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 ofTravis County, Texas

Trial Court Cause No. D-I-GN-14-002146

MOTION FOR SANCTIONS AGAINST

ELEANOR RUFFNER AND STEPHEN M. DANIELS

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

4835287

THIRD COURT OF APPEALS

AUSTIN, TEXAS

4/9/2015 5:47:12 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 4/9/2015 5:47:12 PM JEFFREY D. KYLE Clerk
TO THE HONORABLE THIRD COURT OF APPEALS IN AUSTIN, TEXAS: 

Appellee, Tony R. Bertolino ("Appellee"), files this Motion for Sanctions 

Against Eleanor Ruffner ("Appellant's Attorney") and Stephen M. Daniels 

("Appellant") pursuant to Tex. R. App. P. 10.1 and 45. 

If sanctions are ever appropriate, this is such a case. 

I. SUMMARY OF ARGUMENT 

1. Appellant's actions amount to sanctionable conduct under Rule 45. 

2. First, Appellant's appeal did not include a reporter's record for the 

pivotal hearing that led to this appeal. The Appellant failed to file this reporter's 

record in clear contravention of the Appellate Rules' requirement to do so even 

after being notified of the reporter's record's location and cost. Although this 

failure could have initially been considered harmless, Appellant then pled facts and 

positions in his brief in direct contradiction of the representations he made during 

the motion for no-evidence summary judgment hearing to the trial court. 

Appellant's misleading behavior is properly sanctionable. 

3. Second, Appellant raises multiple issues for the first time on appeal in 

violation of the Texas Rules of Appellate Procedure. Appellant attempts to raise 

for the first time on appeal whether an adequate time for discovery had passed and 

whether the No-Evidence Motion for Summary Judgment disposed of all parties 

Motion for Sanctions Against Eleanor Ruffner and Stephen M Daniels 2 
and claims in the suit. This is but an example of Appellant's indifference to basic 

and foundational appellate rules. 

4. Third, Appellant has failed to comply with multiple appellate rules, 

preserve error for appeal, and cite authority or record references in support of his 

arguments. In his brief, Appellant raises new issues on appeal, attaches new 

evidence for consideration by the Court, and misleads the Court regarding facts in 

the record. 

5. Lastly, Appellant filed a poorly written brief raising no arguable 

points of error. In his brief, Appellant either raises new issues on appeal or raises 

an argument that is frivolous, supported by misstatements of the record, and 

evidence that is either unsupportive or actually damaging to his argument. 

6. Although sanctions are generally appropriate only in egregious 

circumstances, such circumstances are present here where Appellant has filed this 

appeal with no reasonable grounds of reversal in an effort to harass the Appellee or 

tarnish his good name. Appellee makes frivolous arguments, citing nearly no legal 

authority to support the critical parts of his position, and violates several of the 

Texas Rules of Appellate Procedure. Appellant's brief lacks legal merit and 

utilizes bizarre procedural tactics and non-sequitur arguments in an attempt to drag 

Appellee's good name through the mud because legal remedy is unavailable. 

Again, if sanctions under Rule 45 are ever appropriate, this is such a case. 

Motion for Sanctions Against Eleanor Ruffner and Stephen M Daniels 3 
II. LEGAL AUTHORITY 

7. Pursuant to Texas Rule of Appellate Procedure 45, a court of appeals, 

on 1notion of a party or its own initiative, after notice and a reasonable opportunity 

for response, may award a prevailing party just damages upon determining that an 

appeal is frivolous. The purpose of appellate sanctions is to shift the burden of 

defending a frivolous appeal to the appellant. Starcrest Trust v. Berry, 926 S.W.2d 

343 (Tex. App.-Austin 1996). 

8. Texas courts have established at least two scenanos m which an 

appeal is frivolous under Rule 45: (1) from the viewpoint of the appellant, there 

was no reasonable ground to believe that the judgment would be reversed; or (2) 

the appeal was objectively frivolous and injured the appellee. Glassman v. 

