Appeal No. 03-11-00420-CV 

___________________________________ 

In the Court of Appeals 

Third Judicial District

Austin, Texas

___________________________________ 

DAVID PENNY

 

Appellant,

v. 

EL PATIO, LLC D/B/A EL PATIO MOTEL, 

 Appellee.

__________________________________________________________ 

On Appeal from the 119th District Court

Tom Green County, Texas 

Cause No. B-09-0977-C 

___________________________________ 

SUPPLEMENTAL BRIEF OF APPELLANT

(Requested by Court during Oral Argument)

___________________________________ 

Greg Gossett

 GOSSETT, HARRISON, 

 MILLICAN & STIPANOVIC, P.C.

State Bar No.: 08225000 

 P.O. Drawer 911 

 San Angelo, TX 76902 

 (325) 653-3291 

Telecopier No. (325) 655-6838 

gregg@ghtxlaw.com 

 

ACCEPTED

03-11-00420-CV

4955693

THIRD COURT OF APPEALS

AUSTIN, TEXAS

4/20/2015 2:59:47 PM

JEFFREY D. KYLE

CLERK
IDENTITY OF PARTIES AND COUNSEL

Presiding Judge:

Honorable Ben Woodward

119TH District Court of Tom Green County, Texas

Parties to the judgment being appealed from:

David Penny, Appellant

El Patio, LLC d/b/a El Patio Motel, Appellee

Parties dismissed from appeal: The following parties have been dismissed from 

the appeal: Richard Cheroske, Blue Castle Property Management, LLC, 190 Orange 

Avenue and Jean Stanzick

Names and addresses of trial and appellate counsel:

Greg Gossett

P.O. Drawer 911

San Angelo, TX 76902

Texas State Bar No. 08225000

(Trial and Appellate Counsel for Appellant)

David Mirazo

100 North Stanton, Suite 1000

El Paso, TX 79901

Texas State Bar No. 24044610

(Trial Counsel for Appellee)

Stephen H. Nickey

1201 North Mesa, Suite B

El Paso, TX 79902

Texas State Bar No. 15014225

(Appellate Counsel for Appellee)
TABLE OF CONTENTS

Page

Identity of Parties and Counsel ii

Table of Contents iii

Reply to Issues Raised by Court 1

Prayer 4

Certification 5

Certificate of Service 5
INDEX OF AUTHORITIES

CASES Page

Metz v. Lake LBJ Mun. Util. Dist., 2002 Tex. App. 

LEXIS 7938, 2002 WL 31476887 (Tex. App. –

Austin 2002, no pet.) ....................................................... 2

Nolana Open MRI Ctr., Inc., v Pechero, 

2015 Tex App Lexis 1352 (Tex App. – Corpus Christi) ............... 3

State v. Evangelical Lutheran Good Samaritan Society,

981 S.W.2d 509 (Tex. App – Austin 1998, no pet.) .................... 1

STATUTE and RULES

TEX R. CIV. P. Rule 12 ..................................................... 2
REPLY TO ISSUE RAISED BY THE COURT

Does the Appellate Court review de novo the district court’s ruling regarding the 

Motion under Rule 12?

The authority of an attorney to represent a client before a court of law is 

jurisdictional. If a client has not authorized an attorney to represent the client, the 

orders and judgments of a court are not binding on the client.

There are two separate steps in analyzing the creation of a valid 

attorney/client relationship. First, is there statutory or judicial authority for the 

attorney to legally represent the client? Secondly, has the client in fact authorized 

the attorney to represent the client?

In State v. Evangelical Lutheran Good Samaritan Society, 981 S.W.2d 509 

(Tex. App – Austin 1998, no pet.), this court held that the issue as to statutory or 

judicial authority is a conclusion of law. In Evangelical Lutheran the defendant 

contended that the Texas Attorney General did not have statutory authority to

represent the Texas Department of Human Services in a suit regarding the operation 

of a nursing home. Since the issue before the Court involved conclusions of law 

(i.e. interpretation of statutes), the Appellate Court was entitled to review de novo

the District Court’s findings. 

