Stephen M. Daniels v. Tony R. Bertolino
03-14-00671-CV
| Tex. App. | Apr 9, 2015Background
- Appellee Tony R. Bertolino filed a motion for sanctions under Tex. R. App. P. 45 against appellant Stephen M. Daniels and Daniels’ appellate counsel Eleanor Ruffner, arguing the appeal is frivolous and meant to harass.
- Central dispute: Daniels appealed the trial court’s grant of a no‑evidence summary judgment; Appellee contends Daniels failed to procure and file the reporter’s transcript of the pivotal hearing despite being informed of its existence and cost.
- Appellee alleges Daniels raised new issues on appeal (e.g., adequacy of discovery period and whether the judgment disposed of all claims) that were not preserved below.
- Appellee accuses Daniels and counsel of multiple appellate violations: misstatements of the record, attaching new evidence not in the trial court record (website screenshots), failing to cite controlling authority or preserve error, and filing a poorly supported brief.
- Appellee seeks dismissal of the appeal, just damages (including $5,000 in attorneys’ fees), and any other relief the court deems appropriate; the motion requests notice and opportunity to respond as required by Rule 45.
Issues
| Issue | Plaintiff's Argument (Daniels) | Defendant's Argument (Bertolino) | Held |
|---|---|---|---|
| Absence of reporter's record for pivotal hearing | Daniels did not file the reporter’s record (no counterargument in the motion text); he asserts facts in his brief about the hearing. | Appellee: Daniels knew a transcript existed (Sheri Linder) and failed to obtain it despite notice; misrepresentations in the brief contradict what was said at the hearing. | Motion requests sanctions for unexplained absence; motion record contains no court ruling. |
| Raising new issues on appeal (discovery adequacy; whether all claims were disposed) | Daniels argues discovery period was inadequate and that some claims remained undismissed. | Appellee: Those issues were not raised in the trial court, Daniels signed the order approving its form, and Rule 33.1 bars raising them for first time on appeal. | Motion seeks sanctions for raising unpreserved issues; no ruling included. |
| Use of new evidence and record misstatements on appeal | Daniels attached website screenshots and cited unsworn pleadings as record support. | Appellee: Attachments are outside the trial record and screenshots post‑date events; Daniels misstates the record and asserts unsworn pleadings as facts. | Motion requests sanctions for improper and misleading record presentation; no ruling included. |
| Overall frivolousness / request for just damages under Rule 45 | Daniels prosecutes the appeal seeking reversal. | Appellee: Appeal is frivolous or objectively baseless under Rule 45 standards and judicial inherent powers; seeks dismissal and attorneys’ fees as just damages. | Appellee asks the court to impose sanctions under Rule 45; motion does not contain the court’s disposition. |
Key Cases Cited
- Glassman v. Goodfriend, 347 S.W.3d 772 (Tex. App.-Houston [14th Dist.] 2011) (discusses frivolous appeals and factors relevant to Rule 45 sanctions)
- Compass Exploration v. B-E Drilling Co., 60 S.W.3d 273 (Tex. App.-Waco 2001) (standards for frivolous appeals under Texas appellate practice)
- Njuku v. Middleton, 20 S.W.3d 176 (Tex. App.-Dallas 2000) (frivolous appeal discussion)
- Mid-Continent Cas. Co. v. Safe Tire Disposal Corp., 2 S.W.3d 393 (Tex. App.-San Antonio 1999) (frivolous-appeal standard and sanctions)
- Am. Paging of Tex., Inc. v. El Paso Paging, Inc., 9 S.W.3d 237 (Tex. App.-El Paso 1999) (relevance of unexplained absence of reporter’s record for appellate review)
- Bradt v. West, 892 S.W.2d 56 (Tex. App.-Houston [1st Dist.] 1994) (conscious indifference to settled rules supports sanctions)
- Casteel-Diebolt v. Diebolt, 912 S.W.2d 302 (Tex. App.-Houston [14th Dist.] 1995) (failure to comply with appellate rules and preserve error can justify sanctions)
- Tate v. E. I. du Pont de Nemours & Co., 954 S.W.2d 872 (Tex. App.-Houston [14th Dist.] 1997) (raising issues for the first time on appeal as sanctionable conduct)
- Johnson v. Johnson, 948 S.W.2d 835 (Tex. App.-San Antonio 1997) (courts’ inherent power to sanction for egregious appellate conduct)