ACCEPTED 03-14-00671-CV 5041500 THIRD COURT OF APPEALS AUSTIN, TEXAS 4/27/2015 11:54:18 AM JEFFREY D. KYLE CLERK
NO. 03-14-00671-CV FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 4/27/2015 11:54:18 AM IN THE THIRD COURT OF APPEALS JEFFREY D. KYLE AUSTIN, TEXAS Clerk
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
APPELLANT’S REPLY BRIEF
Eleanor Ruffner State Bar No. 24047034 THE LAW OFFICE OF ELEANOR RUFFNER, P.C. 1403 West Sixth Street Austin, Texas 78703 (512) 913-7576 (telephone) (512) 681-0800 (facsimile) eruffnerlaw@gmail.com
COUNSEL FOR APPELLANT
ORAL ARGUMENT PREVIOUSLY REQUESTED TABLE OF CONTENTS
TABLE OF CONTENTS ............................................................................................i
INDEX OF AUTHORITIES.................................................................................... iii
REFERENCES........................................................................................................ vii
SUMMARY OF REPLY .......................................................................................... 1
ARGUMENT ............................................................................................................. 3
A. THE SUBSTANCE OF THE PLEADINGS CONFIRMS THAT THE JULY PLEADING WAS A SUPPLEMENT TO THE ORIGINAL PETITION. ................ 3
1. The Substance of the Pleading, Not the Name, Controls. .......... 3
2. There Is No Evidence Either Party Intended the July Pleading to Stand Alone. ................................................................................ 6
3. No Objection or Motion in the Trial Court Was Required to Treat the Supplemental Pleading Appropriately. ................................. 8
B. THIS COURT SHOULD REVERSE AND REMAND THE SUMMARY JUDGMENT DESPITE THE ABSENCE OF AN AFFIDAVIT OR A VERIFIED MOTION FOR CONTINUANCE. ....................................................................................... 9
C. PRIOR TO APPELLEE’S MOTION, THE RECORD CONTAINED SUFFICIENT EVIDENCE TO DEFEAT SUMMARY JUDGMENT....................................... 14
1. Mr. Daniels’s Motion Directed the Court to Documents Already On File....................................................................................... 14
2. Demanding More Would Unreasonably Require Mr. Daniels to Marshal His Evidence Prior to Trial.. ....................................... 15
D. MR. DANIELS’S REQUEST, IF GRANTED IN THE EVENT OF A PARTIAL REMAND, WOULD MERELY REINFORCE HIS RIGHTS AS A LITIGANT. ... 16
APPELLANT’S REPLY BRIEF PAGE i CONCLUSION ........................................................................................................ 16
CERTIFICATE OF COMPLIANCE ....................................................................... 18
CERTIFICATE OF SERVICE ................................................................................ 18
APPELLANT’S REPLY BRIEF PAGE ii INDEX OF AUTHORITIES
CASES
Allen v. Albin 97 S.W.3d 655 (Tex. App.—Waco 2002, no pet.) ........................................ 14
Casso v. Brand 776 S.W.2d 551 (Tex. 1989) ......................................................................... 11
City of Houston v. Clear Creek Basin Auth. 589 S.W.2d 671 (Tex. 1979) ......................................................................... 11
City of Houston v. Howard 786 S.W.2d 391 (Tex. App.—Houston [14th Dist.] 1990, writ denied) .......... 4
Clemons v. Tex. Concrete Materials, Ltd. 2010 Tex. App. LEXIS 8394, No. 07-09-0032-CV (Tex. App.—Amarillo October 19, 2010, no pet.) ............................................................................. 14
Coffee v. Johnson 143 S.W.3d 414 (Tex. App.—Eastland 2004, no pet.).................................... 4
Flores v. Flores 225 S.W.3d 651 (Tex. App.—El Paso 2006, pet. denied)............................. 10
Fort Brown Villas III Condo. Ass’n v. Gillenwater 285 S.W.3d 879 (Tex. 2009) ......................................................................... 12
G&H Towing Co. v. Magee 347 S.W.3d 293 (Tex. 2001) ......................................................................... 11
