Motion for New Trial in ISAAC SAGREDO VS. MARCELLA SOLANO AND JOHNATHAN BALL| Trellis.Law

On November 16, 2020 a Exhibit,Appendix was filed involving a dispute between Sagredo, Isaac, and Solano, Marcella, for Contract - Other Contract (OCA) in the District Court of Hidalgo County.

Preview
Electronically Filed
3/24/2023 2:49 PM
Hidalgo County District Clerks
Reviewed By: Adrienne Rocha

CAUSE NO. C-3976-20-H

ISAAC SAGREDO, § IN THE 389TH JUDICIAL
Plaintiff §
§
vs. §
§ DISTRICT COURT
§
JOHNATHAN BALL, §
Defendant. § HIDALGO COUNTY, TEXAS

DEFENDANT JOHNATHAN BALL’S RESPONSE AND OBJECTION TO
PLAINTIFF’S MOTION FOR NEW TRIAL AND REQUEST FOR SANCTIONS

Now comes Johnathan Ball and files the above-entitled Response and Objection and

Request for Sanctions and would respectfully show the court as follows:

This Motion for New Trial is late. The trial court’s plenary power ends after 30 days unless
a timely motion for new trial is filed. No such motion was timely filed.

Plaintiff filed a Motion for New Trial on or about March 23, 2023. See Exhibit A. This

motion for new trial appeals the courts Judgment dismissing the frivolous, baseless and

malpractice laden lawsuit brought by Plaintiff and his counsel against Defendant Ball. The tardy

Motion for New Trial states “Judgment was entered against Isaac Sagredo on February 17, 2023.”

Some basic math skills would have gone a long way towards revealing 30 days has lapsed from

the date the Court signed the Judgment, and the date the Motion for New Trial was filed. See

Exhibit B, judgment signed by Court.
Electronically Filed
3/24/2023 2:49 PM
Hidalgo County District Clerks
Reviewed By: Adrienne Rocha

Statute and caselaw are clear, this motion is untimely, and the court is without plenary

power to even consider it.

Tex. R. Civ. P. 329b states: “The following rules shall be applicable to motions for new

trial and motions to modify, correct, or reform judgments (other than motions to correct the record

under Rule 316) in all district and county courts:”

Tex. R. Civ. P. 329b(c) is even more specific: “In the event an original or amended motion

for new trial or a motion to modify, correct or reform a judgment is not determined by written

order signed within seventy-five days after the judgment was signed, it shall be considered

overruled by operation of law on expiration of that period.”

A trial court retains jurisdiction over a case for a minimum of thirty days after signing a

final judgment. Tex.R.Civ.P. 329b(d). During this time, the trial court has plenary power to change

its judgment. Check v. Mitchell, 758 S.W.2d 755, 756 (Tex. 1988). The period of plenary power

may be extended, however, by timely filing an appropriate postjudgment motion. Thus, the filing

of a motion for new trial, Tex.R.Civ.P. 329b(e), or a motion to modify, correct or reform the

judgment, Tex.R.Civ.P. 329b(g), within the initial thirty-day period extends the trial court's

jurisdiction over its judgment up to an additional seventy-five days, depending on when or whether

the court acts on the motions. Philbrook v. Berry, 683 S.W.2d 378, 379 (Tex.

1985); Tex.R.Civ.P. 329b(c).

A request for findings of fact and conclusions of law. In re Gillespie, 124 S.W.3d at 703;

Pursley v. Ussery, 982 S.W.2d 596, 599 (Tex. App.—San Antonio 1998, pet. denied). Note,
Electronically Filed
3/24/2023 2:49 PM
Hidalgo County District Clerks
Reviewed By: Adrienne Rocha

however, that a request for findings, if required or properly considered by an appellate court, will

extend the appellate timetables. TEX. R. APP. P. 26.1(a)(4).

In re Gillespie, 124 S.W.3d 699, 703 (Tex. App. 2004) explains why a request for findings

of fact and conclusions of law is meaningless in extending deadlines.

