### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-14-00671- CV

Stephen M. Daniels, App ellant

v. Tony R. Bertolino, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 250 TH JUDICI AL DISTRICT NO. D-1 -GN-1 4-0 0214 6, H ONO RAB LE GUS J. STRAUSS JR., JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

St e p h e n M

. Daniels bring s this appea l from a no-evide nce s u mm a r y ju d g me n t g r a

n te d in favor of Tony R. B ertolino following Daniels’s unsucce ssful pro se claims ag ainst Be rtolino for leg al malpra ctice a

nd dece ptive trade prac tices. We will affirm the tr ial court’s judg ment.

BACK GR OUND Daniels loaned money to a friend, apparently with o u t an y p aperwork to support or enfor ce the terms of the loan. W h en the borrowe r-f riend defa

ulted on the loan, Daniels filed suit pro se ag ainst her in a Be x ar County justice court and lost. Daniels then hired a San Antonio lawy er to appea l the justice court’s decision to the county court at law. That eff ort was initially succe ssful, and the lawy er obtained a default judgme nt ag ainst the borrower. Howeve r, t he default judgme nt was set a side following the borrow er’ s succe ssful motion for new trial.The San Antonio la w y e r withdrew from the case with the trial court’s permission, and Daniels proce eded to trial ag ainst the borrower in the county court at law, aga in acting pro se an d ag ain losing. Be lieving that his San Antonio lawy er had wrong fully ag ree d to the borrowe r’s motion fo r new trial, Daniels hired Be rtolino to sue the San Antonio lawy er for malprac tice. Be rtolin o ’s eff orts failed, a

nd Daniels de cided to sue him next, ag ain proc eeding pro se. On Dec ember 3, 2013, Daniels sued Be rtolino in a Be x ar County dis t rict court for “common law fra

ud under the Dec eptive Trade Practice s Act,” as well as “F raudule nt I nduceme nt, Dec eptive Acts, and Unconsc ionable Acts” and seeking damag es under a claim of “Qua ntum Merit [si c].” Be rtolino’s motion to t ransf er ve nue to Tra vis County was g rante d, and Da

niels continued to repre sent himself.

Daniels was ac t i v e i n h i s pro se repr esenta tion. By J uly 2014, he had filed an

o ri gi n al petition and a motion for summary judgme nt supported by his own aff idavit. Acc ordin g to one of Be rtolino’s pleading s, Daniels also filed discovery i n cl u d ing interrog atories, a reque st for admissions, a reque st for disclosure, and a requ es t fo r production of documents. On J uly 10, 2014, Daniels fil ed a p l eading that he named “Plaintiff’s Amended Orig inal Petition.” This pleading soug ht relief based only o n a Texas Dec eptive Trade Practice s Act claim, alleg ing false repr esenta tion under sections 1 7

. 4 1 and 17.49(c) and failure to disclose information under section 17.46(b) (24). Da niels failed to include a

ny other c laim for re lief. I n res p o n s e t o the “Amende d” petition, Be rtolino filed a no-evide nce motion for summary judgme nt. See Tex. R. Civ. P. 166a(i). He arg ued there was no evidenc e of five essential elements of a DTPA claim on which Daniels had the burden of proof, asked the trial court to g rant

s u m m ar y j u d g ment ag ainst Daniels and to “dispose of all parties and claims” in the s uit. Daniels 2filed a response stating that “evide nce supporting the Plaintiff’s claims are all filed with the Court,”

that he did not bring a leg al malprac tice case but rathe r “only addre sse[d] claims under the Dec eptive Trade Practice s Act,” and that those claims would be further supported with witness testimony

. The trial court g rante d Be rtolino’s motio n an d dismiss ed Daniels’s DTPA claims in a signe d order specify ing that “This judgme nt finally disposes of all parties and all claims and is there fore final and appe alable.”

Daniels then filed this appea l, initially c o n ti n u in g h is pro se repr esenta tion, but finally reta ining c ounsel who filed the a ppellant’s brie f.

DISCUSSIO N Daniels bring s three issues on appea l. He first arg ues that the trial court’s judgme nt addre ssed only one of sever al theories of rec overy but wrong fully disposed of all his claims. Next, he ar g ues that the trial court g rante d the no-e vidence summary judgme nt before there had bee n an adequate time for discove ry . Finally , he urg es that even if he is limited to the DTPA claims in his amende d petition, he provided sufficie nt evidenc e to defe at Be rtolino’s no-evide nce motion. We disag ree and will aff

irm the trial cour

t’s judgme nt.

Am ended or sup plem ental pleadin g

Daniels’s first issue by nece ssity turn s on one question, raised for the first time on appea l: Did his “Amende d” petition repla ce his orig inal petition, or was it instea d a supplemental petition that was mere ly

misnamed? The Texas Rules of Civil Procedur e provide a time-honored proce ss of pleading allowing parties to file “orig inal,” “supplementa l,” and “ame nded” p l ea dings seeking 3relief or providing defe nses. See generally Tex. R. Civ. P. 45, 46, 62-65, 69. The rules also permit

the t rial court to corr ect the title of any plea or pleading that a party has “mist akenly desig nated if justice so require s.” Tex. R. Civ. P. 71 (misnomer of pleading ). Under these rules, “supplementa l” pleading s are g ener ally responsive to an opponent’s last prec eding pleading and add to but do not repla ce the orig inal pleading