Goodfriend, 347 S.W.3d 772, 782 (Tex. App.-Houston [14th Dist.] 2011, pet. 

denied); Compass Exploration v. B-E Drilling Co., 60 S.W.3d 273, 279-80 (Tex. 

App.-Waco 2001, no pet.); Njuku v. Middleton, 20 S.W.3d 176, 178 (Tex. 

App.-Dallas 2000, pet. denied); Mid-Continent Casualty Co. v. Safe Tire 

Disposal Corp., 2 S.W.3d 393, 397 (Tex. App.-San Antonio 1999, no pet.). 

While only one of these standards need be proven to justify sanctions under Rule 

45, both are present in this matter. 

9. Texas courts of appeals have found several factors relevant in 

awarding just damages under Rule 45 (or its predecessor, Rule 84): (1) the 

Motion for Sanctions Against Eleanor Ruffner and Stephen M Daniels 4 
unexplained absence of a reporter's record when necessary for appellate review, 

Am. Paging of Tex., Inc. v. El Paso Paging, Inc., 9 S.W.3d 237, 241 (Tex. App.-

El Paso 1999, pet. denied); (2) a poorly written brief raising no arguable points of 

error, !d.; (3) a conscious indifference to settled rules of law, Bradt v. West, 892 

S.W.2d 56, 79 (Tex. App.-Houston [1st Dist.] 1994, writ denied); (4) failure to 

cmnply with Appellate Rules, preserve error for appeal, or cite authority or 

accurate record references in support of arguments, Casteel-Diebolt v. Diebolt, 912 

S.W.2d 302, 306 (Tex. App.-Houston [14th Dist.] 1995, no writ); and (5) raising 

an issue for the first time on appeal, Tate v. E. I. du Pont de Nemours & Co., 954 

S.W.2d 872, 875 (Tex. App.-Houston [14th Dist.] 1997, no pet.) (citing Bradt, 

892 S.W.2d at 79). 

10. If this Court determines that this appeal is not technically frivolous 

under Rule 45, it may still sanction a party or attorney under its inherent powers to 

sanction a party or an attorney for egregious conduct in the prosecution of an 

appeal. Johnson v. Johnson, 948 S.W.2d 835, 840-841 (Tex. App.-San Antonio 

1997, writ denied). 

11. On the issue of damages, the current Rule 45 imposes no strict limit 

other than the requirement that the court of appeals award only "just damages" or 

"just sanctions." 

Motion for Sanctions Against Eleanor Ruffner and Stephen M Daniels 5 
III. ARGUMENT 

12. If sanctions under Rule 45 are ever appropriate, this is such a case. 

The Appellant and Appellant's Attorney have committed not just one offense, but 

nearly all of the sanctionable offenses listed above. See supra ~ 1. 

A. The unexplained absence of a reporter's record 

13. The Appellant failed to file a reporter's record in this matter after 

being notified of its location and cost despite the Appellate Rules requiring the 

filing of a reporter's record. See Tex. R. App. P. 34.1 & 34.6. Due to a mistake, 

this Court was given notice by a court reporter that no reporter's record was taken 

during the hearing on the Motion for No-Evidence Summary Judgment. (See Court 

Reporter's notice to court regarding status of record, filed on January 22, 2015, 

attached as Exhibit "A" and incorporated by reference herein.)1 However, Appellee 

sent a letter to the Court, and sent this letter to Appellant's Attorney when she was 

later retained by Appellant, noting the court reporter's mistake and indicating that a 

reporter's record was taken for that hearing by Sheri Linder. (Appellee's Letter to 

the Court dated January 29, 2015, attached as Exhibit "B" and incorporated by 

reference herein.? At the time of this filing, Appellant has filed no such record 

1 This letter is a part of this Court's record, Appellee attaches it to this Motion merely for the 

Court's convenience. 

2 This letter is a part of this Court's record, Appellee attaches it to this Motion merely for the 

Court's convenience. At the time that this letter was filed with the Court, Appellant was 

unrepresented by counsel. Due to internal error, Bertolino LLP did not serve this letter upon 

Appellant the day that the letter was filed. Staff discovered this error after Appellant retained 

Motionfor Sanctions Against Eleanor Rl{/fner and Stephen M Daniels 6 
and Appellant's Attorney has expressed to Appellee that Appellant has no intention 

to do so. 

