ACCEPTED

03-11-00420-CV

4949300

THIRD COURT OF APPEALS

AUSTIN, TEXAS

4/20/2015 11:22:15 AM

JEFFREY D. KYLE

CLERK

COURT OF APPEALS 

. THIRD DISTRICT OF TEXAS 

AUSTIN, TEXAS 

NO. 03-11-00420-CV 

DAVID PENNY, 

Appellant, 

vs. 

EL PATIO, LLC d/b/a EL PATIO MOTEL 

Appellee. 

LEITER BRIEF OF APPELLEE EL PATIO, LLC d/b/a EL PATIO MOTEL 

Stephen H. Nickey 

State Bar ID No. 15014225 

sn ickey@n ickeylaw .com 

The Law Offices of Stephen H. Nickey, P.C. 

1201 North Mesa Suite B 

EIPaso, Texas79902 

(915) 351-6900 

(915) 351-6901 fax 

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 4/20/2015 11:22:15 AM JEFFREY D. KYLE Clerk
Standard of Review 

At oral argument held in San Angelo, Texas, Chief Justice Rose asked the 

parties to brief whether the standard of review was De Novo or abuse of 

discretion. The correct standard of review is abuse of discretion. The Texas 

Supreme Court reviewed a trial court's ruling on a motion to show authority 

applying an abuse of discretion standard in Urbish v. 127th Judicial Dist. Court, 

708 S.W.2d 429 (Tex. 1986). The Dallas Court of Appeals followed Urbish and 

reviewed a Rule 12 motion under abuse of discretion in R.H. v. Smith, 339 S.W.3d 

756 (Tex.App.-Dallas 2011, no pet.). One year later, the San Antonio Court of 

Appeals followed Urbish and Smith and applied abuse of discretion to its review of 

a trial court's ruling on a motion to show authority. See In re Guardianship of 

Benavides, 403 S.W3d 370, 373 (Tex.App.-San Antonio 2013, no pet.). Even 

more recently, the Houston and the Corpus Christi Courts of Appeals have 

followed Urbish, Smith and Benavides and adopted an abuse of discretion 

standard for reviewing a ruling on a Rule 12 motion. See In re Old Am. County 

Mutual Fire Ins. Co., No. 13-13-00644-CV (Tex.App.-Corpus Christi April 23, 2014, 

orig. proceeding); Tanner v. Black, No. 01-13-01059-CV, 2015 WL 1122945 

(Tex.App.-Houston [1st Dist.] March 12, 2015, no pet.). Abuse of discretion is the 

correct standard of review, among other things, because ''when making a 

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determination under rule 12, trial courts consider and weigh the evidence 

presented." Benavides, 403 S.W.3d at 376 (citing Smith, 339 S.W.3d at 762-63}. 

As such, to succeed on appeal, the appellant is ((required to establish that the trial 

court could have reached only one decision on the motion to show authority." 

/d. at 377. 

There is contrary but reconcilable authority. The Austin Court of Appeals 

applied a de novo standard of review to a ruling on a Rule 12 motion in Metz v. 

Lake LBJ Municipal Utility Dist., No. 13-01-00312-CV, 2002 WL 31476887 

(Tex.App.-Austin Nov. 7, 2002, no pet.}. Without considering Urbish or its 

progeny, the Court stated that, ((The district court's finding that _an attorney lacks 

authority to file or maintain a suit is a conclusion of law ... ," and, u[a]s a conclusion 

of law, we review de novo the district court's findings." /d. at *3. The Court cited 

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

(Tex.App.-Austin 1998, no pet.} for this proposition, which in turn relies on Golf 

Reg'/ Educ. Television v. University of Houston, 746 S.W.2d 803 (Tex.App.-

Houston [14th Dist.] 1988, writ denied}. However, neither of the three cases 

addressed Urbish and they are therefore contrary to Texas Supreme Court 

precedent. Further, the holdings in Metz, Evangelical and Golf can be reconciled 

with Urbish, Smith and Benavides. For example, the court in Metz found that the 

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attorney had failed to appear at the hearing on the motion to show authority and 

therefore did not meet his burden under Rule 12. Metz, 2002 WL 3147688 at *4. 

The court noted that the trial court had taken judicial notice of evidence 

presented in the underlying proceeding, but the court did not conduct a de novo 

review of such evidence. /d. The court in Evangelical applied a de novo standard 

of review, because the Rule 12 motion in that case turned on purely legal 

question. The question before the court was whether the Texas Attorney General 

had the statutory authority to enforce Chapter 242 of the Texas Health and Safety 

Code. See Evangelical, 981 S.W.2d at 511-12. De novo review of purely legal 

questions is consistent with abuse of discretion review. See Old American, 2014 

WL 1633098 at *6 ("A trial court also abuses its discretion by failing to analyze or 

apply the law correctly.") (citing Lliff v. Lliff, 339 S. W.3d 74 (Tex. 2011)). Finally, 

the Court in Gulf did not address the standard of review in a Rule 12 motion and 

instead gave deference to the fact findings of the trial court similar to an abuse of 

discretion analysis. See Gulf, 746 S.W.2d at 808-09 (reviewing the evidence 

before the trial court and concluding that "[w]ithout an exhaustive analysis, we 

find support for the trial court's conclusions."). As such, the correct standard of 

review of a trial court's ruling on a Rule 12 motion is abuse of discretion. 

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Evidence attached to El Patio's Response to Motion to Show Authority 

The Court asked during oral argument whether El Patio had filed any 

evidence with its original response to the motion to show authority. Counsel 

advised the Justices that he was not sure at oral argument and in an abundance of 

caution, El Patio hereby directs to the Court to the record citations for such 

evidence. El Patio filed its Response on November 1, 2010. CR 700-709. El Patio 

attached to its Response the affidavit of Steven Hyde (CR 710-718), which in turn 

included multiple exhibits, such as the Operating Agreement (CR 719-734} and the 

three unanimous consents (CR 754-765} . 

Respectfully Submitted, 

The Law Offices of Stephen H. Nickey P.C. 

1201 N. Mesa Suite B 

El Paso, Texas 79902 

(915} 351-6900 

(915} 35106901 

snickey@ nickeylaw.com 

/s/ Stephen H. Nickey 

Attorneys for Appellee, 

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

CERTIFICATE OF SERVICE 

I, Stephen H. Nickey, hereby certify that on this 20th day of April, 2015, the 

foregoing letter brief was electronically filed with the Clerk of the Court using the 

e-filing system provider, which will provide notice to lead counsel for Appellant, 

Greg Gossett, Esq. (gregg@ghtxlaw.com) and all other counsel of record. 

/sf Stephen H. Nickey 

Stephen H. Nickey 

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