Stephen M. Daniels v. Tony R. Bertolino ( 2015 )

ACCEPTED
03-14-00671-CV
4835287
THIRD COURT OF APPEALS
AUSTIN, TEXAS
4/9/2015 5:47:12 PM
JEFFREY D. KYLE
No.03-14-00671-CV
CLERK
FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
4/9/2015 5:47:12 PM
IN THE THIRD COURT OF ApPEALS
JEFFREY D. KYLE
AUSTIN, TEXAS Clerk
STEPHEN M. DANIELS,
Appellant,
v.
TONY R. BERTOLINO,
Appellee.
On Appeal from the 250 th Judicial District Court of Travis 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
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 DTPA 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
4Again, 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
5Appellant 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 complained-
of 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 ofAppeals
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 No-
Evidence 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
6These 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 DTPA 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 re-
litigation 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
F!LE COPY
COURT OF APPEALS
'T'TTTRD
i fill DISTRI"T
\...., 0"
T 'T'r' ALSO LICENSED TOP RACTICE LAW IN WEST VIRGINIA
j: "OF COUNSEl." TO THE FIRM
January 29, 2015
Court of Appeals Via Electronic Filing
Third District of Texas
P.O. Box 12547
Austin, Texas 78711-2547
Re: Court of Appeals Number 03-14-00671-CV; Trial Court Case Number D-1-GN-
14-002146; 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