“A request for findings of fact and conclusions of law does not seek a substantive change

in the judgment. This was recognized in Pursley v. Ussery, 982 S.W.2d 596,

599 (Tex.App.-San Antonio 1998, pet. denied), in which the San Antonio Court of Appeals

held that a request for findings and conclusions does not extend the trial court's plenary

power. In reaching this conclusion, the Pursley court first noted that a request for findings

and conclusions is not included in Rule 329b as one of the post-judgment motions that

extends a trial court's plenary power. Id. The court also observed that, because Rule 329b

does not mention a request for findings and conclusions, many prominent commentators

have concluded that a trial court's plenary power is not extended by requests for findings

of fact and conclusions of law. Id. (citing to Elaine A. Carlson, Perfecting the Civil Appeal

to the Courts of Appeals in Jury and Nonjury Cases, in Matthew Bender Southern

Methodist Univ. School of Law, Practicing Law Under the New Rules of Trial and

Appellate Procedure at 7-21 (Nov. 7-8, 1997); Ann Crawford McClure Richard D.

Orsinger, Are Non-Jury Trials Ever "Appealing"? Attacking and Defending Judgments

From Non-Jury Trials, in State Bar of Texas 12th Annual Advanced Civil Appellate

Practice Course at I-10 (Sept. 1998)).”)” “Guided by these authorities and the plain

language of Rule 329b, we conclude that a trial court's plenary power is extended by the

timely filing of (1) a motion for new trial; (2) motion to vacate, modify, or correct the
Electronically Filed
3/24/2023 2:49 PM
Hidalgo County District Clerks
Reviewed By: Adrienne Rocha

judgment; or (3) any motion seeking a substantive change in the court's judgment. See

Lane, 10 S.W.3d at 313. This does not include, however, a request for findings of fact and

conclusions of law. See Pursley, 982 S.W.2d at 599.”) In re Gillespie, 124 S.W.3d 699,

703 (Tex. App. 2004) .

This court is without power to grant this motion for new trial as it is not timely.

II.

The Trial Court’s Order is Not Void

In their untimely filed Motion for New Trial, the Plaintiff and his counsel try to argue that

because the Rule 91a hearing was held in Brownville, as opposed to Edinburg, the Order is void.

This is wrong and just par for the course with Plaintiff and his counsel.

Judge Rincones was assigned as the judge in this case when the first two judges hearing

this case recused themselves. Judge Rincones is a sitting district judge in Cameron County. Judge

Rincones was appointed by the presiding judge of the district preside over the frivolous, baseless

and malpractice laden lawsuit filed by Plaintiff and his attorney against Defendant Ball. A Rule

91a motion was filed. The judge held a hearing on the rule 91a motion in Brownsville. All the

parties attended. No one, ever, not once, objected to the case being heard in Brownsville. In fact,

Ms. Klein called and advised the court that she would be running late to the hearing because of

traffic. It was not until after the hearing was held, and the Rule 91a motion was granted, that Klein

and Sagredo first asserted their bogus void order theory.
Electronically Filed
3/24/2023 2:49 PM
Hidalgo County District Clerks
Reviewed By: Adrienne Rocha

Tex. Gov't Code § 74.094 (e) states: A judge who has jurisdiction over a suit pending in

one county may, unless objected to by any party, conduct any of the judicial proceedings

except the trial on the merits in a different county (emphasis added).

Under article V, section 7 of the Texas Constitution, a district court "shall

conduct its proceedings at the county seat of the county in which

the case is pending, except as otherwise provided by law." TEX. CONST. art. V, § 7; see also

TEX. GOV'T CODE ANN. § 74.094(e) ("A judge who has jurisdiction over a suit pending in

one county may, unless objected to by any party, conduct any of the judicial proceedings

except the trial on the merits in a different county."). In re Zaraienh, No. 13-16-00465-CV, at *9

(Tex. App. June 6, 2018)

In cases filed after September 1, 1999, the restriction imposed by the "county seat"

requirement contained in article V, section 7 is somewhat liberalized by section 74.094(e) of the

Texas Government Code, which provides that "[a] judge who has jurisdiction over a

suit pending in one county may, unless objected to by any party, conduct any of the

judicial proceedings except the trial on the merits in a different county." Tex. Gov't Code Ann. §

74.094(e) (Vernon Supp. 2002). See Acevedo v. Comm. for Law, 131 S.W.3d 99, 103 (Tex. App.

2004) See also Stewart, Cox & Hatcher, P.C. v. Ford Motor Co., 350 S.W.3d 369, 374 (Tex. App.

