*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 3/5/2015 8:54:16 AM JEFFREY D. KYLE Clerk THIRD COURT OF APPEALS 3/5/2015 8:54:16 AM JEFFREY D. KYLE 03-14-00671-CV AUSTIN, TEXAS *1 ACCEPTED ^[4379019] CLERK

N O . 03-14-00671-CV

I N T HE T HIRD C OURT OF A PPEALS A USTIN , T EXAS

S TEPHEN M. D ANIELS ,

Appellant,

v. T ONY R. B ERTOLINO ,

Appellee.

On Appeal from the 250 th Judicial District Court of Travis County, Texas Trial Court Cause No. D-1-GN-14-002146 RIEF OF A PPELLANT

Eleanor Ruffner State Bar No. 24047034 T HE L AW O FFICE OF E LEANOR R UFFNER , P.C.

1403 West Sixth Street

Austin, Texas 78703 (512) 913-7576 (telephone)

(512) 681-0800 (facsimile)

eruffnerlaw@gmail.com C OUNSEL FOR A O RAL RGUMENT R EQUESTED *2 IDENTITY OF PARTIES AND COUNSEL Plaintiff/Appellant: Stephen M. Daniels

Trial Counsel: Stephen M. Daniels (pro se)

8323 Clays Point

San Antonio, Texas 78257 Appellate Counsel: Eleanor Ruffner

State Bar No. 24047034

eruffnerlaw@gmail.com T HE L AW O FFICE OF E LEANOR R UFFNER , PC. 1403 West Sixth Street

Austin, Texas 78703

(512) 913-7576

(512) 681-0800 (fax) Defendant/Appellee: Tony Bertolino

Trial & Appellate Counsel: Tony Bertolino

State Bar No. 24038766

tbertolino@belolaw.com Hiba Kazim

State Bar No. 27076952

hkazim@belolaw.com

B ERTOLINO LLP

823 Congress Avenue, Suite 704 Austin, Texas 78701

(512) 476-5757

(512) 476-5758 i

TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL ............................................................. i

TABLE OF CONTENTS .......................................................................................... ii

INDEX OF AUTHORITIES ..................................................................................... vi

REFERENCES ........................................................................................................... x

STATEMENT OF THE CASE ................................................................................. xi

INTRODUCTION .................................................................................................. xii

STATEMENT REGARDING ORAL ARGUMENT ........................................... xiii

ISSUES PRESENTED ............................................................................................ xiv

I SSUE N O . 1:

The trial court’s no-evidence summary judgment order stated that it “finally disposes of all parties and all claims and is therefore final and appealable.” However, the summary judgment motion and the order were by their explicit language limited to only one of several theories of recovery. Was the trial court’s order erroneous?

I SSUE N O . 2:

A no-evidence motion for summary judgment was filed less than two months after the case was transferred to Travis County. Just three weeks earlier, the moving party had sought to avoid summary judgment by arguing that filing such a motion “without providing [him] an opportunity to conduct discovery” would deny him of his right to due process of law. Did the trial court abuse its discretion in making the threshold finding, twenty-three days later, that the no-evidence motion was filed after adequate time for discovery?

I SSUE N O . 3:

In his no-evidence motion for summary judgment, the movant challenged a few elements of the non-movant’s DTPA claim. Evidence on file addressed each of the challenged elements, directly and indirectly, but the trial court nonetheless granted summary judgment. Did the Plaintiff raise a scintilla of evidence on each of the elements of Plaintiff’s DTPA claims?

STATEMENT OF FACTS ........................................................................................ 1

A. A PPELLANT , S TEPHEN D ANIELS , H IRES A PPELLEE , T ONY B ERTOLINO , TO F ILE A M ALPRACTICE L AWSUIT AND P AYS B ERTOLINO $9,700. ....... 1 B. B ERTOLINO T AKES THE M ONEY AND D OES N OTHING . ........................... 2 C. M R . D ANIELS ’ S S UIT IS P REDICTABLY D ISMISSED . ................................ 2 D. M R . D ANIELS S EEKS J UDICIAL A SSISTANCE TO O BTAIN R EIMBURSEMENT FROM B ERTOLINO . ..................................................... 3 E. B ERTOLINO R EFUSES TO RESPOND TO D ISCOVERY BUT N ONETHELESS F ILES A N O -E VIDENCE S UMMARY J UDGMENT M OTION . ......................... 5 F. T HE C OURT S IGNS AN O VERBROAD O RDER D ISMISSING M R . D ANIELS ’ S E NTIRE S UIT . .......................................................................................... 6 SUMMARY OF ARGUMENT ................................................................................. 8

ARGUMENT ............................................................................................................. 9

A. T HE F INAL O RDER I MPROPERLY D ISPOSED OF THE E NTIRE L AWSUIT . ... 9 1. Summary Judgment Orders Can Only Grant Relief on the Specific Grounds Presented in the Motion. ................................ 9 2. An Overbroad Order Should Be Reversed and Remanded. ..... 10 iii

3. Judge Strauss’s Order Purported to Be Final, But the Motion Challenged Only Mr. Daniels’s DTPA Claims. ....................... 10 4. Mr. Daniels Had Asserted Several Other Theories of Recovery in His Pleadings. ....................................................................... 11 B. T HE S UMMARY J UDGMENT M OTION W AS U NTIMELY AND I MPROPER . ............................................................................................ 13 1. Whether the Parties Had Adequate Time for Discover Is Generally Within the Discretion of the Trial Court. ................. 14 2. The Facts and Circumstances in This Case Show that the Trial Court Abused Its Discretion. ..................................................... 15 3. Bertolino Himself, Just Days Before, Had Asserted that Summary Judgment Would Deprive the Litigants of Due Process of Law. ...................................................................................... 18 4. Permitting a No-Evidence Summary Judgment Prior to Discovery Defeats the Purpose of Summary Judgment. .......... 19 5. Allowing Such Motions Will Allow Defendants to Manipulate the Discovery Process. .............................................................. 20 C. T HE R ECORD C ONTAINED S UFFICIENT E VIDENCE TO D EFEAT S UMMARY J UDGMENT . ........................................................................................... 21 1. Plaintiff Is a Consumer who Incurred Damages. ...................... 22 2. Defendant Knew and Withheld Information Concerning His Services, Intending to Induce and in Fact Inducing Plaintiff into a Transaction. ............................................................................ 23 D. I N THE A LTERNATIVE , M R . D ANIELS S HOULD R ETAIN THE R IGHT TO A SSERT A DDITIONAL DTPA C LAIMS AGAINST B ERTOLINO . ................ 24 CONCLUSION ........................................................................................................ 25

iv *6 CERTIFICATE OF COMPLIANCE ....................................................................... 26

CERTIFICATE OF SERVICE ................................................................................ 26

APPENDIX .............................................................................................................. 27 v

INDEX OF AUTHORITIES C ASES

Akhter v. Schlitterbahn Beach Resort Mgmt., LLC

No. 03-13-00117-CV, 2013 Tex. App. LEXIS 10522, 2013 WL 4516130 (Tex. App.—Austin August 22, 2013, no pet.) ............................................. 15 Allen v. Albin

97 S.W.3d 655 (Tex. App.—Waco 2002, no pet.) ........................................ 16 Casso v. Brand

776 S.W.2d 551 (Tex. 1989) ......................................................................... 19 Chessher v. Southwestern Bell Tel. Co.

658 S.W.2d 563 (Tex. 1983) ........................................................................... 9 City of Houston v. Clear Creek Basin Auth.

589 S.W.2d 671 (Tex. 1979) ......................................................................... 19 Clemons v. Tex. Concrete Materials, Ltd.

2010 Tex. App. LEXIS 8394, No. 07-09-0032-CV (Tex. App.—Amarillo October 19, 2010, no pet.) ............................................................................. 16 D.R. Horton-Tex. Ltd. v. Savannah Props. Assocs., L.P.

416 S.W.3d 217 (Tex. App.—Fort Worth 2013, no pet.) ............................. 15 Fort Brown Villas III Condo. Ass’n v. Gillenwater

285 S.W.3d 879 (Tex. 2009) ......................................................................... 19 Iliff v. Iliff

339 S.W.3d 74 (Tex. 2011) ........................................................................... 14 In re Colonial Pipeline Co.

968 S.W.2d 938 (Tex. 1998) (orig. proceeding) ........................................... 19 vi *8 In re Guardianship of Patlan

350 S.W.3d 876 (Tex. App.—San Antonio 2011, no pet.) ........................... 15 King Ranch, Inc v. Chapman

118 S.W.3d 742 (Tex. 2003) ......................................................................... 21 Lehmann v. Har-Con Corp.

39 S.W.3d 191 (Tex. 2001) ..................................................................... 10, 11 Merrell Dow Pharm., Inc. v. Havner

953 S.W.2d 706 (Tex. 1997) ......................................................................... 22 McConnell v. Southside Indep. Sch. Dist.

858 S.W.2d 337 (Tex. 1993) ..................................................................... 9, 12 McInnis v. Mallia

261 S.W.3d 197 (Tex. App.—Houston [14 th Dist.] 2010, pet.

denied) ............................................................................................... 14, 15, 19 McKillip v. Employers Fire Ins. Co.

932 S.W.2d 268 (Tex. App.—Texarkana 1996, no writ) .............................. 12 Natividad v. Alexsis, Inc.

875 S.W.2d 695 (Tex. 1994) ......................................................................... 21 Restaurant Teams Int’l, Inc. v. MG Secs. Corp.

95 S.W.3d 336 (Tex. App.—Dallas 2002 no pet.) ........................................ 15 Samlowski v. Wooten

332 S.W.3d 404 (Tex. 2011) ................................................................... 14, 20 Sanders v. Capitol Area Council, BSA

930 S.W.2d 905 (Tex. App.—Austin 1996, no pet.) ................................. 9, 12 Schlumberger Well Surveying Corp. v. Nortex Oil and Gas Corp.

435 S.W.2d 854 (Tex. 1968) ......................................................................... 16 vii *9 Spoljaric v. Percival Tours, Inc.

708 S.W.2d 432 (Tex. 1986) ................................................................... 15-16 Tex. Dep’t of Parks & Wildlife v. Miranda

133 S.W.3d 217 (Tex. 2004) ......................................................................... 19 Thornbrough v. Columbus & Greenville R.R. Co.

760 F.2d 633 (5 th Cir. 1985) .......................................................................... 16 Tower Contracting Co. v. Flores

302 S.W.2d 396 (Tex. 1957) ......................................................................... 24 Turner v. Franklin

325 S.W.3d 771 (Tex. App.—Dallas 2010, pet. denied) .............................. 16 Valence Operating Co. v. Dorsett

164 S.W.3d 656 (Tex. 2005) ......................................................................... 22 Womack v. Berry

291 S.W.2d 677 (Tex. 1956) ......................................................................... 14 S TATUTES

T EX . B US . & C OM . C ODE §17.46 ........................................................................ 24, 25

T EX . R. A PP . P. 9 ...................................................................................................... 26

T EX . R. C IV . P. 63 ..................................................................................................... 24

T EX . R. C IV . P. 64 ..................................................................................................... 11

T EX . R. C IV . P. 65 ..................................................................................................... 11

T EX . R. C IV . P. 69 ..................................................................................................... 12

T EX . R. C IV . P. 71 ..................................................................................................... 12 viii *10 T EX . R. C IV . P. 166a ................................................................................. 9, 13, 19, 20

T EX . R. C IV . P. 190 ............................................................................................. 17, 20

T EX . D ISC . R. P ROF . C OND . 1.02 .............................................................................. 25

O THER A UTHORITIES

Thomas R. Phillips, Texas Supreme Court Update , 60 T EX . B.J. 858 (1997) ... 20-21

REFERENCES CR __ Clerk’s Record (by page number)

SCR __ Supplemental Clerk’s Record (by page number)

Appx. __, p. __ Appendix (by tab and page number) x

STATEMENT OF THE CASE Nature of the Case: After Appellant Tony Bertolino (“Bertolino”) took $9,700

from Appellee Stephen M. Daniels (“Mr. Daniels”) to pursue litigation against Gregory Canfield, Bertolino conducted no discovery and secured no experts, resulting in dismissal of the suit against Canfield. Mr. Daniels sued Bertolino for common law fraud, fraudulent inducement, DTPA violations, misrepresentation, and quantum meruit/unjust enrichment. 250 th District Court of Travis County, Texas

Trial Court:

The Honorable Gus Strauss, Visiting Judge, presiding Trial Court Disposition: Motion for No-Evidence Summary Judgment granted on

Plaintiff’s DTPA claim; order stated that it “finally disposes of all parties and all claims and is therefore final and appealable.”

INTRODUCTION When Stephen Daniels lost a judgment in a case he thought he had won, he

asked attorney Tony Bertolino for help. Bertolino proposed that Mr. Daniels pay

him $10,000 up front, assign him 17.5% of his recovery, and pay any additional fees

and expenses he incurred. To induce Mr. Daniels to agree, Bertolino told him he

could recover the value of the judgment plus the fees Mr. Daniels had paid his

attorney in the underlying suit. The damages Bertolino touted were more than Mr.

Daniels had hoped. Once he agreed, however, Bertolino made zero effort to deliver.

Because Bertolino did not earn his fee, Mr. Daniels sued to get that money back,

asserting several alternative theories of recovery. Before discovery could begin in

earnest, Bertolino filed a no-evidence summary judgment. Such a motion was

improper at that point because, by Bertolino’s own assessment, adequate time for

discovery had not passed. In any event, the limited record at that point did contain

more than a scintilla of evidence on each of the elements of the Deceptive Trade

Practices Act claim challenged by Bertolino’s motion. Nonetheless, the trial court

improvidently granted the motion, issuing an order that claimed to be final even

though most of Mr. Daniels’s claims were not addressed by the motion. Mr. Daniels

therefore seeks reversal of the order and the summary judgment and requests that

this Court remand his suit to the trial court to proceed to disposition on the merits. xii

STATEMENT REGARDING ORAL ARGUMENT This appeal follows from the abrupt termination of a pending lawsuit in the midst of competing motions for summary judgment. Resolution of this appeal

requires the Court’s consideration of multiple issues and claims against Appellee.

Appellants believe oral argument would be helpful in the Court’s determination of

these issues and crafting an opinion that clarifies the status of the litigation upon

remand to the trial court. xiii

ISSUES PRESENTED I SSUE N O . 1:

The trial court’s no-evidence summary judgment order stated that it “finally disposes

of all parties and all claims and is therefore final and appealable.” However, the

summary judgment motion and the order were by their explicit language limited to

only one of several theories of recovery. Was the trial court’s order erroneous?

I SSUE N O . 2:

A no-evidence motion for summary judgment was filed less than two months after

the case was transferred to Travis County. Just three weeks earlier, the moving party

had sought to avoid summary judgment by arguing that filing such a motion “without

providing [him] an opportunity to conduct discovery” would deny him of his right

to due process of law. Did the trial court abuse its discretion in making the threshold

finding twenty-three days later that the no-evidence motion was filed after adequate

time for discovery?

