Stephen M. Daniels v. Tony R. Bertolino
03-14-00671-CV
Tex. App.Mar 5, 2015Background
- Daniels hired attorney Tony Bertolino to pursue a legal-malpractice claim arising from an underlying judgment; Daniels paid about $9,700 under an engagement agreement.
- Bertolino filed suit against Canfield but did little discovery, failed to secure an expert, and the underlying malpractice case was dismissed on a no‑evidence summary-judgment motion.
- Daniels then sued Bertolino in Bexar County asserting multiple theories: DTPA misrepresentation, common-law fraud/fraudulent inducement, misrepresentation, quantum meruit/unjust enrichment. The case was transferred to Travis County.
- Less than two months after transfer, Bertolino filed a Rule 166a(i) no‑evidence motion targeting several elements of Daniels’s DTPA claim; Daniels noted Bertolino had not responded to discovery and relied on affidavits/transcripts already in the record.
- The trial court granted the no‑evidence motion, concluded adequate time for discovery had passed, and signed an order stating it “finally disposes of all parties and all claims,” dismissing the DTPA claim (one order said DTPA dismissal was with prejudice).
- Daniels appeals, arguing (1) the order was overbroad because the motion only targeted DTPA claims while other causes of action remained unaddressed, (2) the no‑evidence motion was premature (inadequate time for discovery), and (3) the record nevertheless contained more than a scintilla of evidence to defeat the no‑evidence motion.
Issues
| Issue | Plaintiff's Argument (Daniels) | Defendant's Argument (Bertolino) | Held (trial-court disposition) |
|---|---|---|---|
| 1. Whether the trial court’s order was overbroad/final despite motion targeting only DTPA | Order improperly declared final and disposed of all claims though motion and hearing addressed only DTPA; non‑DTPA claims remain live | Motion addressed DTPA; court treated grant as final disposition of the case | Trial court entered judgment granting the no‑evidence motion as to DTPA and stated the judgment "finally disposes of all parties and all claims" (dismissal entered) |
| 2. Whether adequate time for discovery had elapsed under Rule 166a(i) | Motion was filed prematurely (case on Travis docket <2 months; discovery had been delayed by venue transfer; defendant previously argued lack of discovery would deny due process) | Argued discovery time was adequate for purposes of the no‑evidence motion | Trial court found the motion was filed after adequate time for discovery and proceeded to grant the motion |
| 3. Whether there was more than a scintilla of evidence to defeat the no‑evidence motion on DTPA elements | Daniels points to affidavit, engagement agreement, hearing transcript and opponent’s filings as raising a fact issue on consumer status, damages, defendant’s knowledge/intent and nondisclosure | Bertolino contended there was no evidence on required DTPA elements (consumer, proof of knowledge/withholding/intent, causation) | Court concluded Daniels could not produce evidence raising a genuine issue of material fact on the challenged DTPA elements and granted the no‑evidence motion |
| 4. Whether Daniels’s alternative non‑DTPA claims survive | Daniels contends his original petition + supplemental pleading preserve common-law fraud, misrepresentation, quantum meruit/unjust enrichment and those claims were not before the court for summary judgment | Implicit: defendant focused motion solely on DTPA; court treated matter as finally disposed | Trial court’s order declared final disposition; Daniels argues on appeal the dismissal of all claims was erroneous because the no‑evidence motion only targeted DTPA |
Key Cases Cited
- Lehmann v. Har‑Con Corp., 39 S.W.3d 191 (Tex. 2001) (an order that grants more relief than requested is reversible; language can make an otherwise interlocutory order final if it expressly disposes of all claims and parties)
- McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337 (Tex. 1993) (summary-judgment grounds must be expressly presented in the motion)
- Chessher v. Southwestern Bell Tel. Co., 658 S.W.2d 563 (Tex. 1983) (one may not be granted judgment on a cause of action not addressed in the summary-judgment proceeding)
- Fort Brown Villas III Condo. Ass’n v. Gillenwater, 285 S.W.3d 879 (Tex. 2009) (no‑evidence rule is to be used following discovery)
- Samlowski v. Wooten, 332 S.W.3d 404 (Tex. 2011) (trial court’s decision that adequate time for discovery has passed is reviewed for abuse of discretion)