14. Appellant's entire appeal centers on the trial court's granting a motion 

for No-Evidence Summary Judgment. See (Appellant Br. xiv). Although the 

reporter's record for that hearing may not be essential to the merits of assessing the 

challenged judgment, Appellant has argued before this Court "facts" in direct 

contradiction with his representations before the trial court. Id. Appellant's failure 

to obtain the reporter's record, especially when put on notice of its location, 

contradicts the Appellate Rules and is highly suspect. See Tex. App. R. P. 34.1 & 

34.6(b). 

15. Near the conclusion of the hearing on the Motion for No-Evidence 

Summary Judgment, the Honorable Judge Gus Strauss asked the parties whether or 

not there were any claims other than Plaintiffs DTP A claim at issue in the action. 

Appellant then confirmed that this was an action only under the DTP A. 3 

16. In the Appellant's brief, he claims that the document entitled 

"Plaintiffs Amended Original Petition" (and referred to as an "amendment" to the 

counsel, and sent the letter to both Appellant and Appellant's Attorney in order to avoid 

misrepresentations to this Court. Appellant's Attorney raised this issue to Hiba Kazim of 

Bertolino LLP, and the issue was discussed by phone and then by email to the apparent 

satisfaction of Appellant's Attorney. 

3 Due to the lack of a reporter's record on appeal, Appellee has no direct quotation to provide the 

Court. Attorney for Appellee and a law clerk for Bertolino LLP were both present at this hearing 

and recall this conversation. They expect the reporter's record would confirm that this 

conversation, or a substantially equivalent conversation, took place. 

Motionfor Sanctions Against Eleanor Ruffner and Stephen M Daniels 7 
Original Petition two other times in that document) was not intended as an 

amendment, but as a supplemental petition. (Appellant Br. 12-13); Clerk's Record 

(hereinafter "CR") 21. Although this argument has almost no merit in itself, 

Appellant specifically contradicted it. Had Appellant filed the reporter's record as 

required under Rules 34.1 and 34.6, Appellee would have definitive proof that 

Appellant's statement is false. 

B. Raising an issue for the first time on appeal 

17. Appellant raises, for the first time on appeal, the issues of whether an 

adequate time for discovery has passed and whether the No-Evidence Motion for 

Summary Judgment disposed of all parties and claims in the suit. 

18. Appellant argues on appeal that an adequate time for discovery had 

not passed prior to the hearing on the No-Evidence Motion for Summary 

Judgment. (Appellant Br. 13-20). In Appellant's Response to the No-Evidence 

Motion for Summary Judgment, he at no point addresses whether or not an 

adequate time for discovery has passed. CR at 49-52. To Appellee's recollection, 

Appellant did not challenge this point at hearing on that motion either.4 Further, 

the order following the hearing stated that the motion "was properly filed after an 

adequate time for discovery had passed." !d. at 68. Appellant provided his 

signature to approve the order as to form and indicated no objection to this 

4 Again, this reporter's record is unavailable in the record on appeal because Appellant refused to 

obtain it. 

Motion for Sanctions Against Eleanor Ruffner and Stephen M Daniels 8 
language at that time either. !d. at 69. At best, Appellant invited the eiTor of 

which he complains, as addressed in Appellee's brief, and at worst, he is 

presenting frivolous argument to this Comi. 

19. Appellant also argues that the order improper! y dismissed Appellant's 

suit although there still re1nained undisposed-of causes of action raised in 

Appellant's original petition. Although Appellant's argument for this claim is 

nothing short of ridiculous,5 this issue was also not raised in the lower court. 

Appellant did not seek any ruling on this matter before the trial court. In fact, 

Appellant signed the final order himself to indicate approval of its form. CR at 68-

69. The order plainly stated that the judgment "finally disposes of all parties and 

all claims and is therefore final and appealable." !d. at 68. 

