Stephen M. Daniels v. Tony R. Bertolino

Opinion

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 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

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

provided the professional service and a cause of action brollgllt against any entity that could be fOUlld to be vicariously liable for the person's conduct. (e) Except as specifically provided by Subsections (b) clnd (h)~ Sectio1117.50, nothing in this subch,lpter shall 'lpply to ,1 cause of action for bodily injury or de,lt11 or for the illtlictiol1 of mental angllisll. (f) Nothing in the sllbchapter shall apply to a claim arising out of a written contract if: (1) the contract relates to a transaction, a project, or a set of transactions related to the same project involving total consideration by tIle consumer of more than $ 100,000; (2) in negotiating the contract the consumer is represented by legal cou.llsel who is not directly or indirectly identified, suggested, or selected by the defendant or an agent of the defendant; and (3) the contract does not involve the consumer's residence. (g) N otl1ing in this subchapter shall apply to a cause of action arISIng from a transaction, a project, or a set of transactions relating to the same project, involving total consideration by the conSllmer of more than $ 500,000, other tl1an a calIse of action involving a cOl1sumer's residence. (h) A person who violates Section 17.46(b)(26) is jointly and severally liable under that subdivision for actual damages, court costs, and attorney's fees. Subject to Chapter 41, Civil Practice and Remedies Code, exemplary damages maybe awarded in the event of fraud or malice. (i) Nothing in this subchapter shall apply to a claim against a person licensed as a broker or salesperson under Chapter 1101, Occupations Code, arising from an act or omission by the person while acting as a broker or salesperson. This exemption does not apply to: (1) an express misrepresentation of a Inaterial fact that cannot be characterized as advice, judgment, or opinion; (2) a failure to disclose information in violation of Section] 7.46(b)(24); or (3) an unconscionable action or course of action that cannot be characterized as advice, judgment, or opinion.

Enacted by Acts 1973, 63rd Leg., ch. 143 (H.B. 417), § 1, effective May 21, 1973; am. § 4, effective September 1, 1995; am. Page 3 of 3 Tex. Bus. & Con1. Code § 17.49

~~~~~~~~~~~~~~~7 § 28, e~ctive June 1, 2002; a~. ~~~~~~~~~~~~~7 § 4.001(b), e~ctive Septe~er 1, 2003; am. ~~~~~~~~~~~~~~~~~~7 § 1 e~ctive~ay 28,2011. LexisNexis ® Texas Annotated Statutes Copyright © 2015 by Matthew Bender & COlnpany, Inc. a melnber of the LexisNexis Grollp All rights reserved. RULE 56. SPECIAL DAMAGE

When items of special damage are claimed, they shall be specifically stated.

RULE 57. SIGNING OF PLEADINGS

Every pleading of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, with his State Bar of Texas identification number, address, telephone number, email address, and if available, fax number. A party not represented by an attorney shall sign his pleadings, state his address, telephone number, email address, and, ifavailable, fax nUluber.

RULE 58. ADOPTION BY REFERENCE

Statements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion, so long as the pleading containing such statements has not been superseded by an amendment as provided by Rule 65.

RULE 59;···· EXHIBITS··AND···PLEADING

Notes, accounts, bonds, mortgages, records, and all other written instruments, constituting, in whole or in part, the claim sued on, or the matter set up in defense, may be made a part ofthe pleadings by copies thereof, or the originals, being attached or filed and referred to as such, or by copying the same in the body of the pleading in aid and explanation of the allegations in the petition or answer made in reference to said instruments and shall be deemed a part thereof for all purposes. Such pleadings shall not be deemed defective because ofthe lack ofany allegations which can be supplied from said exhibit. No other instrument of writing shall be made an exhibit in the pleading.

RULE 60. INTERVENOR'S PLEADINGS

Any party may intervene by filing a pleading, subject to being stricken out by the court for sufficient cause on the motion of any party.

