONSIDERATION OF
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SICKLE of any evidence concerning VAN SICKLE’s attorney’s fees;

              (D) this Court erred in holding in its Opinion of December 3, 2014 that an affidavit which

has been filed in the trial court need not be introduced into evidence and admitted into evidence

in order to be considered as evidence concerning the cost and necessity of an attorney’s services

under Ch. 18 TCPRC;

              (E) the trial court’s holding that Appellant VAN SICKLE incurred attorney’s fees, as

contemplated under Sec. 27.009(a)(1) TCPRC, must be reversed because Appellant was

wrongfully prohibited from presenting evidence to the contrary in the trial court; and

              (F) the trial court and the court of appeals erred in concluding that an award of attorney’s

fees under Sec. 27.009(a) TCPRC is mandatory and this holding is inconsistent with a prior

holding of another Texas court of appeals.

               The trial court’s award of attorney’s fees to Appellee VAN SICKLE, which was affirmed

by this Court in its Opinion of December 3, 2014, was based on no evidence whatsoever that

VAN SICKLE incurred any attorneys’ fees or expenses, as contemplated under Sec. 27.009(a)(1)

TCPRC, presented at the hearing (SRR at pp. 3-93) on VAN SICKLE’s attorney’s fees nor in

the Affidavit of Melissa Bellan10, which was filed but never introduced into evidence at the

hearing on Appellees’ attorneys’ fees.

              The Affidavit of Melissa Bellan11 does not state that VAN SICKLE has been charged

any legal fees, nor that he is responsible for the payment of any legal fees, nor that he has

been billed for any legal fees. Therefore, the trial court abused its discretion in awarding any


              10
                   Third Supplemental Clerk’s Record (“CSR3”; at pp. 27-29 and attachments at pp. 30-
71.
              11
                   CSR3 at pp. 27-29.

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attorney’s fees to Van SICKLE and the Court of Appeals was mistaken in concluding that

Appellee VAN SICKLE presented any evidence that VAN SICKLE has “incurred” any

attorney’s fees, as contemplated under Sec. 27.009(a)(1) TCPRC.

              In its Opinion of December 3, 2014, this Court correctly recognized that a party only

incurs attorney’s fees if they are liable to their attorneys for the payment of same and properly

concluded that because Appellees HAENSCHEN and MUSSELMAN are being represented pro

bono in this litigation, they incurred no attorney’s fees, as contemplated under Sec. 27.009(a)(1)

TCPRC.

              However, this Court concluded that the Affidavit of Melissa Bellan12 (which was never

introduced into evidence) constituted “some evidence” that VAN SICKLE “incurred”, i.e., was

liable to his attorneys for the payment of, the legal fees VAN SICKLE seeks to recover in this

case. However, the Affidavit of Melissa Bellan13 contains no statement that VAN SICKLE

is liable to his attorneys for the payment of any legal fees or expenses under his attorney fee

agreement with his attorneys for representing him in this matter.

              Paragraph 3 of the Affidavit of Melissa Bellan14 states:

              3.       Our firm was retained by James Van Sickle to represent him in this lawsuit
              initiated by Baltasar D. Cruz. There have been reasonable and necessary
              expenses associated with our firm’s representation of Mr. Van Sickle. Our
              firm has also charged legal fees that are usual and customary charges for similar
              litigation, considering time and labor required, the novelty and difficulty of the
              questions and issues considered, skill requisite to perform the services provided,
              and the customary fees charged by others for equivalent work. These fees and
              expenses were necessary for the representation of Mr. Van Sickle.


              12
                   CSR3 at pp. 27-29.
              13
                   CSR3 at pp. 27-29.
              14
                   CSR3 at pp. 27-29.

APPELLANT’S SECOND MOTION FOR EN BANC RECONSIDERATION OF
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              Although the foregoing paragraph contains an assertion that “there have been

reasonable and necessary expenses associated with” the representation of VAN SICKLE and that

legal fees have been “charged”, it is notably devoid of any assertion that VAN SICKLE is

liable to his attorneys for the payment of any fees nor that any fees have been charged to

VAN SICKLE – as opposed to Appellant, or to Ms. Bellan’s own law firm, or to nobody at all!

