Stephen M. Daniels v. Tony R. Bertolino

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ACCEPTED 03-14-00671-CV 4785588 THIRD COURT OF APPEALS AUSTIN, TEXAS 4/7/2015 11:01:51 AM JEFFREY D. KYLE CLERK NO. 03-14-00671-CV FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 4/7/2015 11:01:51 AM JEFFREY D. KYLE IN THE THIRD COURT OF APPEALS Clerk AUSTIN, TEXAS STEPHEN M. DANIELS, Appellant, v. TONY R. BERTOLINO, Appellee. On Appeal from the 250th Judicial District Court of Travis County, Texas Trial Court Cause No. D-1-GN-14-002146 APPELLEE’S BRIEF Tony R. Bertolino Texas Bar No. 24038766 Hiba Kazim Texas Bar No. 24076952 BERTOLINO LLP 823 Congress Ave. Suite 704 Austin, Texas 78701 Tel: (512) 476-5757 Fax: (512) 476-5758 Email: info@belolaw.com COUNSEL FOR APPELLEE IDENTITY OF PARTIES AND COUNSEL Plaintiff/Appellant: Stephen M. Daniels Trial Counsel: Stephen M. Daniels (pro se) 8323 Clays Point San Antonio, Texas 78257 Appellate Counsel: Eleanor Ruffner State Bar No. 24047034 THE LAW OFFICE OF ELEANOR RUFFNER, PC. 1403 West Sixth Street Austin, Texas 78703 Tel: (512) 913-7576 Fax: (512) 681-0800 Email: eruffnerlaw@gmail.com Defendant/Appellee: Tony R. Bertolino Trial and Appellate Counsel: Tony R. Bertolino State Bar No. 24038766 Hiba Kazim State Bar No. 24076952 BERTOLINO LLP 823 Congress Ave. Suite 704 Austin, Texas 78701 Tel: (512) 476-5757 Fax: (512) 476-5758 Email: info@belolaw.com 2 TABLE OF CONTENTS Identity of Parties and Counsel ..................................................................................2 Index of Authorities ...................................................................................................4 Statement of Case.......................................................................................................5 Introduction ................................................................................................................6 Statement of Facts ......................................................................................................7 Statement Regarding Oral Argument ......................................................................10 Issues Presented .......................................................................................................11 1) The trial court’s final order granted no-evidence summary judgment on the sole cause of action raised in Plaintiff’s amended petition. By doing so, did the trial court dispose of all parties and all claims? ............................................................................................................... 11 2) Did the trial court abuse its discretion in making the threshold finding that an adequate time for discovery had passed where Appellant did not raise this issue before the trial court? Also, is this issue properly preserved for appellate review? ..................................................... 11 3) Did the Plaintiff raise more than a scintilla of evidence on all of the elements of the DTPA claim challenged by Defendant’s successful motion for no-evidence summary judgment? .................................................................................................................................. 11 Summary of Argument ............................................................................................12 Argument..................................................................................................................14 The Trial Court Disposed of All Parties and All Claims by Granting Mr. Bertolino’s Motion for No-Evidence Summary Judgment ....................................................................................... 14 Mr. Daniels did not Properly Preserve his Appellate Complaint that an Adequate Time of Discovery had not Passed ......................................................................................................... 16 The Trial Court did not Abuse its Discretion in Ruling that an Adequate Time for Discovery had Passed ................................................................................................................................. 17 Mr. Daniels did not Raise More than a Scintilla of Evidence on all of the Elements of the DTPA claim Challenged by Mr. Bertolino’s Motion ............................................................... 18 Prayer .......................................................................................................................22 Certificate of Compliance ........................................................................................23 Certificate of Service ...............................................................................................23 Appendix ..................................................................................................................24 3 INDEX OF AUTHORITIES Statutes Tex. Bus. & Com. Code § 17.41 ..............................................................................19 Tex. Bus. & Com. Code § 17.46(b)(24) ..................................................................19 Tex. Bus. & Com. Code § 17.49(c) .........................................................................19 Tex. R. App. P. 33.1(a) ..................................................................................... 