20. While Appellant has provided only frivolous arguments on appeal for 

the above-mentioned issues, Appellant could have at least raised them at the trial 

court level. To save these issues for appeal is improper. Tex. R. App. P. 33.1. 

C. Failure to comply with Appellate Rules, preserve error for appeal, or 

cite legal authority or record references in support of arguments 

21. Appellant and Appellant's Attorney disregard appellate rules on 

multiple occasions throughout Appellant's brief. The various violations of 

5 Appellant seeks for this Court to treat Plaintiff's Amended Original Petition as a supplemental 

petition. The Amended petition does not meet the requirements of a supplemental pleading, as 

addressed in Appellee's Brief. Appellant's argument that he intended the pleading to be 

supplemental to the original petition finds no factual support in the record. 

Motion for Sanctions Against Eleanor Ruffner and Stephen M Daniels 9 
Appellate Rules rise above mere technicalities or mistake and indicate a severe 

disdain for appellate procedure and disrespect for this Court and Appellee. 

1) Raising New Issues on Appeal 

22. As noted above, Appellant has raised several issues on appeal that he 

did not raise in the trial court. Raising new issues on appeal that were not argued 

or challenging issues that were not objected to in any way at the trial level is 

directly contrary to the Appellate Rules. Tex. R. App. P. 33.1 ("[T]he record must 

show 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, unless the specific grounds were apparent from the 

context .... "). 

23. As shown above, several of Appellant's points were not complainedof at the trial level. See supra~~ 17-20. To bring these issues up at the appellate 

court level completely disregards Rule 33.1 and puts matters before the appellate 

court that could have been dealt with in the trial court and unnecessarily wastes 

this Court's valuable time and resources. 

2) Attaching New Evidence for Consideration by the Court of Appeals 

24. In an attempt to make something out of nothing, Appellant's Attorney 

attaches screenshots of Appellee's business website to show that Appellant had 

Motion for Sanctions Against Eleanor Ruffner and Stephen M Daniels 10 
sufficient evidence to overcome Appellee's Motion for No-Evidence Summary 

Judgment. (Appellant Br. 23, app. C). Such material is highly improper for an 

appellant brief and may not be considered by the Court of Appeals. See e.g., Fox 

v. Wardy, 234 S.W.3d 30, 33 (Tex. App.-El Paso 2007, pet. dism'd) (Documents 

attached to brief as appendix but not appearing in the record cannot be considered 

by the appellate court when reviewing the case). Further, use of this material is not 

helpful for Appellant in any way and is included in Appellant's brief in bad faith: 

a. First, this material was not before the Honorable Judge Gus 

Strauss when he decided the Motion for No-Evidence Summary 

Judgment, nor was it part of the District Court's record and thus 

cannot be considered evidence that the trial court should have 

considered in deciding Appellee's Motion for No-Evidence Summary 

Judgment. 

b. Second, the material does not support Appellant's points in a 

meaningful way. Appellant appears to use the information to establish 

that Appellee is an experienced attorney who claims to offer honest 

advice to his clients. (Appellant Br. 23). These statements do nothing 

to support Appellant's claims that Appellee deceived him at the time 

of representation. 

Motionfor Sanctions Against Eleanor R.4lner and Stephen M Daniels 11 
c. Third, this material is irrelevant because, as Appellant's own 

attachment indicates, the screenshots were taken on February 24, 

2015. I d. at App. C. Even if the information contained therein were 

relevant to this case, Appellant provides no proof that the website was 

materially the same at the time of the facts giving rise to Appellant's 

suit. 

25. Consistent with Appellant's past behavior, this appeal was brought to 

harass Appellee and damage his name and his business's goodwill. Attaching the 

website screenshots is an attempt to ensure that Appellant's brief, which contains 

several groundless accusations, will also include in the record Appellee's business 

name, logo, contact information, and likeness. As this material is not at all helpful 

to Appellant's case and is improper under the appellate rules, this behavior could 

only have been committed in a bad faith attempt to tarnish Appellee's name and 

reputation. 