1
“De novo” in the Appellate Court requires that there be no issue of fact. The 

Appellate Court can review all statutory or judicial authority and not just statutes or 

judicial opinions reviewed by the trial court. “De novo” in the appellate court is a 

different form of trial de novo than in the county court, which conducts a new trial 

of both evidence and authority. 

But after passing the first step was to whether there is any statutory or 

judicial authority, the challenged attorney must also establish that the attorney has 

in fact been properly engaged to represent the client.

Rule 12 expressly requires that the challenged attorney have “the burden of 

proof . . . to show sufficient authority to prosecute . . “ If there is a burden of proof 

and evidence required, it is not a situation of “conclusion of law” and therefore trial 

de novo” is not appropriate, as in the case at bar.

An interesting case which analyzes both the first step of statutory or judicial 

authority and the second step of actual engagement is Metz v. Lake LBJ Mun. Util. 

Dist., 2002 Tex. App. LEXIS 7938, 2002 WL 31476887 (Tex. App. – Austin 2002, 

no pet.). In Metz the attorney Johnson attempted to appeal a bill of review 

proceeding of a final judgment for delinquent taxes. Johnson claimed the status as

attorney/client under two separate relationships. First, Johnson claimed to be the 

attorney ad litem for Metz pursuant to trial court appointment and secondly, 

2
Johnson claimed to be the individual attorney for Metz by private engagement.

With regard as to authority to represent Metz as attorney ad litem, that issue 

is based on statutory or judicial authority. Testimony or evidence was not proper 

since this issue was based on prior trial court orders. It was a question of law and 

review de novo in the appellate court was proper. The record reflected that Johnson 

had been appointed attorney ad litem, moved to the State of Washington advising 

the trial court by letter, a new attorney ad litem was appointed and final judgment 

rendered. Since the lack of authority of Johnson was based on court orders, the trial 

court’s finding was a conclusion of law and the appellate court reviewed the 

decision de novo.

But with regard to the right of Johnson to represent Metz as his personal 

attorney, that issue is subject to second step and not reviewed de novo. The 

appellate court in Metz correctly stated that with regard to the authority of Johnson 

to represent Metz personally, it was Johnson’s “burden to show authority to 

represent appellant in the proceeding, she failed to produce any evidence that would 

support such authority.” Thus the trial court’s order of dismissal was affirmed. See 

Nolana Open MRI Ctr., Inc., v Pechero, 2015 Tex App Lexis 1352 (Tex App. –

Corpus Christi).

IN THE CASE AT BAR, the objection to lack authority was not based on 

3
any statutory or judicial prohibition. Thus it was not based on a conclusion of law 

and therefore review by de novo is not proper. Instead, appellant’s motion for lack 

of authority was based on the fact that El Patio had never properly engaged the trial 

attorney and as no evidence was introduced to support such authority, the motion to 

dismiss should have been granted. 

PRAYER

WHEREFOR PREMISES CONSIDERED, for the foregoing reasons, 

Appellant David Penny prays as is set out in Appellant’s Brief.

Respectfully submitted,

 GOSSETT, HARRISON, 

MILLICAN & STIPANOVIC, P.C.

P.O. Drawer 911

San Angelo, TX 76902

(325) 653-3291; Telecopier No. (325) 655-6838

By__/ss/Greg Gossett________

Greg Gossett, State Bar No. 08225000

ATTORNEYS FOR APPELLANT

4
CERTIFICATE OF SERVICE

A true and correct copy of the foregoing brief has been both emailed and mailed 

by certified or registered mail, properly addressed, return receipt requested, in a 

postpaid envelope deposited with the United States Postal Service this 20th day of 

April, 2015, to the following, to-wit:

Stephen H. Nickey

1201 North Mesa, Suite B

El Paso, TX 79902

Texas State Bar No. 15014225

(Appellate Counsel for Appellee)

____/ss/ Greg Gossett_________

Greg Gossett

CERTIFICATE OF COMPLIANCE

I hereby certify that the above and foregoing Appellant’s Brief has been 

prepared and typed in 14 point font, footnotes are typed in 12 point font, and 

conforming with the inclusions and exceptions in Rule 9.4, the word count is 1,174.

__/ss/ Greg Gossett___________ 

Greg Gossett

5