              Paragraph 4 of the Affidavit of Melissa Bellan15 states:

              4.       Attached to this affidavit as EXHIBIT 1 is a true and correct copy of our
              firm’s invoice (no. 1074) for services rendered between August and November of
              2012. Attached to this affidavit as EXHIBIT 2 is a true and correct copy of our
              firm’s invoice (no. 1081)for services rendered in December 2012. Attached to
              this affidavit as EXHIBIT 3 is a true and correct copy of our firm’s invoice (no.
              1081) for services rendered in January 2013. I am in charge of this file and can
              testify as to the reasonable and necessary fees for staff and other attorneys who
              have worked on this case at Buchanan and Bellan, L.L.P.

              The foregoing paragraph is also notably devoid of any assertion that the invoices

attached thereto were ever sent to VAN SICKLE or that VAN SICKLE is liable for the

payment of same to his attorneys, and the invoices themselves show that no attorneys fees

have ever been paid by VAN SICKLE and that no retainer funds were ever collected from

VAN SICKLE.

              Paragraph 5 of the Affidavit of Melissa Bellan16 states:

              5.       The total reasonable and necessary fees through January 31, 2013 are
              $31,783.75. The total reasonable and necessary expenses through January 31,
              2013 are $533.90. Defendant Van Sickle requests total fees and expenses in the
              amount of $32,317.65. These attorneys fees and expenses are related to this suit
              filed in the state of Texas, where I am licensed to practice law.

              The foregoing paragraph is also notably devoid of any assertion that VAN SICKLE


              15
                   CSR3 at pp. 27-29.
              16
                   CSR3 at pp. 27-29.

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is liable to his attorneys for the payment of any attorney’s fees or expenses.

              Paragraph 6 of the Affidavit of Melissa Bellan17 states:

              6.      This litigation remains ongoing, thus fees and expenses will continue to
              accrue as this litigation progresses in the trial court and, if necessary, the appellate
              court level. Additional fees and expenses will be necessary as this litigation
              progresses and such fees will be also reasonable and necessary for the defense of
              this suit.”

              The foregoing statement is also devoid of any assertion that VAN SICKLE is liable

to his attorneys for the payment of any attorney’s fees or expenses.

              The mere fact that “invoices” have been generated, which the Affidavit of Melissa

Bellan does not indicate have ever been sent to VAN SICKLE nor that VAN SICKLE has

any obligation to pay, cannot reasonably be construed as evidence that VAN SICKLE has

“incurred” (i.e., is liable for) any legal fees, as contemplated under Sec. 27.009(a)(1)

TCPRC. American Heritage Capital, L.P. v. Gonzalez, 436 S.W.3d 865, 877 (Tex.App.–Dallas

2014, no pet.).

              No copy of VAN SICKLE’s attorney fee agreement was attached to the affidavit of

Melissa Bellan18 nor produced by VAN SICKLE in response to Appellant’s requests for

disclosure, and this Court has failed to address whether the trial court abused its discretion in

overruling Appellant’s objections that the failure to attach a copy of VAN SICKLE’s attorney fee

agreement to Melissa Bellan’s affidavit19 and to produce same renders her affidavit testimony

concerning VAN SICKLE’s purported attorney’s fees inadmissible pursuant to the “best



              17
                   CSR3 at pp. 27-29.
              18
                   CSR3 at pp. 27-29 and attachments at pp. 30-71.
              19
                   CSR3 at pp. 27-29 and attachments at pp. 30-71.

APPELLANT’S SECOND MOTION FOR EN BANC RECONSIDERATION OF
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evidence” rule (i.e., Rule 1002 Tex.R.Ev.) in its Opinion of December 3, 2014.

              In addition, no copy of VAN SICKLE’s attorney fee agreement was attached to the

affidavit of Melissa Bellan20, and this Court has failed to address whether the trial court abused

its discretion in overruling Appellant’s objections21 that the failure to attach a copy of VAN

SICKLE’s attorney fee agreement to Melissa Bellan’s affidavit and to produce same in response

to Appellant’s requests for disclosure renders her affidavit testimony concerning VAN SICKLE’s

purported attorney’s fees inadmissible pursuant to the “best evidence” rule (i.e., Rule 1002

Tex.R.Ev.). Appellant specifically addressed this issue at pp. 100-101 of Appellant’s Amended

Brief, wherein Appellant stated that “the trial court abused its discretion in overruling

Appellant’s objections that ... [Appellees’] failure to produce their attorney fee agreements in

response to requests for disclosure and to have introduced same into evidence in support of their

requests for attorneys’ fees violated the ‘best evidence’ rule (i.e., Rule 1002 Tex.R.Ev.).”

