Case Information

*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 3/5/2015 8:54:16 AM JEFFREY D. KYLE Clerk

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

O RAL A RGUMENT R EQUESTED

IDENTITY OF PARTIES AND COUNSEL

*2 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

A PPELLANT ’ S B RIEF P AGE i

TABLE OF CONTENTS

*3 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?

A PPELLANT ’ S B RIEF P AGE ii *4 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 A PPELLANT ’ S B RIEF P AGE iii *5 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

A PPELLANT ’ S B RIEF P AGE iv *6 CERTIFICATE OF COMPLIANCE ....................................................................... 26 CERTIFICATE OF SERVICE ................................................................................ 26 APPENDIX .............................................................................................................. 27 A PPELLANT ’ S B RIEF P AGE v

INDEX OF AUTHORITIES

*7 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 A PPELLANT ’ S B RIEF P AGE 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 A PPELLANT ’ S B RIEF P AGE 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 A PPELLANT ’ S B RIEF P AGE 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 A PPELLANT ’ S B RIEF P AGE ix

REFERENCES

*11 CR __ Clerk’s Record (by page number) SCR __ Supplemental Clerk’s Record (by page number) Appx. __, p. __ Appendix (by tab and page number) A PPELLANT ’ S B RIEF P AGE x

STATEMENT OF THE CASE

*12 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.”

A PPELLANT ’ S B RIEF P AGE xi

INTRODUCTION

*13 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. A PPELLANT ’ S B RIEF P AGE xii

STATEMENT REGARDING ORAL ARGUMENT

*14 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. A PPELLANT ’ S B RIEF P AGE xiii

ISSUES PRESENTED

*15 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? A PPELLANT ’ S B RIEF P AGE xiv

STATEMENT OF FACTS

*16 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. A PPELLANT ’ S B RIEF P AGE 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 A PPELLANT ’ S B RIEF P AGE 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 A PPELLANT ’ S B RIEF P AGE 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. A PPELLANT ’ S B RIEF P AGE 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); A PPELLANT ’ S B RIEF P AGE 5 *21  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. A PPELLANT ’ S B RIEF P AGE 6

*22 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. A PPELLANT ’ S B RIEF P AGE 7

SUMMARY OF ARGUMENT

*23 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. A PPELLANT ’ S B RIEF P AGE 8

ARGUMENT

*24 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). A PPELLANT ’ S B RIEF P AGE 9

*25 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 A PPELLANT ’ S B RIEF P AGE 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 A PPELLANT ’ S B RIEF P AGE 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 A PPELLANT ’ S B RIEF P AGE 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.

A PPELLANT ’ S B RIEF P AGE 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; A PPELLANT ’ S B RIEF P AGE 14 *30 (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 A PPELLANT ’ S B RIEF P AGE 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 A PPELLANT ’ S B RIEF P AGE 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.” A PPELLANT ’ S B RIEF P AGE 17

*33 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. A PPELLANT ’ S B RIEF P AGE 18

*34 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 A PPELLANT ’ S B RIEF P AGE 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: A PPELLANT ’ S B RIEF P AGE 20

*36 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, A PPELLANT ’ S B RIEF P AGE 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. A PPELLANT ’ S B RIEF P AGE 22

*38 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 A PPELLANT ’ S B RIEF P AGE 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; A PPELLANT ’ S B RIEF P AGE 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 A PPELLANT ’ S B RIEF P AGE 25

*41 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

A PPELLANT ’ S B RIEF P AGE 26

APPENDIX

*42 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). A PPELLANT ’ S B RIEF P AGE 27

*43 A PPELLANT ’ S A PPENDIX T AB A

OCT-06-2014(MON) 12:10

*44 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 No. 4629 P. 3/3 , 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._:_-----------------.-~------ "., . 2 ^[69] *46 A PPELLANT ’ S A PPENDIX T AB B

OCT-01-2014(WED) 17:17 OCT-01-2014(WED) 17:17

*47 P. 003/003 P. 003/003 DC DC BK14308 PG1125 BK14308 PG1125 NO. U-I-GN-14-002146 NO. D-l-GN-14-002146 § § STEPHEN M. DANIELS STEPHEN M. DANIELS IN THE DISTRICT COURT IN THE DISTRICT COURT § § 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