2011) (“I.F.'s next friend, by filing suit on I.F.'s behalf in a district court in Orange County, gave

the trial court jurisdiction over her person. See Gracia v. RC Cola–7–Up Bottling Co., 667 S.W.2d

517, 519 (Tex.1984) (“In a suit by a ‘next friend,’ the real party plaintiff is the child and not the

next friend.”). By filing suit in district court, I.F. gave the district court of Orange County subject-

matter jurisdiction to adjudicate her claims for her own personal injuries and for the wrongful
Electronically Filed
3/24/2023 2:49 PM
Hidalgo County District Clerks
Reviewed By: Adrienne Rocha

death of her father. See Tex. Const. art. V, § 8 (constitutional grant of jurisdiction to district

courts); Tex. Gov't Code Ann. §§ 24.007, .008 (West 2004) (statutory grant of jurisdiction

to district courts). Moreover, Texas law provides a trial judge who possesses jurisdiction the

power, in the absence of an objection, to conduct “any of the judicial proceedings[,]” and to “hear

and determine a matter pending in [the] district[.]” Tex. Gov't Code Ann. § 74.094(a), (e) (West

2005).”)

A general prerequisite to presenting a complaint for appellate review is that the record

shows a timely request to the trial court and either a ruling from the court or a refusal to rule,

accompanied by an objection to that refusal.” Tex. Tax Sols., LLC v. City of El Paso, 593 S.W.3d

903, 912 (Tex. App.—El Paso 2019, no pet.); accord Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161,

164 (Tex. 2018) (“To preserve a complaint for appellate review, a party must (1) complain to the

trial court by way of ‘a timely request, objection, or motion; and (2) the trial court must rule or

refuse to rule on the request, objection, or motion.’”); In Interest of C.F.M., No. 05-16-00285-CV,

2018 WL 1704202, at *3 (Tex. App.—Dallas Apr. 9, 2018, pet. denied) (“To preserve error, a

party must make a timely request, objection, or motion stating the grounds for the ruling sought

and obtain a ruling on the request, objection, or motion or object to the trial court’s failure to rule.”)

Simply put, they failed. Plaintiff failed to preserve any objection. They failed to raise it

timely. As such, it is waived.

III.

The Attorneys Fees Were More than Proved Up and Were Reasonable
Electronically Filed
3/24/2023 2:49 PM
Hidalgo County District Clerks
Reviewed By: Adrienne Rocha

The trial court, following its granting of the 91a motion, awarded attorney’s fees to

Defendant Ball. The trial court awarded $8,375.00 in attorney’s fees. Defendant Ball submitted an

affidavit in support of his request for attorney’s fees. See Exhibit C. Defendant Ball requested

$14, 375.00 in attorney’s fees. The court cut the requested amount by approximately 42%.

Exhibit C provides a very clear, detailed description of work done, dates the work was done, time

spent doing the work, and even explaining how there was no double billing or overlapping charges.

All components of the lodestar method were complied with.

The courts have explained that the lodestar method of calculating attorney's fees involves

two steps: (1) the court first determines the reasonable number of hours spent by counsel in the

case and a reasonable hourly rate for such work; and (2) the court then multiples the number of

such hours by the applicable rate, which yields the lodestar, which may then be adjusted up or

down to reach a reasonable fee for the case. Id. at 760. The courts held that a party seeking

attorney's fees when the lodestar method is used "bears the burden of documenting the hours

expended on the litigation and the value of those hours." Id. at 761. Schimmel v. McGregor, No.

01-13-00721-CV, at *34 (Tex. App. July 10, 2014). Exbibit C provides the explanation.

Further, Texas courts have not required billing records or other documentary evidence to

substantiate a claim for attorney's fees. Id. at 762; see, e.g., Tex. Commerce Bank, Nat'l Ass'n

v. New, 3 S.W.3d 515, 517-18 (Tex. 1999) (per curiam) (recognizing attorney's affidavit to be

sufficient support for award of fees in default judgment); Save Our Springs Alliance, Inc. v. City

of Dripping Springs, 304 S.W.3d 871, 892-93 (Tex. App.—Austin 2010, pet. denied) (accepting

affidavit testimony detailing legal work and rates); In re A.B.P., 291 S.W.3d 91, 99 (Tex. App.—

Dallas 2009, no pet.) (documentary evidence is not prerequisite to award of attorney's
Electronically Filed
3/24/2023 2:49 PM
Hidalgo County District Clerks
Reviewed By: Adrienne Rocha

fees); Schlager v. Clements, 939 S.W.2d 183, 191-93 (Tex. App.—Houston [14th Dist.] 1996, writ

denied) (holding failure to produce documentary evidence would affect weight of attorney's

testimony regarding fees rather than its admissibility). Arcturus Corp. v. Espada Operating, LLC,

No. 13-13-00713-CV, at *29 (Tex. App. Aug. 11, 2016).