              Because Appellant VAN SICKLE’s counsel admitted that she had a written fee

agreement with VAN SICKLE (SRR 29:8-10, 88:6), which Appellant VAN SICKLE did not

produce in response to Appellant’s requests for disclosure, and Appellant objected (at SRR at

29:12-13, 33:8-16, 33:22-24, 34:17-19, 37:17 - 38:2, and 44:6-12) and in Plaintiff's Motion to

Reconsider Order Granting Defendants’ Attorneys’ Fees and for Ruling on Objections to

Affidavits Introduced Into Evidence by Defendants at March 14, 2013 Hearing on Defendants’

Request for Attorneys’ Fees (CSR3, pp. 129-215, at pp. 140-141) that the “best evidence” rule


              20
                   CSR3 at pp. 27-29.
              21
           See SRR at 29:12-13, 33:8-16, 33:22-24, 34:17-19, 37:17 - 38:2, and 44:6-12 and
Plaintiff's Motion to Reconsider Order Granting Defendants’ Attorneys’ Fees and for Ruling on
Objections to Affidavits Introduced Into Evidence by Defendants at March 14, 2013 Hearing on
Defendants’ Request for Attorneys’ Fees (CSR3, pp. 129-215, at pp. 140-141).

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(i.e., Rule 1002 Tex.R.Ev.) precluded VAN SICKLE from introducing any evidence that he had

incurred any attorney’s fees, as contemplated under Sec. 27.009(a)(1) TCPRC, without having

presented his attorney fee agreement into evidence nor produced same in response to discovery,

the trial court abused its discretion in considering any evidence that VAN SICKLE incurred any

attorney’s fees, even if any evidence of VAN SICKLE’s attorney’s fees was actually offered into

evidence by Appellee VAN SICKLE at the March 14, 2013 hearing on Appellees’ attorney’s fees

– and none was, as evidenced by the reporter’s record of said hearing (SRR at pp. 3-93).

              Appellant adequately preserved his objections to the introduction by Appellee VAN

SICKLE of any evidence concerning VAN SICKLE’s attorney’s fees.

              Appellant would also point out that Appellant objected in the trial court to:

              (A) the introduction by Appellee VAN SICKLE of any evidence concerning VAN

SICKLE’s attorney’s fees because VAN SICKLE had not produced his attorney fee agreement in

response to requests for disclosure, which Appellant asserted at the hearing on Appellees’ request

for attorneys’ fees (SRR at 29:12-13; 33:8-16, 33:22-24, 34:1-3, 34:17-19; 35:15-23, 37:8-38:2,

44:6-12, 52:18-22, 65:20-66:3) and in Plaintiff's Motion to Reconsider Order Granting

Defendants’ Attorneys’ Fees and for Ruling on Objections to Affidavits Introduced Into Evidence

by Defendants at March 14, 2013 Hearing on Defendants’ Request for Attorneys’ Fees (CSR3,

pp. 129-215, at pp. 140-141); and

              (B) the introduction into evidence of “any evidence of Defendant Van Sickle’s attorneys’

fees pursuant to both Rule 193.6 Tex.R.Civ.Pro. and the best evidence rule under Rule 1002 of

the Texas Rules of Evidence” “[b]ecause Defendant Van Sickle’s attorney Melissa Bellan

judicially admitted on the record at the hearing conducted on March 14, 2013 that her law firm

has a written fee agreement with Defendant Van Sickle, and Van Sickle has not produced same

APPELLANT’S SECOND MOTION FOR EN BANC RECONSIDERATION OF
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in response to requests for disclosure”, which Appellant asserted at par. 5.3 of Plaintiff's Motion

to Reconsider Order Granting Defendants’ Attorneys’ Fees and for Ruling on Objections to

Affidavits Introduced Into Evidence by Defendants at March 14, 2013 Hearing on Defendants’

Request for Attorneys’ Fees (CSR3, pp. 129-215 at pp. 140-141).

              The above-referenced objections to Appellee VAN SICKLE being permitted to introduce

any evidence that he incurred any attorneys’ fees should have been sufficient to preserve

Appellant’s issues on appeal concerning Appellee VAN SICKLE’s failure to have actually

offered her affidavit into evidence since they clearly establish that Appellant objected repeatedly

in the trial court to the admissibility and sufficiency of Appellee VAN SICKLE’s purported

evidence that he incurred any attorney’s fees, as contemplated under Sec. 27.009(a)(1) TCPRC.