J> ,.oA 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

IT IS THEREFORE ORDEREU that Plaintiffs claims under the IT IS THEREFORE ORDEREU that Plaintiffs claims under the Trade 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 PPELLANT ’ S A PPENDIX T AB C ^[212412015] *49 Family Law Divorce Lawyer Austin Tx : Probate Attorneys Austin Texas: Houston: San Antonio TX: - Bertolino CONTACT HOME OUR FIRM GET 800-210-0126 THE BERTOLINO LLP HELP YOU NEED A LAW FIR lM OF ATT OR EY S Arm< COU r.l SEL ORS AUSTIN • HOUSTON • SAN ANTONIO MEDICALBO DEFENSE LA WYE I AUSTIN HOUSTON • • 512-476-5757 713-225-7474 Divorce and Child Medical License Professional License Probate and Custody Defense Defense Estates

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Antonio Personal injury accidents demand immediate legal action. When you're injured in an accident or a loved one is injured or killed, you need to act fast to make sure you protect your rights. This includes making sure you're fairly compensated for your losses and any other costs associated with the accident. We know that an accident is about more than just money. It's about justice. It's about holding people accountable for their actions. That's why we work so hard for every personal injury client. The Bertolino Law Firm - car accident lawyer Austin TX. Personal injury cases can be complicated. We can help The Texas personal injury lawyers at the Bertolino Law Firm work hard every day to help families get their lives back on track. Some of the most common personal injury cases we handle include slip and fall accidents, premises liability, wrongful death, medical malpractice and workplace accidents. You shouldn't have to pay for someone eLse's mistakes. HoLd people accountable for their actions.

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Defending Licensed Professionals Serving Austin, Houston and San Antonio Earning a professional license in Texas often takes many years of training. When someone files a

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Lifestyle Cia uses Texas Athlete When Holiday in Texas Allegedl y Kills Shopping Gets Prenuptial Three in Drunk VIolent Agreements Driving Wreck on

It's the holiday season once Christmas Eve Couples divorcing in Austin, again. That means road Two families in El Paso had Round Rock, Cedar Park, trips for long-awaited visits to experience Christmas Georgetown and San with family, school with the stunning loss of Marcos will need to divide pageants at which loved ones due to the up property and assets. This hundreds of parents vie for foolish decision of one man process can quickly the best spot to hold up to get behind the wheel of become contentious and their cameras or smart a car after drinking. Joel messy, and it can have a big phones, and endless Garcia, who is an amateur financial impact on your streams of wonderful food boxer in Texas, was life. Just recently, the news at office and home. It also arrested on three counts of has been full of reports of can be the time of crowded intoxication manslaughter one of the largest divorce stores, impatient shoppers, after driving through a red settlements in U.s. history. and even retail violence as light going 90mph on An oil tycoon was ordered people shove and fight to to pay his ex close to S 1 Christmas Eve and plowing get access to the hot... into a 2004 Pontiac that billion as ... was carrying brothers ... READ MORE READ MORE READ MORE IJ BERTOLINO LLP Tony R. Bertolino @BertolinoLaw

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

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Copyright © 2015 Bertolino LLP. All Rights Reserved. http://www.belolaw.com! ^[10110]

*59 A PPELLANT ’ S A PPENDIX T AB D

·,.

*60 IIII J.~~l~mIIIH 11111.~~1~1!11111 .... " J J

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Plaintiff, ~';~". Plaintiff, $ $ I. f I. f ......,~';xl?'"Tl \1~~~"'fl ~/ ;;; - 'I ;<.> (=;~f f" ji; ~ ~;o~~f $ $ l -, ~ r-l~n-1 1"\ -, -U . - (S)CI-I 1"\ v. v. - ~' -< ~ ~:T-f"\~ $ $ AT LAW NO. 0 3RD c AT LAW NO. 0 3RD c ~gp~o _gp~o - ~, --< ~ ~;T.f1'1~ $ $

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$ 5 .......--.;,;:~ •• -:? f"\ " -:- . .? f1'1 ~ ..,.... b b --< TONY R. BERTOLINO TONY R. BERTOLINO &-;> &";;:- ..( $ $ I'> -' ~ ~ ~

Defendant, Defendant, $ $ BEXAR COUN BEXAR COUN , 'rfiXAS , '£fXAS

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 tbat if I lie in this statement, I may be held criminally statement. I understand that 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 *61 \ \ 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. 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 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 PPELLANT ’ S A PPENDIX T AB E *63 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 STEPHEN M. DANIELS § § IN THE DISTRICT COURT IN THE DISTRICT COURT STEPHEN M. DANIELS Plaintiff, Plaintiff, § §

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

I.