To recap, this motion for new trial was not timely filed. As such, the court is without

plenary power to reform, modify or set aside its judgment. Secondly, the Order/Judgment is not

void as the could had authority to hear the case in Brownsville, and did so, without objection. The

lodestar method was met and the attorney’s fees are reasonable.

Request for Sanctions

On October 26, 2022, this Court heard Defendant Ball’s Motion for Dismissal Pursuant to

Rule 91a. The Court granted Defendant’s Rule 91a motion and missed the frivolous and baseless

lawsuit brought against him based on actions taken in accordance with his role as a custody

attorney. As shown below, opposing counsel has a long and well documented history of being an

abusive litigator, filing frivolous lawsuits, filing frivolous motions, engaging in scorched earth

litigation, conducting herself in violation of the rules of professional conduct and generally

tarnishing the image of lawyers. This Motion for New Trial is untimely. There are zero exceptions

that allow a motion for new trial to be filed after 30 days. See TRCP 5 & 329b. Even a cursory

inspection of the statutes and caselaw would have shown that.

I. CIVIL PRACTICE AND REMEDIES CODE
Electronically Filed
3/24/2023 2:49 PM
Hidalgo County District Clerks
Reviewed By: Adrienne Rocha

Texas Civil Practice and Remedies Code states:

SANCTIONS FOR FRIVOLOUS PLEADINGS AND MOTIONS

Sec. 10.001. SIGNING OF PLEADINGS AND MOTIONS. The signing of a pleading
or motion as required by the Texas Rules of Civil Procedure constitutes a certificate by the
signatory that to the signatory's best knowledge, information, and belief, formed after
reasonable inquiry:
(1) the pleading or motion is not being presented for any improper purpose,
including to harass or to cause unnecessary delay or needless increase in the cost of litigation;
(2) each claim, defense, or other legal contention in the pleading or motion
is warranted by existing law or by a nonfrivolous argument for the extension, modification,
or reversal of existing law or the establishment of new law;

(3) each allegation or other factual contention in the pleading or motion has
evidentiary support or, for a specifically identified allegation or factual contention, is likely
to have evidentiary support after a reasonable opportunity for further investigation or
discovery; and
(4) each denial in the pleading or motion of a factual contention is warranted on
the evidence or, for a specifically identified denial, is reasonably based on a lack of information
or belief.

Sec. 10.002. MOTION FOR SANCTIONS. (a) A party may make a motion for
sanctions, describing the specific conduct violating Section 10.001.

(b) The court on its own initiative may enter an order describing the specific conduct
that appears to violate Section 10.001 and direct the alleged violator to show cause why the
conduct has not violated that section.

(c) The court may award to a party prevailing on a motion under this section the
reasonable expenses and attorney's fees incurred in presenting or opposing the motion, and
if no due diligence is shown the court may award to the prevailing party all costs for
inconvenience, harassment, and out-of-pocket expenses incurred or caused by the subject
litigation.
Electronically Filed
3/24/2023 2:49 PM
Hidalgo County District Clerks
Reviewed By: Adrienne Rocha

Sec. 10.003. NOTICE AND OPPORTUNITY TO RESPOND. The court shall provide
a party who is the subject of a motion for sanctions under Section 10.002 notice of the
allegations and a reasonable opportunity to respond to the allegations.

Sec. 10.004. VIOLATION; SANCTION. (a) A court that determines that a
person has signed a pleading or motion in violation of Section 10.001 may impose a
sanction on the person, a party represented by the person, or both.
(b) The sanction must be limited to what is sufficient to deter repetition of the
conduct or comparable conduct by others similarly situated.

(1) a directive to the violator to perform, or refrain from performing, an act;
(2) an order to pay a penalty into court; and
(3) an order to pay to the other party the amount of the reasonable expenses
incurred by the other party because of the filing of the pleading or motion, including reasonable
attorney's fees.

(d) The court may not award monetary sanctions against a represented party for a
violation of Section 10.001(2).

(e) The court may not award monetary sanctions on its own initiative unless the court
issues its order to show cause before a voluntary dismissal or settlement of the claims made by or
against the party or the party's attorney who is to be sanctioned.