Horizon/CMS Healthcare Corp. v. Auld 34 S.W.3d 887 (Tex. 2000) ............................................................................ 4
In re Fifty-One Gambling Devices 298 S.W.3d 768 (Tex. App.—Amarillo 2009, pet. denied) ........................ 3, 8
APPELLANT’S REPLY BRIEF PAGE iii McInnis v. Mallia 261 S.W.3d 197 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) ......... 12
Musgrave v. Owen 67 S.W.3d 512 (Tex. App.—Texarkana 2002, no pet.) ................................ 16
Park Place Hosp. v. Estate of Milo 909 S.W.2d 508 (Tex. 1995) ......................................................................... 12
Rad v. Calbeck No. 03-10-00429-CV, 2011 Tex. App. LEXIS 10240 (Tex. App.—Austin December 30, 2011, no pet.).......................................................................... 10
Robinson & Harrison Poultry Co., Inc. v. Galvan 323 S.W.3d 236 (Tex. App.—Corpus Christi 2010, pet. granted, jdgm’t vacated by agr.) ............................................................................................ 3, 8
Schlumberger Well Surveying Corp. v. Nortex Oil and Gas Corp. 435 S.W.2d 854 (Tex. 1968) ......................................................................... 14
Sixth RMA Partners, L.P. v. Sibley 111 S.W.3d 46 (Tex. 2003) ............................................................................. 6
Smith v. Adair 96 S.W.3d 700 (Tex. App.—Texarkana 2003, pet. denied) ............................ 3
Spoljaric v. Percival Tours, Inc. 708 S.W.2d 432 (Tex. 1986) ......................................................................... 14
State v. $90,235 390 S.W.3d 289 (Tex. 2013) ......................................................................... 12
State Bar of Texas v. Heard 603 S.W.2d 829 (Tex. 1980) ....................................................................... 3, 8
TemPay, Inc. v. TNT Concrete & Constr., Inc. 37 S.W.3d 517 (Tex. App.—Austin 2001, pet. denied) ................................ 10
APPELLANT’S REPLY BRIEF PAGE iv Tenneco Inc. v. Enterprise Prods. Co. 925 S.W.2d 640 (Tex. 1996) ...................................................................10, 12
Tex. Dep’t of Parks & Wildlife v. Miranda 133 S.W.3d 217 (Tex. 2004) ......................................................................... 11
Thornbrough v. Columbus & Greenville R.R. Co. 760 F.2d 633 (5th Cir. 1985) .......................................................................... 14
Turner v. Franklin 325 S.W.3d 771 (Tex. App.—Dallas 2010, pet. denied) .............................. 14
Wells Fargo Bank, N.A. v. Smuck 407 S.W.3d 830 (Tex. App.—Houston [14th Dist.] 2013, pet. denied)....... 5, 6
West v. SMG 318 S.W.3d 430 (Tex. App.—Houston [1st Dist.] 2010, no pet.).................. 10
STATUTES
TEX. R. CIV. P. 45 ....................................................................................................... 4
TEX. R. CIV. P. 47 ....................................................................................................... 4
TEX. R. CIV. P. 62 ....................................................................................................... 6
TEX. R. CIV. P. 64 ....................................................................................................... 4
TEX. R. CIV. P. 68 ....................................................................................................... 9
TEX. R. CIV. P. 69 ....................................................................................................... 6
TEX. R. CIV. P. 71 ................................................................................................... 3, 8
TEX. R. CIV. P. 90 ....................................................................................................... 9
APPELLANT’S REPLY BRIEF PAGE v TEX. R. CIV. P. 91 ....................................................................................................... 9
TEX. R. CIV. P. 166a .............................................................. 1, 10 n.2, 11, 12, 13, 15
APPELLANT’S REPLY BRIEF PAGE vi REFERENCES
CR __ Clerk’s Record (by page number)
SCR __ Supplemental Clerk’s Record (by page number)
Appx.