I SSUE N O . 3:

In his no-evidence motion for summary judgment, the movant challenged a few

elements of the non-movant’s DTPA claim. Evidence on file addressed each of the

challenged elements, directly and indirectly, but the trial court nonetheless granted

summary judgment. Did the Plaintiff raise a scintilla of evidence on each of the

elements of Plaintiff’s DTPA claims? xiv

STATEMENT OF FACTS A. A PPELLANT , S TEPHEN D ANIELS , H IRES A PPELLEE , T ONY B ERTOLINO , TO

F ILE A M ALPRACTICE L AWSUIT AND P AYS B ERTOLINO $9,700.

Mr. Daniels has had a streak of bad luck with attorneys. An acquaintance of his, Ms. Kanu, borrowed some money and failed to repay him. SCR 114. He

retained the services of Gregory Canfield, an attorney in San Antonio, to pursue his

claims against Ms. Kanu. SCR 114. Although Canfield initially secured a judgment

of $9,875.95 plus attorney fees, Ms. Kanu filed a motion for new trial. SCR 36-37.

Canfield, for reasons that remain unexplained, agreed to the new trial. SCR 37.

Canfield then withdrew from the representation, and Mr. Daniels, proceeding pro se

against a represented party, did not prevail at the new trial. SCR 114-115.

Dissatisfied with that outcome, Mr. Daniels consulted Tony Bertolino regarding whether Canfield’s actions and omissions met the applicable standards for

legal malpractice. CR 10; see also Appx. D. At this consultation, for which Mr.

Daniels paid $200, Bertolino inflated Mr. Daniels’s expectations of recovery beyond

merely the judgment that Mr. Canfield did not defend to include thousands of dollars

more. CR 10; see also Appx. D. Bertolino then prepared an engagement agreement,

and pursuant to the terms of that agreement, Mr. Daniels pays Bertolino another

$9,500 over the next twelve months. CR 10-11; SCR 18-21; see also Appx. D. 1 *17 B. B ERTOLINO T AKES THE M ONEY AND D OES N OTHING .

On August 21, 2012, Bertolino filed suit against Canfield on behalf of Mr. Daniels, asserting claims for breach of contract, legal malpractice, breach of

fiduciary duties, negligent misrepresentation, and quantum meruit. SCR 67-73.

Bertolino then proceeded to do nothing else to prosecute Mr. Daniels’s claims. SCR

35. Bertolino, whose law firm website advertises that the firm’s “attentiveness” sets

them apart from other firms, conducted no discovery and did not look for the

necessary expert witness to support Mr. Daniels’s claims. SCR 35; Appx. D, p. 2.

C. M R . D ANIELS ’ S S UIT I S P REDICTABLY D ISMISSED .

Unsurprisingly, Canfield then files for a No-Evidence Summary Judgment Motion against Mr. Daniels. SCR 114-118. At a court hearing on that motion on

March 1, 2013, the trial court learned that Bertolino had done nothing to advance

Mr. Daniels’s case – “no depositions, no discovery, nothing.” SCR 35; see also

Appx. F, G. Bertolino sought and obtained a continuance, secured some written

discovery, and took a deposition. SCR 36; see also Appx. F. However, Bertolino

still failed to secure an expert, despite being explicitly advised by defense counsel

that such an expert was necessary. SCR 36; see also Appx. F, G.

Therefore, at the follow-up hearing on Canfield’s No-Evidence Motion for Summary Judgment on April 15, 2013, the judge was not sympathetic to Bertolino’s

2 *18 failure to obtain an expert as required. SCR 42; see also Appx. F. Bertolino,

however, was not there to listen to the judge’s admonishments or defend his strategy

for pursuing his client’s case because did not show up at the hearing. SCR 31; see

also Appx. F. Trevor Young, the attorney who did appear on Mr. Daniels’s behalf,

was a recent law school graduate who had been licensed less than six months. In the

attorneys’ arguments to the court, Mr. Young acknowledged that “an expert is

generally necessary to instruct a jury on the issues of standard of care and proximate

cause.” SCR 42; see also Appx. F, G. The judge then promptly granted the motion.

SCR 42; see also Appx. F.

After losing the summary judgment motion and therefore any chance of recovery, Bertolino then sent Mr. Daniels an invoice for more than $5,600 over and

above the $9,700 Mr. Daniels had already paid. CR 11; see also Appx. D.

D. M R . D ANIELS S EEKS J UDICIAL A SSISTANCE TO O BTAIN R EIMBURSEMENT

FROM B ERTOLINO .

By May of 2013, Bertolino had taken $9,700 from Mr. Daniels, sat idle, irrevocably lost Mr. Daniels’s case because of his failure to secure an expert as

advised by the court and by opposing counsel, and nonetheless had began looking to

collect another $5,600. Mr. Daniels therefore filed suit against Bertolino, electing

to proceed pro se. CR 12-17. The suit was initiated in Bexar County on December

2, 2013. CR 12. Mr. Daniels’s Original Petition asserted multiple alternative 3 *19 theories of recovery against Bertolino. CR 12-17. Under the section heading

“Statement of Claims,” Mr. Daniels set out three sets of legal theories. CR 15-16.

The first, in Section A., included common law fraud, fraudulent inducement,

deceptive acts, and unconscionable acts. CR 15. The second, in Section B., set out

a claim for false representation on the basis of the statements Bertolino made

regarding the strength of Mr. Daniels’s claim against Canfield. CR 15. The third,

in Section C., was for unjust enrichment and quantum meruit on the grounds that

Bertolino was unjustly enriched by the fees Mr. Daniels paid him because Bertolino

failed to provide the work he promised Mr. Daniels. CR 15-16.

Bertolino answered and moved to transfer venue to Austin. That motion was granted on May 13, 2014, and Travis County received the transferred file on or about

July 1, 2014. CR 18-19.

On July 10, 2014, Mr. Daniels filed a one-page supplement to his pleadings to clarify that he was seeking to recover under the DTPA for the misrepresentations

Bertolino made. CR 21. Bertolino did not file any special exceptions at any point

during the pendency of this litigation or otherwise seek judicial clarification of Mr.

Daniels’s pleadings or claims. 4 *20 E. B ERTOLINO R EFUSES TO R ESPOND TO D ISCOVERY BUT N ONETHELESS F ILES

A N O -E VIDENCE S UMMARY J UDGMENT M OTION .

Mr. Daniels served discovery on Bertolino, but Bertolino failed to respond. CR 7; CR 36; CR 49; SCR 46. Instead, on August 28, 2014 – less than two months

after the case had been on the Travis County docket – Bertolino filed his No-

Evidence Motion for Summary Judgment and Notice of Hearing. CR 46-47.

Specifically, Bertolino contended that there was no evidence that:

 Mr. Daniels is a consumer that incurred economic damages or damages or mental anguish;

 Bertolino knew information concerning goods or services at the time of the transaction;

 Bertolino withheld the information;

 Bertolino intended to induce the consumer into a transaction; and

 Mr. Daniels would not have entered into the transaction had the withheld information been disclosed.

CR 46-47. At this point in the Bertolino litigation, there was no docket control order

or scheduling order governing the pre-trial deadlines.

In his response, Mr. Daniels noted that Bertolino had failed to respond to discovery. CR 49. Mr. Daniels also referred the court to the documents already on

file with the court, which by this point included (by way of example only):

 Mr. Daniels’s affidavit (CR 10-11; Appx. D); 5

 Bertolino’s verified motion (CR 24-34; Appx. E);  The transcript from the hearing in the Canfield litigation (SCR 32-43; Appx. F); and

 The affidavit of Fred. E. Davis, opposing counsel in the Canfield litigation (SCR 63-66; Appx. G).

CR 49-51. Collectively, these documents constituted more than a scintilla of

evidence in support of each of the elements that Bertolino identified in his no-

evidence motion for summary judgment. However, the judge disagreed, and by

letter on September 30, 2014, he notified the parties that he would be granting

Bertolino’s motion. CR 54.

F. T HE C OURT S IGNS AN O VERBROAD O RDER D ISMISSING M R . DA NIELS ’ S

E NTIRE S UIT .

The court signed its first order on October 21, 2014. CR 68. The order stated that the motion was properly filed after adequate time for discovery and that Mr.

Daniels could not produce evidence raising a genuine issue of material fact on the

elements of his DTPA claims against Bertolino and that Bertolino’s motion would

therefore be granted. CR 68. However, the court included in the order the following

language:

This judgment finally disposes of all parties and all claims and is therefore final and appealable.

CR 68. This order was entered on October 23, 2014. CR 68. 6

For reasons that remain unclear, the court signed a second order on October 30, 2014. SCR 122. This order differed from the October 23 order in two major

respects. CR 68; SCR 122. First, it stated that the DTPA claims were dismissed

with prejudice. CR 68; SCR 122. Second, the first paragraph made no mention of

the specific claims that were the subject of Bertolino’s motion, but the phrase “as to

DTPA” was handwritten and inserted. CR 68; SCR 122. However, as with the

October 23 order, the October 30 order stated:

This judgment finally disposes of all parties and all claims and is therefore final and appealable.

SCR 122. The second order was entered on the day it was signed. SCR 122.

This appeal followed. 7

SUMMARY OF ARGUMENT Mr. Daniels had asserted several theories of recovery against Bertolino, but Bertolino’s no-evidence summary judgment challenged only one – his DTPA claim

for misrepresentation. Therefore, when the trial court ruled on the motion but issued

an order that purported to fully and finally dispose of all claims as to all parties, the

trial court erroneously terminated Mr. Daniels’s case. The matter must therefore be

reversed and remanded for further proceedings on Mr. Daniels’s remaining claims.

Moreover, the court abused its discretion in even deciding the order on its merits by finding that adequate time for discovery had elapsed. Discovery had not

even begun in earnest. Bertolino had claimed only twenty-three days earlier, in a

response to Mr. Daniels’s traditional motion for summary judgment, that the lack of

time for discovery in the case meant that consideration of Mr. Daniels’s motion

would constitute a denial of due process. Finally, despite Bertolino’s best efforts to

prevent discovery on the claims against him, Mr. Daniels did have sufficient

evidence on the record to defeat summary judgment on the challenged elements of

his DTPA claim. The grant of summary judgment should therefore be reversed as

well. 8

ARGUMENT A. T HE F INAL O RDER I MPROPERLY D ISPOSED OF THE E NTIRE L AWSUIT .

1. Summary Judgment Orders Can Only Grant Relief on the Specific Grounds Presented in the Motion.

The order entered by Judge Strauss could not legally dispose of all parties and all claims because the motion for summary judgment and the order addressed only

Mr. Daniel’s DTPA claims. A motion for summary judgment must “state the

specific grounds therefore.” T EX . R. C IV . P. 166a(a); Sanders v. Capitol Area

Council, BSA , 930 S.W.2d 905, 910 (Tex. App.—Austin 1996, no pet.). In the case

of no-evidence summary judgments in particular, “[t]he motion must state the

elements as to which there is no evidence.” T EX . R. C IV . P. 166a(i); McConnell v.

Southside Indep. Sch. Dist. , 858 S.W.2d 337, 338 (Tex. 1993) (“grounds for

summary judgment must be expressly presented in the summary judgment motion

itself”); Sanders , 930 S.W.2d at 910. Moreover, the order on any motion for

summary judgment is limited to the specific grounds for the motion. In fact, “[i]t is

axiomatic that one may not be granted judgment as a matter of law on a cause of

action not addressed in a summary judgment proceeding.” Chessher v. Southwestern

Bell Tel. Co. , 658 S.W.2d 563, 564 (Tex. 1983) (reversing and remanding case in

which summary judgment was granted on only one of the plaintiff’s four causes of

action). 9

2. An Overbroad Order Should Be Reversed and Remanded. An order that rules on matters outside the summary judgment motion and hearing is overbroad and therefore erroneous. In cases in which “the judgment

grants more relief than requested, it should be reversed and remanded.” Lehmann v.

Har-Con Corp. , 39 S.W.3d 191, 202 (Tex. 2001); see also id . at 204 (“Granting

more relief than the movant is entitled to makes the order reversible”) and Chessher ,

658 S.W.2d at 564. By way of example, the Texas Supreme Court has explained:

If a defendant moves for summary judgment on only one of four claims asserted by the plaintiff, but the trial court renders judgment that the plaintiff take nothing on all claims asserted, the judgment is final – erroneous, but final.

Lehmann , 39 S.W.3d at 200.

3. Judge Strauss’s Order Purported to Be Final, But the Motion Challenged Only Mr. Daniels’s DTPA Claims.

The Supreme Court’s example in Lehmann is precisely what happened here. Mr. Daniels had included alternative theories of recovery in his pleadings in addition

to his DTPA claims – specifically, common law fraud, fraudulent inducement,

misrepresentation, and quantum meruit or unjust enrichment. CR 15-16. Bertolino’s

motion for summary judgment did not challenge any of those causes of action. CR

46-47. The greatest relief the court could have granted was summary judgment in 10 *26 Bertolino’s favor on Mr. Daniels’s DTPA claims because the alternative theories of

recovery were not before the court.

However, Judge Strauss included language in his order stating that he was “finally dispos[ing] of all parties and all claims” and thus his intent to enter a final

order was clear. As the Texas Supreme Court has stated:

[T]he language of an order or judgment can make it final, even though it should have been interlocutory, if that language expressly disposes of all claims and all parties.

Lehmann , 39 S.W.3d at 200. Dismissing Mr. Daniels’s suit in its entirety was

erroneous; therefore, this Court should reverse and remand the matter for further

proceedings.

4. Mr. Daniels Had Asserted Several Other Theories of Recovery in His Pleadings.

Bertolino may have improperly focused only on Mr. Daniels’s “amended” pleading, perhaps believing that Mr. Daniels effectively nonsuited his alternative

theories of recovery by not including them in the later “amended” pleading.

However, Mr. Daniels’s “amended” pleading was merely misnamed. It was not truly

an amended pleading, which is operates as a substitute for the prior pleading and

should be “entire and complete in itself.” T EX . R. C IV . P. 64 and 65. Rather, it

operated as a supplemental pleading, which does not “repeat allegations formerly

pleaded further than is necessary as an introduction” and operates with the original 11 *27 petition to “constitute separate and distinct parts of the pleadings of each party.”

T EX . R. C IV . P. 69.

Mr. Daniels’s Original Petition was a six-page document containing each of the essential parts of a petition. CR 12-17. The “amended” petition, on the other

hand, contained only the parties’ identity and the assertion that Mr. Daniels was also

seeking relief under the DTPA. CR 21. Clearly the subsequent pleading was a Rule

69 supplement, not a true amended petition. As such, the court should have

“treat[ed] the plea or pleading as if it had been properly designated” as required by

T EX . R. C IV . P. 71.

At no point did Bertolino challenge the pleadings, request special exceptions to clarify Mr. Daniels’s causes of action, or otherwise secure a ruling that the

supplemental pleading’s DTPA claims were the only live claims in the litigation.