3) Misleading the Court of Appeals by Misstating the Contents of the Record 

and/or Presenting Unsworn-to Statements in the Record as Establishing 

Facts 

26. Appellant or his attorney severely misrepresents the contents of the 

record in the Appellant's Brief. (Appellant Br. 1-3) (asserting various occurrences 

of the case as established fact by citing to various unsworn-to pleadings); 

(Appellant Br. 5-6) (implying that Appellant referred to various specific 

Motion for Sanctions Against Eleanor Ruffner and Stephen M Daniels 12 
documents in the trial comi's record in his Response to the Motion for NoEvidence Summary Judgment when in fact Appellant only referred to one affidavit 

and generally to "[ e ]vidence supporting the Plaintiff's claims ... filed with the 

Court.") CR 50. This distinction is essential since such vague general references to 

the court's docket are inadequate for a Response to a motion for no-evidence 

summary judgment. J.P. Farms v. Exxon Pipeline Co., 646 S.W.2d 544, 545 (Tex. 

App.-Houston [1st Dist.] 1982, no writ)); (Appellant Br. 23). This issue is 

discussed in further detail in Appellee's brief. 

27. Appellant uses such misstatements to claim, among other things, that 

Appellant refused to comply with Appellee's discovery requests. (Appellant Br. 

4-5). At no time were these discovery requests served on Appellee. Appellant 

merely continuously asserted in various unsworn-to pleadings that they were 

served. CR 7; CR 36; CR 49. Appellee made Appellant aware of the failure to 

serve Appellee (CR 27-28), but Appellant never bothered to attempt again to serve 

Appellee with such requests and instead insisted that Appellee was served by 

stating that the requests were sent and filing mail receipts bearing the incorrect 

address with the trial court.6 

28. Appellant, with knowledge of these circumstances, has now claimed 

as established fact that Appellee was served with discovery requests and refused to 

6 These filed mail receipts appear to be absent from the record. One would think Appellant 

would have requested that they be included in the record had they not contradicted his claims. 

Motion for Sanctions Against Eleanor Ruffner and Stephen M Daniels 13 
answer them. (Appellant Br. 4-5). Appellant is using this Court to slander 

Appellee through this frivolous appeal by including such misstatements of the 

underlying facts that cast Appellee in an unfavorable light to this Honorable Court 

and the public. 

D. A poorly written brief raising no arguable points of error 

29. The above points indicate that Appellant and/or Appellant's Attorney 

have failed to provide arguable points of error in Appellant's brief. Appellant 

makes three primary arguments in the brief: (1) an adequate time for discovery had 

not passed prior to the hearing on the Motion for No-Evidence Summary 

Judgment; (2) the Order on the Motion for No-Evidence Summary Judgment 

improperly stated that it dismissed all parties and claims; and (3) Appellant raised 

more than a scintilla of evidence as to each element of his DTP A claim. As the 

above has demonstrated, each of these arguments is supported by misstatements of 

the record, evidence that is improper on appeal or frivolous arguments that ignore 

settled law or fail to cite crucial legal authority. See supra §§ A-C. No essential 

argument of Appellant's brief is tenable. 

30. Appellant has filed this appeal in bad faith. While bad faith need not 

be shown for a motion under Rule 45, since the rule imposes "just damages," it is 

relevant insofar as it establishes what remedy is just in response to Appellant's 

egregious behavior. See Glassman v. Goodfriend, 347 S.W.3d 772, 782 (Tex. 

Motion for Sanctions Against Eleanor Ruffner and Stephen M Daniels 14 
App.-Houston [14th Dist.] 2011) (stating that a party's bad faith may be 

considered in assessing the amount of just damages to award under Rule 45) (citing 

Smith v. Brown, 51 S.W.3d 376, 381 (Tex. App.-Houston [1st Dist.] 2001)). 

31. When representing himself at the trial level, Appellant consistently 

filed ranting motions and responses accusing Appellee of outrageous behavior with 

little or no supporting factual or legal suppmi. See e.g., CR 35-38 (alleging 

without any evidentiary support several dishonest acts. None of these allegations 

are supported by exhibits, sworn to, or especially relevant to motion at issue). 