15, 17 Tex. R. Civ. P. 62 .....................................................................................................14 Tex. R. Civ. P. 64 .....................................................................................................14 Tex. R. Civ. P. 71 .............................................................................................. 15, 16 Cases Burns v. Canales, 2006 Tex. App. LEXIS 1551 (Tex.App.--Houston 14th Dist. 2006) .....................................................................................................................20 City of Houston vs. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979) 20 Eggert v. State, 2013 Tex. App. LEXIS 5107, 9, 2013 WL 1831614 (Tex. App.-- Austin 2013) .........................................................................................................16 Litton Indus. Prods., Inc. v. Gammage, 668 S.W.2d 319, 321-22 (Tex. 1984).....18 McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993) .....20 Tenneco, Inc. v. Enterprise Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996) ..........16 Wells Fargo Bank, N.A. v. Smuck, 407 S.W.3d 830, 840-41 (Tex. App.—Houston [14th Dist.] 2013) .................................................................................................16 4 STATEMENT OF CASE Nature of the Case: Appellant filed suit against Appellee regarding Appellee’s previous legal representation of Appellant. Course of Proceedings: Appellant filed an original petition and then an amended petition stating his claims against Appellee. Appellee filed a motion for no-evidence summary judgment on the sole cause of action raised in the amended petition. Trial Court: 250th District Court of Travis County, Texas Presiding Judge: The Honorable Gus Strauss Disposition: Appellee’s Motion for No-Evidence Summary Judgment was granted, finally disposing of all claims. 5 INTRODUCTION1 Stephen M. Daniels sought a consultation with attorney Tony R. Bertolino to obtain representation in a legal malpractice claim. Mr. Daniels retained Mr. Bertolino to file suit and pursue the claim. The trial court granted a no-evidence summary judgment motion filed against the Plaintiff’s legal malpractice claims and dismissed the suit. Mr. Daniels, pro se, then sued Mr. Bertolino for claims relating to Mr. Bertolino’s representation in the underlying suit. Mr. Daniels filed an original petition, and then an amended original petition. The amended original petition only raised one cause of action: violation of sections of the Texas Deceptive Trade Practices Act (“DTPA”). Mr. Bertolino filed a motion for no-evidence summary judgment against Mr. Daniels’ DTPA claims. Mr. Daniels filed a response referring generally to “[e]vidence . . . filed with the Court,” and witness testimony. Clerk’s Record (hereinafter “CR”) 50. He concurrently filed an affidavit containing the referenced testimony in support of his response. The trial court granted Mr. Bertolino’s motion for no-evidence summary judgment. Mr. Daniels now appeals this order of the trial court. 1 In the Introduction section of Brief of Appellant, Mr. Daniels discusses numerous “facts” regarding Mr. Bertolino’s representation that are completely unsupported by any admissible evidence contained in the record. In fact, the nature of Mr. Bertolino’s representation was not fully developed in the trial record by sworn testimony or otherwise permissible evidence. (It is telling that the matter was resolved at the no-evidence summary judgment stage.) Appellee here intends only to point out the misstatements contained within the Introduction. 6 STATEMENT OF FACTS Stephen M. Daniels approached Tony R. Bertolino seeking legal representation in a legal malpractice action against his prior attorney, Gregory Canfield. CR 10, 60. Mr. Canfield had represented Mr. Daniels in a breach of contract case in which Mr. Canfield won the case at trial, agreed to a new trial and took $500 in attorneys’ fees, and then withdrew from representation. CR 6-7; SCR 13. Mr. Daniels lost the case on new trial. SCR 36. Mr. Daniels was unhappy with the outcome of Mr. Canfield’s representation. Mr. Daniels sought to file suit against Mr. Canfield. CR 10, 60. Mr. Daniels participated in an initial consultation with Mr. Bertolino, and then retained Mr. Bertolino to file suit against Mr. Canfield. C.R. 60. Mr. Bertolino and his office repeatedly, though unsuccessfully, sought an expert witness in support of Mr. Daniels’ legal malpractice claim over the course of the proceeding. Mr. Canfield’s attorney filed a motion for no-evidence summary judgment, which was granted by the trial court. SCR 42. Mr. Daniels was unhappy with the outcome of Mr. Bertolino’s representation. Mr. Daniels filed suit against Mr. Bertolino in Bexar