In fact, Appellant repeatedly objected and argued in the trial court that Appellee VAN SICKLE

had introduced no evidence that he incurred any attorney’s fees, as contemplated under Sec.

27.009(a)(1) TCPRC, at the hearing on Appellees’ attorneys’ fees. See SRR 43:15-21 and 99:6-

12.

              This Court erred in holding in its Opinion of December 3, 2014 that an affidavit which

has been filed in the trial court need not be introduced into evidence and admitted into evidence

in order to be considered as evidence concerning the cost and necessity of an attorney’s services

under Ch. 18 TCPRC.

              In its Opinion of December 3, 2014 (at p. 20), this Court also erred in holding that an

affidavit which was filed in the trial court need not be introduced into evidence at a hearing to

determine a party’s attorney’s fees under Sec. 27.009(a) TCPRC in order to be considered as

evidence concerning the cost and necessity of an attorney’s services under Ch. 18 TCPRC.

However, Sec. 18.001(d) TCPRC specifically states that: “The party offering the affidavit in

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evidence or the party’s attorney must serve a copy of the affidavit on each other party to

the case at least 30 days before the day on which evidence is first presented at the trial of

the case.” Therefore, Sec. 18.001(d) TCPRC expressly contemplates that affidavits filed

under Ch. 18 TCPRC must be offered into evidence in order to be considered as evidence.

              In Alphonso v. Deshotel, 417 S.W.3d 194, 201 (Tex.App.–El Paso 2013, no pet.) the El

Paso Court of Appeals held that “Appellees failed to satisfy their burden to put forth evidence

regarding their right to recover attorney’s fees and costs” because they “did not attach to any of

their pleadings documents supporting the award of attorney’s fees and costs, nor did they prove

their entitlement to fees and costs at the hearing on their motion to dismiss.” The Court of

Appeals in Alphonso v. Deshotel, supra, at p. 201, further stated that:

                      The transcript of the hearing reveals that though Appellees offered the
              affidavit of Michael Moran, their counsel of record, in support of their request for
              attorney’s fees and costs, the trial court neither admitted nor excluded the offer.
              Instead of ruling on the offer of evidence, the trial court permitted Alphonso to
              file objections, if any, to the affidavit within a rasonable time after the hearing.
              Alphonso filed his objections three days after the hearing. One week later, the
              trial court granted the motion to dismiss and – despite never having admitted
              Moran’s affidavit inot evidence or ruled on Alphonso’s objections – Awarded
              Appellees the attorney’s fees and costs requested by them. The trial court erred,
              however, in awarding attorney’s fees and costs.
                      Appellees[’] burden in producing evidence and proving their entitlement
              to attorney’s fees and costs included obtaining a ruling on their offer of Moran’s
              affidavit. [citations omitted] ‘Evidence which is not admitted cannot be
              considered proof in the case.’ [citation omitted] It is presumed that the trial court
              makes its decision based ‘on the competent and admissible evidence before it
              when it acts. [citation omitted] Here, because Appellees never obtained a ruling
              from the trial court admitting Moran’s affidavit into evidence, there was no
              competent proof of attorney’s fees and costs before the trial court when it awarded
              attorney’s fees and costs to Appellees. See Gilbert v. City of El Paso, 327
              S..W.3d 332, 337-338 (Tex.App.–El Paso, no pet.) (concluding that there was no
              evidence to support the award of appellate attorney’s fees because affidavits and
              supporting documents to establish the amount of attorney’s fees were never
              admitted and instead the trial court simply entered a final judgment awarding
              fees).


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              As in Alphonso v. Deshotel, supra, in this case Appellees’ attorney’s affidavits concerning

their purported attorney’s fees were never admitted into evidence by the trial court. Furthermore,

VAN SICKLE’s attorney’s affidavit was never even offered into evidence by VAN SICKLE at

the hearing on Appellees’ attorneys’ fees! (SRR at pp. 3-93)

              Although MUSSELMAN’s and HAENSCHEN’s attorney attempted to offer the affidavit

of Charles Babcock into evidence at the hearing conducted on March 14, 2013 (SRR at 6:6-11)

and Appellant objected to same as well as to the affidavit of Melissa Bellan (which was never

offered into evidence) at said hearing (SRR at 8:15-20; 23:23-25; and 33:5 - 38:2) and in