Moreover, Mr. Daniels was under no duty to object to Bertolino’s failure to include

the other causes of action he pled but that Bertolino excluded from his motion.

McConnell , 858 S.W.2d at 338; Sanders , 930 S.W.2d at 910 (“A nonmovant . . .

does not have a duty to except to a ground not presented in the motion but which the

movant might have relied on as a ground for summary judgment”); McKillip v.

Employers Fire Ins. Co. , 932 S.W.2d 268, 271 (Tex. App.—Texarkana 1996, no

writ). Finally, the parties continued their motion practice after the hearing and the 12 *28 judge’s letter order, but before the order giving rise to this appeal, strongly indicating

that the parties did not believe that the summary judgment that Bertolino secured

disposed of the litigation in its entirety. CR 55-61.

Because the trial court erroneously granted summary judgment on claims not identified in Bertolino’s motion for summary judgment, Appellant Stephen M.

Daniels respectfully requests that this Court reverse the trial court’s dismissal of his

non-DTPA claims and remand for further proceedings.

B. T HE S UMMARY J UDGMENT M OTION W AS U NTIMELY AND I MPROPER .

1. Whether the Parties Had Adequate Time for Discover Is Generally Within the Discretion of the Trial Court.

The Court abused its discretion in making the threshold determination that adequate time for discovery had elapsed. A party may move for summary judgment

under T EX . R. C IV . P. 166a(i) only “after adequate time for discovery.” The official

comment to the rule states:

Paragraph (i) authorizes a motion for summary judgment based on the assertion that, after adequate opportunity for discovery , there is no evidence to support one or more specified elements of an adverse party’s claim or defense.

A discovery period set by pretrial order should be adequate opportunity for discovery unless there is a showing to the contrary, and ordinarily a motion under paragraph (i) would be permitted after the period but not before.

13 *29 (Emphasis added.) An appellate court “review[s] a trial court’s determination that

there has been an adequate time for discovery on a case-by-case basis, under an

abuse-of-discretion standard.” McInnis v. Mallia , 261 S.W.3d 197, 201 (Tex.

App.—Houston [14 th Dist.] 2010, pet. denied). The trial court does not have

unlimited discretion but instead “is required to exercise a sound and legal discretion

within limits created by the circumstances of the particular case.” Womack v. Berry ,

291 S.W.2d 677, 683 (Tex. 1956); see also Iliff v. Iliff , 339 S.W.3d 74, 81 (Tex.

2011). A trial court “abuses its discretion when it renders an arbitrary and

unreasonable decision lacking support in the facts or circumstances of the case” or

“when it acts in an arbitrary or unreasonable manner without reference to guiding

rules or principles.” Samlowski v. Wooten , 332 S.W.3d 404, 410 (Tex. 2011).

Some courts, including this Court, have identified the following nonexclusive factors relevant to determining whether the trial court permitted adequate time for

discovery:

(1) The nature of the case;

(2) The nature of the evidence necessary to controvert the no-evidence motion;

(3) The length of time the case was active;

(4) The amount of time the no-evidence motion was on file;

(5) Whether the movant had requested stricter deadlines for discovery;

(6) The amount of discovery that already had taken place; and

(7) Whether the discovery deadlines in place were specific or vague.

Akhter v. Schlitterbahn Beach Resort Mgmt., LLC, No. 03-13-00117-CV, 2013 Tex.

App. LEXIS 10522, 2013 WL 4516130, *7 (Tex. App.—Austin August 22, 2013,

no pet.) (citing Restaurant Teams Int’l, Inc. v. MG Secs. Corp. , 95 S.W.3d 336, 339

(Tex. App.—Dallas 2002 no pet.)); McInnis , 261 S.W.3d at 200 (Tex. App.—

Houston [14 th Dist.] 2008, no pet.); D.R. Horton-Tex. Ltd. v. Savannah Props.

Assocs., L.P. , 416 S.W.3d 217, 223 (Tex. App.—Fort Worth 2013, no pet.); In re

Guardianship of Patlan , 350 S.W.3d 876, 884 (Tex. App.—San Antonio 2011, no

pet.).

2. The Facts and Circumstances in This Case Show that the Trial Court Abused Its Discretion.

None of the above factors support a finding in this case that Mr. Daniels had been afforded adequate time for discovery. The claims Mr. Daniels had asserted

against Bertolino were comparatively fact-specific, many of which require

investigation into Bertolino’s intent and knowledge. See, e.g., Spoljaric v. Percival

Tours, Inc. , 708 S.W.2d 432, 435 (Tex. 1986) (“Since intent to defraud is not 15 *31 susceptible to direct proof, it invariably must be proven by circumstantial evidence.

‘Slight circumstantial evidence’ of a fraud . . . is sufficient to support a finding of

fraudulent intent.”) (citations omitted); Schlumberger Well Surveying Corp. v.

Nortex Oil and Gas Corp. , 435 S.W.2d 854, 858 (Tex. 1968) (because a civil

conspiracy turns on issues of intent, “proof of a conspiracy may be, and usually must

be made by circumstantial evidence”); Allen v. Albin , 97 S.W.3d 655, 664-65 (Tex.

App.—Waco 2002, no pet.) (reversing summary judgment on the grounds that a jury

would be entitled to make an inference from a conversation to support claim that a

dog owner knew that her dog had dangerous propensities); Clemons v. Tex. Concrete

Materials, Ltd. , 2010 Tex. App. LEXIS 8394, No. 07-09-0032-CV, *12 (Tex.

App.—Amarillo October 19, 2010, no pet.) (reversing and remanding summary

judgment, citing Thornbrough v. Columbus & Greenville R.R. Co. , 760 F.2d 633,

640 (5 th Cir. 1985), and stating that summary judgment inappropriate to resolve

claims involving “nebulous questions of motivation and intent”); Turner v. Franklin ,

325 S.W.3d 771, 782-83 (Tex. App.—Dallas 2010, pet. denied) (noting that

“because issues of intent are usually best left to the trier of fact to resolve based on

all the evidence and surrounding circumstances, determining that issue by summary

judgment usually will be inappropriate”). In fact, three of the five elements

challenged in the motion were Bertolino’s knowledge, whether he withheld 16 *32 information, and his intent in doing so. CR 46. Challenging those elements requires

either the deposition of Bertolino or a substantial amount of circumstantial evidence,

if not both.

When Bertolino filed his motion, the matter had been on the Travis County District Court docket for less than two months. CR 18-19; CR 46-48. Discovery

was on hold prior to the transfer to Travis County because of Bertolino’s pending

motion to transfer venue. At the time of the hearing on Bertolino’s no-evidence

motion, the motion had been on file for just over a month. Although Mr. Daniels

had propounded discovery on Bertolino, he had refused to answer. CR41; CR 49.

The case had been filed as a Level 2 case pursuant to Rule 190.3, which fixes the end of the discovery period as either thirty days before trial or nine months after

the date of the first oral deposition or the due date of the first response to written

discovery. CR 12; T EX . R. C IV . P. 190.3(b)(1)(B). No trial date had been set, and

no party had taken a deposition. Bertolino has explained his failure to respond to

Mr. Daniels’s written discovery requests by claiming he never received them. CR

27. If that is true, then the discovery period never began. Consideration of these

factors therefore demonstrates that the two months between the transfer and the

motion cannot in these circumstances reasonably be considered “adequate time for

discovery.” 17

3. Bertolino Himself, Just Days Before, Had Asserted that Summary Judgment Would Deprive the Litigants of Due Process of Law. Moreover, Bertolino asserted that as of August 5, 2014 – approximately three weeks before he filed his motion – he had “had no opportunity to conduct reasonable

discovery in this matter.” CR 26. In fact, Bertolino contended that Mr. Daniels’s

filing of a Motion for Summary Judgment without providing [Bertolino] an opportunity to conduct discovery that would negate [Mr. Daniels’s] allegations and/or establish affirmative defenses denies [Bertolino] of his right to due process of law .

CR 26 (emphasis added). Notably, these assertions were contained in a verified

pleading, which means that Bertolino swore that the statements pertaining to the

status of discovery and the effect it would have on his due process were within his

personal knowledge and were true and correct. Additionally, these protestations

were in response to Mr. Daniels’s traditional motion for summary judgment, which

– unlike no-evidence summary judgment motions – are not required to be filed after

an adequate time for discovery.

No material change occurred in the twenty-three days that passed between Bertolino’s August 5 response and his August 28 motion – except that at the

beginning of the month, Bertolino benefited by claiming lack of adequate time for

discovery, but by the end, the opposite was true. 18

4. Permitting a No-Evidence Summary Judgment Prior to Discovery Defeats the Purpose of Summary Judgment.

As the Supreme Court has stated, “the ultimate purpose of discovery is to seek the truth, so that disputes may be decided by what the facts reveal, not by what facts

are concealed.” In re Colonial Pipeline Co. , 968 S.W.2d 938, 941 (Tex. 1998) (orig.

proceeding) (quotations omitted). The purpose of summary judgment is “to

eliminate patently unmeritorious claims and untenable defenses.” Tex. Dep’t of

Parks & Wildlife v. Miranda , 133 S.W.3d 217, 228 (Tex. 2004); Casso v. Brand ,

776 S.W.2d 551, 556 (Tex. 1989); City of Houston v. Clear Creek Basin Auth. , 589

S.W.2d 671, 678 n.5 (Tex. 1979). The discovery period is the best indicator of an

adequate time for discovery. McInnis , 261 S.W.3d at 201; see also T EX . R. C IV . P.

166a(i) cmt. For these reasons, the Supreme Court has indicated that “the no-

evidence rule, by its very language, is to be used following discovery.” Fort Brown

Villas III Condo. Ass’n v. Gillenwater , 285 S.W.3d 879, 882 (Tex. 2009).

No-evidence summary judgment motions are therefore appropriate only when a defendant reasonably believes that if any evidence were to exist in support of a

plaintiff’s claims, discovery would have uncovered it by the time the movant filed

his motion. As a matter of law, it should not be available at the earliest stages of

litigation as a weapon to catch a pro se plaintiff on his heels. In this case, the

discovery period may not have even begun, much less ended. Under no reasonable 19 *35 interpretation of Rule 166a(i) should any trial court have allowed Bertolino to

proceed with his motion, much less prevail on it.

5. Allowing Such Motions Will Allow Defendants to Manipulate the Discovery Process.

As shown by the foregoing, the trial court’s finding that adequate time for discovery had elapsed was an arbitrary and unreasonable decision lacking support

in the facts and circumstances of this case. See, e.g., Samlowski , 332 S.W.3d at 410.

If the Court allows Bertolino to use the Rule 166a(i) summary judgment motion in

this way, then defendants will have a tool to usurp the discovery processes that

should be governed by T EX . R. C IV . P. 190. Trial courts routinely limit continuances

to thirty days, so if a defendant wanted to press a plaintiff to hurriedly conduct

discovery, he could simply file a no-evidence motion for summary judgment. A

plaintiff could be rushed to identify experts, take depositions, and otherwise conduct

discovery not on the schedule laid out in Rule 190 or a pretrial scheduling order, but

on a schedule dictated by defendant’s summary judgment motion practice and the

court’s oversight of the parties’ discovery through motions for continuance.

Such pretrial litigation strategies should not be available. To permit Rule 166a(i) to be used as a sword by an aggressive defendant to close off a plaintiff’s

causes of action runs afoul of former Chief Justice Phillips’s pronouncement

regarding the operation of the no-evidence rule when it was promulgated: 20

The bench and the bar should note that the burden will never shift to the non-movant to establish a fact issue until there has been an adequate opportunity for discovery , which ordinarily will not occur until after the close of any court ordered discovery period.

Thomas R. Phillips, Texas Supreme Court Update , 60 Tex. B.J. 858, 861-62 (1997)

(emphasis added).

Appellant Stephen M. Daniels therefore respectfully requests that the Court reverse the trial court’s grant of summary judgment on the grounds that the trial

court’s conclusion that an adequate time for discovery had elapsed constituted an

abuse of the trial court’s discretion.

C. T HE R ECORD C ONTAINED S UFFICIENT E VIDENCE TO D EFEAT S UMMARY

J UDGMENT .

Even if there had been adequate time for discovery, summary judgment would still have been improper because the record contained sufficient evidence of each of

the challenged elements of Plaintiff’s claims to survive summary judgment. On

appeal, a summary judgment is reviewed de novo. Natividad v. Alexsis, Inc. , 875

S.W.2d 695, 699 (Tex. 1994). A no-evidence motion for summary judgment is

equivalent to a pretrial directed verdict. King Ranch, Inc v. Chapman , 118 S.W.3d

742, 750-51 (Tex. 2003). Therefore, on appeal, this Court should consider all the

evidence in the light most favorable to the party against whom the no-evidence

summary judgment was rendered, disregarding all contrary evidence and inferences, 21 *37 and indulging every reasonable inference and resolving any doubts in the

nonmovant’s favor. Valence Operating Co. v. Dorsett , 164 S.W.3d 656, 661 (Tex.

2005); Merrell Dow Pharm., Inc. v. Havner , 953 S.W.2d 706, 711 (Tex. 1997).

1. Plaintiff Is a Consumer who Incurred Damages.

Bertolino first contended that Mr. Daniels had no evidence that Mr. Daniels was a consumer who incurred any damages. However, Bertolino acknowledged in

his original answer that Mr. Daniels was his former client. CR 3. Additionally, the

engagement agreement between Mr. Daniels and Bertolino was made part of the

court’s record on July 10, 2014 and was therefore on file when Bertolino filed his

motion. SCR 18-21; SCR 3. The engagement agreement sets out the terms of the

engagement and includes a payment schedule. SCR 18-21. Finally, Mr. Daniels’s

affidavit in support of his own summary judgment motion demonstrates that he paid

$200 for the initial consultation and made subsequent payments in accordance with

the agreed schedule. CR 10-11. Therefore, more than a scintilla of evidence existed

to support Mr. Daniels’s claim that he was a consumer who incurred damages as a

result of Bertolino’s malfeasance arising out of the attorney-client relationship. 22

2. Defendant Knew and Withheld Information Concerning His Services, Intending to Induce and in Fact Inducing Plaintiff into a Transaction.

Bertolino also claimed that no evidence existed that he knew and withheld information about the services he offered and sold to Mr. Daniels, and that he did so

intending to induce Mr. Daniels into hiring him. Bertolino’s knowledge at the time

of the attorney-client engagement likely requires circumstantial evidence, unless

Bertolino were to decide to be unexpectedly helpful. Nonetheless, the record shows

that at the time of the initial consultation, Bertolino inflated Mr. Daniels’s hopes of

recovery. CR 10. Bertolino is an attorney with over a decade of experience claiming

to “offer honest answers and straightforward advice” and promising that “[i]f we

don’t believe you have a legitimate case, we’ll tell you.” Appx. C, p. 2. Bertolino,

like any attorney claiming the experience he advertises in professional liability

matters, knew that cases such as Mr. Daniels’s require an attorney expert to support

a plaintiff’s claims. SCR 42 (agreeing that “an expert is generally necessary to

instruct a jury on the issues of standard of care and proximate cause”); see also SCR

65. He had no such attorney expert at the time he took Mr. Daniels’s case and his

money, and he did not secure an attorney expert before the second hearing on the

summary judgment that ultimately disposed of the case that Mr. Daniels had hired

him to handle. SCR 42. Bertolino’s absence at that summary judgment hearing – at 23 *39 which Mr. Daniels was instead represented by Trevor Young, a brand-new attorney

– supports the conclusion that Bertolino held out little hope for Mr. Daniels’s case.