County, Texas. CR 12-17. Mr. Daniels filed a number of pleadings that were not immediately served upon Mr. Bertolino including: an original petition, discovery requests, and a motion 7 for summary judgment. CR 41-42. Mr. Daniels finally obtained service of citation upon Mr. Bertolino after filing the documents. CR 41. He did not serve the previously filed documents at this time, save for the original petition. CR 24. Mr. Bertolino successfully sought a venue transfer to Travis County by motion. CR 18. Mr. Daniels filed and served Plaintiff’s Amended Original Petition containing Mr. Daniel’s identifying information and one claim: violation of the Deceptive Trade Practices Act. CR 21-22. The Plaintiff’s Amended Original Petition did not include any other claims. CR 21-22. Mr. Daniels set and noticed the hearing on his Motion for Summary Judgment. CR 24. Mr. Bertolino complained to the Court in writing, by motion for continuance of the hearing date and motion for sanctions, that Mr. Daniels was sending filed documents to the wrong address and was not properly serving documents. CR 24. Mr. Bertolino included discovery requests with his previously filed and served Motion for Continuance and Motion for Sanctions. CR 26. Mr. Bertolino and his counsel also complained orally to the Court at the previous hearings of the non- service of documents.2 Mr. Daniels responded to Mr. Bertolino’s motions. CR 35- 39. The trial court granted the Motion for Continuance. CR 44. Mr. Daniels did not re-serve the previously filed documents to the correct address. 2 Mr. Bertolino’s complaints and Mr. Daniels’ corresponding knowledge of problems with service of previously filed documents would have been included in a reporter’s record, had Appellant procured it as required by the Texas Rules of Appellate Procedure. 8 He then served his discovery responses upon Mr. Bertolino.3 Shortly thereafter, Mr. Bertolino filed a Motion for No-Evidence Summary Judgment against Mr. Daniels. CR 46-48. Mr. Daniels filed a written response to the No-Evidence Summary Judgment referring generally to “[e]vidence . . . filed with the Court,” and witness testimony. CR 49-53. Mr. Daniels concurrently filed an affidavit containing the referenced witness testimony. SCR 63-66. The trial court heard Mr. Bertolino’s Motion for No-Evidence Summary Judgment and granted the motion subsequently by letter. CR 54. Mr. Bertolino’s counsel drafted and circulated a proposed order, approved by both Mr. Daniels and Mr. Bertolino as to form. CR 68-70. The trial court later signed and entered the Order Granting Defendant’s Motion for No Evidence Summary Judgment. CR 68. 3 Although proof of Mr. Daniels’ service of discovery responses is not contained in the Clerk’s Record (as is typical of routine discovery-related matters), it is important to note that Mr. Daniels provided these discovery responses to Mr. Bertolino before Mr. Bertolino filed his motion for no- evidence summary judgment. Brief of Appellant disingenuously contends that Mr. Bertolino asked the trial court for a continuance of a hearing date to conduct discovery by verified motion and then filed the no-evidence summary judgment motion 23 days later without conducting discovery. Presumably, Mr. Daniels is accusing Mr. Bertolino of misleading the trial court in the motion for no-evidence summary judgment. In fact, Mr. Bertolino received completed discovery responses from Mr. Daniels during the 23 days and decided not to conduct any further discovery before filing his motion for no-evidence summary judgment. 9 STATEMENT REGARDING ORAL ARGUMENT Oral argument in this matter is unlikely to be helpful in elucidating facts or legal standards to the Court, which are properly addressed in Appellee’s Brief. Oral argument will simply allow Appellant another opportunity to waste the Court’s time and Appellee’s time with frivolous arguments unsupported by fact and unpreserved at the trial level. Appellee strongly opposes oral argument in this matter unless the Court finds any issues to be ambiguous or unclear in the appellate briefs and unable to be clarified by further briefing. 10 ISSUES PRESENTED 1) The trial court’s final order granted no-evidence summary judgment on the sole cause of action raised in Plaintiff’s amended petition. By doing so, did the trial court dispose of all parties and all claims? 2) Did the trial court abuse its discretion in making the threshold finding that an adequate time for discovery had passed where Appellant did not raise this issue before the trial court? Also, is this issue properly preserved for appellate review? 3) Did the Plaintiff raise more than a scintilla of evidence on all of the elements of the DTPA claim challenged by Defendant’s successful motion for no-evidence summary judgment? 