Plaintiff's Response to Defendants’ Briefs on Attorneys’ Fees and Objections to Affidavits

Introduced Into Evidence by Defendants at March 14, 2013 Hearing on Defendants’ Request for

Attorneys’ Fees (CSR at pp. 115-125), which the trial court expressly permitted Appellant to file

subsequent to said hearing (SRR at 89:13-90:20), neither the affidavit of Charles Babcock nor

the affidavit of Melissa Bellan, nor any other exhibit, was ever admitted into evidence (see SRR

8:22-25) in support of Appellees’ claims for attorneys’ fees either at that hearing nor by any

subsequent order of the trial court. Furthermore, VAN SICKLE never offered any evidence on

his attorneys’ fees at the March 14, 2013 hearing on Appellees’ attorneys’ fees (SRR at pp.

3-93) nor was the affidavit of Melisa Bellan attached to any motion filed by VAN SICKLE.

The trial court , therefore, abused its discretion in awarding attorneys’ fees to Appellees

when no testimony was presented concerning same, VAN SICKLE introduced no exhibits

into evidence on his attorneys’ fees, and none of MUSSELMAN’s and HAENSCHEN’s

exhibits were ever admitted into evidence by the trial court on their purported attorneys’

fees.



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              Appellant further objected to the admission of any evidence concerning Appellees’

attorney’s fees at the hearing on Appellees’ attorney’s fees (SRR at 8:15-20; 23:23-25; 33:5 -

38:2; and 44:6-12) and in:

              (a) Plaintiff's Objections and Response to Defendants’ Request for Attorneys’ Fees (CR

at pp. 281-307);

              (b) Plaintiff's Supplemental Objections and Response to Defendants’ Request for

Attorneys’ Fees and Response to “BOR Defendants’ Brief on the Recovery of Attorneys’ Fees

Pursuant to Chapter 27 of the Texas Civil Practice and Remedies Code” (CR at pp. 372-457);

and

              (c) Plaintiff's Second Supplemental Objections and Response to Defendants’ Request for

Attorneys’ Fees (CSR3 at pp. 74-84).

              Furthermore, the Texas Supreme Court has held that a trial court may not take judicial

notice of the reasonableness off attorney’s fees – which is effectively what the trial court has

done in this case – in passing on a motion for summary judgment. Coward v. Gateway National

Bank, 525 S.W.2d 857, 859 (Tex.1975); see also Garcia v. Martinez, 894 S.W.2d 806, 807

(Tex.App. – Corpus Christi 1994, no writ) (stating that a trial court cannot take judicial notice of

attorneys’ fees without a hearing on the evidence; “where there is absolutely no testimony given

at trial concerning attorney’s fee, the reasonableness of such a fee is a question of fact and must

be supported by competent evidence”); see also Manon v. Tejas Toyota, Inc., 162 S.W.3d 743,

752 (Tex.App.–Houston[14th Dist.] 2005, no writ) (holding that a party’s failure to introduce

affidavit concerning reasonableness and necessity of attorney’s fees, which was previously filed

in the trial court, into evidence at trial resulted in a failure to meet its burden of proof concerning

its attorney’s fees at trial).

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              If a trial court may not take judicial notice of a party’s attorney’s fees in the context of a

motion for summary judgment nor award attorney’s fees after a trial based upon an affidavit

concerning cost and necessity of services which was not admitted into evidence at trial, then it

reasonably follows that a trial court should not be able to award of attorney’s fees based

exclusively upon an affidavit which was neither offered nor admitted into evidence at a hearing

to determine what attorney’s fees a party incurred, as contemplated under Sec. 27.009(a) TRCP.

              In addition, Appellant repeatedly objected and argued in the trial court that Appellee

VAN SICKLE had introduced no evidence that he incurred any attorney’s fees, as contemplated

under Sec. 27.009(a)(1) TCPRC, at the hearing on Appellees’ attorneys’ fees. See SRR 43:15-21

and 99:6-12. These objections and arguments reasonably encompass the objection and

argument that Appellee VAN SICKLE failed to introduce the affidavit of Melissa Bellan

into evidence at the hearing on Appellees’ attorney’s fees.