APPELLANT’S REPLY BRIEF PAGE vii SUMMARY OF REPLY
Appellant Stephen M. Daniels files this Reply to respond to some of the points
raised in Appellee’s Brief. First, Appellee asserts that only the pleading entitled
“Plaintiff’s Amended Original Petition” filed July 10, 2014 (also called the “July
pleading”) was live at the time of Appellee’s no-evidence summary judgment
motion at issue in this appeal. However, the substance of the pleading, not its title,
controls whether it is an amended petition that stands alone or a supplemental
pleading to be read with the original petition. In this case, the content of the July
pleading clearly shows it cannot stand alone as the sole live pleading. Because the
original petition asserted alternative theories not addressed in the no-evidence
motion, Judge Strauss’s “final” judgment was erroneous.
Appellee also contends that Mr. Daniels failed to preserve for appeal the issue
of whether adequate time for discovery had passed because he did not file an
affidavit or a verified motion contending that additional discovery was required.
However, as the specifics of this case illustrate, requiring a non-movant to disprove
that adequate time for discovery has passed to defeat a no-evidence summary
judgment motion improperly grants a presumption in favor of a movant on an issue
of fact that a movant should be required to prove to show itself to be entitled to
summary judgment. Rule 166a(i) is by its own terms only available to litigants after
APPELLANT’S REPLY BRIEF PAGE 1 adequate time for discovery has elapsed. Whether adequate time for discovery has
elapsed is a fact issue. Placing the burden on the non-movant to disprove that a
movant has met this explicit requirement is improper. Mr. Daniels therefore requests
that the Court return the burden to the movant to show that he is entitled to the
summary judgment he seeks and modifying any existing applicable case law to the
contrary.
Finally, for the reasons set forth in Appellant’s Brief and Reply, Appellant
again requests this Court to overturn the trial court’s summary judgment order and
remand for further proceedings.
APPELLANT’S REPLY BRIEF PAGE 2 ARGUMENT
A. THE SUBSTANCE OF THE PLEADINGS CONFIRMS THAT THE JULY PLEADING WAS A SUPPLEMENT TO THE ORIGINAL PETITION.
1. The Substance of the Pleading, Not the Name, Controls.
Appellee’s contention – that the inclusion of the word “amended” in the
heading is dispositive as to whether the July pleading is an amended or supplemental
petition – is without legal support. On the contrary, Texas law states, “Courts must
read a pleading for its content rather than its label.” Robinson & Harrison Poultry
Co., Inc. v. Galvan, 323 S.W.3d 236, 241 (Tex. App.—Corpus Christi 2010, pet.
granted, jdgm’t vacated by agr.) (holding that appellant’s “second and third motions
for entry of judgment were not intended to supersede the original motion” and
construing them as “supplemental motions to be read in conjunction with its first-
filed motion”). In discussing TEX. R. CIV. P. 71, the Texas Supreme Court has
specifically directed courts to “look to the substance of a plea for relief to determine
the nature of the pleading, not merely at the form of title given to it.” State Bar of
Texas v. Heard, 603 S.W.2d 829, 833 (Tex. 1980); see also In re Fifty-One
Gambling Devices, 298 s.W.3d 768, 772 (Tex. App.—Amarillo 2009, pet. denied)
(“It is the substance of a motion that determines its nature, not merely its title”) and
Smith v. Adair, 96 S.W.3d 700, 705 (Tex. App.—Texarkana 2003, pet. denied)
(stating that Rule 71 “requires the court to look past titles to substance” and
APPELLANT’S REPLY BRIEF PAGE 3 confirming that “[t]he content of the documents is the critical factor, and whatever
is contained within those documents is accordingly before this Court on appeal”).
Looking only at the content of the July pleading, Mr. Daniels clearly intended
to supplement, not amend, his original petition. An amended pleading is a substitute
for the original pleading, “entire and complete in itself.” TEX. R. CIV. P. 64. In
Texas, pleadings must, at a minimum, “consist of a statement in plain and concise
language of the plaintiff’s cause of action” and include “a short statement of the
cause of action sufficient to give fair notice of the claim involved.” TEX. R. CIV. P.