11 SUMMARY OF ARGUMENT First, Mr. Daniels had one live pleading on file with the Court at the time that Mr. Bertolino’s Motion for No-Evidence Summary Judgment was filed and heard by the Court. This live pleading was the Plaintiff’s Amended Original Petition. This Amended Petition raised only one claim: violation of the DTPA. Mr. Daniels’ Amended Petition was a properly named and filed substitution for his Original Petition under the Texas Rules of Civil Procedure. When the trial court granted Mr. Bertolino’s Motion for No-Evidence Summary Judgment regarding Mr. Daniels’ DTPA claim, the trial court finally disposed of all parties and all claims. Second, when the trial court granted Mr. Bertolino’s Motion for No-Evidence Summary Judgment, it made the threshold finding that an adequate time for discovery had passed before the Motion for No-Evidence Summary Judgment was filed. Mr. Bertolino had successfully conducted written discovery by the time the motion was filed. Mr. Daniels did not properly contest the issue of an adequate time for discovery passing at the trial level. Mr. Daniels did not properly preserve any appellate complaint for review, and may not raise any such appellate complaint or have it considered in this appeal. The trial court did not abuse its discretion in finding that an adequate time for discovery had passed. In fact, Mr. Daniels invited 12 the trial court to find that an adequate time for discovery had passed in previous filings. Finally, Mr. Daniels did not sufficiently or specifically point out evidence in support of his response to Mr. Bertolino’s Motion for No-Evidence Summary Judgment. Mr. Daniels was not entitled to having the trial court search the entire record for evidence in support of the elements of his DTPA claim. Additionally, had Mr. Daniels properly pointed out evidence on the record in support of his response, he still could not have raised more than a scintilla of evidence in support of the challenged elements of his DTPA claim. The evidence on the record contained substantive defects and could not be properly considered in support of Mr. Daniels’ response to the motion for no-evidence summary judgment. Further, the evidence on the record was either irrelevant or damaging to the sole cause of action contained in the one live Amended Petition. 13 ARGUMENT The Trial Court Disposed of All Parties and All Claims by Granting Mr. Bertolino’s Motion for No-Evidence Summary Judgment Mr. Daniels’ complaint regarding the finality of the trial court’s order hinges on this Court finding that Mr. Daniels’ Amended Original Petition was not a substitution for, but a supplement to, Mr. Daniels’ Original Petition. Such a finding is supported by neither law nor fact. Mr. Daniels properly filed Plaintiff’s Amended Original Petition as an amended pleading. This pleading was designated as an “amended” pleading or “amendment” three times in the title and the body of the document. “The object of an amendment, as contra-distinguished from a supplemental petition or answer, is to add something to, or withdraw something from, that which has been previously pleaded. . .” Tex. R. of Civ. P. 62. Further, amended pleadings must be titled as such. Tex. R. Civ. P. 64. Mr. Daniels, by naming his pleading Plaintiff’s Amended Original Petition demonstrated his intention to “add something to” and “withdraw something from” the Plaintiff’s Original Petition on file. See Tex. R. Civ. P. 62, 64. Mr. Daniels may not now appeal to this Court to make a finding that he misnamed his own properly titled pleading. As a result of the withdrawal and addition of claims, Mr. Daniels was only pursuing a DTPA claim at the time Mr. Bertolino’s Motion for No-Evidence Summary Judgment was filed. CR 21-22. Mr. Bertolino did not file any 14 counterclaims against Mr. Daniels. Mr. Bertolino’s Motion for No-Evidence Summary Judgment challenged the elements of Mr. Daniels’ DTPA claim, and thereby challenged Mr. Daniels’ only live, properly pled claim. Therefore, the trial court’s order granting the Motion for No-Evidence Summary Judgment against Mr. Daniels’ DTPA claim disposed of all parties and all claims. Mr. Daniels contends that Plaintiff’s Amended Original Petition was actually a misnamed supplemental pleading. Mr. Daniels contends that this Court should correct the misnomer, that the trial court did not correct, under Texas Rule of Civil Procedure 71. However, Mr. Daniels never raised this misnomer issue by request, objection or motion before the trial court. Mr. Daniels did not obtain an implicit or explicit ruling from the trial court on this matter. As a result, he did not properly preserve appellate complaint on this issue, and it may not be properly considered for the first time on appeal. Tex. R. App. P. 33.1(a). Additionally, the Plaintiff’s Amended Original Petition did not even meet the supplemental pleading rules under Texas Rule of Civil Procedure 69, which requires the supplemental pleading to “[respond] to the last preceding pleading by the other party,” and to “not repeat allegations formerly pleaded further than is necessary as an introduction.” The Plaintiff’s Amended Original Petition raised a new claim, was not filed in response to any pleading, and repeated information from the original petition that was not necessary by way of introduction. The plain language of the 15 document shows that the Plaintiff’s Amended Original Petition effectively amended the previous Plaintiff’s Original Petition and should be treated as an amendment. Indeed, “justice so requires” treatment of the pleading as an amendment rather than a supplement. Tex. R. Civ. P. 71; see also Wells Fargo Bank, N.A. v. Smuck, 407 S.W.3d 830, 840-41 (Tex. App.