I. FACTUAL BACKGROUND 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. 2. 2. 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 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 motions pursuant to Texas Rules of Civil Procedure 21b and 215. Tex. R. Civ. P. 215.2. ^[4] motions pursuant to Texas Rules of Civil Procedure 21b and 215. Tex. R. Civ. P. 215.2.4 ^[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: a. a. the striking of Plaintiff's Amended Original Petition; the striking of Plaintiff's Amended Original Petition; b. b. the striking of Plaintiffs Motionfor Summary Judgment; the striking of Plaintiffs Motion for Summary Judgment; 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:

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

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. 13. 13. This Motion for Summary Judgment contains false and/or misleading statements This Motion for Summary Judgment contains false andlor misleading statements 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.

c. c. Plaintiff further alleges irrelevant facts in section III of his Motion for 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. a. Plaintiff is a consumer that incurred economic damages or damages for 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.

u. Breach of an express or implied warranty; 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. 16. Plaintiff's Amended Original Petition cites § 17.46(b)(24) assumedly for 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 elements. ^[6] elements. ^[6]

17. 17. Plaintiff's Amended Original Petition makes no factual allegations regarding any Plaintiff's Amended Original Petition makes no factual allegations regarding any 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.

19. 19. 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 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 21. 21. 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 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.

22. 22. Recognizing the Comi's broad authority under § 10.004 of the Texas Civil 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.

V.

PRAYER PRAYER

WHEREFORE, PREMISES CONSIDERED, Defendant prays that the Court: WHEREFORE, PREMISES CONSIDERED, Defendant prays that the Court: 26. 26. grant Defendant's Motion for Continuance of the Summary Judgment hearing grant Defendant's Motion for Continuance of the Summary Judgment hearing

currently 'set for August 18, 2014. currently ·set for August 18, 2014. 27. 27. set a hearing for the Motion for Sanctions; set a hearing for the Motion for Sanctions; 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. a. striking Plaintiff's Amended Original Petition pursuant to Tex. Civ. Prac. striking Plaintiff's Amended Original Petition pursuant to Tex. Civ. Prac. & Rem. Code § 9.012(e)(l); & Rem. Code§ 9.012(e)(l); b. b. striking Plaintiffs Motion for Summary Judgment pursuant to Tex. Civ. striking Plaintiffs Motion for Summary Judgment pursuant to Tex. Civ. Prac. & Rem. Code § 9.012(e)(l); Prac. & Rem. Code§ 9.012(e)(1); 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. 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. e. granting Defendant reasonable and necessary attorneys' fees in the amount 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);

f. f. any and all other relief as the Court deems Defendant is entitled. any and all other relief as the Court deems Defendant is entitled. 29. 29. This Motion is not sought solely for delay but that justice may be done. 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 PPELLANT ’ S A PPENDIX T AB F

REPORTER'S RECORD

*75 VOLUME 1 OF 1 TRIAL COURT CAUSE NO. 2012-CI-13637

STEPHEN M. DANIELS,

) IN THE DISTRICT COURT ) 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] *76 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 F#/G/ /- :E ' ^[34]

I '

.1''f,- _ *78 (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 / *79 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 L take nothing judgment. He hired my client, Greg

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 ...-1'.

L

I L-~X#./#/7 E ^[36] *80 -- 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 l sues Mr. canfield for legal malpractice for, I guess,

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 5 trial or whether Mr. Canfield merely told him that he was 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 2 was going to lose the motion for new trial instead of 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

\ / £Xtl/PI/ ^[3] £ *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 J

*82 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 *83 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

I,

*85 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 1 STATE OF TEXAS ) 2 COUNTY OF BeXAR ) 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 9 included in this volume of the Reporter's Record, in the .0 above-styled and numbered cause. all of which occurred in open court or in chambers and were reported by me . .1 . 2 I further certify that this Reporter's Record .3 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

*87 A PPELLANT ’ S A PPENDIX T AB G *88 . . 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 45t 11 Judicial District Court of Bexar County, Texas and was styled CI-13637 in the 45 th 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 *89 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.

104 *90 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 166aJ but that was· not opportunity to challenge it on appeal under Rule 166a J but that was' not 105 *91 • 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 this the r~ay of September 2014. :r~ay of September 2014. e ALYSON KCHAKV e "tYSON KCHAKY * ." NOTARV PI,lBUC NOTARY PI,JBUC

SlabIlfTSIIIi SlalellfTSCIRI 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

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