Also, pursuant to Texas Rule of Civil Procedure 13, Defendant Ball seeks substantial
sanctions against Plaintiff and his attorney. Rule 13 states as follows:

RULE 13. EFFECT OF SIGNING PLEADINGS, MOTIONS AND OTHER PAPERS;
SANCTIONS The signatures of attorneys or parties constitute a certificate by them that
they have read the pleading, motion, or other paper; that to the best of their knowledge,
information, and belief formed after reasonable inquiry the instrument is not groundless
and brought in bad faith or groundless and brought for the purpose of harassment.
Attorneys or parties who shall bring a fictitious suit as an experiment to get an opinion of
Electronically Filed
3/24/2023 2:49 PM
Hidalgo County District Clerks
Reviewed By: Adrienne Rocha

the court, or who shall file any fictitious pleading in a cause for such a purpose, or shall
make statements in pleading which they know to be groundless and false, for the purpose
of securing a delay of the trial of the cause, shall be held guilty of a contempt. If a pleading,
motion or other paper is signed in violation of this rule, the court, upon motion or upon its
own initiative, after notice and hearing, shall impose an appropriate sanction available
under Rule 215-2b, upon the person who signed it, a represented party, or both. Courts
shall presume that pleadings, motions, and other papers are filed in good faith. No sanctions
under this rule may be imposed except for good cause, the particulars of which must be
stated in the sanction order. "Groundless" for purposes of this rule means no basis in law
or fact and not warranted by good faith argument for the extension, modification, or
reversal of existing law. A general denial does not constitute a violation of this rule. The
amount requested for damages does not constitute a violation of this rule

This Motion for new trial is completely without merit. Putting aside the fact that the order

is not void and the attorney’s fees are reasonable, the motion for new trial is not timely. The

filing of this motion is frivolous.

This Court should impose immediate sanctions on opposing counsel.

Wherefore, premises considered, Defendant prays this court grant all the relief requested

herein.

Respectfully submitted,

Johnathan Ball Attorney
7022 N. 1st Lane
McAllen, Texas 78504
Tel:(956) 501-6565
Fax:(956) 928-9576
Email: johnballattorney@gmail.com
Email: burnettaranda@gmail.com

/s/Johnathan Ball_______________
Johnathan Ball
State Bar No. 24045443
Attorney for Defendant
Electronically Filed
3/24/2023 2:49 PM
Hidalgo County District Clerks
Reviewed By: Adrienne Rocha

CERTIFICATE OF SERVICE

I certify that a true copy of the above was served on attorney of record or party in

accordance with the Texas Rules of Civil Procedure on March 24, 2023, to Katie Pearson Klein

via email: office@daleklein.com:

/s/ Johnathan Ball
Johnathan Ball, Defendant and
Attorney for Defendant
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.

Johnathan Ball
Bar No. 24045443
johnballattorney@gmail.com
Envelope ID: 73999339
Filing Code Description: Motion (No Fee)
Filing Description: DEFENDANT JOHNATHAN BALL’S RESPONSE AND
OBJECTION TO PLAINTIFF’S MOTION FOR NEW TRIAL AND
REQUEST FOR SANCTIONS
Status as of 3/24/2023 3:40 PM CST

Associated Case Party: Isaac Sagredo

Name BarNumber Email TimestampSubmitted Status

KATIE KLEIN OFFICE@DALEKLEIN.COM 3/24/2023 2:49:08 PM SENT

Associated Case Party: Johnathan Ball

Name BarNumber Email TimestampSubmitted Status

JOHNATHAN BALL BURNETTARANDA@GMAIL.COM 3/24/2023 2:49:08 PM SENT

Case Contacts

Name BarNumber Email TimestampSubmitted Status

DALE KLEIN OFFICE@DALEKLEIN.COM 3/24/2023 2:49:08 PM SENT

Johnathan Ball johnballattorney@gmail.com 3/24/2023 2:49:08 PM SENT

ROBBIE FLORES OFFICE@FLORESLAW.NET 3/24/2023 2:49:08 PM SENT

Case Info

Judge

Lopez, Letty Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

March 24, 2023

Case Filing Date

November 16, 2020

County

Parties

For full print and download access, please subscribe at https://www.trellis.law/.

Exhibit,Appendix: ISAAC SAGREDO VS. MARCELLA SOLANO AND JOHNATHAN BALL

Preview

Related Topics

Case Info

Parties