              This Court’s holdings that Appellant waived any objection to the affidavit of Melissa

Bellan because Appellant failed to specifically object in the trial court that the affidavit of

Melissa Bellan was never introduced into evidence and that an affidavit concerning attorney’s

fees filed under Ch. 18 TCPRC must not be introduced into evidence in order to support an

award of attorney’s fees are inconsistent with:

              (a) Appellant’s repeated objections in the trial court that Appellee VAN SICKLE had

introduced no evidence that he incurred any attorney’s fees, as contemplated under Sec.

27.009(a)(1) TCPRC, at the hearing on Appellees’ attorneys’ fees (SRR 43:15-21 and 99:6-12);

              (b) Appellant’s objections in the trial court22 to the admissibility of the affidavit of


              22
                See SRR at 8:15-20; 23:23-25; 33:5 - 38:2; and 44:6-12 as well as:
              (a) Plaintiff's Objections and Response to Defendants’ Request for Attorneys’ Fees (CR

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Melissa Bellan;

              (c) the El Paso Court of Appeals’ holding in Alphonso v. Deshotel, 417 S.W.3d 194, 201

(Tex.App.–El Paso 2013, no pet.), that an attorney’s affidavit concerning his client’s attorney’s

fees must be admitted into evidence at a hearing on attorney’s fees in order to be considered

evidence of the attorney’s fees;

              (d) the plain language of Sec. 18.001(d) TCPRC (i.e., “[t]he party offering the affidavit

in evidence or the party’s attorney must serve a copy of the affidavit on each other party to

the case at least 30 days before the day on which evidence is first presented at the trial of

the case”), which expressly contemplates that affidavits filed under Ch. 18 TCPRC must be

offered into evidence in order to be considered as evidence; and

              (e) the cases cited above holding that a party’s failure to introduce an affidavit concerning

the reasonableness and necessity of its attorney’s fees, which was previously filed, into evidence

at a trial or hearing on a party’s attorney’s fees results in a failure to meet its burden of proof

concerning its attorney’s fees.

              The trial court’s holding that Appellant VAN SICKLE incurred attorney’s fees, as

contemplated under Sec. 27.009(a)(1) TCPRC, must be reversed because Appellant was

wrongfully prohibited from presenting evidence to the contrary in the trial court.

              When a party is wrongfully prohibited from obtaining and presenting evidence in a trial



at pp. 281-307);
        (b) Plaintiff's Supplemental Objections and Response to Defendants’ Request for
Attorneys’ Fees and Response to “BOR Defendants’ Brief on the Recovery of Attorneys’ Fees
Pursuant to Chapter 27 of the Texas Civil Practice and Remedies Code” (CR at pp. 372-457);
and
        (c) Plaintiff's Second Supplemental Objections and Response to Defendants’ Request for
Attorneys’ Fees (CSR3 at pp. 74-84).

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court, appellate courts have held that the error is harmful and requires reversal of holdings made

in the absence of the missing evidence. For example, in reversing a trial court’s judgment in

Ford Motor Co. v. Castillo, 279 S.W.3d 656, 666-667 (Tex. 2009), the Texas Supreme Court

held that the trial court abused its discretion in denying a party’s request to either depose

former jurors or question them under oath before the trial court. In this regards, the Texas

Supreme Court stated:

              “First, while Ford interviewed some of the jurors, it did not have the opportunity
              to question the presiding juror while she was under oath and required to respond
              under penalty of perjury. See e.g. Tex.R.Civ.P. 176.6, .8 (requiring a nonparty to
              comply with a discovery subpoena subject to being held in contempt of court);
              Tex.R.Civ.P. 199.5(b) (requiring a person whose deposition is taken to be placed
              under oath); Tex.Penal Code § 37.02 (providing that it is a criminal offense to
              make a false statement under oath). Additionally, when discovery is denied and
              because of the denial the evidence sought does not appear in the record,
              determining harm from the denial is impossible and the party is prevented
              from properly presenting its case on appeal. See Tom L. Scott, Inc. v.
              McIlhany, 798 S.W.2d 556, 558 (Tex.1990) (orig. proceeding) (‘[T]he protective
              order shields the witnesses from deposition and thereby prevents the evidence
              from being part of the record. Therefore, it would be impossible to determine on
              appeal if the denial were harmful error.’) Jampole v. Touchy, 673 S.W.2d 569,
              576 (Tex.1984) (orig. proceeding). The lack of direct evidence about whether
              the presiding juror was subjected to outside influence probably prevented
              Ford from properly presenting its case on appeal. Accordingly, the trial
              court’s abuse of discretion in denying discovery was harmful. See
              Tex.R.App.P. 44.1(a).”

