NO. 03-14-00671-CV

IN THE THIRD COURT OF APPEALS

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

ACCEPTED

03-14-00671-CV

4785588

THIRD COURT OF APPEALS

AUSTIN, TEXAS

4/7/2015 11:01:51 AM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 4/7/2015 11:01:51 AM JEFFREY D. KYLE Clerk
2

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
3

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
4

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
5

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.
6

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.
7

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 
8

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 nonservice 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.
9

 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 noevidence 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.
10

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.
11

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?
12

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 
13

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.
14

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 
15

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 
16

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. 
17

To be clear, the trial court did implicitly and explicitly rule that an adequate 

time for discovery had passed before Mr. Bertolino’s Motion for No Evidence 

Summary Judgment was filed. The ruling was not, however, in response to any 

objection, request or motion made by Mr. Daniels. As a result, he did not properly 

preserve appellate complaint on this issue, and it may not be properly considered for 

the first time on appeal. Tex. R. App. P. 33.1(a).

The Trial Court did not Abuse its Discretion in Ruling that an Adequate Time 

for Discovery had Passed

Appellant’s complaint of the trial court’s implicit ruling regarding adequate 

time for discovery is not supported by the facts. Mr. Daniels’ Original Petition in 

the underlying case had been filed in December of 2013. CR 40-42. Since then, Mr. 

Bertolino served discovery requests upon Mr. Daniels. CR 26. Mr. Daniels 

contested Mr. Bertolino’s motion for continuance to pursue additional discovery 

stating that “[d]ocuments support the fact [Mr. Bertolino] had substantial time to 

comply with [the discovery requests served on the wrong address] and conduct 

reasonable discovery himself.” CR 36. Further, Mr. Daniels states “[Mr. 

Bertolino’s] non-compliance with discovery request is not a negative factor since 

[Mr. Daniels] is in possession off [sic] all evidence supporting his claim.” CR 37. 

Mr. Daniels did not contest that an adequate time for discovery had passed at the 
18

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 
19

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.
20

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.
21

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.
22

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
23

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:

Eleanor Ruffner

eruffnerlaw@gmail.com

/s/ Hiba Kazim

Hiba Kazim
24

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.
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<nowledge of the f(llse, deceptive, ormisleadillg acts or

practices declared to be uillawfu.l by this subchapter, or had a direct or substantial

finallcial interest in the sale or distriblltion of the unlawfully advertised good or

service. Financial interest as used in this section relates to an expectation which

wo'uld be the direct result of such advertisement.

(b) N'othing in this subchapter shall apply to acts or practices authorized under

specific rtlles or regulations promulgated by the Federal Trade COffilnission tInder

Section 5(a)(1) of tIle Federal Trade Commission Act 1)]. The

provisions of this sllbchapter do apply to any act or practice prohibited or 110t

specifically authorized by a rule or reglllation of th.e Feder,tl Trade Commission.

An act or practice is not specifically authorized if no fllle or regulatiollh,lS been

issued on the act or practice.

(c) Nothing in this subchapter shall apply to a clailTI for dalTIages based on the

rendering of a professional service, the essence of which is the providing of

advice, judgment, opinion, or silnilar professional skill. This exemption does not

apply to:

(1) an express misrepresentation of cllnaterial fact that cannot be characterized as

advice, juclgment, or opinion;

(2) a failure to disclose informatioll in violation of Section 17.46(b)(24);

(3) an unconscionable action or course of action that cannot be characterized as

advice, judgment, or opinion;

(4) breach of an express warranty that cannot be characterized as advice,

judgment, or opinion; or

(5) a violation of Section 17.46(b)(26).

(d) Subsection (c) applies to a cause of action brought against the person who
Page 2 of 3

Tex. Bus. & COlll. Code § 17.49

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) Notl1ing 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.

History

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 ofspecial 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 ofTexas 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 ofthe 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 ofthe pleading in aid and explanation ofthe 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 ofwriting 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 ofthe 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 "plaintiffsfirst

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 ofthe pleading in the record ofthe 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 ofthe court, or unless it be

necessary to look to the superseded pleading upon a question oflimitation.

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 ofform 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 ofsuch 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 ofthe parties, they

shall be treated in all respects as if they had been raised in the pleadings. In such case such

amendment ofthe 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 ofthe case to the Court or jury, but failure so to amend shall not affect the result ofthe

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 ofeach instrument,

shall be preserved throughout the pleadings of either party.

RULE 70. PLEADING: SURPRISE: COST

When either a supplemental or amended pleading is ofsuch 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 ifthe other party satisfactorily shows that he is not ready

for trial because ofthe allowance ofthe filing ofsuch 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 ofreasonable costs and expenses incurred by the other party as a result

ofthe 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, unlessthe court ordersredesignation.
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 ofthe 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 ofthe 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 ofthe

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 ofsuch 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 ofthe 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 ofsuch exhibit. The party withdrawing such exhibit shall pay the

costs ofsuch 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

(2) the date offiling of any contest~

(3) the date of any order on the contest; and

(4) whetherthe contest was sustained or overruled~

(1) whether the appellant has filed or will file a

supersedeas bond~ and

(m) any other information the appellate court requires.