RULE 61. TRIAL: INTERVENORS: RULES APPLY TO ALL PARTIES

These rules of pleading shall apply equally, so far as it may be practicable to intervenors and to parties, when more than one, who may plead separately.

RULE 62. AMENDMENT DEFINED

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 so as to perfect that which is or may be deficient, or to correct that which has been incorrectly stated by the party making the amendment, or to plead new matter, additional to that formerly pleaded by the amending party, which constitutes an additional claim or defense permissible to the suit.

RULE 63. AMENDMENTS AND RESPONSIVE PLEADINGS

Parties may amend their pleadings, respond to pleadings on file of other parties, file suggestions of death and make representative parties, and file such other pleas as they may desire by filing such pleas with the clerk at such time as not to operate as a surprise to the opposite party; provided, that any pleadings, responses or pleas offered for filing within seven days of the date of trial or thereafter, or after such time as may be ordered by the judge under Rule 166, shall be filed only after leave of the judge is obtained, which leave shall be granted by the judge unless there is a showing that such filing will operate as a surprise to the opposite party.

RULE 64. AMENDED INSTRUMENT

The party amending shall point out the instrument amended, as "original petition," or "plaintiffs first supplemental petition," or as "original answer," or "defendant's first supplemental answer" or other instrument file by the party and shall amend by filing a substitute therefor, entire and complete in itself, indorsed "amended original petition," or "amended first supplemental petition," or "amended original answer," or "amended first supplemental answer," accordingly as said instruments of pleading are designated.

RULE 65. SUBSTITUTED INSTRUMENT TAKES PLACE OF ORIGINAL

Unless the substituted instrument shall be set aside on exceptions, the instrument for which it is substituted shall no longer be regarded as a part of the pleading in the record of the cause, unless some error of the court in deciding upon the necessity of the amendment, or otherwise in superseding it, be complained of, and exception be taken to the action of the court, or unless it be necessary to look to the superseded pleading upon a question of limitation.

RULE 66. TRIAL AMENDMENT

If evidence is objected to at the trial on the ground that it is not within the issues made by the pleading, or ifduring the trial any defect, fault or omission in a pleading, either of form or substance, is called to the attention ofthe court, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the allowance of such amendment would prejudice him in maintaining his action or defense upon the merits. The court may grant a postponement to enable the objecting party to meet such evidence. RULE 67. AMENDMENTS TO CONFORM TO ISSUES TRIED WITHOUT OBJECTION

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. In such case such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made by leave of court upon motion of any party at any time up to the submission of the case to the Court or jury, but failure so to amend shall not affect the result of the trial of these issues; provided that written pleadings, before the time of submission, shall be necessary to the submission of questions, as is provided in Rules 277 and 279.

RULE 68. COURT MAY ORDER REPLEADER

The court, when deemed necessary in any case, may order a repleader on the part of one or both of the parties, in order to make their pleadings substantially conform to the rules.

RULE 69. SUPPLEMENTAL PETITION OR ANSWER

Each supplemental petition or answer, made by either party, shall be a response to the last preceding pleading by the other party, and shall not repeat allegations formerly pleaded further than is necessary as an introduction to that which is stated in the pleading then being drawn up. These instruments, to wit, the original petition and its several supplements, and the original answer and its several supplements, shall respectively, constitute separate and distinct parts ofthe pleadings ofeach party; and the position and identity, by number and name, with the indorsement of each instrument, shall be preserved throughout the pleadings of either party.

RULE 70. PLEADING: SURPRISE: COST

When either a supplemental or amended pleading is of such character and is presented at such time as to take the opposite party by surprise, the court may charge the continuance of the cause, if granted, to the party causing the surprise if the other party satisfactorily shows that he is not ready for trial because of the allowance of the filing of such supplemental or amended pleading, and the court may, in such event, in its discretion require the party filing such pleading to pay to the surprised party the amount of reasonable costs and expenses incurred by the other party as a result of the continuance, including attorney fees, or make such other order with respect thereto as may be just.

