Appeal No. 03-11-00420- CV

___________________________________

In the Court of Appeals

Third Judicial District

Austin , Texas

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D AVID P ENNY

Appellant,

v.

E L P ATIO

, LLC D / B / A E L P ATIO M OTEL

,

Appellee.

__________________________________________________________

On Appeal from the 119 th District Court

Tom Green County, Texas

Cause No. B- 09

- 0977 -C

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SUPPLEMENTAL BRIEF OF APPELLANT

(Requested by Court during Oral Argumen t)

___________________________________

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

CLERKID ENTITY OF PARTIES AND COUNSEL

Presiding Judge:

Honorable Ben Woodward

119 TH 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 Angel o, TX 76902

Texas State Bar No. 08225000

(Trial and Appellate Counsel for Appellant)

David Mirazo

100 North Stanton , Suite 1 000

El Paso, TX 79901

Texas State Bar No. 24044610

(Trial Counsel for Appellee)

Stephen H. Nickey

1201 North Mesa , Suite B

El P aso, 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 5INDEX OF AUTHORITIES

CASES Page

Metz v. Lake L BJ 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,

98 1 S.W.2d 509 (Tex. App

– Austin 1998, no pet.)

... ... ... ... ... ... .. 1

STATUTE and RULES

TEX R. CIV. P. Rule 12

... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .. 2REPLY 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 b efore 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/clien t relationship. First, is there statutory or judicial authority for the

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

the attorney to represent the client ?

In State v. Evangelical Lutheran Good Samaritan Society, 98 1 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 Di strict Court’s findings.

1“ D e novo” in the Appellate Court requires that there be no issu e of fact

. T he

Appellate C o urt can review all statutory or judicial authority and not just statutes or

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

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

of both evidence and authority.

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

judicial authority, the challenged attorn ey 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

authorit y and the second step of actual e ngagement is Metz v. Lake L BJ 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 re lationships. First, Johnson claimed to be the

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

2Johnson 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

s ince this issue was based on prior trial court orders

. It was a quest ion 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 ju dgment

rendered. Since the lack of authority of Johnson was based on court orders, th e 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 per sonal

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 a ppellant 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 TH E CASE AT BAR, the objection to lack authority was not based on

3any statutory or judicial prohibition

. Thus i t 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 base d on the fact that El Patio had never proper ly 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,

Appella nt David Penny pray s 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

B y__ /ss/Greg Gossett

________ Greg Gossett

, State Bar No. 08225000

ATTORNEYS FOR APPELLANT

4CERTIFICATE OF SERVICE

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

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

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

April , 201 5 , to the following, to

- wit:

Stephen H. Nickey

1201 North Mesa , Suite B

El Paso, TX 79902

Texas State Bar No. 1 5014225

(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 Ru le 9.4, the word count is 1,1 7 4

.

__ /ss/ Greg Gossett

___________ Greg Gossett

5