ACCEPTED
04-15-00222-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
6/17/2015 2:53:28 PM
KEITH HOTTLE
CLERK
CAUSE NO. 04-15-00222-CV
IN THE ESTATE OF § IN THE FOURTH COURT
FILED IN
4th COURT OF APPEALS
CARLOS AGUILAR, § OF APPEALS SAN ANTONIO, TEXAS
06/17/15 2:53:28 PM
DECEASED § SAN ANTONIO, TEXAS
KEITH E. HOTTLE
________________________________________________________________________
Clerk
MOTION FOR REHEARING
________________________________________________________________________
TO THE HONORABLE FOURTH COURT OF APPEALS:
NOW COMES Clarissa Aguilar, as the sole surviving parent and Next Friend of
Carlos Aguilar, Jr., Alyssa Aguilar, Andrew Aguilar, Marcus Aguilar, and Kaylee Aguilar,
Minor Children (hereinafter “Movants”), and file the following Motion for Rehearing, and
would show the following:
I.
On June 4, 2015, this Honorable Court denied Appellee’s Motion for Sanctions.
Appellees respectfully move the Court to reconsider this order because Appellees have
now obtained a reporter’s record of sworn testimony from a court hearing on May 26, 2015,
before the Honorable Jesus Garza. This record is attached to this motion and is filed in this
Court.
This testimony shows beyond any reasonable doubt sanctions should issue. This
testimony was not considered by this Honorable Court when it denied Appellee’s Motion
for Sanctions because not yet available to be filed in this court.
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II.
On May 26, 2015, the Honorable Jesus Garza heard Movants’ Motion for Contempt
against Vanessa Arce and Her Counsel, Balmer. David G. Balmer failed or refused to
appear for the hearing. Ryan Anderson did appear and gave sworn testimony concerning
the frivolous appeal filed by David G. Balmer.
Balmer filed the notice of appeal. He did this the day the discovery compelled by
this order was due to be answered. Furthermore, Balmer refused to answer the discovery.
Mr. Anderson testified Balmer filed the notice of appeal without first consulting Mr.
Anderson, the appellate attorney for Vanessa Arce. See RR at 14. Mr. Anderson admitted
the trial court order Balmer purported to appeal concerned discovery issues. Id. at 16. Mr.
Anderson agreed with this Honorable Court that no statute declares such an order
appealable under the Probate Code, and that the order does not appear that the order
disposes of all parties or issues in a particular phase of the proceedings. Id. Mr. Anderson
also agreed with this Honorable Court that no other statutory authority permitting a party
to appeal from an interlocutory discovery order could be found. Id.
Mr. Anderson claimed Balmer’s appeal was the wrong procedural mechanism to
challenge the discovery order. Id. at 17. Anderson also testified all responsive documents
had been produced, leading one to question why appellate intervention in a moot discovery
dispute was warranted.
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III.
The Rules provide:
If the court of appeals determines that an appeal is frivolous, it may--on motion of
any party or on its own initiative, after notice and a reasonable opportunity for
response--award each prevailing party just damages. In determining whether to
award damages, the court must not consider any matter that does not appear in the
record, briefs, or other papers filed in the court of appeals.
Tex. R. App. P. 45. Evidence shows Balmer’s appeal is frivolous. Less egregious appeals
have merited sanctions. Mid–Continent Cas. Co. v. Safe Tire Disposal Corp., 2 S.W.3d
393, 395 (Tex. App.-San Antonio 1999, no pet.); Diana Rivera & Assocs. v. Calvillo, 986
S.W.2d 795, 799 (Tex. App.—Corpus Christi 1999, pet. denied).
Anderson testified all responsive documents had been produced. This can only mean
there is no arguable basis for mandamus, appeal, or any conceivable appellate intervention.
This Honorable Court ordered Balmer to file in this court, on or before May 18,
2015, a written response showing cause why his appeal should not be dismissed for want
of jurisdiction. He chose to ignore this Honorable Court’s order and failed to file a
response.
Objectively, all the evidence, as in 100% of the evidence, shows Balmer lacked any
lawful basis to invoke this Court’s jurisdiction over this discovery dispute. No reason has
been offered by Balmer for filing this notice of appeal or invoking this Court’s jurisdiction.
This notice of appeal defines frivolity.
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Movants have suffered damages as a result of Appellate Counsel’s frivolous appeal
in this civil case and therefore request that this Honorable Court exercise its discretion to
sanction Balmer $5,000 for the attorney’s fees and costs incurred in having to respond to
the frivolous appeal filed by Balmer.
PRAYER
For these reasons, Clarissa Aguilar, as the sole surviving parent and Next Friend of
Carlos Aguilar, Jr., Alyssa Aguilar, Andrew Aguilar, Marcus Aguilar, and Kaylee Aguilar,
Minor Children, asks the appellate court to assess sanctions against Balmer for $5,000, and
grant such other relief as the Court in fairness deems appropriate in this situation.
Respectfully submitted,
BY: “/s/ Ronald Rodriguez”
Ronald Rodriguez
State Bar No. 00788306
ron@ronaldrodriguez.com
Willard Clark
State Bar No. 24087307
will@ronaldrodriguez.com
The Law Offices of Ronald Rodriguez
A Professional Corporation
915 Victoria Street
Laredo, Texas 78040
Tel: (956) 796-1000
Fax: (956) 796-1002
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing document has been served on
all counsel of record on this June 17, 2015, in accordance with the Texas Rules of Civil
Procedure.
“/s/ Ronald Rodriguez”
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FILED IN
4th COURT OF APPEALS
SAN ANTONIO, TEXAS
06/17/15 2:53:28 PM
KEITH E. HOTTLE
Clerk