45(b) and 47(a). A petition must give a defendant fair notice of the facts relied upon,
enabling the defendant to prepare a defense. Horizon/CMS Healthcare Corp. v.
Auld, 34 S.W.3d 887, 896-97 (Tex. 2000). The test of fair notice is “whether an
opposing attorney of reasonable competence, with the pleadings before him, can
determine the nature of the controversy and the testimony that would probably be
relevant.” Coffee v. Johnson, 143 S.W.3d 414, 417 (Tex. App.—Eastland 2004, no
pet.) (citing City of Houston v. Howard, 786 S.W.2d 391, 393 (Tex. App.—Houston
[14th Dist.] 1990, writ denied)).
On its own, the “amended” pleading is clearly insufficient to give Appellee
notice of the claims against him. None of the discovery, party identification, service,
jurisdictional, venue, factual, legal, or damages allegations are present. Compare
APPELLANT’S REPLY BRIEF PAGE 4 CR 21 and CR 12-17. It states no facts whatsoever other than the last three digits of
the parties’ social security numbers.1 CR 21. Finally, the prayer included with the
July pleading is a request that the “Court file this amendment with the Plaintiff’s
Original Petition.” Id. If this pleading was to stand alone, this prayer has no
meaning. Therefore, absent the inclusion of the word “amended” in the pleading,
there is no other basis to conclude that the July pleading is a true amended pleading.
Appellee has provided no authority supporting his application of the rules of
procedure and the case law to the facts or to support the conclusion that the July
pleading nonsuited claims Mr. Daniels previously asserted. The sole case that
Appellee cites for this issue in his brief is Wells Fargo Bank, N.A. v. Smuck, 407
S.W.3d 830 (Tex. App.—Houston [14th Dist.] 2013, pet. denied). That case was
essentially the reverse of this one – a party had filed a pleading entitled “Plaintiffs’
Supplemental Petition” that read as an amended original petition, rather than a
1 Appellee – the one to whom the pleadings are supposed to provide notice – recognized that the July pleading had no factual allegations and in fact cited this as a reason that the court should strike the pleading. See App’ee’s Brief, p. 15. If Appellee had sought a ruling on this request and the trial court had struck the July pleading, the sole operative pleading would have been the Original Petition, and the alternative theories of recovery would have undoubtedly have been live. The result would have been the same if Appellee had sought to have the July pleading struck as an improper supplement on the grounds that it was not responsive to a pleading by the other party – it would have left the Original Petition as the sole live pleading, not affirmatively dispose of the claims asserted in the Original Petition.
APPELLANT’S REPLY BRIEF PAGE 5 supplemental one. Wells Fargo, 407 S.W.3d at 840. In that case, the Fourteenth
Court of Appeals determined that “despite the misnomer, the ‘supplemental’ petition
constituted an operative petition for purposes of pleading claims.” Id. at 841 (citing
Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 54-55 (Tex. 2003) (“though a
pleading may be denominated a supplement it may actually constitute an amendment
or set up a counter-claim or cross-action, and, if not excepted to but allowed to stay
in the case until judgment, may be considered for all that it means instead of what it
is called”)). Essentially, the court in Wells Fargo did exactly what the Mr. Daniels
is requesting the Court to do in this case – treat the pleading consistent with its
substance.
2. There Is No Evidence Either Party Intended the July Pleading to Stand Alone.
Appellee’s argument in his brief relies in part on Appellee’s interpretation of
Mr. Daniels’s intent in filing the second pleading. App’ee’s Brief at 14 (“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.”) However, this argument presupposes that Mr. Daniels
had these legal definitions in mind when preparing and filing his pleading. That
presupposition is unwarranted. The distinction between “amendment” and
“supplement” drawn by TEX. R. CIV. P. 62 and 69 is not a distinction carried into
APPELLANT’S REPLY BRIEF PAGE 6 common English. The legal “amendments” with which many non-lawyers may be
most familiar are the amendments to the United States Constitution. However, the
27th Amendment, which prevents congressmen from changing their own pay until
the next seating of the House of Representatives, did not come to represent the
entirety of the U.S. Constitution and the twenty-six prior amendments upon its
passage. Given that Mr. Daniels was representing himself pro se when he filed his
July pleading, it is reasonable that his understanding of an amendment would be
consistent with a non-lawyer’s understanding of legal amendments, rather than that
of the Texas Rules of Civil Procedure.