. Tex

. R

. Civ. P. 69. The object of an amende d pleading , by contra st, is to add something to, or withdraw som et h ing from, that which has been previously pleade d. Tex. R. Civ. P. 62. The party amending a pleading must point out the instrument amende d and amend by filing a substitut e instrument that is entire and complete in itself and ind orsed

acc ording ly , for example, as an “ame nded” orig inal petition. Tex. R. Civ. P. 64. Her e, Be rtolino’s no-evide nce motion and the trial court’s ruling are clea rly based upon a co n cl usion that the “Amende d” petition was in fac t an amende d petition under the Rules, leaving only DTPA claims to be addr essed. 1 A party may not raise new rea sons why a summary judgme nt should have been denied for the first time on appea l. Tex. R. Civ. P. 166a(c ) (“I ssue not expressly prese nted to the trial court by written motion, answe r or other response shall not be co n s i d er ed o n appea l as g rounds for

reve rsal.”) ; City of Houston v. Clear Creek Basin A uth. , 589 S.W .2d 671, 678-79 (Tex. 1979) ; see Mansfield State Bank v. Cohn , 573 S

. W

. 2 d 181, 184-85 (Tex. 1978) (noting that litigants who repr esent themselves must comply with applicable proce dural rules, otherwise they would be g iven

We note that Daniels’s pleading s support that conclusion. His “Amende d” petition states 1 that it is an amendment to his orig inal petition, does not add to h i s o ri g inal petition, and deletes previously pled claims except those under the DTPA. And in response to the no-evide nce summary judgme nt seeking to “dispose of all parties and claims” in the s u i t , Daniels did not arg ue that his pleading was misnamed but ra ther indica ted that his case only addre ssed claims under

the DTPA. 4unfair advanta g e over litigants repr esente d by counsel). Daniels has not prese rved this arg ument for

our re view. See Tex. R. App. P . 33.1(a)

. Adequate tim e for discovery under Rule 166a(i)

Next, Daniels arg

ues that the trial court abused its discretion by g ranting Be rtolino’s no-evide nce motion for summar y judgme nt before the par

ties had ade quate time for discovery

. I n his response to Be rtolino’s motion, Daniels made no mention of needing additional time for discovery nor did he file any motion for continuance

. See Tenneco Inc. v. Enterprise Prods. 2 Co. , 925 S.W .2d 640, 647 (Tex. 1996) (“When a party contends that it h as n o t had an adequate

o p portunity for discovery befor e a summary judgme nt hear ing, it must file either an aff i d av i t explain i n g t h e need for further discovery or a verifie d motion for continuance.” ); see also Tex. R. C i v . P

. 166a(g ) (authorizing court to order continuance in summary judgme nt context to permit discovery ), 166a(i) cmt. (noting as to no-evide nce s u m m ar y judgme nts that “The exis ting rules continue to g overn the g ener al require ments of summary j u d gm ent prac tice.”) ; Rad v. Calbeck , No. 03-10-00429- CV, 2011 Tex. App. L EXI S 10240, at *13 (Tex. App.—Austin Dec

. 30, 2011,

n o pet.) (mem. op.); Tril ogy Soft ware, Inc. v. Calli dus Software, Inc. , 143 S.W .3d 452, 464 & n.9 (Tex. App.—Austin 2004, pet. denied) ; Tempay, Inc. v. TNT Concrete & Constr., Inc ., 37 S.W .3d 517, 520-21 (Tex. App.—Austin 2001, pet. denied) (noting that appellant’ s fili n g o f v erified motion for continuance prese rv ed its objection that adequate time for discovery had not elapse d); Timothy Patton, Summary J

udgments in Texas: Prac tice, Proce dure and Review § 5.02[1] (3d ed.

Daniels had previously opposed the continuance of a hear ing on his motion for summary 2 judgme nt, stating that “De fenda nt had substantial time to comply with the Plaintiff’s reque st fo r discovery and conduc t rea sonable discove ry himself.” 52014) (“A

bsent an objection/motion and competent s upporting proof, any complaint by the nonmovant reg arding the trial court having decide d the Rule 166a(i) motion befor e adequate discovery has been conducte d is waived for purposes of appellate review.”). Daniels has not prese rved this arg ument for our

revie w. See Tex. R. App. P . 33.1(a)

. Suf fi ciency of evidence in the re cord to defeat sum m ary judgm ent

Daniels finally arg ues that even if there had been adequate time for d i s co v er y , the

rec ord contained sufficien t ev i d ence to defe at Be rtolino’s no-evide nce motion for summary judgme nt. Howeve r, he is handica pped on appea l by his pro se actions and inaction in the trial court. Daniels’s unsworn response to the motion for summary judgme nt did not “appr ise

. . . the court of the issues the non-movant contends should defe at the motion.” See Clear Creek Basin Auth. , 589 S.W .2d at 678. Daniels did f ile an aff idavit f rom the defe nse attorney who succe ssfully repr esente d the S an Antoni o attorney that Daniels sued for malpractice

. This aff idavit was highly critica l of Be rtolino’s eff orts. Bu t i t d i d not raise any issue of materia l fac t reg arding Daniels’s DTPA claims bef

ore the trial court.

CONCLUSION Havi n g d e te r

mine d that the no-evide nce summary judgme nt was proper ly g rante d, we aff irm the trial cour

t’s judgme nt. 3

Be rtolino’s motion for sanctions on appea l has been considere d by the Court and is denied. 3 6_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __________________________ J immy Carroll, Jus tice Be fore J ustices Goodwin, F ield, and Carr oll* Affir med Filed: Aug ust 12, 2015

* Be fore J immy Carroll, Chief J ustice (re tired), Third Court of Appea ls, sitti ng by assig nment. See Tex. Gov’t Code § 74.003(b).

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