RULE 71. MISNOMER OF PLEADING

When a party has mistakenly designated any plea or pleading, the court, ifjustice so requires, shall treat the plea or pleading as if it had been properly designated. Pleadings shall be docketed as originally designated and shall remain identified as designated, unless the court orders redesignation. Upon court order filed with the clerk, the clerk shall modify the docket and all other clerk records to reflect redesignation.

[RULE 72. Repealed effective September 1, 1990]

[RULE 73. Repealed effective September 1, 1990]

RULE 74. FILING WITH THE COURT DEFINED

The filing of pleadings, other papers and exhibits as required by these rules shall be made by filing them with the clerk of the court, except that the judge may permit the papers to be filed with him, in which event he shall note thereon the filing date and time and forthwith transmit them to the office of the clerk.

RULE 75. FILED PLEADINGS; WITHDRAWAL

All filed pleadings shall remain at all times in the clerk's office or in the court or in custody of the clerk, except that the court may by order entered on the minutes allow a filed pleading to be withdrawn for a limited time whenever necessary, on leaving a certified copy on file. The party withdrawing such pleading shall pay the costs of such order and certified copy.

RULE 75a. FILING EXHIBITS: COURT REPORTER TO FILE WITH CLERK

The court reporter or stenographer shall file with the clerk of the court all exhibits which were admitted in evidence or tendered on bill of exception during the course of any hearing, proceeding, or trial.

RULE 75b. FILED EXHIBITS: WITHDRAWAL

All filed exhibits admitted in evidence or tendered on bill of exception shall, until returned or otherwise disposed of as authorized by Rule 14b, remain at all times in the clerk's office or in the court or in the custody of the clerk except as follows:

(a) The court may by order entered on the minutes allow a filed exhibit to be withdrawn by any party only upon such party's leaving on file a certified, photo, or other reproduced copy of such exhibit. The party withdrawing such exhibit shall pay the costs of such order and copy.

(b) The court reporter or stenographer ofthe court conducting the hearing, proceedings, or trial in which exhibits are admitted or offered in evidence, shall have the right to TEXAS RULES OF APPELLATE PROCEDURE Page 37

(2) the date of filing of any contest~ (1) whether a reporter's record has been or will be requested, and whether the trial was electronically (3) the date of any order on the contest; and recorded;

(4) whether the contest was sustained or overruled~ (m) the name of the court reporter;

(1) whether the appellant has filed or will file a (n) (1) the dates of fil ing of any motion and affidavit supersedeas bond~ and of indigence;

(m) any other information the appellate court requires. (2) the date of any hearing~

32.2. Criminal Cases (3) the date of any order~ and

Upon perfecting the appeal in a criminal case, the (4) whether the motion was granted or denied; and appellant must file in the appellate court a docketing statement that includes the following infonnation: (0) any other information the appellate court requires.