Appellee expended substantial time, effort, and resources in responding to these 

groundless accusations in his motions. See e.g., CR 27-28. Appellant's Attorney 

has demonstrated similar behavior at the appellate stage of this litigation and seems 

to believe that such is appropriate practice before this Court. While Appellant may 

have sincerely (albeit mistakenly) believed that this behavior was appropriate when 

representing himself pro se at the trial court level, Appellant's Attorney at the 

appellate stage has no such excuse. 

32. Instead, Appellant's Attorney attempts to disguise the Appellant 

Briefs lack of necessary authority by citing several cases and other authority to 

support basic legal propositions such as standards for summary judgment (See 

(Appellant Br. 9-16, 19-22, 24-25)); however, when it comes to Appellant's more 

outlandish claims, Appellant provides no authority justifying these arguments. 

Motion for Sanctions Against Eleanor Ruffner and Stephen M Daniels 15 
Below are a few examples of Appellant's unsuppmied and outlandish factual 

assertions, legal arguments, and requests: 

a. Appellant's Attorney argues that the document entitled 

"Plaintiffs Amended Original Petition" and refened to as an 

"amendment" in three different places ( CR 21) and treated as an 

amended pleading by the parties operated as a supplemental petition 

and was merely misnamed. (Appellant Br. 11-12). Appellant cites 

only Texas Rule of Civil Procedure 71 for misnamed pleadings and 

supplies no authority showing that the trial court should have 

interpreted a clearly-entitled amended pleading as anything other than 

an amended pleading. Jd. Appellant cannot cite anywhere in the 

record where a judge in the trial court treated the amended pleading as 

anything other than an amended pleading. Further Appellant's 

Attorney fails to explain why Appellant did not take issue to treatment 

of the pleading as an amended pleading in the trial court. 

b. Appellant's Attorney argues that the discovery period under 

Level 2 does not begin until written discovery requests are served or 

an oral deposition is conducted. Id. at 17. Appellant cites a rule 

regarding the close of discovery, then makes assertions regarding 

Motion for Sanctions Against Eleanor Ruffner and Stephen M Daniels 16 
when discovery did or did not begin. Id. This severely misrepresents 

the law. 

c. If the lower court judgment is affirmed, Appellant requests that 

the Court confirm that Appellant may open a new suit under the 

DTPA.ld. at 24-25. Appellant merely seeks another bite at the apple 

and asks for the Austin Court of Appeals to pre-empt any future trial 

judge frmn dismissing Appellant's next frivolous suit for res judicata 

reasons. Appellant's Attorney provides no real basis in law or fact for 

granting this request. 

33. Without the above critical pieces, the pnmary arguments m 

Appellant's Brief crumble and fall apart. While there is no requirement for every 

statement in Appellant's brief to be supported by legal authority, Appellant's 

method of citing only ancillary authority to support outlandish factual and legal 

claims creates the illusion of a good faith brief that is in fact without merit on 

central issues. In short, it was prepared and filed in bad faith. Such deception is 

especially troubling as it not only commits sanctionable behavior, but then 

attempts to bury it behind a wall of citations unhelpful to Appellant's pivotal 

claims and argument. 

Motion for Sanctions Against Eleanor Ruffner and Stephen M Daniels 17 
IV. CONCLUSION 

34. It is unfortunate that Appellant's disappointment with the results of 

his underlying case have led him to seek repeated unjustified judicial relief against 

Appellee. Regardless, Appellant has at no point demonstrated wrongdoing on 

Appellee's part. Instead, Appellant has sought frivolous judicial proceedings 

against Appellee which have asserted much and uncovered nothing. Now, 

Appellant has employed Eleanor Ruffner to assist him in pursuing this frivolous 

appeal against Appellee. 

35. In hopes of being done with this matter sooner, Appellee did not 

previously pursue monetary or other relief against Appellant other than dismissal 

of his frivolous actions. However, now that Appellant and his attorney have 

insisted on prolonging this litigation and wasting the time and resources of the 

Honorable Justices of this Court of Appeals, sanctions are more than warranted. 