Taken together, this evidence easily raises a scintilla of evidence that Bertolino knew

Mr. Daniels’s case against Canfield was weak if not wholly untenable; that he

withheld that information; that he did so intending for Mr. Daniels to engage his

services and pay money; and that if Mr. Daniels had known Bertolino’s assessment

of the merits of his case, he would not have hired and paid Bertolino.

D. I N THE A LTERNATIVE , M R . D ANIELS S HOULD R ETAIN THE R IGHT TO

A SSERT A DDITIONAL DTPA C LAIMS AGAINST B ERTOLINO .

If this case is reversed and remanded, but the court elects not to disturb the trial court’s grant of summary judgment, Mr. Daniels respectfully requests that he

be permitted to amend his pleadings to assert claims under the DTPA other than

those in his original pleadings. Plaintiffs are generally permitted to amend their

pleadings as the litigation progresses and as discovery develops. T EX . R. C IV P. 63;

see also Tower Contracting Co. v. Flores , 302 S.W.2d 396, 400 (Tex. 1957). For

example, even if this Court affirms the trial court’s order on Bertolino’s no-evidence

summary judgment motion, Mr. Daniels should be permitted to maintain a claim

under T EX . B US . & C OM . C ODE §17.46(b)(12) on the grounds that Bertolino

represented that the engagement agreement he prepared confers the right to prevent

Mr. Daniels from accepting a settlement offer without Bertolino’s consent. SCR 19; 24 *40 T EX . D ISC . R. P ROF . C OND . 1.02(a)(2) cmt 5. Mr. Daniels should also be permitted

to plead a claim under T EX . B US . & C OM . C ODE §17.46(b)(22) on the grounds that

Bertolino did not in fact perform the services for which he invoiced Mr. Daniels.

Mr. Daniels therefore requests that if the summary judgment remains undisturbed

then the Court’s order clearly affirm Mr. Daniels’s right to plead and conduct

discovery on DTPA claims that rest on legally and factually distinct grounds from

those that were the subject of Bertolino’s no-evidence motion for summary

judgment.

CONCLUSION For the foregoing reasons, Appellant Stephen M. Daniels files this brief asking the Court to reverse the grant of summary judgment in favor of Appellee Bertolino

and remand this matter for proper determination on the merits. At a minimum, Mr.

Daniels’s non-DTPA claims, which were not challenged by Bertolino’s motion,

must be remanded. Additionally, the DTPA claims should also be remanded because

the motion was filed well before adequate time for discovery had passed and because

more than a scintilla of evidence existed in the record on each of the elements

challenged by Bertolino.

Dated: March 5, 2015 25

Respectfully submitted, T HE L AW O FFICE OF E LEANOR R UFFNER , P.C. 1403 West Sixth Street Austin, Texas 78703 (512) 913-7576

(512) 681-0800 (fax) By: /s/ Eleanor Ruffner Eleanor Ruffner State Bar No. 24047034 eruffnerlaw@gmail.com CERTIFICATE OF COMPLIANCE Pursuant to T EX . R. A PP . P. 9.4, I hereby certify that this brief contains 7,543 words.

This is a computer generated document created in Microsoft Word, using 14 point

typeface for all text. In making this certificate of compliance, I am relying on the

word count provided by the software used to prepare the document.

CERTIFICATE OF SERVICE I hereby certify that on March 5, 2015, I served a copy of the foregoing document

on counsel of record via email as follows:

Tony Bertolino (tbertolino@belolaw.com)

Hiba Kazim (hkazim@belolaw.com)

B ERTOLINO LLP

823 Congress Avenue, Suite 704

Austin, Texas 78701

/s/ Eleanor Ruffner Eleanor Ruffner

APPENDIX Tab Document

A Order (October 21, 2014)

B Order (October 30, 2014)

C Website of Bertolino LLP: www.belolaw.com (accessed on February 24,

2015) D Affidavit of Stephen M. Daniels (February 6, 2014)

E Bertolino’s Verified Motion for Continuance and Motion for Sanctions

(August 5, 2015) F Reporter’s Record, No Evidence Motion for Summary Judgment in Daniels

v. Canfield (April 15, 2013) G Affidavit of Fred E. Davis (September 19, 2014). 27

A S PPENDIX T AB A

*44 OCT-06-2014(MON) 12:10 BK 14308 PG76 DC Pa~. 2 of 3 10108120101 1 l~e To: +161::!"76~76a

From: POSTAL EXPRESS Faa: (877\ '131-0&97 No. ~ 629 • P. 2/3 oct. 6. 20.14 11:33AM Mail

Fiftd In The District Court of Travis County, Texas OCT 2 3 2014 RT \0 ~CtI ~ M. NO. D-J.GN-14-002.1~~ /4J Amalia Rodriguez-Mendoza, Clerk . § . IN THE DJSTlUCT CO'VRT STEPltF..N M. DANIELS Plaintiff, § §

v . . lSOth JUDICIAL DISTlUCT § §

TONY R. BERTOLINO § § TRAVIS COUNTY, TEXAS

D~rencL"lnt. ORDEn C~T-lNG DEFENnANT'S MOTION )rORNO E'V1DENCE SUMMARY JUJ)GMnNT On Soplcmber 30, 2014. tlte Cour~ ',:onsldcred Deftndant'.! MfJlil)" fiJI' No .l!\1ide"c~ Summary Judgmen(. The Motion was J)t'operly filed :\fter Iln ;rdcquB1o time for disco\lery bad . passod. After revi=win~ the -:vidcncc nnd hcarlJ\~ 1l1e :11'gumcnt..~ made by !.he Phuntiffand the

. _ ._ " . _ -Defcnd:ln t,-th~·COuft-L111ds-~hat-tbc-PJ ailltiffco\lld-nDt'prodtlc~-evide~~B'Il'Iifi\s~nuiiiiiliiSuc"--- --

of materiaL fact: on li1C clcmc.n~r of the Plainliff's Dcccpliw Trade Practicc:s Act claims Gsainst the Dl!rcndllllt. Accordingly. iho Moti~n Is GRANTED,

IT IS Tll&R.IUi'ORE OlU1EitED Lhn( PlaIntiff's Deceptive Trude Pra~l~c.s Aot clnlm~ 1"his judtn1l!nr filllllly di.~pOGr:s or:-.II parties and ill! clnLrn.9 and is thclrcforc .finlU and SIONBDOll ~~?-_''''' __

^[68] *45 P.003/003

OCT-06-2014(MON) 12:10 BK1430B PG77 DC From; PO::TAI. EXPRESS FaK: 18rn 'nl-OlIa' P_go ~ of:S 1010612Ql~ 11:38 oct. 6. 2014 11:33AM Mail P. 3/3 No. 4629

, APPN.OVED AS "to FOnM: i'OllY It BCl1oIino mNl4038766 HibllI{wll'l

TEN 24076~S2

823 Congress A'Vel'luc Suite 704 A~stint Tcxo.s 78701

Tel. (512) 416~S7S7

FlU(, (Sl:2.) 476-S758 EmIlU; tbertolino@b::!olll.w,eom

~ro 51: }'llaintJrr

8323 CI a.ys Point ___ --tilSanAntoniu.-Tcx!lS-1B2~7._:_-----------------.-~------

"., .

[69] *46 A S PPENDIX T AB B *47 P. 003/003 P. 003/003

OCT-01-2014(WED) 17:17 OCT-01-2014(WED) 17:17 DC DC BK14308 PG1125 BK14308 PG1125 NO. U-I-GN-14-002146 NO. D-l-GN-14-002146 § § IN THE DISTRICT COURT IN THE DISTRICT COURT STEPHEN M. DANIELS STEPHEN M. DANIELS § § Plaintiff, Plaintiff, § § v. V. § 250th JUDICIAL DISTRICT § 250th JUDICIAL DISTRICT

§ § § § TONY R. BERTOLINO TONY R. BERTOLINO § TRAVIS COUNTY, TEXAS § TRAVIS COUNTY, TEXAS Defendant. Defendant. ORDER GRANTING DEFENDANT'S ORDER GRANTING DEFENDANT'S MOTION FOR NO EVIDE}"JCE SUMMARY JUDGMENT MOTION FOR NO EVIDEl"JCE SUMMARY JUDGMENT On September 30, 2014, the Court considered Defendant's Motion for No Evidence On September 30, 2014, the Court considered Defendant's Motion for No Evidence Summary Judgment. The Motion was properly filed after an. adequate time for discovery had Summary Judgment. The Motion was properly filed after an. adequate time for discovery had

passed. After reviewing the evidence and hearing the arguments made by the Plaintiff and the passed. After reviewing the evidence and hearing the arguments made by the Plaintiff and the Defendant, the Court finds that the Plaintiff could not produce evidence raising a genuine issue

Defendant, the Court finds that the Plaintiff could not produce evidence raising a genuine issue ,.oA J> J> ,.OA rT 5 r7.S

of material fact on the elemlo!!1ts of the Plaintiff's claims against the Defendant/"Accordingly, the of material fact on the eleme!1ts of tht:.: Plaintiff's claims against the Defendantf\Accordingly, the

Motion is GRANTED. Motion is GRANTED. Trade Trade

IT IS THEREFORE ORDEREU that Plaintiffs claims under the IT IS THEREFORE ORDEREU that Plaintiffs claims under the Practices Act are hereby DISMISSED WITH PREJUDICE. Practices Act are hereby DISMISSED WITH PREJUDICE.

~ ~

This judgment finally disposes of all parties and all claims and is therefore final and This judgment finally disposes of all parties and all claims and is therefore final and appealable. appealable.

SIGNED on ..:::::.......::::-__ _ --=--=_, 2014.

122 *48 A S PPENDIX T AB C

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[212412015] Family Law Divorce Lawyer Austin Tx : Probate Attorneys Austin Texas: Houston: San Antonio TX: - Bertolino Practice Areas Austin Office: San Antonio Office: Houston Office:

Bertolino, LLP Bertolino, LLP Bertolino, LLP Divorce and Child Custody 4 Dominion Drive San Felipe Plaza 823 Congress Medical License Defense Avenue Bldg 4, Suite 250 5847 San Felipe San Antonio, Texas Suite 704 Suite 1700 Professional License Defense Austin, Texas 78701 Houston, Texas 78257 Probate and Estates Phone: Phone: 77057 Car Accidents Phone: 512.476.5757 210.223.5553 713.225.7474 Personal Injury En Espafiol

BERTOLINO LLP

A LAW FIRM OF ATTORNEYS AND COUNSELORS

.... " J J

2013CI19729 -P00013 2013CI19729 -P00013 f)-I-(; -1-i-()(12 1-l(; IN I IIL 25()111 f)ISTR ICTUlI IRT D-1-Ci N- 14-i H 121-lt> IN I I lL 25illll DISTRIC T U ll lfH NO. 2013-CI-19729 NO. 2013-CI-19729

STEPHEN M. DANIELS STEPHEN M. DANIELS Plaintiff, Plaintiff, v. v. $ $ $ $ $ $ $ $ IN THE DJST LAW NO. 0 AT 3RD c c AT LAW NO. 0 3RD IN THE DIST c:l c;:J~ ;1)CouAj _ Cl)S!~ ~~~~ ·o '0 · Cl)~~ )COuKf. _ ~' -< ~ ~:T-f"\~ - I. I. f f 1"\ ~ r-l~n-1 l -, ~ ~;o~~f f" ji; ;;; - ~/ -, -U . - (S)CI-I 1"\ r;;~ - ~';~". ......,~';xl?'"Tl \1~~~"'fl ~gp~o ;<.> (=;~f 'I _gp~o g o ^[0] R. BERTOLINO TONY R. BERTOLINO TONY Defendant, Defendant, 5 $ $ $ $ $ $ $ BEXAR COUN COUN BEXAR --< ~ ~;T.f1'1~ - ~, , '£fXAS , 'rfiXAS ; .. a~~~ , . .. " -:- ~ ..,.... b b I'> ~ ~ ~ - --j~~ ^[0] &-;> &";;:- -' . .? f1'1 •• .......--.;,;:~ -:? f"\ ..( --< STEPHEN M. DANIELS' AFFIDAVIT IN SUPPORT OF THE MOTION FOR STEPHEN M. DANIELS' AFFIDAVIT IN SUPPORT OF THE MOTION FOR SUMMARY JUDGMENT SUMMARY JUDGMENT

BEFORE ME, the undersigned authority, on this day personally appeared BEFORE ME, the undersigned authority, on this day personally appeared STEPHEN M. DANIELS, who swore or affirmed to tell the truth and stated as STEPHEN M. DANIELS, who swore or affirmed to teU the truth and stated as follows: follows:

1. My name is Stephen M. Daniels ("Affiant"). I am of sound mind and capable of 1. My name is Stephen M. Daniels ("Affiant"). I am of sound mind and capable of making this sworn statement. I have personal knowledge of the facts written in this making tbis sworn statement. I have personal knowledge of the facts written in this statement. I understand that if I lie in this statement, I may be held criminally statement. I understand tbat if I lie in this statement, I may be held criminally responsible. This statement is true. I am over 18 years old. responsible. This statement is true. I am over 18 years old. 2. On February 22, 2012, I met with Tony R. Bertolino to discuss filing a legal

2. On February 22, 2012, I met with Tony R. Bertolino to discuss filing a legal malpractice lawsuit against an attorney who had filed a previous claim ( the malpractice lawsuit against an attorney wbo had filed a previous claim ( the underlying case)on my behalf. The court ruled that this case had no merit. I paid underlying case)on my behalf. The court ruled that tbis case had no merit. I paid him 5200.00 for tbis consultation. him 5200.00 for this consultation.

3. Tbe reason for filing tbe claim was because the previous case bad no merit. 3. The reason for filing the claim was because the previous case had no merit. Mr. Bertolino encouraged and motivated me to proceed by telling me I was shooting Mr. Bertolino encouraged and motivated me to proceed by teUing me I was shooting 'too low' in regards to the amount I was asking in damages and that my chances 'too low' in regards to tbe amount I was asking in damages and that my cbances would be better in District Court in front of a jury. would be better in District Court in front of a jury.

4. During this consultation, he informed me he would take the case once I paid 4. During this consultation, be informed me he would take the case once I paid him an initial $3,500.00 and agree to pay him $500.00 per month for the next twelve him an initial 53,500.00 and agree to pay him 5500.00 per montb for the next twelve months. months.

S. During this consultation, Mr. Bertolino never informed me that in order to S. During tbis consultation, Mr. Bertolino never informed me tbat in order to prevail in a legal malpractice lawsuit. the underlying case must have merit. prevail in a legal malpractice lawsuit, tbe underlying case must have merit.