Moreover, as noted in Appellant’s brief at pp. 12-13, both Mr. Daniels and
Appellee continued their motion practice after the hearing and the judge’s letter
order, but before the order giving rise to this appeal. CR 55-61. Plaintiff had filed
a traditional motion for summary judgment on February 12, 2014, on his claims as
set out in his Original Petition. CR 6-11. Mr. Daniels set this motion for hearing on
August 18, 2014 and served notice of the hearing on Appellee on July 14, 2014, four
days after filing his “amended” petition. CR 24. At this time, if Mr. Daniels had
intended to nonsuit the causes of action asserted in his original petition, or had
effectively nonsuited those causes of action, the motion for summary judgment
would be moot. Nonetheless, the day after the letter order was filed, and three days
APPELLANT’S REPLY BRIEF PAGE 7 after it was signed and sent to Appellee and Mr. Daniels, Appellee executed an
affidavit and filed a response to Mr. Daniels’s Motion for Summary Judgment. CR
54; CR 55-61. Neither party indicated by their conduct that they believed that the
no-evidence motion ended the case in its entirety. As such, the Original Petition was
merely supplemented, not supplanted, and the purported final judgment was in error.
3. No Objection or Motion in the Trial Court Was Required to Treat the Supplemental Pleading Appropriately.
Appellee suggests that because Mr. Daniels never raised the misnomer issue
to the trial court or obtained a ruling, he may not assert this grounds to the appellate
court. App’ee’s Brief, p. 15. However, TEX. R. CIV. P. 71 does not require a motion
or ruling but simply instructs the court on how to treat the pleading. The cases cited
in Section A.1 above all concerned pleadings that had not been clarified through
special exceptions or otherwise in the lower court but nonetheless were treated in
accordance with their substance, not their title. See, e.g., State Bar of Texas, 603
S.W.2d at 833; Smith, 96 S.W.3d at 705; Fifty-One Gambling Devices, 298 S.W.3d
at 772; and Robinson & Harrison Poultry Co., Inc., 323 S.W.3d at 241. Because
Rule 71 and the Texas Supreme Court have dictated that content controls, not titles,
Mr. Daniels was not required to move the court to follow the guidance of the Texas
Supreme Court and the Texas Rules of Civil Procedure. Determination of this issues
APPELLANT’S REPLY BRIEF PAGE 8 is therefore not precluded by the absence of a particular objection or motion in the
trial court.
On the contrary, if Appellee preferred his interpretation to govern the
pleadings, he could have sought a ruling on special exceptions pursuant to TEX. R.
CIV. P. 91 or request a repleader pursuant to TEX. R. CIV. P. 68. Appellant did
neither. Therefore, to the extent that he contends that a disparity in title and content
constitutes a defect in Mr. Daniels’s pleadings, any such defect is waived. TEX. R.
CIV. P. 90 (“Every defect, omission or fault in a pleading either of form or of
substance, which is not specifically pointed out by exception in writing and brought
to the attention of the judge . . . shall be deemed to have been waived”). Mr. Daniels
therefore respectfully requests that this Court treat the July pleading consistent with
its content – that is, as a supplemental pleading – and reverse the erroneous final
ruling of the trial court.
B. THE COURT SHOULD REVERSE AND REMAND THE SUMMARY JUDGMENT DESPITE THE ABSENCE OF AN AFFIDAVIT OR VERIFIED MOTION FOR CONTINUANCE.
Appellee contends that because Mr. Daniels did not file an affidavit
explaining the need for further discovery or a verified motion for continuance, Mr.