(a) (1) if the appellant has counsel, the name of the 32.3. Supplemental Statements appellant and the name, address, telephone number, fax number, if any, and State Bar of Any party may file a statement supplementing or Texas identification number of the appellant's correcting the docketing statement. counsel, and whether the counsel is appointed or retained~ or 32.4. Purpose of Statement

(2) if the appellant is not represented by an The docketing statement is for administrative purposes and attorney, that party's name, address, telephone does not affect the appellate court's jurisdiction. number, and fax number, if any~ Notes and Comments (b) the date the notice of appeal was filed in the trial court and, if mailed to the trial court clerk, the date Comment to 1997 change: The rule is new. of mailing;

(c) the trial court's name and county, and the name of Rule 33. Preservation of Appellate the judge who tried the case~ Complaints (d) the date the trial court imposed or suspended 33.1. Preservation; How Shown sentence in open court, or the date the judgment or order appealed from was signed; (a) In General. As a prerequisite to presenting a complaint for appellate review, the record must show (e) the date of filing any motion for new trial, motion in that: arrest ofjudgment, or any other filing that affects the time for perfecting the appeal ~ (1) the complaint was made to the trial court by a timely request, objection, or motion that: (f) the offense charged and the date of the offense; (A) stated the grounds for the ruling that the (g) the defendant's plea; complaining party sought from the trial court with sufficient specificity to make (h) whether the trial was jury or nonjury; the trial court aware of the complaint, unless the specific grounds were apparent (i) the punishment assessed; from the context; and

(j) whether the appeal is from a pretrial order; (B) complied with the requirements of the Texas Rules of Civil or Criminal (k) whether the appeal involves the validity of a statute, Evidence or the Texas Rules of Civil or ordinance, or rule; Appellate Procedure; and

(2) the trial court:

37 Page 38 TEXAS RULES OF APPELLATE PROCEDURE

(A) ruled on the request, objection, or motion, n1ust after notice and hearing - do one of either expressly or implicitly; or the following things:

(B) refused to rule on the request, objection, (A) sign the bill of exception and file it with or motion, and the complaining party the trial court clerk if the judge finds that objected to the refusal. it is correct;

(b) Ruling by Operation of LQ11J • In a civil case, the (B) suggest to the complaining party those overruling by operation of law of a motion for new corrections to the bill that the judge trial or a motion to modify the judgment preserves believes are necessary to make it for appellate review a complaint properly made in accurately reflect the proceedings in the the motion, unless taking evidence was necessary to trial court, and if the party agrees to the properly present the complaint in the trial court. corrections, have the corrections made, sign the bill, and file it with the trial court (c) Formal Exception andSeparate OrderNotRequired. clerk; or N either a formal exception to a trial court ruling or order nor a signed, separate order is required to (C) if the complaining party will not agree to preserve a complaint for appeal. the corrections suggested by the judge, return the bill to the complaining party (d) Sufficiency of Evidence Complaints in Nonjury with the judge's refusal written on it, and Cases. In a nonjury case, a complaint regarding the prepare, sign, and file with the trial court legal or factual insufficiency of the evidence - clerk such bill as will, in the judge's including a complaint that the damages found by the opinion, accurately reflect the court are excessive or inadequate, as distinguished proceedings in the trial court. from a complaint that the trial court erred in refusing to amend a fact finding or to make an additional (3) Ifthe complaining party is dissatisfied with the finding of fact - may be made for the first time on bill of exception filed by the judge under appeal in the complaining party's brief. (2)(C), the party may file with the trial court clerk the bill that was rejected by the judge. 33.2. Formal Bills of Exception That party must also file the affidavits of at least three people who observed the matter to To complain on appeal about a matter that would not which the bill of exception is addressed. The otherwise appear in the record, a party must file a formal bill of affidavits must attest to the correctness of the exception. bill as presented by the party. The matters contained in that bill of exception may be (a) Form. No particular form of words is required in a controverted and maintained by additional bill of exception. But the objection to the court's affidavits filed by any party within ten days ruling or action, and the ruling complained of, must after the filing of that bill. The truth of the bill be stated with sufficient specificity to make the trial of exception will be determined by the court aware of the complaint. appellate court.

(b) Evidence. When the appellate record contains the (d) Conflict. If a formal bill of exception conflicts with evidence needed to explain a bill of exception, the the reporter's record, the bill controls. bill itself need not repeat the evidence, and a party may attach and incorporate a transcription of the (e) Time toftle. evidence certified by the court reporter. (1) Civil Cases. In a civil case, a formal bill of (c) Procedure. exception must be filed no later than 30 days after the filing party's notice of appeal is filed. (1) The complaining party must first present a formal bill of exception to the trial court. (2) Criminal Cases. In a criminal case, a formal bill of exception must be filed: (2) Ifthe parties agree on the contents of the bill of exception, the judge must sign the bill and file (A) no later than 60 days after the trial court it with the trial court clerk. If the parties do not pronounces or suspends sentence in open agree on the contents of the bill, the trial judge court; or