6. During this consultation, Mr. Bertolino never mentioned or informed me 6. During this consultation, Mr. Bertolino never mentioned or informed me anything about a No-Evidence Motion for Summary Judgment being part oftbe anything about a No-Evidence Motion for Summary Judgment being part of the process. process.

7. On April2, 2012, I retained Tony R. Bertolino witb a retainer of$3,500.00 and 7. On April 2, 2012, I retained Tony R. Bertolino with a retainer of 53,soo.00 and DOCUMENT SCANNED AS FILED DOCUMENT SCANNED AS FILED 10

\ \

signed a fee agreement tbat commencing May, tbe following month, I would start signed a fee agreement that commencing May, the following month, I would start making monthly payments of $500.00 for the next 12 months. Again, he did not making monthly payments of 5500.00 for the next 12 months. Again, he did not address tbe merits of the underlving case or anything about a No-Evidence Motion address the merits of the underlving case or anything about a No-Evidence Motion for a Summary Jud2lllent. for a Summary Jud2!1lent.

8. On Aprill, 2013, I made my last 5500.0 payment according to the 8. On Aprill, 2013, I made my last $500.0 payment according to the Attorney/Client Fee Agreement. Attorney/Client Fee Agreement.

9. On April IS, 2013, a No-Evidence Summary Judgment was granted to the 9. On AprillS, 2013, a No-Evidence Summary Judgment was granted to tbe Defendant based on the fact that the underlying case bad no merit.. Defendant based on the fact that the underlying case had no merit.. 10. Although the Attorney/Client Fee Agreement specifically stated that S3,SOO.OO

10. Although tbe Attorney/Client Fee Agreement specifically stated that 53,500.00 was designated for ~legal work' and the remaining S6,000.00 for 'legal was designated for ~Iegal work' and the remaining $6,000.00 for 'legal representation, Mr. Bertolino sent me April and May invoices for legal fees that representation, Mr. Bertolino sent me April and May invoices for legal fees that totaled over $5,600.00. totaled over 55,600.00. 11. I have personal knowledge ofthe facts stated above, and they are true and I have personal knowledge of the fads stated above, and they are true and

11. correct. I have not received compensation of any sort in return for any statement. correct. I have not received compensation of any sort in return for any statement. ~= Stephen M. Daniels ~= Stephen M. Daniels SUBSCRIBED AND SWORN BEFORE ME ^[00] :_......;(p'foL-f€~..;::;b;......:2::;..o..;;..:...( 4 ..... ___ _ SUBSCRIBED AND SWORN BEFORE ME on :--~¥-L-.:..f€_..:::;b;..._:;2:::;..0.;;;;...:...( :f....~...- ___ _ l~< JU~ CANIlEI.ARIODAVUA .. Q MY COMMISS1ON EXPIRES ~;. '. ,C'it:.'1.~· JItf 14. 2015

DOCUMENT SCANNED AS FILED DOCUMENT SCANNED AS FILED 11 *62 A S PPENDIX T AB E

8/5/20143:58:10 PM 8/5/2014 3:58:10 PM Amalia Rodriguez-Mendoza Amalia Rodriguez-Mendoza District Clerk District Clerk NO. D-I-GN-14-002146 NO. D-1-GN-14-002146 Travis County Travis County D-1-GN-14-002146 D-1-GN-14-002146 § § IN THE DISTRICT COURT IN THE DISTRICT COURT STEPHEN M. DANIELS STEPHEN M. DANIELS § §

Plaintiff, Plaintiff,

§ § v. V. § 250 th JUDICIAL DISTRICT § 250th JUDICIAL DISTRICT

§ § § § TONY R. BERTOLINO TONY R. BERTOLINO § TRAVIS COUNTY, TEXAS § TRAVIS COUNTY, TEXAS Defendant. Defendant. DEFENDANT'S MOTION FOR DEFENDANT'S MOTION FOR CONTINUANCE AND MOTION FOR SANCTIONS CONTINUANCE AND MOTION FOR SANCTIONS NOW COMES, TONY R. BERTOLINO, as Defendant herein, and files this Motion for NOW COMES, TONY R. BERTOLINO, as Defendant herein, and files this Motionfor Continuance and Motion for Sanctions, and shows the Court: Continuance and Motion for Sanctions, and shows the Court: FACTUAL BACKGROUND

I. I. FACTUAL BACKGROUND 1. 1. This matter initiated in its proper venue on July 1, 2014 with the filing of the This matter initiated in its proper venue on July 1, 2014 with the filing of the Original Petition in Travis County. Original Petition in Travis County. On or about July 14, 2014, Plaintiff served Notice of Summary Judgment Hearing On or about July 14, 2014, Plaintiff served Notice of Summary Judgment Hearing

2. 2. by U.S. certified mai1. ^[1] However, Plaintiff has neglected to serve the Motion itself. To this date, by U.S. certified mail.! However, Plaintiff has neglected to serve the Motion itself. To this date,

Defendant has not been served a Motion for Summary Judgment in this matter. Prior to receipt Defendant has not been served a Motion for Summary Judgment in this matter. Prior to receipt of the Notice of Summary Judgment Hearing, Defendant had not been sent notice that a motion of the Notice of Summary Judgment Hearing, Defendant had not been sent notice that a motion

for summary judgment was filed in this matter. for summary judgment was filed in this matter.

3. 3. Every document Defendant has served on Plaintiff has been served by certified Every document Defendant has served on Plaintiff has been served by certified mail with a return address to a proper address of service for the Defendant. Defendant's mail with a return address to a proper address of service for the Defendant. Defendant's

signature block contains Defendant's proper address for service. Moreover, Plaintiff has served signature block contains Defendant's proper address for service. Moreover, Plaintiff has served at least one filing, Plaintiff's Motion to DENY Transfer of Venue, on Defendant's proper address at least one filing, Plaintiff's Motion to DENY Transfer of Venue, on Defendant's proper address for service. Plaintiff is more than aware of the proper address for service on Defendant and yet for service. Plaintiff is more than aware of the proper address for service on Defendant and yet

[1] The Certificate of Service states that the document was sent on July 12, 2014 via US certified mail. ] The Certificate of Service states that the document was sent on July 12, 2014 via US certified mail.

24 *64 has failed to serve the Motion for Summary Judgment. has failed to serve the Motion for Summary Judgment.

4. 4. No written discovery has been served on either party in this matter at this time. No written discovery has been served on either party in this matter at this time. No depositions have been noticed or conducted at this time. Moreover, this case only has been No depositions have been noticed or conducted at this time. Moreover, this case only has been

on file with the Travis County court for a mere month. on file with the Travis County court for a mere month.

II. MOTION FOR CONTINUANCE II. MOTION FOR CONTINUANCE 5. 5. Defendant requests a continuance of the August 18, 2014 hearing in this matter. Defendant requests a continuance of the August 18, 2014 hearing in this matter. 6. 6. Under the Texas Rules of Civil Procedure, Plaintiff must serve the Motion for Under the Texas Rules of Civil Procedure, Plaintiff must serve the Motion for Summary Judgment at the time of filing it. Tex. R. Civ. P. 21; Tex. R. Civ. P. 21(a). Further, a Summary Judgment at the time offiling it. Tex. R. Civ. P. 21; Tex. R. Civ. P. 21(a). Further, a

motion for summary judgment and any supporting affidavits must be filed and served twenty motion for summary judgment and any supporting affidavits must be filed and served twenty

one (21) days before the time specified for the hearing. Tex. R. Civ. P. 166a; Accordingly, July one (21) days before the time specified for the hearing. Tex; R. Civ. P.166a; Accordingly, July 28, 2014, was the last day that such a motion should have been served on Defendant for proper 28, 2014, was the last day that such a motion should have been served on Defendant for proper notice. Id.

notice. !d.

7. 7. According to Travis County's Attorney Access to Records Online, Plaintiff filed According to Travis County's Attorney Access to Records Online, Plaintiff filed the Motionfor Summary Judgment on February 14,2014, when the case was still in the improper the Motion for Summary Judgment on February 14,2014, when the case was still in the improper

venue of Bexar County. Moreover, at that time, Plaintiff did not serve the Motion for Summary venue of Bexar County. Moreover, at that time, Plaintiff did not serve the Motion for Summary Judgment upon Defendant. In fact, Plaintiff had not even served an Original Petition to initiate Judgment upon Defendant. In fact, Plaintiff had not even served an Original Petition to initiate

the suit. The Motion for Summary Judgment was file-stamped for July 1, 2014 in Travis County the suit. The Motionfor Summary Judgment was file-stamped for July 1,2014 in Travis County presumably as a result of re-filing or the transfer ofthe case from Bexar County. The filing does presumably as a result of re-filing or the transfer of the case from Bexar County. The filing does

not contain a certificate of service and there is no indication that Plaintiff attempted to serve the not contain a certificate of service and there is no indication that Plaintiff attempted to serve the Motion lc,' Summary Judgment. There is no indication that Plaintiff plans to serve this motion Motion ji;,· Summary Judgment. There is no indication that Plaintiff plans to serve this motion

on Defendant in the future beyond the time period such service is required under the Texas Rules on Defendant in the future beyond the time period such service is required under the Texas Rules of Civil Procedure. Instead, Plaintiff apparently sought to have a hearing on a motion that of Civil Procedure. Instead, Plaintiff apparently sought to have a hearing on a motion that

Defendant was never served. As such, this hearing would be severely prejudicial. Defendant was never served. As such, this hearing would be severely prejudicial. - 2-

- 2 -

25 *65 8. 8. This matter has only been transferred to the proper venue for roughly one (1) This matter has only been transferred to the proper venue for roughly one (1) month as of the time of this filing. Defendant has had no opportunity to conduct reasonable month as of the time of this filing. Defendant has had no opportunity to conduct reasonable

discovery in this matter. discovery in this matter.

9. 9. Contemporaneously with service of this filing, Defendant is serving upon Plaintiff Contemporaneously with service of this filing, Defendant is serving upon Plaintiff requests for disclosure, requests for production, interrogatories, and requests for admission on requests for disclosure, requests for production, interrogatories, and requests for admission on

Plaintiff. Defendant wishes to conduct this discovery in order to gather evidence in this matter to Plaintiff. Defendant wishes to conduct this discovery in order to gather evidence in this matter to properly defend his case on the merits. Plaintiff's filing of a Motion for Summary Judgment properly defend his case on the merits. Plaintiff's filing of a Motion for Summary Judgment

without providing Defendant an opportunity to conduct discovery that would negate Plaintiff's without providing Defendant an opportunity to conduct discovery that would negate Plaintiff's allegations and/or establish affirmative defenses denies Defendant of his right to due process of allegations and/or establish affirmative defenses denies Defendant of his right to due process of

law. law.

10. Accordingly, a continuance ofthis hearing should be granted. 10. Accordingly, a continuance of this hearing should be granted.

III. MOTION FOR SANCTIONS III. MOTION FOR SANCTIONS 11. Multiple statutes authorize a court to sanction a party and order the remedies 11. Multiple statutes authorize a court to sanction a party and order the remedies requested by Defendant in this matter. Defendant moves for sanctions against Plaintiff. requested by Defendant in this matter. Defendant moves for sanctions against Plaintiff.

Sanctions may be ordered against a party for the filing of a frivolous pleading pursuant to Civil Sanctions may be ordered against a party for the filing of a frivolous pleading pursuant to Civil Practice and Remedies Code chapter 10. Tex. Civ. Prac. & Rem. Code § 10.004(c). ^[2] Further, Practice and Remedies Code chapter 10. Tex. Civ. Prac. & Rem. Code § 1O.004(c).2 Further,

sanctions may be ordered against a party for the filing of a groundless pleading pursuant to Civil sanctions may be ordered against a party for the filing of a groundless pleading pursuant to Civil Practice and Remedies Code § 9.011-9.014. Tex. Civ. Prac. & Rem. Code § 9.012(e). ^[3] Practice and Remedies Code § 9.011-9.014. Tex. Civ. Prac. & Rem. Code § 9.012(e).3 Moreover, sanctions may be granted against a party for a failure to serve or deliver pleadings and Moreover, sanctions may be granted against a party for a failure to serve or deliver pleadings and R. Civ. P. 215.2.4 motions pursuant to Texas Rules of Civil Procedure 21b and 215. Tex. motions pursuant to Texas Rules of Civil Procedure 21b and 215. Tex. ^[4] Civ. P. 215.2. R.

[2] Under Chapter 10, the following remedies may be granted: reasonable expenses (including reasonable attorneys' ^[2] Under Chapter 10, the following remedies may be granted: reasonable expenses (including reasonable attorneys' fees), a penalty to be paid into court, and a directive to the violator to perform or refrain from performing an act. fees), a penalty to be paid into court, and a directive to the violator to perform or refrain from performing an act.

[3] Under Chapter 9, the following remedies may be granted: striking of pleadings, dismissal of party, and an order to ^[3] Under Chapter 9, the following remedies may be granted: striking of pleadings, dismissal of party, and an order to pay reasor:,,l-,le expenses (inclucling attorneys' fees) incurred because of the filing of pleadings pay reasor:,1l-,le expenses (inclucting attorneys' fees) incurred because of the filing of pleadings ^[4] Under Rule 215, the following remedies, among others, may be granted: an order striking out pleadings or part ^[4] Under Rule 215, the following remedies, among others, may be granted: an order striking out pleadings or part

- 3 - - 3 -

26 *66 Pursuant to this authority, Defendant seeks: Pursuant to this authority, Defendant seeks: the striking of Plaintiff's Amended Original Petition; the striking of Plaintiff's Amended Original Petition;

a. a. the striking of Plaintiffs Motionfor Summary Judgment; the striking of Plaintiffs Motion for Summary Judgment; b. b. c. c. the striking of any and all plea, pleadings, motions and/or documents on the striking of any and all plea, pleadings, motions and/or documents on file with the Travis County Court; file with the Travis County Court;

d. d. the dismissal of Plaintiffs claim; and the dismissal of Plaintiff s claim; and e. e. reasonable and necessary attorneys' fees. reasonable and necessary attorneys' fees. 12. 12. Plaintiff has apparently continued to improperly serve pleadings and discovery Plaintiff has apparently continued to improperly serve pleadings and discovery upon Defendant and assert that service was completed. The following pleadings and discovery upon Defendant and assert that service was completed. The following pleadings and discovery

requests have not been served upon Defendant: requests have not been served upon Defendant: Motion for Summary Judgment; Motion for Summary Judgment;

a. a. Plaintiff's First Set of Interrogatories; Plaintiff's First Set of Interrogatories; b. b. Plaintiff's First Request for Admissions; Plaintiff's First Request for Admissions; c. c. Plaintiff's First Request for Disclosure; and Plaintiff's First Request for Disclosure; and d. d, Plaintiff's First Request for Production of Documents to Defendant, Tony Plaintiff's First Request for Production of Documents to Defendant, Tony e. e. R. Bertolino. R. Bertolino.