APPELLANT’S REPLY BRIEF PAGE 9 Daniels failed to preserve this issue for appeal. Appellee is correct2 that some cases
have held that to preserve on appeal the argument that inadequate time for discovery
has elapsed, a party must file either an affidavit explaining the need for further
discovery or a verified motion for continuance. App’ee’s Brief, p. 16; see also
TemPay, Inc. v. TNT Concrete & Constr., Inc., 37 S.W.3d 517, 520-21 (Tex. App.—
Austin 2001, pet. denied) (citing Tenneco Inc. v. Enterprise Prods. Co., 925 S.W.2d
640, 647 (Tex. 1996)); and Rad v. Calbeck, No. 03-10-00429-CV, 2011 Tex. App.
LEXIS 10240 *13 (Tex. App.—Austin December 30, 2011, no pet.) (citing Tenneco
Inc., 925 S.W.2d at 647, West v. SMG, 318 S.W.3d 430, 433 (Tex. App.—Houston
[1st Dist.] 2010, no pet.) and Flores v. Flores, 225 S.W.3d 651, 654-55 (Tex. App.—
El Paso 2006, pet. denied)). Appellee is further correct that Mr. Daniels did neither.3
2 Although Appellee’s statement of law on this point is basically correct in his brief, the case law he cites is not directly on point because it addresses traditional motions under TEX. R. CIV. P. 166a(b) and (c), not no-evidence summary judgment motions under TEX. R. CIV. P. 166a(i). As explained more fully in the body of this Reply, this distinction is important because no-evidence summary judgments are limited by the requirement that an adequate time for discovery has passed, whereas traditional summary judgments are not so limited. 3 Although Mr. Daniels did not include an affidavit describing the need for additional discovery, nor did he file a verified motion for continuance, he did point out in his response that discovery was not complete – in part because the case had been on file in Travis County less than two months before Appellee’s motion, and because Appellee had not responded to discovery requests. CR 49.
APPELLANT’S REPLY BRIEF PAGE 10 However, the Court should eliminate this requirement as it applies to no-
evidence summary judgment. Traditional summary judgments are not constrained
by the requirement that an adequate time for discovery must have elapsed, but no-
evidence motions are (or should be). Compare TEX. R. CIV. P. 166a(a), (b), and (c)
with 166a(i). Traditional summary judgments motions are available to parties early
in litigation when there is no genuine issue of fact that justifies the continuation of
the litigation or to eliminate patently unmeritorious claims and untenable defenses.
See, e.g., Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex.
2004); G&H Towing Co. v. Magee, 347 S.W.3d 293, 296-97 (Tex. 2001); Casso v.
Brand, 776 S.W.2d 551, 556 (Tex. 1989); and City of Houston v. Clear Creek Basin
Auth., 589 S.W.2d 671, 678 n.5 (Tex. 1979). The traditional summary judgment
motion, among other uses, allows the parties to avoid the expense of discovery in
suits involving claims that, for one reason or another, are destined to fail.
The newer no-evidence motion, on the other hand, is distinct in that it permits
summary judgment in cases in which a genuine issue of fact, a meritorious claim, or
a tenable defense is implicated; however, summary judgment is appropriate because
after discovery has occurred, no admissible evidence exists to support the issue,
claim, or defense. By its very terms, the no-evidence motion is available only after
an adequate time for discovery. TEX. R. CIV. P. 166a(i). Although the rule is
APPELLANT’S REPLY BRIEF PAGE 11 somewhat vague regarding what is considered “adequate,” most courts have
interpreted this to mean after the discovery period. Fort Brown Villas III Condo.
Ass’n v. Gillenwater, 285 S.W.3d 879, 882 (Tex. 2009); McInnis v. Mallia, 261
S.W.3d 197, 201 (Tex. App.—Houston [14th Dist.] 2010, pet. denied); see also TEX.