—Houston [14th Dist.] 2013). Mr. Daniels’ arguments contesting the finality of the trial court’s order have no basis in fact or law. The trial court disposed of all parties and all claims with its Order Granting Motion for No Evidence Summary Judgment. Mr. Daniels did not Properly Preserve his Appellate Complaint that an Adequate Time of Discovery had not Passed Mr. Daniels complains in the Brief of the Appellant that an adequate time for discovery had not passed at the time Mr. Bertolino’s Motion for No-Evidence Summary Judgment was filed. However, Mr. Daniels never raised this issue before the trial court by request, objection or motion. To preserve a complaint that the trial court’s decision on a summary judgment motion was premature, the party claiming it did not have adequate time for discovery must file either an affidavit explaining the need for further discovery or a verified motion for continuance. Tenneco, Inc. v. Enterprise Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996); Eggert v. State, 2013 Tex. App. LEXIS 5107, 9, 2013 WL 1831614 (Tex. App.--Austin 2013). Mr. Daniels did neither. 16 To be clear, the trial court did implicitly and explicitly rule that an adequate time for discovery had passed before Mr. Bertolino’s Motion for No Evidence Summary Judgment was filed. The ruling was not, however, in response to any objection, request or motion made by Mr. Daniels. As a result, he did not properly preserve appellate complaint on this issue, and it may not be properly considered for the first time on appeal. Tex. R. App. P. 33.1(a). The Trial Court did not Abuse its Discretion in Ruling that an Adequate Time for Discovery had Passed Appellant’s complaint of the trial court’s implicit ruling regarding adequate time for discovery is not supported by the facts. Mr. Daniels’ Original Petition in the underlying case had been filed in December of 2013. CR 40-42. Since then, Mr. Bertolino served discovery requests upon Mr. Daniels. CR 26. Mr. Daniels contested Mr. Bertolino’s motion for continuance to pursue additional discovery stating that “[d]ocuments support the fact [Mr. Bertolino] had substantial time to comply with [the discovery requests served on the wrong address] and conduct reasonable discovery himself.” CR 36. Further, Mr. Daniels states “[Mr. Bertolino’s] non-compliance with discovery request is not a negative factor since [Mr. Daniels] is in possession off [sic] all evidence supporting his claim.” CR 37. Mr. Daniels did not contest that an adequate time for discovery had passed at the 17 trial level. He brings this issue for the first time to the appellate court, apparently contending that the trial court should have ignored the arguments and pleadings of both Mr. Bertolino and Mr. Daniels, and instead have conducted its own investigation as to whether an adequate time for discovery had passed. Mr. Daniels seems to further contend that the trial court should have, in this sua sponte investigation, found Mr. Bertolino’s statements regarding the need for additional time for discovery in reference to a separate motion to be dispositive over all else. Clearly, the trial court did not abuse its discretion in deciding against reaching such a conclusion. Even if the trial court abused its discretion, Mr. Daniels’ previous pleadings and statements to the trial court invited such error and he should not be permitted to complain of it upon appeal. For example, a party cannot urge the trial court to enter a judgment on the jury’s verdict and then complain about the jury’s verdict on appeal. Litton Indus. Prods., Inc. v. Gammage, 668 S.W.2d 319, 321-22 (Tex. 1984). Mr. Daniels did not Raise More than a Scintilla of Evidence on all of the Elements of the DTPA claim Challenged by Mr. Bertolino’s Motion Mr. Daniels claims that he raised more than a scintilla of evidence on all of the elements of the DTPA claim challenged by Mr. Bertolino’s Motion for No Evidence Summary Judgment. Mr. Bertolino’s motion specifically challenged the DTPA claim element requiring proof that Mr. Bertolino knew and withheld 18 information concerning his services, intending to induce and in fact inducing Mr. Daniels into a transaction. CR 46-48; see Tex. Bus. & Com. Code § 17.46(b)(24); see also Tex. Bus. & Com. Code §§ 17.41, 17.49(c). Mr. Daniel’s responded to the motion before the trial court by making factually conclusory statements, referring generally to “[e]vidence . . . filed with the Court,” and witness testimony. CR 49- 53. Mr. Daniels concurrently filed an affidavit containing the referenced witness testimony. SCR 63-66. This substantively