Stephen M. Daniels v. Tony R. Bertolino
03-14-00671-CV
| Tex. App. | Apr 7, 2015Background
- Plaintiff Stephen M. Daniels (pro se at trial) retained attorney Tony R. Bertolino to pursue a legal-malpractice claim against Daniels’s prior counsel; that underlying malpractice suit was dismissed on no‑evidence summary judgment.
- Daniels sued Bertolino alleging violations of the Texas Deceptive Trade Practices Act (DTPA); after venue transfer, Daniels filed an Amended Original Petition asserting only the DTPA claim.
- Bertolino served written discovery and later moved for no‑evidence summary judgment on the DTPA claim, specifically challenging evidence of knowledge/withholding intended to induce a transaction.
- Daniels filed a brief response and an affidavit but did not file a verified motion for continuance or affidavit seeking further discovery before the no‑evidence motion was decided.
- The trial court granted Bertolino’s no‑evidence summary judgment, disposing of all claims; Daniels appealed contending (1) the order was not final because his amended petition was a supplement not a substitute, (2) discovery time was inadequate, and (3) he had produced more than a scintilla of evidence on the DTPA elements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Finality: Did the no‑evidence grant dispose of all parties/claims? | Daniels: The Amended Original Petition was a supplemental pleading, so prior claims survived; order not final. | Bertolino: The Amended Original Petition was an amendment/substitute that left only the DTPA claim; the motion attacked the sole live claim so judgment was final. | Court accepted defendant’s position: the amended petition operated as an amendment/substitute and the order disposed of all claims. |
| Adequate time for discovery: Was summary judgment premature? | Daniels: Trial court erred — adequate time for discovery had not passed; denial of opportunity to develop evidence. | Bertolino: Discovery had been propounded and conducted; Daniels never preserved a complaint (no verified continuance affidavit) and thus cannot raise it on appeal. | Held for defendant: issue not preserved and trial court did not abuse discretion in implicitly finding adequate discovery time. |
| Sufficiency of evidence on DTPA claim (knowledge/withholding/inducement) | Daniels: He submitted an affidavit, website screenshots, and a hearing transcript showing evidence to defeat no‑evidence summary judgment. | Bertolino: Daniels’ submissions were substantively defective, included new evidence on appeal, and did not prove knowledge, withholding, or inducement; response failed to point to specific record evidence. | Held for defendant: Daniels failed to point out more than a scintilla on challenged elements; no‑evidence judgment proper. |
Key Cases Cited
- City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671 (Tex. 1979) (summary judgment response must fairly apprise movant and court of opposing issues)
- Litton Indus. Prods., Inc. v. Gammage, 668 S.W.2d 319 (Tex. 1984) (party invited error cannot complain on appeal)
- McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337 (Tex. 1993) (mere reference to summary judgment evidence is insufficient to preserve complaint)
- Tenneco, Inc. v. Enterprise Prods. Co., 925 S.W.2d 640 (Tex. 1996) (requirements to preserve complaint that more time for discovery is needed)
- Wells Fargo Bank, N.A. v. Smuck, 407 S.W.3d 830 (Tex. App.—Houston [14th Dist.] 2013) (treatment of pleadings and amendments under rules of civil procedure)