ACCEPTED 03-11-00420-CV 4955693 THIRD COURT OF APPEALS AUSTIN, TEXAS 4/20/2015 2:59:47 PM April 20, 2015 JEFFREY D. KYLE CLERK

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 [email protected] 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 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.

“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, 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 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

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