defective affidavit contains unsubstantiated factual and legal conclusions and opinions offered on issues unrelated to the initial conversations resulting in the alleged inducement to transact. SCR 63-66. Mr. Daniels now presents on appeal: his own affidavit, Mr. Bertolino’s law firm’s current website screenshots, and a hearing transcript from a hearing at which Mr. Bertolino was not present. None of these pieces of “evidence” can show Mr. Bertolino’s knowledge or prove withholding of information. For one, Mr. Bertolino’s website screenshots are presented for the first time on appeal, and may not be considered. Secondly, Mr. Daniels’ affidavit speaks to his interactions with Mr. Bertolino prior to transacting with him, but does not (and cannot) speak to Mr. Bertolino’s knowledge or mental state. It also does not address the issue of inducement. Thirdly, the hearing transcript also does not provide any information as to knowledge, mental state, or even inducement to transact. 19 Perhaps most importantly, “[t]he written answer or response to [a motion for no-evidence summary judgment] must fairly apprise the movant and the court of the issues the non-movant contends should defeat the motion.” City of Houston vs. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); see McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993) (mere reference to summary judgment evidence is not sufficient; non-movants arguments against the motion must be expressly presented by written response). Here, Mr. Daniels’ response failed to meet that burden. The trial court “is not required, sua sponte, to assume the role of one’s advocate and supply his arguments for him; . . . the party seeking to avoid the effects of a well-pleaded no-evidence motion for summary judgment bears the burden to file a written response that raises issues preventing summary judgment, and that points to evidence supporting those issues, and where the nonmovant fails to meet that burden, the trial court is not required to supply the deficiency, but instead must grant the motion, under Tex. R. Civ. P. 166a(i). Burns v. Canales, 2006 Tex. App. LEXIS 1551 (Tex.App.--Houston 14th Dist. 2006). It follows, then, that the trial court did not commit any error in granting Mr. Bertolino’s Motion for No-Evidence Summary Judgment where Mr. Daniels’ response fell far short of its burden. The trial court’s Final Order Granting Motion for No Evidence Summary Judgment should not be disturbed on appeal. 20 Mr. Daniels has requested the opportunity to assert additional DTPA claims against Mr. Bertolino should this appeal fail. This requested is unsupported by Texas law. Mr. Daniels has not cited any authority that would remotely permit this thwarting of res judicata should the appeal fail. 21 PRAYER Appellee prays that this Court affirm the trial court’s Final Order Granting Motion for No Evidence Summary Judgment. Further, Appellee prays that this Court deny Appellant leave to plead additional related DTPA violations against Appellee. Appellee prays for such other and further relief that Appellee has requested and/or relief to which Appellee may be entitled. Respectfully submitted, BERTOLINO LLP By: /s/ Hiba Kazim Tony R. Bertolino Texas Bar No. 24038766 Hiba Kazim Texas Bar No. 24076952 823 Congress Ave. Suite 704 Austin, Texas 78701 Email: info@belolaw.com Telephone: (512) 476-5757 Facsimile: (512) 476-5758 Attorneys for Appellee 22 CERTIFICATE OF COMPLIANCE I certify that this brief contains 4,171 words, as calculated by the word count of the computer program used to prepare this document. /s/ Hiba Kazim Hiba Kazim CERTIFICATE OF SERVICE I certify that a true copy of the foregoing document was served in accordance with rule 9.5 of the Texas Rules of Appellate Procedure on the following via email: on April 6, 2015. Eleanor Ruffner eruffnerlaw@gmail.com /s/ Hiba Kazim Hiba Kazim 23 APPENDIX This appendix contains the following: 1. Texas Business & Commerce Code § 17.41; 2. Texas Business & Commerce Code § 17.46(b)(24); 3. Texas Business & Commerce Code § 17.49(c); 4. Texas Rule of Appellate Procedure 33.1(a); 5. Texas Rule of Civil Procedure 62; 6. Texas Rule of Civil Procedure 64; and 7. Texas Rule of Civil Procedure 71. In addition, Appellee relies on the clerk's record filed in this matter. 