Furthermore, pursuant to Texas Rules of Civil Procedure 2Ib and 2IS.2(b)(S), the Motion Furthermore, pursuant to Texas Rules of Civil Procedure 21b and 215.2(b)(5), the Motion for Summary Judgment should be stricken as Plaintiff made no attempt to serve it. for Summary Judgment should be stricken as Plaintiff made no attempt to serve it. This Motion for Summary Judgment contains false and/or misleading statements This Motion for Summary Judgment contains false andlor misleading statements

13. 13. and does not provide evidence for crucial elements of Plaintiff s claim. Specifically: and does not provide evidence for crucial elements of Plaintiffs claim. Specifically:

a. a. Plaintiff alleges that Defendant has failed to comply with interrogatories, Plaintiff alleges that Defendant has failed to comply with interrogatories, requests for disclosure, admissions, and production. Defendant has not requests for disclosure, admissions, and production. Defendant has not thereof, staying further proceedings until an order is obeyed, dismissing with or without prejudice the action or thereof, staying further proceedings until an order is obeyed, dismissing with or without prejudice the action or

proceedings or any part thereof, or rendering a judgment by default against the disobedient party proceedings or any part thereof, or rendering a judgment by default against the disobedient party

- 4 - - 4-

27 *67 been served any of these allegedly served discovery requests as required been served any of these allegedly served discovery requests as required under Texas Rule of Civil Procedure 21a. Plaintiffs assertion that under Texas Rule of Civil Procedure 21a. Plaintiffs assertion that Defendant has failed to comply with discovery requests is therefore false. Defendant has failed to comply with discovery requests is therefore false. b. b. Plaintiff alleges, based on Defendant's alleged failure to respond to Plaintiff alleges, based on Defendant's alleged failure to respond to discovery requests, that the "information [sought in the requests] would discovery requests, that the "information [sought in the requests] would substantiate that Defendant knew, or should have known, and withheld the substantiate that Defendant knew, or should have known, and withheld the fact that the Plaintiff would not prevail in a legal malpractice lawsuit." fact that the Plaintiff would not prevail in a legal malpractice lawsuit." Plaintiff has no reason to assume that discovery responses would Plaintiff has no reason to assume that discovery responses would substantiate this allegation. Stating that they would is a clear attempt to substantiate this allegation. Stating that they would is a clear attempt to mislead the Court. mislead the Court. Plaintiff further alleges irrelevant facts in section III of his Motion for

c. c. Plaintiff further alleges irrelevant facts in section III of his Motion for Summary Judgment claiming that they provide support for his claim. Summary Judgment claiming that they provide support for his claim. Plaintiff alleges that Defendant did not meet with him in person and Plaintiff alleges that Defendant did not meet with him in person and assigned an attorney not on the firm's letterhead to his case and that these assigned an attorney not on the firm's letterhead to his case and that these facts support "defendant's false representation." Even taken as true, these facts support "defendant's false representation." Even taken as true, these allegations provide no support for Plaintiff s claim and are included allegations provide no support for Plaintiffs claim and are included presumably to mislead the Court. presumably to mislead the Court.

14. 14. Plaintiffs Motion for Summary Judgment is a groundless motion. Plaintiff has Plaintiffs Motion for Summary Judgment is a groundless motion. Plaintiff has only attached an affidavit alleging general statements regarding his personal knowledge of an only attached an affidavit alleging general statements regarding his personal knowledge of an

isolated l~:.!st event. While these statements are certainly rebuttable, even taken as true, they isolated 1~:1st event. While these statements are certainly rebuttable, even taken as true, they

cannot establish (or even allege) anything whatsoever regarding Defendant's mental state, which cannot establish (or even allege) anything whatsoever regarding Defendant's mental state, which is key to Plaintiff s assertion that Defendant knowingly and intentionally withheld information. is key to Plaintiffs assertion that Defendant knowingly and intentionally withheld information. According to Plaintiff's Amended Original Petition, Plaintiff has only made a claim under the According to Plaintiff's Amended Original Petition, Plaintiff has only made a claim under the

- 5 - - 5 -

28 *68 Texas Deceptive Trade Practices Act (DTPA), Tex. Bus. & Com. Code§§ 17.41 and 17.49(c) Texas Deceptive Trade Practices Act (DTPA), Tex. Bus. & Com. Code §§ 17.41 and 17.49(c) based on an alleged misrepresentation and failure to disclose information in violation of §

based on an alleged misrepresentation and failure to disclose information in violation of §

17 .46(b )(24 ). 17 .46(b )(24). 1::>. A claim under§ 17.50 requires the following elements:

1:>. A claim under § 17.50 requires the following elements: a. Plaintiff is a consumer that incurred economic damages or damages for a. Plaintiff is a consumer that incurred economic damages or damages for mental anguish from one of the following actions by the Defendant: mental anguish from one of the following actions by the Defendant: Employment of a false, misleading, or deceptive act or practice Employment of a false, misleading, or deceptive act or practice 1. 1. that is specifically enumerated in § 17.46; and relied on by Plaintiff that is specifically enumerated in § 17.46; and relied on by Plaintiff to his detriment. to his detriment. Breach of an express or implied warranty; u. Breach of an express or implied warranty;

11. Any unconscionable action or course of action by any person; or Any unconscionable action or course of action by any person; or 111. 111. The use or employment of an act or practice in violation of Chapter The use or employment of an act or practice in violation of Chapter IV. IV. 541, Insurance Code. 541, Insurance Code. Plaintiff's Amended Original Petition cites § 17.46(b)(24) assumedly for 16. Plaintiff's Amended Original Petition cites § 17.46(b)(24) assumedly for

16. satisfaction of element (a)(i)5 above. That subsection essentially requires four (4) different satisfaction of element (a)(i) ^[5] above. That subsection essentially requires four ( 4) different ^[6]

elements. ^[6] elements. 17. Plaintiff's Amended Original Petition makes no factual allegations regarding any Plaintiff's Amended Original Petition makes no factual allegations regarding any

17. of the elements under § 17.50 or § 17.46(b)(24). Accordingly, Plaintiff's Amended Original of the elements under § 17.50 or § 17.46(b)(24). Accordingly, Plaintiff's Amended Original

Petition is a groundless motion and should be stricken pursuant to Civil Practice and Remedies Petition is a groundless motion and should be stricken pursuant to Civil Practice and Remedies Code § 9. 0 11 , et. seq.

Code § 9.011, et. seq.

18. Moreover, Plaintiffs Motion for Summary Judgment is also a groundless motion 18. Moreover, Plaintiffs Motion for Summary Judgment is also a groundless motion ^[5] For simplicity's sake, reference is made to the enumeration used in this pleading, not the statutory enumeration. ^[5] For simplicity's sake, reference is made to the enumeration used in this pleading, not the statutory enumeration.

[6] § 17.46~~\24) requires that (a) Defendant knew information concerning goods or services at the time of the ^[6] § 17.46~~\24) requires that (a) Defendant knew information concerning goods or services at the time of the transaction; (b) Defendant withheld the information (c) with intent to induce the consumer into a transaction; and (d) transaction; (b) Defendant withheld the information (c) with intent to induce the consumer into a transaction; and (d)

the consumer would not have entered into the transaction had the withheld information been disclosed. the consumer would not have entered into the transaction had the withheld information been disclosed.

- 6- - 6 -

29 *69 because it seeks summary judgment relief on claims not plead in the Plaintiff's Amended because it seeks summary judgment relief on claims not plead in the Plaintiff's Amended

Original Petition. The Motion is silent on a claim under the DTP A and instead lists allegedly Original Petition. The Motion is silent on a claim under the DTP A and instead lists allegedly satisfied elements for a claim under theories of "False Representation" and "Quantum Merit" satisfied elements for a claim under theories of "False Representation" and "Quantum Merit"

[sic]. Neither of these claims are present in Plaintiff's Amended Original Petition. Further, [sic]. Neither of these claims are present in Plaintiff's Amended Original Petition. Further, Plaintiffs only evidence is an attached affidavit of his own personal knowledge. This affidavit Plaintiff s only evidence is an attached affidavit of his own personal knowledge. This affidavit

states general facts about past occurrences but provides no indication of Defendant's mental state states general facts about past occurrences but provides no indication of Defendant's mental state which is e1sential to a claim under the DTP A. See the above-enumerated elements of a DTP A which is e1sential to a claim under the DTP A. See the above-enumerated elements of a DTP A claim under § 17.46(b)(24) in footnote 6. Elements a and c of § 17.46(b)(24) both require proof

claim under§ 17.46(b)(24) in footnote 6. Elements a and c of§ 17.46(b)(24) both require proof of Defendant's mental state. of Defendant's mental state. Further, even if a claim for False Representation or Quantum Meruit were proper Further, even if a claim for False Representation or Quantum Meruit were proper

19. 19. in this pleading, Plaintiff has not provided evidence to support those claims since he generally in this pleading, Plaintiff has not provided evidence to support those claims since he generally

alleges false representation without providing evidence or specific grounds establishing alleges false representation without providing evidence or specific grounds establishing

Defendant's mental state. See Tex. R. Civ. P. 166a(c) ("The motion for summary judgment shall Defendant's mental state. See Tex. R. Civ. P. 166a(c) ("The motion for summary judgment shall

state the specific grounds therefor."). state the specific grounds therefor.").

20. 20. Plaintiff has provided no evidence for the majority of his claims and instead Plaintiff has provided no evidence for the majority of his claims and instead alleges false and misleading statements. The fact that Plaintiff has also made no apparent alleges false and misleading statements. The fact that Plaintiff has also made no apparent

attempt tv serve the Motion for Summary Judgment on Defendant is further evidence that this attempt tu serve the Motion for Summary Judgment on Defendant is further evidence that this

groundless pleading was filed improperly and in bad faith. groundless pleading was filed improperly and in bad faith.

IV. RELIEF IV. RELIEF Because Defend~mt has been given no notice of Plaintiffs Motion for Summary Because Defend~mt has been given no notice of Plaintiffs Motion for Summary 21. 21. Judgment prior to the Notice of Summary Judgment Hearing, Plaintiff has repeatedly improperly Judgment prior to the Notice of Summary Judgment Hearing, Plaintiff has repeatedly improperly

served or failed to serve Defendant, and Defendant has had no opportunity to conduct discovery, served or failed to serve Defendant, and Defendant has had no opportunity to conduct discovery,

- 7 - - 7 -

30 *70 Defendant respectfully requests that a continuance be granted for the August 18, 2014 hearing on Defendant respectfully requests that a continuance be granted for the August 18, 2014 hearing on

Plaintiff's Motion for Summary Judgment. Plaintiff's Motionfor Summary Judgment. Recognizing the Comi's broad authority under § 10.004 of the Texas Civil

22. 22. Recognizing the Comi's broad authority under § 10.004 of the Texas Civil Practice and Remedies Code, to make such orders as are just, Defendant respectfully prays that Practice and Remedies Code, to make such orders as are just, Defendant respectfully prays that

this Court dismiss Plaint({f's Amended Original Petition and order Plaintiff to pay attorney's fees this Court dismiss Plainttfl's Amended Original Petition and order Plaintiff to pay attorney's fees

and additional fees the court can charge against Plaintiff and enter such orders in regard to the and additional fees the court can charge against Plaintiff and enter such orders in regard to the Plaintiff's failure as it deems just. Plaintiff's failure as it deems just.

23. 23. Recognizing the Court's broad authority under Civil Practice and Remedies Code Recognizing the Court's broad authority under Civil Practice and Remedies Code §§ 9.011-9.014 and Texas Rule of Civil Procedure215.2(b), to make such orders as are just, §§ 9.011-9.014 and Texas Rule of Civil Procedure215.2(b), to make such orders as are just,

Defendant respectfully submits that this Court strike the instruments in violation of §§ 9.011- Defendant respectfully submits that this Court strike the instruments in violation of§§ 9.011-

9.014 (Plaintiff's Amended Original Petition and Plaintiff's Motion for Summary Judgment), 9.014 (Plaintiff's Amended Original Petition and Plaintiff's Motion for Summary Judgment),

dismiss the case, and order Plaintiff to pay reasonable expenses, including attorney's fees caused dismiss the case, and order Plaintiff to pay reasonable expenses, including attorney's fees caused by Plaintiff's failure and enter such orders in regard to the Plaintiffs failure as the Court deems by Plaintiff's failure and enter such orders in regard to the Plaintiffs failure as the Court deems just. just. 24. Due to Plaintiff's acts described herein, Defendant has incurred substantial

24. Due to Plaintiff's acts described herein, Defendant has incurred substantial expenses, including but not limited to attorneys' fees. Under of the Texas Civil Practice and expenses, including but not limited to attorneys' fees. Under of the Texas Civil Practice and

Remedies Code § 10.004 and Texas Rule of Civil Procedure 21S.2(b)(8), Defendant may recover Remedies Code§ 10.004 and Texas Rule of Civil Procedure 215.2(b)(8), Defendant may recover reasonable expenses, including reasonable attorneys' fees, incurred in obtaining an order for reasonable expenses, including reasonable attorneys' fees, incurred in obtaining an order for

sanctions. Reasonable attorney's fees for the services rendered and to be rendered is $1000.00. sanctions. Reasonable attorney's fees for the services rendered and to be rendered is $1000.00.

2). 2). The attorney's fees requested in the amount of$I,OOO are reasonable based on the The attorney's fees requested in the amount of$1,000 are reasonable based on the time and labor required, the novelty and difficulty of the questions involved, and the skill time and labor required, the novelty and difficulty of the questions involved, and the skill

requisite to perform the legal service properly given the fees customarily charged in the locality requisite to perform the legal service properly given the fees customarily charged in the locality for similar legal services, as well as the amount involved and results obtained. for similar legal services, as well as the amount involved and results obtained.