R. CIV. P. 166a(i) cmt.
This distinction is important because a party moving for summary judgment
traditionally bears the burden of showing that he is entitled to the judgment. See,
e.g., State v. $90,235, 390 S.W.3d 289, 292 (Tex. 2013) (“A party moving for
traditional summary judgment has the burden to prove . . . it is entitled to judgment
as a matter of law. The nonmovant has no burden to respond or present evidence
regarding the motion until the movant has carried its burden”); see also Park Place
Hosp. v. Estate of Milo, 909 S.W.2d 508, 510 (Tex. 1995) (“In reviewing a summary
judgment, we must accept as true evidence favoring [the plaintiff], indulging every
reasonable inference and resolving all doubts in [the plaintiff’s] favor.”). The case
law requiring a verified motion for continuance or affidavits arises out of TEX. R.
CIV. P. 166a(g), which predates the inclusion of TEX. R. CIV. P. 166a(i) in 1997. See,
e.g., Tenneco Inc., 925 S.W.2d at 647. In traditional summary judgments, then, if a
nonmovant contended that the motion was premature, the nonmovant bore the
responsibility of showing why.
APPELLANT’S REPLY BRIEF PAGE 12 However, a party moving for no-evidence summary judgment is only entitled
to summary judgment if the requirements of Rule 166a(i) are satisfied – including
the explicit requirement that an adequate time for discovery has passed. By placing
the burden on the non-movant to show what additional discovery is needed, a party
moving for summary judgment effectively shifts to the non-movant the requirement
to show why summary judgment is improper without doing anything more than
merely filing a motion. This construction of the rules is diametrically opposed to
the philosophy underlying traditional summary judgment and no longer affords the
non-movant any indulgence or resolution of doubt in his favor, nor does it prevent a
nonmovant from having the burden of a response until the movant carried his burden
to show his entitlement to summary judgment. Rather, it effectively creates a
presumption in favor of the movant that adequate time for discovery has elapsed.
For this reason, the extension of the requirements of Rule 166a(g) to motions under
Rule 166a(i) is inconsistent with the plain language of Rule 166a(i). Mr. Daniels
therefore asks this Court to confirm that parties seeking summary judgment,
including no-evidence summary judgment, bear the burden to show that they are
entitled to such judgment before the nonmovant is required to respond or present
evidence.
APPELLANT’S REPLY BRIEF PAGE 13 C. PRIOR TO APPELLEE’S MOTION, THE RECORD CONTAINED SUFFICIENT EVIDENCE TO DEFEAT SUMMARY JUDGMENT.
1. Mr. Daniels’s Response Directed the Court to the Documents Already on File.
Appellee contends that the evidence on file cannot show Appellee’s
knowledge or prove that Appellee withheld information, which is required under the
DTPA. As noted in Appellant’s Brief, investigation in to Appellee’s intent and
knowledge requires only slight circumstantial evidence and is usually inappropriate
for summary judgment. See, e.g., Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432,
435 (Tex. 1986); Schlumberger Well Surveying Corp. v. Nortex Oil and Gas Corp.,
435 S.W.2d 854, 858 (Tex. 1968); Allen v. Albin, 97 S.W.3d 655, 664-65 (Tex.
App.—Waco 2002, no pet.); Clemons v. Tex. Concrete Materials, Ltd., 2010 Tex.
App. LEXIS 8394, No. 07-09-0032-CV, *12 (Tex. App.—Amarillo October 19,
2010, no pet.) (citing Thornbrough v. Columbus & Greenville R.R. Co., 760 F.2d
633, 640 (5th Cir. 1985)); and Turner v. Franklin, 325 S.W.3d 771, 782-83 (Tex.
App.—Dallas 2010, pet. denied). Direct evidence, such as a defendant’s statement
under oath that he in fact withheld information and intended to defraud a plaintiff, is
rare.
The evidence identified in the record in Appellant’s Brief in Section C
constitutes at least slight circumstantial evidence. Together with the affidavit of Mr.
APPELLANT’S REPLY BRIEF PAGE 14 Davis4, either Appellee knew that Mr. Daniels’s case was hopeless and took his
money anyway, or he advised Mr. Daniels that he had knowledge and expertise that
he later showed himself to lack. In either case, more than a scintilla of evidence
supports Mr. Daniels’s claims.
2. Demanding More Would Unreasonably Require Mr. Daniels to Marshal His Evidence Prior to Trial.
Appellee also takes issue with Mr. Daniels’s response to his no-evidence
motion on the grounds that it should have more fully marshaled his evidence.