24 25 This document is current throllgh tIle 2013 3rd Called Session Texas Statutes and C~odes > BUSINESS AIVD CONlll1ERCiE ClODE > 1-11~LE 2. ('OMPETITION AND TRADE PRACTICES > CHAPTER 17. DECEPTIVE TRADE PRACTICES > SUBCHAPTER E. DECEPTIVE TRADE PRACTICES AND CONSUMER PROTECTION § 17.41. Short Title This subchapter may be cited as the Deceptive Trade Practices-Co'nsllmer Protection Act. History Enacted by Acts 1973, 63rd Leg., ch. 143 (H.B. 417), § 1, effective May 21, 1973. LexisNexis ® Texas Annotated Statutes Copyright © 2015 by Matthew Bellder & Company, Inc. a melnber of the LexisNexis Group All rights reserved. This document is current through the 2013 3rd Called Session Texas Statutes alld Codes > BUSINESS; AND (lOMNIER("E CODE > TITLE 2. COMPETITION AND TRADE PRACTICES > CHAPTER 17. DECEPTIVE TRADE PRACTICES > SUBCHAPTER E. DECEPTIVE TRADE PRACTICES AND CONSUMER PROTECTION § 17.46. Deceptive Trade Practices Unlawful (a) False, misleading, or deceptive acts or practices in the conduct of any trade or commerce are 11ereby declared unlawful and are subject to action by the consumer protection division ul1der Sections 17.47, 17.58, 17.60, and 17.61 of this code. (b) Except ,18 provided in Subsection (d) of this section, the term "fa.1se, Inisleading, or deceptive acts or practices" incllldes, but is not limited to, the followlllg acts: (1) passing off goods or services as those of another; (2) causing confusion or misullder8tanding as to the source, sponsorship, approval, or certification of goods or services; (3) causing confusion or mis·understanding as to affiliation, connection, or association with, or certification by, another; (4) llsing deceptive representations or designations of geographic origin In connectiol1 with goods or services; (5) representing that goods or services have spon.sorship, approval, characteristics, ingredients, llses, benefits, or quantities which they do not have or that a person has a Spol1sorship, apprQval, status, affiliation, or connection which he does not; (6) representing that goods are original or new if they are deteriorated, reconditioned, reclaimed, used, or secondhand; (7) representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another; (8) dispclraging the goods, services, or business of another by false or misleading representation of facts; (9) advertising goods or services with intent not to sell them as advertised; (10) advertising goods or services with intent not to supply a reasonable expectable public demand, unless the adveltisements disclosed a limitation of quantity; (11) making false or misleading statements of fact concerning the reasons for, existence of, or amount of price reductions; Page 2 of 4 Tex. Bus. & Con1. Code § 17.46 (12) representing that an agreement confers or involves rights, remedies, or obligations which it does not have or il1volve, or which are prohibited by law; (13) krlowingly makillg false or misleading statenlellts of fact concerning tile need for parts, replacemellt, or repair service; (14)misrepresellting the authority of a salesman, represelltative or agent to negotiate the final terms of a consumer transaction; (15) basing a charge for the repair of any item in whole or in part on a guaranty or warranty instead of on the value of the actual Inade or work performed on the iteln withollt stating separately the charges for the work and the charge for the warranty or guaranty, if any~ (16) disconnecting, tllrning back, or resetting the odometer of anynl0tor vehicle so as to reduce the number of miles indicated on the odometer gauge; (17) advertising of any sale by fralldll1ently representing that a persoll is going Ollt of business; (18) advertising, selling, or distributing a card which purports to be a prescription drug identification card issued under in accorda-nce with rules adopted by the commissioner of insurance, wl1ich offers a discount on the purchase of health care goods or services froln a third party provider, and which is not evidence of" insurance coverage, unless: (A) the discount is authorizedun.der an_ agreement between the seller of the card alld the provider of those goods and services or the discount or card is offered to members of the seller; (B) the seller does not represent that the card provides insurance coverage of any kind; and (C) the discount is not false, lnisleading, or deceptive; (19) using or employing a chain referral sales plan in connectioll with the sale or offer to sell of goods, Inercl1andise, or anything of vallIe, which uses the sales technique, plan, arrangement, or agreement in which the buyer or prospective buyer is offered the opportunity to purchase merchandise or goods alld in cOl111ection with the purchase receives the seller's prolnise or representation that the buyer shall have the right to receive c-ompensation or consideration in any form for furnishing to the seller the names of other prospective buyers if receipt of the compensation or consideration is contingent upon the occurrence of an event subsequent to the time the buyer pllrchases tIle merchandise or goods; (20) representing that a guarantee or warranty confers or involves rights or Page 3 of 4 Tex. Bus. & Con1. Code § 17.46 remedies wlliell it does not have or involve, provided, however, tllat nothing in this Sllbcllapter shall be construed to expand the implied warranty of merchanto_bility as defined in Sections 2.314 through 2.318 and Sections 2A.212 through 2A.216 to involve obligations ill excess of those which are appropriate to the goods; (21) prolTIoting a pyramid prolTIotional SCllelTI.e, as defil1ed by Section 17.461 (22) representing that work or services l1ave been performed on, or parts replaced in, goods when tIle work or services were not perforlned or the