- 8 - - 8 -

31 *71 v. PRAYER V. PRAYER

WHEREFORE, PREMISES CONSIDERED, Defendant prays that the Court: WHEREFORE, PREMISES CONSIDERED, Defendant prays that the Court: grant Defendant's Motion for Continuance of the Summary Judgment hearing grant Defendant's Motion for Continuance of the Summary Judgment hearing 26. 26. currently 'set for August 18, 2014. currently ·set for August 18, 2014. set a hearing for the Motion for Sanctions;

27. set a hearing for the Motion for Sanctions; 27. 28. after notice and hearing, impose sanctions on Plaintiff in accordance with Texas 28. after notice and hearing, impose sanctions on Plaintiff in accordance with Texas Civil Practice and Remedies Code § 10.001 and/or Civil Practice and Remedies Code §§ 9.011- Civil Practice and Remedies Code§ 10.001 and/or Civil Practice and Remedies Code §§ 9.011- 9.014 to include:

9.014 to include:

a. striking Plaintiff's Amended Original Petition pursuant to Tex. Civ. Prac. striking Plaintiff's Amended Original Petition pursuant to Tex. Civ. Prac. a. & Rem. Code § 9.012(e)(l); & Rem. Code§ 9.012(e)(l); striking Plaintiffs Motion for Summary Judgment pursuant to Tex. Civ.

b. striking Plaintiffs Motion for Summary Judgment pursuant to Tex. Civ. b. Prac. & Rem. Code § 9.012(e)(l); Prac. & Rem. Code§ 9.012(e)(1);

c. the striking of any and all plea, pleadings, motions and/or documents on c. the striking of any and all plea, pleadings, motions and/or documents on file with the Travis County Court; file with the Travis County Court;

d. dismissing Plaintiffs claim pursuant to Tex. Civ. Prac. & Rem. Code § dismissing Plaintiffs claim pursuant to Tex. Civ. Prac. & Rem. Code § d. 9.012(e)(2); 9.012(e)(2);

e. granting Defendant reasonable and necessary attorneys' fees in the amount e. granting Defendant reasonable and necessary attorneys' fees in the amount of at least $1000.00 ^[7] incurred in obtaining such order pursuant to Tex. of at least $1000.00 ^[7] incurred in obtaining such order pursuant to Tex. Civ. Prac. & Rem. Code § 9.012(e)(3) and § 1O.001(c)(3); Civ. Prac. & Rem. Code§ 9.012(e)(3) and§ 10.001(c)(3); any and all other relief as the Court deems Defendant is entitled. any and all other relief as the Court deems Defendant is entitled. f. f. 29. This Motion is not sought solely for delay but that justice may be done. 29. This Motion is not sought solely for delay but that justice may be done. ^[7] Affidavits and invoices evidencing such expenses will be provided as necessary. ^[7] Affidavits and invoices evidencing such expenses will be provided as necessary.

- 9 - - 9 -

32 *72 Respectfully submitted, Respectfully submitted, By: ____ -1~~-------------------- By: ____ _,~~-------------------- Tony R. Tony R. rtolino rtolino Texas Bar No. 24038766 Texas Bar No. 24038766 HibaKazim HibaKazim

Texas Bar No. 24076952 Texas Bar No. 24076952 823 Congress Ave. 823 Congress Ave.

Suite 704 Suite 704 Austin, Texas 78701 Austin, Texas 78701 Tel: (512) 476-5757 Tel: (512) 476-5757 Fax: (512) 476-5758 Fax: (512) 476-5758 Email: info@belolaw.com Email: info@belolaw.com Attorneys for Defendant, Attorneys for Defendant, Tony R. Bertolino Tony R. Bertolino CERTIFICATE OF SERVICE CERTIFICATE OF SERVICE I certify that on August 5, 2014 a true and correct copy of Defendant's Motion for I certify that on August 5, 2014 a true and correct copy of Defendant's Motion for Continuance and Motion fw Sanctions was served by regular U.S. mail and CMRRR # 7006 Continuance and Motion fw Sanctions was served by regular u.S. mail and CMRRR # 7006

2760 0003 6345 2579 on STEPHEN M. DANIELS at 8323 Clays Point, San Antonio, Texas 2760 0003 6345 2579 on STEPHEN M. DANIELS at 8323 Clays Point, San Antonio, Texas 78257. 78257.

- 10 - - 10-

33 *73 Verification in Support of Defendant's Motion for Continuance and Motion (or Sanctions Verification in Support of Defendant's Motion (or Continuance and Motion for Sanctions

The undersigned states under oath: "I am the attorney for movants in the foregoing The undersigned states under oath: "I am the attorney for movants in the foregoing Defendant's Motion for Continuance and Motion for Sanctions. I have read the motion. The Defendant's Motion for Continuance and Motion for Sanctions. I have read the motion. The

statements contained in paragraphs 1 through 29 in the above motion are within my personal statements contained in paragraphs 1 through 29 in the above motion are within my personal knowledge and are true and correct" knowledge and are true and correct."

SUBSCRIBED AND SWORN BEFORE ME on -~----->..<--_, __ s-_.,..J;__w_I__,L{ __ SUBSCRIBED AND SWORN BEFORE ME on ----"-~_-----'oJ- __ ' _S--.,<,l'--W_I--JL{'----_

~({Ld~ ~~cUL~

Notary Public, State of Texas Notary Public, State of Texas - 11 - - 11 -

34 *74 A S PPENDIX T AB F

REPORTER'S RECORD

VOLUME 1 OF 1 TRIAL COURT CAUSE NO. 2012-CI-13637 ) IN THE DISTRICT COURT STEPHEN M. DANIELS,

) plaintiff(s),

~ BEXAR COUNTY. TEXAS VS. ) GREGORY CANFIELD,

~ 45TH JUDICIAL DISTRICT Defendant(s).

~ . • ******************* NO EVIDENce MOTION FOR SUMMARY JUDGMENT *************.******

On the 15th day of April, 2013 the following proceedings came on to be heard in the

above-entitled and numbered cause before the Honorable

Janet L~ttlejohn, Judge of the lS0th District court of

Bexar County, Texas.

proceedings reported by Machine Shorthand.

VICTORIA l. GONZALEZ - OFFICIAL COURT REPORTER 150TH DISTRICT COURT (210) 335-2570 C:X/l)B.I/- E- I'

^[32]

A P PEA RAN C E S

MR. TREVOR YOUNG

ATTORNEY AT LAW

660 west FM 2410 Harker Heights, Texas 16S48

SBOT II 24084138

Phone: (210) 313-3001

ATTORNEY FOR STEPHEN DANIELS MR. FRED E. DAVIS

ATTORNEY AT LAW

8911 capital of Texas HWV 2 Austin, Texas 78759 .

S80T # 054890Sl,Q

Phone: (512) "615-9963 ATTORNEY FOR GREGORY CANFIELD ) L 2 3 ·4

5 6

7 .8 .9 ~3 24 25

VICTORIA L. GONZALEZ - OFFICIAL COURT REPORTER lS0TH DISTRICT COURT (210) 335-2570 EYilIBJ( E ·

31 *77 __ ;;-=--= ___ . 'n

--" 1--- .- -

INDEX

PAGE 1 -CAPTION ------------------------------~---------- 2

APPEARANCES ------------------------------------- INDEX --~----~------------------------------~---~ 3 4

PROCEEDINGS ------------------------------------- COURT·S RULING ---------------------------------- 11

REPORTER'S CERTIFICATE -------------------------- 12

VICTORIA L. GONZALEZ - OFFICIAL COURT REPORTER 150TH DISTRICT COURT (210) 335-2570 I ' F#/G/ :E ' /- ^[34] .1''f,- _

(proceedings) THE BAILIFF: All rise. 150~h District .. . Court is now in session.

THE COURT: All right. v'all may be Daniels versus Canfield case. seated. On the

MR. DAVIS: ReadYt Your Honor. THE COURT: This is your motion. ;s it, sir?

MfW, DAVIS: It is. THE COURT: May I see a copy of your

motion. please. (Tendering) ..

MR. DAVIS: THE COURT: Thank you. And . there a

1S response?

MR. YOUNG: Yes, Judge. (Tendering). THE COURT: Thank you. And you're Mr. Davis, are you?

MR. DAVIS: I am~ THE COURT: okay. Mr. Davi~. go ahead

and tell me what this motion is about.

MR. DAVIS: Your Honor, this is a case alleging legal malpractice. we were here before Judge t

stryker on March the 1st. At that point in time

absolutely nothing had been done on the case. No depositions, no discovery, nothing. And so -- and at i

VICTORIA L. GONZALEZ - OFFICIAL COURT REPORTER 150TH DISTRICT COURT (210) 335-2570· Gil/PI! C /

that hearing that day we also had a motion for continuance. Judge striker granted that motion. Until ' ..

today, indicated there would be no further continuances and I informed counsel that in a case like this, you

needed a legal expert to support the case.

We are back before you today. since the prior hearing, they have taken my client Greg Canfield's

deposition. Discovery had been propounded and answered

and to the extent ~equired up to this date. And there's

still no expert.

The plaintiff seems to be of the opinion that if they raise a scintilla of evidence on any point,

that that's good enough. And in their response ~hey say they have raised a scintilla of evidence as to whether ~ when my client agreed to a motion for new trial -- let me back up. 5 r This case was initially filed in the Justice Court by the plaintiff against his stripper

~ }

girlfriend for money that he had loaned to her. And he represented himself in the Justice Court, resulting in a

) take nothing judgment. He hired my client, Greg L canfield, to appeal that take nothing judgment, which ~ ~ Mr. canfield did, pursued judgment for him, obtained a

4 judgment for the amount in controversy.

5 At that point in time, there was

VICTORIA L. GONZALEZ - OFFICIAL COURT REPORTER lSOTH DISTRICT COURT (210) 335-2570 L-~X#./#/7 E ...-1'. L I ^[36]

L discussion among counsel about a motion for new trial.

It wound up being agreed to and then my client withdrew " from the litigation. J THE COURT: What was agreed to? ~

MR. DAVIS: The motion for new trial. My client withdrew from the litigation with permission of )

r the Court, advising the plaintiff that he needed to get other counsel to go forward on the case and he did not do

~ so. Again. he wen~· before the court in a pro se J ) capacity. tried his own ca,e and lost it. And now he

sues Mr. canfield for legal malpractice for, I guess, l 10s;ng the case after he was no longer counsel. ~ So with that background, plaintiff seems ~ to be saying that therets a dispute as to whether he ~ instructed Mr. Canfield to agree to the motion for new 5 trial or whether Mr. Canfield merely told him that he was 5

7 going to lose the motion for new trial. For purposes of S this hearing it doesn't matter which position you take on that. so as you would in looking at a motion for summary 9

D judgment, assume the validity of the plaintiff's

1 argument. Assume that Mr. canfield merely told him he

was going to lose the motion for new trial instead of 2

3 being instructed to agree to the motion for new trial.

4 It doesn't matter. There's no lawyer here saying that that was negligent or a proximate cause of any injuries 5

VICTORIA L. GONZALEZ - OFFICIAL COURT REPORTER 150TH DISTRICT COURT (210) 335-2570 ^[3] £Xtl/PI/ £ \ / *81 ----~.--.

to Mr. oaniels. The second point plaintiff seems to be .' raising in an effort to defeat today's motion ;s -- has

to do with why Mr. canfield withdrew from representation. Mr. canfield has testified he withdrew from

representation under his employment agreement because plaintiff was going out, communicating with the other

side, contrary to his his advice and that that was a

provision that he Kid acknowledged in his employment contract to authorize withdrawal. That's why he

withdrew.

plaintiff says, in attempting to raise an issue for today, that there were never any such

communications at the time of the withdrawal. what difference it makes in a legal malpractice case when there's no expert as to why the attorney withdrew, with p@rm;ssion of the court, and the case goes on and is lost pro set I·m at a loss to know what that adds to today's ~ ) hearing. I don't think it makes one bit of difference.

) The obligation in the no evidence -- in

L an attempt to defeat a no evidence motion for summary judgment is to raise a scintilla of evidence about one of ) the elements that's lacking proof. The elements that are l lacking proof in this case are whether my client Mr. ~ )

canfield was professionally negligent in his

VICTORIA l. GONZALEZ - OFFICIAL COURT REPORTER 150TH DISTRICT COURT (210) 335-2570 M#I#/£ E ' J

representation. And two, whether that caused any damages

to Mr. Daniels. There is no expert in this case. And, again, we are here basically with the same position we " were before Judge Stryker on, where she told them they

needed an expert to support this case and we would encourage the motion be granted.

THE COURT: Are you saying the plaintiff

has not designated an expert through the request for

disclosure? ~

MR. DAVIS: well, there's no -- there has been no request for disclosure that I have filed. but

when I filed a motion for no evidence summary judgment.

they have an obligation to refute that by offering up

probative evidence. summary judgment evidence to show

that there is, indeed. a credible issue. They have not done that and I submit that we are entitled to a

166(a)(i) motion being granted_

THE COURT: Okay. Mr. Bertolino.

MR. YOUNG: Mr. young.

THE COURT: You're here for

Mr. Bertolino?

MR. YOUNG: ves, Your Honor. THE COURT: Okay. Go ahead~ MR. YOUNG: First of all, I would like : I to argue that a legitimate issue of material fact is

VICTORIA L. GONZALEZ - OFFICIAL COURT REPORTER lS0TH DISTRICT COURT (210) 335-2570 ~ _____________________ )SK __ ._#/_~_I_r __ ~_~_~ ________ ~~J

presented in the agreement for new trial. As Mr. Davis stated t his client actually obtained a judgment of ." $7.500, in addition to $2.500 of attorney's fees in favor

of our client, Mr. Daniels. Our client's assertion is that he did not 1ns~ruct or agree to enter an agreed new

trial.

THE COURT: HOw is that negligence on the part of Mr. Canfield?

MMt. YOUNG: Because he had -- I mean, you can have a THE COURT: dispute about whether or not a new trial should have been

granted or whether or not it's agreed to or not, but

you'~e very familiar with the fact that in the

professional negligence case. not only do you have to prove malpractice by the attorney, but that your client would prevail on the underlying case.

Now, letts just presume that because he prevailed on the first case and if a new trial had not

been granted. he would have been successful. what is the negligence that occurred by this attorney in representing

his client?

MR. YOUNG: The negligence that occurred is that he deprived his client of the opportunity to

enforce the judgment that was awarded to him.

THE COURT: okay. And how is that

VICTORIA L. GONZALEZ - OFFICIAL COURT REPORTER lSOTH DISTRICT COURT (210) 335-2570 ..EJ2#/B;)- '£,/ ^[40] 51 *84 -- -. ---. ; ,

proved up?

MR. YOUNG: By his entering into the 'agreed order. Mr. Canfield actually obtained S500 in

legal fees in exchange for that agreement. I'm sorry. You lost me

THE COURT: there. why is the payment of S500 evidence that there's

been professional negligence?

MR. YOUNG: An additional reason for Mr. Canfield's w1thdrawtl was due to Mr. Davis -- my

apologies, Mr. Daniels' delinquency in payment. Given

that Mr. canfield asserts that the plaintiff instructed him to enter into a motion for new trial, which would vacate and set aside the judgment of nearly

S10.000 awarded to him, for what purpose, I don't know. And certainly our cltent, Mr. Daniels, does not

understand why Mr. canfield did that.

THE COURT: Anything else?

MR. YOUNG: Additionally. the movant's motion for no evidence summary judgment is not

sufficiently specific. The defendant is required to be

specific in challenging the evidentiary support for an element. Mr. Davis challenged every element of every

single claim. including the existence of an attorney/client relationship, the existence of a ~ contract, all of which were readily knowable by both him i

VICTORIA l. GONZALEZ - OFFICIAL COURT REPORTER 150TH DISTRICT COURT (210) 335-2570 B~~/~# J9 *85 I,

and hi s eli ent.

THE COURT: Has the -- and so wha~ exper~ opinions have been offered by Mr. Daniels ~hat

this amounts to professional negligence?

MR. YOUNG: Your Honor. an expert

opinion has not been offered. but one is also not

required in this case~ It is true that an expert is

generally necessary to instruct a jury on the issues of

standard of care a~d proximate cause, where the causal link is beyond the jury's common understanding~

In this case, I think it's pretty clear to a jury that they are going to understand that our

client was not willing to give up a judgment near

S10.000 to enter into a new trial .