However, Mr. Daniels was not required to marshal his proof; his response “need
only point out evidence that raises a fact issue on the challenged elements.” TEX. R.
CIV. P. 166a(i) cmt. Mr. Daniels’s response met this minimum requirement by
directing the court’s attention to his previously filed documents and particularly the
affidavit of Mr. Davis. Even if the summary judgment motion was otherwise proper
4 Appellee states that Mr. Davis’s affidavit is substantively defective because it contains unsubstantiated factual and legal conclusions and opinions. Mr. Davis has four decades of experience defending professional liability lawsuits and is qualified to speak to the knowledge that an attorney advertising himself for representation in legal malpractice claims should have, as well as the applicable standards of professional conduct. Moreover, as opposing counsel in the suit in which Appellee represented Mr. Daniels, he has first-hand knowledge of Appellee’s conduct throughout that litigation and is competent to provide testimony on that subject.
APPELLANT’S REPLY BRIEF PAGE 15 – which it was not for the reasons identified in Section B of this Reply and Section
B of Appellant’s Brief – Mr. Daniels’s response was adequate to defeat the motion.
D. MR. DANIELS’S REQUEST, IF GRANTED IN THE EVENT OF A PARTIAL REMAND, WOULD MERELY REINFORCE HIS RIGHTS AS A LITIGANT.
Appellee contends that res judicata would preclude Mr. Daniels from filing
additional DTPA claims this appeal is reversed and remanded but the summary
judgment ruling remains intact. Res judicata applies only to claims that arise from
the same transaction and are based on the same “nucleus of operative facts.”
Musgrave v. Owen, 67 S.W.3d 512, 519 (Tex. App.—Texarkana 2002, no pet.). The
fact that a claim may fall under the DTPA does not necessarily mean that the
operative facts are identical. If the court had entered a non-final (and therefore not
erroneous) summary judgment, Mr. Daniels would have remained free to amend his
pleadings as the litigation progressed and discovery developed. Mr. Daniels is
therefore only requesting that this Court specifically secure to him the rights to
which he is entitled as a Texas litigant.
CONCLUSION
For the foregoing reasons, and for the reasons identified and discussed in
Appellant’s Brief, Appellant Stephen M. Daniels asks the Court to reverse the grant
of summary judgment in favor of Appellee Bertolino and remand this matter for
proper determination on the merits. At a minimum, Mr. Daniels’s non-DTPA
APPELLANT’S REPLY BRIEF PAGE 16 claims, which were not challenged by Bertolino’s motion, must be remanded.
Additionally, the DTPA claims should also be remanded because the motion was
filed well before adequate time for discovery had passed and because more than a
scintilla of evidence existed in the record on each of the elements challenged by
Bertolino.
Dated: April 27, 2015
Respectfully submitted,
THE LAW OFFICE OF ELEANOR RUFFNER, P.C. 1403 West Sixth Street Austin, Texas 78703 (512) 913-7576 (512) 681-0800 (fax)
By: /s/ Eleanor Ruffner Eleanor Ruffner State Bar No. 24047034 eruffnerlaw@gmail.com
APPELLANT’S REPLY BRIEF PAGE 17 CERTIFICATE OF COMPLIANCE
Pursuant to TEX. R. APP. P. 9.4, I hereby certify that this brief contains 4,744 words. This is a computer generated document created in Microsoft Word, using 14 point typeface for all text. In making this certificate of compliance, I am relying on the word count provided by the software used to prepare the document.
CERTIFICATE OF SERVICE
I hereby certify that on April 27, 2015, I served a copy of the foregoing document on counsel of record via email and/or E-File Texas as follows:
Tony Bertolino (tbertolino@belolaw.com) Hiba Kazim (hkazim@belolaw.com) BERTOLINO LLP 823 Congress Avenue, Suite 704 Austin, Texas 78701
/s/ Eleanor Ruffner Eleanor Ruffner
APPELLANT’S REPLY BRIEF PAGE 18