parts replaced; (23) filing Sllit fOlIndedupon a written contractllal obligation of and signed by tIle defendallt to pay mOlley arising out of or based on a con.Sllrner transaction for goods, services, loans, or extensions of credit intended primarily for personal, family, housell0ld, or agricultural use in allY county other than in the county in which the defe]ldant resides at the time of the commencement of the actiol1 or in the county i]l which the defendant in fact signed the contract; provided, however, that a violation of this subsection shall not occur where it is shown by the person filing such suit he neither knew or Ilad reason to know that the county in which such suit was filed was neither the county in which tIle defendant resides at the COlnmenCelTI.ent of tIle Sllit nor tIle county in Wllich the defel1dant in fact siglled the cOl1tract; (24) failing to disclose infoflnation_ concerning goods or services which was l(nown at the time of the transaction if such failure to disclose SliCh informatioll was intended to induce the consumer into a transaction into which the consumer wO'uld not have elltered had the information been disclosed; (25) llsing the term "corporation," "incorporated," or an abbreviation of either of those terlTIS in the name of a business entity that is not incorporated under the laws of this state or another jurisdiction; (26) selling, offering to sell, or illegally promoting an annuity contract llnder Chapter 22, Acts of the 57th Legislature, 3rd Called Session, 1962 (Article 6228a-5, Vernon's TeX~lS Civil Statutes), with the intent that the annuity contract will be the subject of a salary reduction agreement, as defined by that Act, if the annuity contract is not an eligible qualified investmentUJlder that Act or is not registered with the Teacher Retirement Systeln of Texas as required by Section 8A of that Act; or (27) taking advantage of a disaster declared by the governor under Chapter 418, Government Code, by: (A) selling or leasing fuel, food, medicine, or another necessity at an exorbitant or excessive price; or Page 4 of 4 Tex. Bus. & Com. Code § 17.46 (B) demanding an exorbitant or excessive price in connection witl1 the sale or lease of fuel, food, Inedicine, or another necessity. (c) (1) It is the intent of the legislature that ill construing Subsection (a) of this section in suits brought under Section 17.47 of this subchapter tIle courts to the extent possible will be gllided by Subsection (b) of this sectioll and the interpretations given by the Federal Trade Commission and federal courts to Section 5(a)(1) of the Federal Trade Commission Act 1)]. (2) In constrLling tIllS sllbchapter the COlIrt shall not be prohibited from considering relevant and pertinent decisions of COllrts in other jllrisdictions. (d) For the purposes of the relief authorized in Subdivisio'n (1) of Subsectioll (el) of Sectio·n 17.50 of this subch,:lpter, the term "f~llse, misleading, Of deceptive acts or practices" is limited to the acts ellumerated in specific subdivisions of Subsection (b) of this section. History Enacted by Acts 1973, 63rd Leg., ch. 143 (H.B. 417), § 1, effective May 21, 1973; am. Acts 1977, 65th Leg., ch. 216 (S.B. 664), §§ 2, 3~ effective May 23, 1977; am.. Acts 1977, 65th Leg., ch. 336 (H.B. 2059), § 1, effective Augllst 29, 1977; am. Acts 1979, 66th Leg., ch. 603 (S.B. 357), § 3, effective August 27, 1979; a·m. --"--~-----'----.l­ ~~~~~~~~~~7 § ], e~ctive Septe~ber 1, 1987; a~. ~~~~~~ ==...:::::-f~"::::""::"''''''''''';:;''''''''''''::''''''''':;:;'''';::':'::''''''':~.....:::::-."l7 § 6, effective September 1, 1993; am,. ~~~--J.-.--""";;"""; § 3, effective September 1, 1995; alTI. ---'-"----'-----'---~-...L-~...;....;.. ~~~-----"--=~~...........:----'----'-~, § 1, effective September 1, 1995; aln. ~~~-=:.....J.-~":'-':'" =..::.-.f~"::::""':-;'~:""::=-~~~~' § 1, effective September 1, 2001; a1n. -'-----'-----'--..............z~-'--'-. ~~~~~~~~~, § 27, e~ctiveJune 1,2002; am..~~~~~~~~~ ~---:::::.-...J~::::::""':"'':::::'''''''':~' § 4.001(,1), effective September 1, 2003~ am. _ _--"--.k..--~-....:c. ~~--':::'--;""~-"""--~----'---+--7§ 11.101, effective September 1 2005; (lm~ ~~~:......;l­ ~~~~~~~~~~~~7§ 26, e~ctive September 1,2007. LexisNexis ® Texas Annotated Statutes Copyrig11t © 2015 by Matthew Bender & Company, Inc. a member of the LexisNexis Group All rights reserved. This document is curre,nt through the 2013 3rd Called Session Texas Statutes alld Codes > BUSINESS' AiVD COil11vlERCE CfODE > I1TLE 2. COMPETITION AND TRADE PRACTICES > CHAPTER 17. DECEPTIVE TRADE PRACTICES > SUBCHAPTER E. DECEPTIVE TRADE PRACTICES AND CONSUMER PROTECTION § 17.49. Exemptions (a) Nothil1g in this subchapter shall apply to the owner or eluployees of a regularly published newspaper, magazine, or telepll0ne directory, or broadcast station, or billboard~ whereill any advertiselnent in violation of this subc11apter is published or disseminated, unless it is established that the owner or eluployees of the advertisil1gmedium l1ave l