- 1 - CAUSE NO. 04-15-00222- CV IN THE ESTATE OF § IN THE FOURTH COURT CARLOS AGUILAR, § OF APPEALS DECEASED § SAN ANTONIO, TEXAS

________________________________________________________________________ MOTION FOR RE HEARING

________________________________________________________________________ TO THE HONORABLE FOURTH COURT OF APPEALS: NOW COMES Clarissa Aguilar, as the sole surviving parent and Next Friend of Carlos Aguilar, Jr., Alyssa Aguilar, Andrew Aguilar, Marcus Aguilar, and Kaylee Aguilar, Minor Children (hereinafter “Movants”), and file the following Motion for Re hearing, and would show the following:
I. On June 4, 2015, this Honorable Court denied Appellee’s Motion for Sanctions. Appellees respectfully move the Court to reconsider this order because Appellees have now obtained a reporter’s record of sworn testimony from a court hearing on May 26, 2015, before the Honorable Jesus Garza. This record is attached to this motion and is filed in this
Court. This testimony shows beyond any reasonable doubt sanctions should issue . This testimony was not considered by this Honorable Court when it denied Appellee’s Motion for Sanctions because not yet available to be filed in this court. ACCEPTED 04-15-00222-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 6/17/2015 2:53:28 PM KEITH HOTTLE CLERK- 2

- II. On May 26, 2015, the Honorable Jesus Garza heard Movants’ Motion for Contempt against Vanessa Arce and Her Counsel , Balmer. David G. Balmer failed or refused to appear for the hearing

. Ryan Anderson did appear and gave sworn testimony concerning the frivolous appeal filed by David G. Balmer. Balmer filed the notice of appeal. He did this the day the discovery compelled by this order was due to be answered. Furthermore, Balmer refused to answer the discovery. Mr. Anderson testified Balmer filed the notice of appeal without first consulting Mr. Anderson, the appellate attorney for Vanessa Arce

. See RR at 14. Mr. Anderson admitted the trial court o rder Balmer purported to appeal concerned discovery issues. Id . at 16. Mr. Anderson agreed with this Honorable Court that no statute declares such an order appealable under th e Probate Code, and that the order does not appear that the order disposes of all parties or issues in a particular phase of the proceedings. Id . Mr. Anderson also agreed with this Honorable Court that no other statutory authority permitting a party to appeal from an interlocutory discovery order could be found. Id

. Mr. Anderson claim ed Balmer’s appeal was the wrong procedural mechanism to challenge the discovery order

. Id. at 17. Anderson also testified all responsive documents had been produced, leading one to q uestion why appellate intervention in a moot discovery dispute was warranted.- 3

- III. The Rules provide: If the court of appeals determines that an appeal is frivolous, it may -- on motion of any party or on its own initiative, after notice and a reasonable opportunity for
response -- award each prevailing party just damages. In determining whether to award damages, the court must not consider any matter that does not appear in the record, briefs, or other papers filed in the court of appeals. Tex. R. App. P. 45. E vidence shows Balmer’s appeal is frivolous. Less egregious appeals have merited sanctions. Mid

– Continent Cas. Co. v. Safe Tire Disp osal Corp. , 2 S.W.3d 393, 395 (Tex. App.

- San Antonio 1999, no pet.) ; Diana Rivera & Assocs. v. Calvillo , 986 S.W.2d 795, 799 (Tex. App.

— Corpus Christi 1999, pet. denied )

. Anderson testified all responsi ve documents had been produced. This can only mean there is no arguable basis for mandamus, appeal, or any conceivable appellate intervention. This Honorable Court ordere d Balmer to file in this court, on or before May 18, 2015 , a written response showing cause why his appeal should not be dismissed for want of jurisdiction. He chose to ignore this Honorable Court’s order and failed to file a
response . Objectively, all the evidence, as in 100% of the evidence, shows Balmer lacked any lawful basis to invoke this Court’s jurisdiction o ver this discovery dispute. No reason has been offered by Balmer for filing this notice of appeal or invoking this Court’s jurisdiction. This notice of appeal defines frivolity.- 4

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Movants have suffered damages as a result of Appella te Counsel ’s frivol ous appeal in this civil case and therefore request that this Honorable Court exercise its discretion to sanction Balmer $ 5 ,000 for the attorney’s fees and costs incurred in having to respond to the frivolous appeal filed by Balmer

. PRAYER For these reasons, Clarissa Aguilar, as the sole surviving parent and Next Friend of Carlos Aguilar, Jr., Alyssa Aguilar, Andrew Aguilar, Marcus Aguilar, and Kaylee Aguilar, Minor Children , ask s the appellate c ourt to assess sanctions against Balmer for $ 5 ,000 , and grant such other relief as the Cour t in fai rness deems appropriate in this situation. Respectfully submitted, BY: “/s/ Ronald Rodriguez” Ronald Rodriguez State Bar No. 00788306 ron@ronaldrodriguez.com Willard Clark State Bar No. 24087307 will@ronaldrodriguez.com The Law Offices of Ronald Rodriguez A Professional Corporation 915 Victoria Street Laredo, Texas 78040 Tel: (956) 796

- 1000 Fax: (956) 796

- 1002 CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing document has been served on all counsel of record on this June 1 7 , 201 5 , in accordance with the Texas Rules of Civil Procedure

. “/s/ Ronald Rodriguez”