Glassman v. Goodfriend, 347 S.W.3d 772, 783 (Tex. App.-Houston [14th Dist.] 

2011) ("No litigant has the right to put an opposing party to needless burden and 

expense or to waste [the Court of Appeals'] time, which otherwise would be spent 

on the important task of adjudicating valid disputes."). 

36. Further, if sanctions are not imposed, Appellant will likely seek a 

frivolous appeal to the Supreme Court of Texas and/or attempt to bring the same or 

a similar frivolous action in a lower court, as he did against Gregory Canfield. See 

Motion for Sanctions Against Eleanor Ruff'ner and Stephen M Daniels 18 
(Appellant Br. 24-25); Supp. Clerk's Record at 77-88. Such relentless relitigation is an abuse of the judicial system and a substantial waste of judicial and 

party resources. 

V.PRAYER 

WHEREFORE, PREMISES CONSIDERED, Appellee prays that the Court: 

37. Grant Appellee's Motion for Sanctions Against Eleanor Ruffner and 

Stephen M Daniels. 

38. Impose sanctions and "just damages" on Appellant and Appellant's 

attorney in accordance with Texas Rule of Appellate Procedure 45 to include: 

a. dismissing Appellant's appeal; 

b. granting Appellee reasonable and necessary attorneys' fees in 

the amount $5000.00 in preparation for defending this frivolous 

appeal and preparing a Motion for Sanctions; and 

c. any and all other relief as the Court deems Appellee is entitled. 

Respectfully submitted, 

BERTOLINO LLP 

By: Is/ Hiba Kazim 

Tony R. Bertolino 

Texas Bar No. 24038766 

Hiba Kazim 

Texas Bar No. 24076952 

823 Congress Ave. 

Suite 704 

Austin, Texas 78701 

Motion for Sanctions Against Eleanor Ruffner and Stephen M Daniels 19 
Tel: (512) 476-5757 

Fax: (512) 476-5758 

Email: info@belolaw.com 

Attorneys for Appellee, 

Tony R. Bertolino 

CERTIFICATE OF CONFERENCE 

I certify that I spoke with Eleanor Ruffner, Appellant's Attorney, via phone 

on April 8, 2015, regarding Appellant's position on the foregoing motion, and she 

indicated that she would be opposed to the foregoing motion. 

Is/ Tony R. Bertolino 

Tony R. Bertolino 

I certify that I spoke with Eleanor Ruffner, Appellant's Attorney, via phone 

on April 9, 2015, and she indicated that she would be opposed to the foregoing 

motion. 

/s/ Hiba Kazim 

HibaKazim 

CERTIFICATE OF SERVICE 

I certify that on April 9, 20 15 a true and correct copy of Motion for 

Sanctions Against Eleanor Ruffner and Stephen M Daniels was served on the 

following party by e-mail: 

Eleanor Ruffner 

The Law Office of Eleanor Ruffner, P.C. 

1403 West Sixth Street 

Austin, Texas 78703 

(512) 913-7576 

(512) 681-0800 

eruffnerlaw@gmail.com 

Attorney for Appellant 

/s/ Hiba Kazim 

HibaKazim 

Motionfor Sanctions Against Eleanor Ruffner and Stephen M Daniels 20 
Exhibit A 
JEFF L ROSE. CHIEF JUSTICE 

DAVID PURYEAR, JUSTICE 

BOB PEMBERTON, JUSTICE 

MELISSA GOODWIN, JUSTICE 

SCOTT K FIELD, JUSTICE 

CINDY OLSON BOURLAND, JUSTICE 

Stephen M. Daniels 

8323 Clays Point 

San Antonio, TX 78250 

RE: Court of Appeals Number: 

Trial Court Case Number: 

Style: Stephen M. Daniels 

v. Tony R. Bertolino 

Dear Counsel: 

COURT OF APPEALS 

'T'TTTRD DISTRI"T 0" 'T'r'<T A" i fill \...., T i D.i\ .. 1-L:J 

P 0 BOX 12547, AUSTIN, TEXAS 78711-2547 

www.txcourts.gov/3rdcoa.aspx 

(512) 463-1733 

F!LE COPY 

JEFFREY D. KYLE, CLERK 

January 22, 2015 

Mr. Tony R. Bertolino 

Bertolino LLP 

823 Congress A venue Suite 704 

Austin, TX 78701 

*DELIVERED VIA E-MAIL* 

03-14-00671-CV 

D-1-GN-14-002146 

This Court received notice on January 22, 2015 that a reporter's record was not taken. 