              Ford Motor Co. v. Castillo, 279 S.W.3d 656, 666-667 (Tex. 2009).

              Because the trial court wrongfully prohibited Appellant from cross-examining VAN

SICKLE’s attorney Melissa Bellan (SRR at 33:5-38:11) concerning whether VAN SICKLE had a

written attorney fee agreement which VAN SICKLE did not produce in response to discovery

(but the existence of which was revealed by Melissa Bellan during the hearing on VAN




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SICKLE’s attorney’s fees23) and whether VAN SICKLE was liable for any attorney’s fees

thereunder, the evidence sought by Appellant does not appear in the record, and Appellant was

prevented from properly presenting his case on appeal, which constitutes a harm to Appellant

that can only be remedied by setting aside the award of attorney’s fees to VAN SICKLE,

remanding the case to the trial court, ordering VAN SICKLE to produce his attorney fee

agreement to Appellant, and permitting Appellant to cross-examine Melissa Bellan.

              The trial court and the court of appeals erred in concluding that an award of attorney’s

fees under Sec. 27.009(a) TCPRC is mandatory and this holding is inconsistent with a prior

holding of another Texas court of appeals.

              This Court’s holding in its Opinion of December 3, 2014 (at p. 22) that an award of

attorney’s fees to a defendant who has successfully brought a motion to dismiss under Sec.

27.009(a) TCPRC is mandatory is inconsistent with the Austin Court of Appeals’ decision in

Combined Law Enforcement Association v. Sheffield, __ S.W.3d __, 2014 WL 411672, at p. 11

(Tex.App.–Austin 2014, pet. filed), holding that an award of attorney’s fees to a defendant who

has successfully brought a motion to dismiss under Ch. 27 TCPRC is not mandatory under Sec.

27.009(a) TCPRC:

              While the introductory language of [Sec. 27.009(a) TCPRC] uses the seemingly
              mandatory term “shall award,” the subsequent language tempers the conditions for
              making an award with discretionary terms like “justice” and “equity” and
              “sufficient to deter.” Id. A trial court may decide that justice and equity do not
              require that costs, fees, or expenses be awarded and may determine that no
              sanctions are needed to deter the plaintiff from bringing similar actions. These
              provisions do not mandate an award and do not violate the open-courts guarantees
              on their face. As no fees were awarded, the provisions as applied here did not
              violate the open-courts provisions.



              23
                   SRR at 29:8 and 88:6.

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              If this Court is going to render an opinion that directly contradicts the prior holding of

another Texas court of appeals concerning the same statutory provision, it should do so en banc

rather than through an opinion issued by a three judge panel.

              WHEREFORE, PREMISES CONSIDERED, Appellant BALTASAR D. CRUZ prays

that this Court:

              (a) reconsider en banc the portions of Appellant’s appeal discussed above;

              (b) withdraw its Opinion of December 3, 2014;

              (c) issue a new opinion en banc, addressing the issues discussed above, for the reasons

stated herein;

              (d) reverse the trial court’s rulings and/or remand this case for further proceedings

consistent with this motion; and

              (e) grant Appellant all other and further relief to which he may be justly entitled.


                                                             Respectfully submitted,

                                                             /s/ Baltasar D. Cruz
                                                             Baltasar D. Cruz
                                                             Texas Bar No. 05196150
                                                             P.O. Box 600823
                                                             Dallas, Texas 75360
                                                             Telephone: (214) 369-9058
                                                             Telecopier: (732) 875-0792
                                                             e-mail: BaltasarDCruz@aol.com

                                                             APPELLANT PRO SE’




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                                       CERTIFICATE OF SERVICE

        I hereby certify that on this, the 26th day of January, 2015, a complete and accurate copy
of this document was served, in compliance with Rule 9.5 of the Texas Rules of Appellate
Procedure, upon:

              Melissa J. Bellan
              Texas Bar No. 24040506
              P.O. Box 570708
              Dallas, TX 75357

              Charles L. Babcock
              Nancy W. Hamilton
              Angeles Garcia
              Jackson Walker LLP
              1401 McKinney St., Suite 1900
              Houston, TX 77010

                                               /s/ Baltasar D. Cruz
                                               Baltasar D. Cruz




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