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.
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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