Accordingly, this Court will expect the appellant's briefto be filed on or before February 23, 2015. 

Very truly yours, 

JEFFREY D. KYLE, CLERK 

Chris Knowles, Deputy Clerk 

cc: Ms. LaSonya Thomas 
Exhibit B 
TBERTOLINO@BELOLA W.COM 

HIBA KAZIM, EsQ. 

HKAziM@BELOLAW .COM 

JoHNW. GREENWAY, ESQ. t 

JGREENWAY@BELOLAW.COM 

YURBIN E. VELASQUEZ, ESQ. tt 

YVELASQUEZ@BELOLAW.COM 

RACHEL MESSER, ESQ. to 

RMESSER@BELOLAW.COM 

CHRISTOPHER CUMMINGS, ESQ. t 

CCUMNIINGS@BELOLA W .COM 

* ALSO JJCENSED TOPRACTICELAWINNEW YORK 

t ALSO LICENSED TO PRACTICE LAW IN LOUISIANA AND VENEZUELA 

<:> ALSO LICENSED TOP RACTICE LAW IN WEST VIRGINIA 

j: "OF COUNSEl." TO THE FIRM 

Court of Appeals 

Third District of Texas 

P.O. Box 12547 

Austin, Texas 78711-2547 

BERTOLINOLLP 

A LAW FIRM OF ATTORNEYS AND COUNSELORS 

823 CONGRESS A VENUE 

SUITE 704 

AllSTIN, TEXAS 78701-2405 

TEL: 512.476.5757 I FAX: 512.476.5758 

WWW.BELOLA W.COM 

January 29, 2015 

:SAN ANTONIO Offl(Sif;t-' I t:.U 

22211 IH ~6-~71-CV ; ~ ~~1944889 

THI~f!'(§t~~~~:lF APPEAU 

SAN ANTONIO, A~!fJ.&'::§7AS 

TEqj£tlfu~~~-roi5!:26 AM 

FAX: 210JUJY56'!{D KYLE 

CLERK 

HOUSTON OFFICE 

TEL: 713.225.7474 

FAX: 713.225.7494 

Via Electronic Filing 

Re: Court of Appeals Number 03-14-00671-CV; Trial Court Case Number D-1-GN14-002146; Stephen M Daniels v. Tony R. Bertolino 

Dear Clerk of the Court: 

I write in response to your letter dated January 22, 2015. In your letter, you indicated that 

a reporter's record was not taken in trial court case No. D-1-GN-14-002146. However, after 

further inquiry, an oral hearing did take place at the Trial Court of Travis County, Texas on 

September 30, 2014. 

We also found the court reporter that took the record for that hearing. Her name is Sheri 

Linder and she was the court reporter for a visiting judge, Judge Gus Strauss. Ms. Linder's 

contact information is P.O. Box 845, Lockhart, Texas, 78644, (512) 227-5001, and the cost for 

the transcript is $175.00. 

We also respectfully request that the Plaintiff, Stephen M. Daniels, obtain the transcript 

for the hearing held in this matter on May 13, 2014, in the District Court of Bexar County, Cause 

Number 2013CI19729. In that hearing, the Court Reporter was Kayleen Rivera and her phone 

number is (210) 335-2081, and the cost for the transcript is $140. 

I request that the Plaintiff-Appellant be required to make both transcripts part of the 

Appellate Court's file. 
,JU.HUUJ.J kt.~?kV l.J 

Page 2 

Respectfully, 

TRB/ra 

cc: Mr. Stephen M. Daniels (Via US. First Class Mail) 

Client file