. COURT' 5 RULING THE COURT: Sure~ okay. Motion for su~mary judgme~t is granted. Do you have an order. sir?

MR. DAVIS: Yes. show it to Mr. Young and see THE COURT: if he has any objections to the form and I will be glad )

L to sign it. Okay. If you want to make copies of this you can take it and just bring it back to Shirley, our

~ clerk~ Thank you. Viall may be excused. ~ (proceedings adjourned) l )

VICTORIA L. GONZALEZ - OFFICIAL COURT REPORTER 150TH DISTRICT COURT (210) 335-2570 *86 STATE OF TEXAS

1 ) COUNTY OF BeXAR 2 ) 3 It VICTORIA L. GONZALEZ, Official court

4 Reporter in and for the 150th District court of Bexar

county, State of Texas, do hereby certify that the above 5

6 and foregoing contains a true and correct transcription

7 of all portio~~ of evidence and other proceedings requested in writing by counsel for the parties to be 8 included in this volume of the Reporter's Record, in the 9 above-styled and numbered cause. all of which occurred in .0 open court or in chambers and were reported by me . .1 . 2 I further certify that this Reporter's Record of the proceedi~gs truly and correctly reflects the

.4 exhibits, if any, admitted by the respective parties .

. 5 I further certify that the total cost for the preparation of this Reporter's Record is $60.00 and was . .6 paid/will be paid by Mr. Stephen Daniels. . 7 ~8 /5/ VICTORIA GONZALEZ L9 VICTORIA GONZALEZ:-fexaS-CSR #1714 ~O Ex~iration Date 12/31/13 Official court Reporter, 150th District ~1 Bexar county. Texas 100 Dolorosa Street ~2 San Antonio. Texas 78205 (210) 335-2570 ~3 ~4 ~5

VICTORIA L. GONZALEZ - OFFICIAL COURT REPORTER

150TH DISTRICT COURT (210) 335-2570 8t1I/.B / )- "£ ,.

</1

A S PPENDIX T AB G

. .

AFFIDAVIT OF FACTS AFFIDAVIT OF FACTS STATE OF TEXAS STATE OF TEXAS

COUNTY OF TRAVIS COUNTY OF TRAVIS

BEFORE ME, the undersigned authority, on this day personally appeared BEFORE ME, the undersigned authority, on this day personally appeared Fred E. Davis who, being by me duly sworn, upon his oath deposed and stated as Fred E. Davis who, being by me duly sworn, upon his oath deposed and stated as

follows: follows:

I am a duly licensed Attorney at Law and have been actively practicing law I am a duly licensed Attorney at Law and have been actively practicing law in Austin, Travis County, Texas for the past forty-three (43) years. Most of my in Austin, Travis County, Texas for the past forty-three {43) years. Most of my

litigation experience has been in defendin~ professional liability lawsuits, '"either litigation experience has been in defendin~ professional liability lawsuits, '"either medical, legal or pharmaceutical. medical, legal or pharmaceutical.

I was retained in 2012 by North American Risk Service to represent Gregory I was retained in 2012 by North American Risk Service to represent Gregory w. Canfield in a legal malpractice case brought against him by Stephen Daoniels of W. Canfield in a legal malpractice case brought against him by Stephen Da.niels of ° San Antonio. North American Risk Services was acting as Third Party

. San Antonio. North American Risk Services was acting as Third Party

Administrator of Torus Nationallnsur.ance Company, the professional liability Administrator of Torus Nationallnsuroance Company, the professional liability

carrier of a policy issued to Mr. Canfield. The specific lawsuit was Cause No. 2012- carrier of a policy issued to Mr. Canfield. The specific lawsuit was Cause No. 2012- CI-13637 in the 45 th Judicial District Court of Bexar County, Texas and was styled

CI-13637 in the 45t 11 Judicial District Court of Bexar County, Texas and was styled Stephen M. Daniels v. Gregory Canfield (see Exhibit # 1). The Attorney Stephen M. Daniels v. Gregory Canfield (see Exhibit# 1). The Attorney

representing Mr. Daniels in bringing that cause was Tony R. Bertolino of representing Mr. Daniels in bringing that cause was Tony R. Bertolino of

BERTOLINO LlP. The lawsuit alleged legal malpractice by Mr. Canfield in an BERTOliNO LLP. The lawsuit alleged legal malpractice by Mr. Canfield in an

underlying cause where, for a time, Mr. Canfield had represented Mr. Daniels underlying cause where, for a time~ Mr. Canfield had represented Mr. Daniels

(Stephen M. Daniels v. Adama Kanu). (Stephen M. Daniels v. Adama Kanu). In that initial Kanu case, Mr. Daniels had represented himself (in JP Court)

In that initial Kanu case, Mr. Daniels had represented himself (in JP Court) and had had a Directed Verdict rendered against him; and after retaining Mr. and had had a Directed Verdict rendered against him; and after retaining Mr.

Canfield, that Directed Verdict was set aside and instead, Mr. Daniels was Canfield, that Directed Verdict was set aside and instead, Mr. Daniels was

awarded a judgment of $9,875.95 plus attorney fees against Mr. Kanu. After a awarded a judgment of $9,875.95 plus attorney fees against Mr. Kanu. After a

Motion for New Trial was granted, Mr. Canfield withdrew from further Motion for New Trial was granted, Mr. Canfield withdrew from further

103

representation,with permission of the Court, and Mr. Daniels chose to again representation· with permission of the Court, and Mr. Daniels chose to again represent himself as a prose litigaf:lt. represent himself as a pro se litigaf:lt. At triat Mr. Daniels lost his: case against Mr. Kano and that is where all

At tria" Mr. Daniels lost his: case against Mr. Kano and that is where all further Ijtigation should have ended. However, Mr. Daniels contacted Mr. further litigation should have ended. However, Mr. Daniels contacted Mr. Bertolino about bringing a legal malpractice case against Mr. Canfield and the

Bertolino about bringing a legal malpractice case against Mr. Canfield and the

representation in question began after the. payment of a {reported) $10,000 representation in question began after the, payment of a (reported) $10,000

retainer. Mr. Bertolino accepted the retainer and agreed to file suit on Mr. retainer. Mr. Bertolino accepted the retainer and agr~ed to file suit on Mr.

Daniels behalf in Cause No 2012-CI-13637. The fact that it was a case of legal Daniels behalf in Cause No 2012-CI-13637. The fact that it was a case of legal malpractice, Plaintiff needed ~m ex.pert witness to e~tablish any actional claim malpractice, Plaintiff needed ~m ex'pert witness to e~tablish any actional claim

against Mr. Canfield (even though the malpractice suit was being re-cast with against Mr. Canfield (even though the malpractice suit was being re-cast with

superfluous allegations. I felt then, and still do, that the case he filed against my superfluous allegations. I felt then, and still do, that the case he filed against my client was meritless. client was meritless.

From that point forward, basically nothing happened until 1 filed a No From that point forward, basically nothing happened until I filed a No Evidence Motion for Summary Judgment. Prior to that filing, Mr. Bertolino had Evidence Motion for Summary Judgment. Prior to that filing, Mr. Bertolino had

not diligently pursued the case against my client through either written discovery not diligently pursued the case against my client through either written discovery or deposition testimony or by producing the opinion of a credi~le expert witness. or deposition testimony or by producing the opinion of a credible expert witness. Thus, I filed a No-Evidence Motion for S'ummary Judgment (see Exhibit t! 2): Mr. Thus, I filed a No-Evidence Motion for s·ummary Judgment (see Exhibit 4! 2)." Mr. Bertolino attempted to raise a scintilla of evidence to defeat the No Evidence.

Bertolino attempted to raise a scintilla of evidence to defeat the No Evidence, Motion through his own 'Affidavit and one from his Associate, but was Motion through his own-Affidavit and one from his Associate, but was unsuccessful. Thus, the Sum~ary Judgmen~ was granted, and then was not unsuccessful. Thus, the Sum~ary Judgmen~ was granted, and then was not

appealed by Mr. Bertolino. appealed by Mr. Bertolino.

[Althqugh Mr. Daniels made a subsequent effort in a pro se capacity to [Aithqugh Mr. Daniels made a subsequent effort in a prose capacity to again sue Mr. Canfield, the ·sexar County District Judge held that any claim he again sue Mr. Canfield, the 'Bexar County District Judge held that any claim he

might have had was now barred by the judgment in Cause No. 2012-0 -13637 might have had was now barred by the judgment in Cause No. 2012-CI-13637 which was not appealed and 'was now fina\. (See Exhibit # 3 and #4}.) , which was not appealed and ·was now final. (See Exhibit# 3 and #4).) .

Mr. Daniels has now filed ~ legal malpractice suit against Mr. Bertolino in Mr. Daniels has now filed~ legal malpractice suit against Mr. B~rtolino in Cause No D-l-GN-14-002146 in Travis County, Texas. He has provided me a copy Cause No D-1-GN-14-002146 in Travis County, Texas. He has provided me a copy

of Defendant's No-Evidence Motion and a copy of his pro se response. (I do not of Defendant's No-Evidence Motion and a copy of his prose response. (I do not re~resent Mr. Daniels in !l:Lat la\y~.uit or in any.~1her capacity; he, has merely reJ!~~~~nt Mr. Daniels in that la\V~Uit or in any_~~her capacity; he. has merelY contacted me to see if I would provide an Affidavit which he could use in resp'onse contacted me to see if I would provide an Affidavit which he could use in resp·onse to a No -Evidence Motion for Summary Judgment filed by Mr. Bertolino, and I am. to a No -Evidence Motion for Summary Judgment filed by Mr. Bertolino, and 1 am.

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not being compensated for even the time needed to research my file and· pregare not being compensated for even the time needed to research my file and , preRare ~his Affidavit.) I am doing so because I believe that malpractice was committed this Affidavit.) I am ~oing so because I believe that malpractice was committed by Mr. Bertolino in the case he filed. against my client, Gregory W. Canfield. More

by Mr. Bertolino in the case he filed ,against my client, Gregory W. Canfield. More specifically, 1. would point to the following matters which I believe constitute specifically, I. would point to the following matters which I believe constitute

negligence/malpractice in the context of the above facts: negligence/malpractice in the context of the above facts;

(1) Advising a client to file a legal malpractice claim prior to having the ca·se (1) Advising a client to file a legal malpractice claim prior to having the ca'se reviewed by a competent legal expert who is available to testify at trial reviewed by a competent legal expert who is available to testify at trial in support of that position is, in my opinion, negligence.(* except in the in support of that position is, in my opinion, negligenc~, (* except in the medical malpracti~e field where statutorily, the claimant is given a post medical malpracti~e field where statutorily, the claimant is given a post filing period of time to file an expert report or face having his case filing period of time to file an expert report or face having his case dismissed). It is my understanding that at the time of filing of the case, dismissed). It is my understanding that at the time of filing of the case, Mr. Bertolino had no such expert witness retained to support the case. Mr. Bertolino had no such expert witness retained to support the case. {2} Failing to diligently pursue discovery by the propounding of written {2} Failing to diligently pursue discovery by the propounding of written discovery and the taking of depositions, at a minimum the deposition of discovery and the taking of depositions, at a minimum the deposition of the Defendant he was suing. Pursuing a case of legal malpractice the Defendant he was suing. Pursuing a case of legal malpractice requires a certain degree of aggressiveness since it is filed against~ requires a certain degree of aggressiveness since it is filed against ~ peer, and in this case, the Court made the threshold finding that peer, and in this case, the Court made the threshold finding that adequate time for discovery had elapsed (and it was obvious that no adequate time for discovery had elapsed (and it was obvious that no discovery had been pursued ,prior to the No Evidence Motion being discovery had been pursued .prior to the No Evidence Motion being filed by Defendant),. filed by Defendant)·.

(3) When during the course of the case a No~ Evidence Motion for Summary (3) When during the course of the case a No~Evidence Motion for Summary, Judgment was filed, alleging that Plaintiff had no competent evidence Judgment was filed, alleging that Plaintiff had no competent evidence from a qualified legal expert to testify to the issues of negligence and from a qualified legal expert to testify to the issues of negligence and proximate cause, the Plaintiff's Attorney \fYOUid be under a duty to proximate cause, the Plaintiff's Attorney would be under a duty to retain a qualified expert to defeat the Defendant's No Evidence MSJ. retain a qualified expert to defeatthe Defendant's No Evidence MSJ. These are both .matters upon which Plaintiff had the burden of proof at These are both ,matters upon which Plaintiff had the burden of proof at trial and the absence of such evidence formed the basis for the Court to trial and the absence of such evidence formed the basis for the Court to grant the MSJ. That was not done by Mr. Bertolino in the underlying grant the MSJ. That was not done by Mr. Bertolino in the underlying case and therefore, the failure to consult and retain appropriate expert case and therefore, the failure to consult and retain appropriate expert witnesses to support the case constituted negligence on his part. witnesses to support the case constituted negligence on his part. (4) Then, when the No Evidence MSJ was granted, there was still an (4) Then, when the No Evidence MSJ was granted, there was still an opportunity to challenge it on appeal under Rule 166a J but that was' not opportunity to challenge it on appeal under Rule 166aJ but that was· not 105

•

done either. I was not privy to any discussions between Mr. Bertolino done either. I was not privy to any discussions between Mr. Bertolino and Mr. Daniels as to payment of the costs of appeal so I do not know if and Mr. Daniels as to payment of the costs of appeal so I do not know if that was discussed or not; but having advised his client to file the suit that was discussed or not; but having advised his client to file the suit without an expert, having a No-Evidence MSJ granted against the client, without an expert, having a No-Evidence MSJ granted against the client, and having charged -the client for that representation, I would opine and having charged ·the client for that representation, I would opine that there should have been some effort made by Mr. Bertolino to that there should have been some effort made by Mr. Bertolino to appeal and reverse the MSJ if at all possible. Whether that was appeal and reverse the MSJ if at all possible. Whether that was malpractice or not would depend upon facts that are not presently malpractice or not would depend upon facts that are not presently known to me and I offer no such opinion. known to me and I offer no such opinion.

Dated this f(l'!iday of September, 2014. Dated this /<J'!!day of September, 2014.

Fred E. Davisj Affiant Fred E. Davis, Affiant Si?t1'!1O AND SUBSCRIBED BEFORE ME, the undersigned authority, on - Si?f~O AND SUBSCRIBED BEFORE ME, the undersigned authority, on . this the :r~ay of September 2014. this the r~ay of September 2014.

e ALYSON KCHAKV e "tYSON KCHAKY

* ." NOTARV PI,lBUC NOTARY PI,JBUC SlalellfTSCIRI SlabIlfTSIIIi Gomm. ~. \l9I1!i,l2016 Comm. ~- (19/1!1/2016 My Commission Expires: #o If' My Commission Expires: 0/40 If(

Notary Public, state of Texas Notary Public, State of Texas 106