32.2. Criminal Cases

Upon perfecting the appeal in a criminal case, the

appellant must file in the appellate court a docketing statement

that includes the following infonnation:

(a) (1) if the appellant has counsel, the name of the

appellant and the name, address, telephone

number, fax number, if any, and State Bar of

Texas identification number ofthe appellant's

counsel, and whether the counsel is appointed

or retained~ or

(2) if the appellant is not represented by an

attorney, that party's name, address, telephone

number, and fax number, if any~

(b) the date the notice of appeal was filed in the trial

court and, if mailed to the trial court clerk, the date

ofmailing;

(c) the trial court's name and county, and the name of

the judge who tried the case~

(d) the date the trial court imposed or suspended

sentence in open court, or the date the judgment or

order appealed from was signed;

(e) the date offiling any motion for new trial, motion in

arrest ofjudgment, or any other filing that affects the

time for perfecting the appeal

(f) the offense charged and the date ofthe offense;

(g) the defendant's plea;

(h) whether the trial was jury or nonjury;

(i) the punishment assessed;

(j) whether the appeal is from a pretrial order;

(k) whether the appeal involves the validity of a statute,

ordinance, or rule;

37

Page 37

(1) whether a reporter's record has been or will be

requested, and whether the trial was electronically

recorded;

(m) the name ofthe court reporter;

(n) (1) the dates of fil ing of any motion and affidavit

of indigence;

(2) the date of any hearing~

(3) the date of any order~ and

(4) whether the motion was granted or denied; and

(0) any other information the appellate court requires.

32.3. Supplemental Statements

Any party may file a statement supplementing or

correcting the docketing statement.

32.4. Purpose of Statement

The docketing statement is for administrative purposes and

does not affect the appellate court's jurisdiction.

Notes and Comments

Comment to 1997 change: The rule is new.

Rule 33. Preservation of Appellate

Complaints

33.1. Preservation; How Shown

(a) In General. As a prerequisite to presenting a

complaint for appellate review, the record mustshow

that:

(1) the complaint was made to the trial court by a

timely request, objection, or motion that:

(A) stated the grounds for the ruling that the

complaining party sought from the trial

court with sufficient specificity to make

the trial court aware of the complaint,

unlessthe specific grounds were apparent

from the context; and

(B) complied with the requirements ofthe

Texas Rules of Civil or Criminal

Evidence or the Texas Rules of Civil or

Appellate Procedure; and

(2) the trial court:
Page 38

(A) ruled on the request, objection, or motion,

either expressly or implicitly; or

(B) refused to rule on the request, objection,

or motion, and the complaining party

objected to the refusal.

(b) Ruling by Operation of LQ11J• In a civil case, the

overruling by operation of law of a motion for new

trial or a motion to modify the judgment preserves

for appellate review a complaint properly made in

the motion, unless taking evidence was necessary to

properly present the complaint in the trial court.

(c) FormalException andSeparate OrderNotRequired.

Neither a formal exception to a trial court ruling or

order nor a signed, separate order is required to

preserve a complaint for appeal.

(d) Sufficiency of Evidence Complaints in Nonjury

Cases. In a nonjury case, a complaint regarding the

legal or factual insufficiency of the evidence -

including a complaint that the damages found by the

court are excessive or inadequate, as distinguished

from a complaint that the trial court erred in refusing

to amend a fact finding or to make an additional

finding of fact - may be made for the first time on

appeal in the complaining party's brief.

33.2. Formal Bills of Exception

To complain on appeal about a matter that would not

otherwise appear in the record, a party must file a formal bill of

exception.

(a) Form. No particular form of words is required in a

bill of exception. But the objection to the court's

ruling or action, and the ruling complained of, must

be stated with sufficient specificity to make the trial

court aware ofthe complaint.

(b) Evidence. When the appellate record contains the

evidence needed to explain a bill of exception, the

bill itself need not repeat the evidence, and a party

may attach and incorporate a transcription of the

evidence certified by the court reporter.

(c) Procedure.

(1) The complaining party must first present a

formal bill of exception to the trial court.

(2) Ifthe parties agree on the contents ofthe bill of

exception, the judge must sign the bill and file

it with the trial court clerk. Ifthe parties do not

agree on the contents ofthe bill, the trial judge

38

TEXAS RULES OF APPELLATE PROCEDURE

n1ust after notice and hearing - do one of

the following things:

(A) sign the bill of exception and file it with

the trial court clerk ifthe judge finds that

it is correct;

(B) suggest to the complaining party those

corrections to the bill that the judge

believes are necessary to make it

accurately reflect the proceedings in the

trial court, and if the party agrees to the

corrections, have the corrections made,

sign the bill, and file it with the trial court

clerk; or

(C) ifthe complaining party will not agree to

the corrections suggested by the judge,

return the bill to the complaining party

with the judge's refusal written on it, and

prepare, sign, and file with the trial court

clerk such bill as will, in the judge's

opinion, accurately reflect the

proceedings in the trial court.

(3) Ifthe complaining party is dissatisfied with the

bill of exception filed by the judge under

(2)(C), the party may file with the trial court

clerk the bill that was rejected by the judge.

That party must also file the affidavits of at

least three people who observed the matter to

which the bill of exception is addressed. The

affidavits must attest to the correctness of the

bill as presented by the party. The matters

contained in that bill of exception may be

controverted and maintained by additional

affidavits filed by any party within ten days

after the filing ofthat bill. The truth ofthe bill

of exception will be determined by the

appellate court.

(d) Conflict. If a formal bill of exception conflicts with

the reporter's record, the bill controls.

(e) Time toftle.

(1) Civil Cases. In a civil case, a formal bill of

exception must be filed no later than 30 days

after the filing party's notice of appeal is filed.

(2) Criminal Cases. In a criminal case, a formal

bill of exception must be filed:

(A) no later than 60 days after the trial court

pronounces or suspends sentence in open

court; or