                                                                                                 ACCEPTED
                                                                                             03-13-00498-CV
                                                                                                     5331204
                                                                                  THIRD COURT OF APPEALS
                                                                                             AUSTIN, TEXAS
                                                                                        5/18/2015 6:10:25 PM
                                                                                           JEFFREY D. KYLE
                                                                                                      CLERK
                                     No. 03-13-00498-CV

                                          In the                             FILED IN
                                                                      3rd COURT OF APPEALS
                                                                          AUSTIN, TEXAS
                     Third Court of Appeals                           5/18/2015 6:10:25 PM
                                                                        JEFFREY D. KYLE
                                                                              Clerk
                                        at Austin

                       RONNIE LAWSON AND LEAH LAWSON,
                                                        Appellants,
                                              v.

                   BENJAMIN KEENE, KRISTI KEENE,  
           GRETCHEN GAYLE GULLEKSON, DAYNA MARIE TWYMAN 
           AND KWI-8, L.L.C. D/B/A KELLER WILLIAMS REALTY ,
                                                        Appellees. 


                           On Appeal from the 200th District Court 
                                  of Travis County, Texas


                M OTION TO A MEND U NDER R ULE 38.7

 
TO THE HONORABLE COURT OF APPEALS:

                                              I.
         As mentioned in the Reply Brief,1 this motion to amend offers the

Court an additional path to reach the limitations issue, as it applies to the

claim for negligent misrepresentation.

1
    See Reply Br. 10-11.
                                     II.
     The statement of issues in the Appellants’ Brief encompasses all

grounds for summary judgment: “Was summary judgment proper on that

or other grounds?” See App’nt Br. xii (Issue 1). One of those grounds was

statute of limitations. In the trial court, that ground was presented against

two claims—DTPA and negligent misrepresentation. The Appellees argue

that the Lawsons’ opening brief waived limitations as to one of these

claims (negligent misrepresentation). The Reply Brief argues that, because

the issue was broadly framed and because the substantive arguments are

coextensive, the Appellants’ Brief in fact does preserve an appellate

challenge to limitations for both claims. See Reply Br. 10-11.

     By requesting a formal amendment, this motion offers an alternative

means to the same result. In re Lumbermens Mut. Cas. Co., 184 S.W.3d 718,

727 (Tex. 2006) (“our appellate rules empower the courts of appeals to

allow parties to amend or supplement their briefs whenever justice

requires”) (citing TEX. R. APP. P. 38.7); Majeed v. Hussain, 2010 Tex. App.

LEXIS 8477, at *29 (Tex. App.—Austin Oct. 22, 2010, no pet.) (granting a

Rule 38.7 amendment in the alternative, “to the extent there is any doubt”

about the requested relief being preserved).


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                                    III.
     The uncertainty arises because a heading and one sentence in the

Appellants’ Brief (at page 36) mention the DTPA claim but (erroneously)

do not mention the negligent-misrepresentation claim:

      III. The DTPA Claim Is Not Time Barred.

      The only other merits ground advanced in the traditional motion
      relates solely to the DTPA claim, challenging whether it is time-
      barred….

Notably, the quoted sentence is not describing the Lawsons’ argument.

Instead, it purports to describe the motion below—albeit erroneously. See

Appellants’ Br. 36 (discussing what the defendants “advanced in the

traditional motion”). Nothing in this introductory passage suggests that

the Lawsons were knowingly waiving a claim on appeal. To the contrary,

other portions of the same appellate brief are devoted to merits arguments

defending the very same claim. See Appellants’ Br. 33-36 & 46-48.

                                    IV.
     Substantively, the same two-year limitations period applies to both

claims. The passage that follows that mistaken introductory sentence

could apply equally to either claim, describing how the defendants failed to

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conclusively disprove the discovery rule in their traditional summary

judgment, citing testimony about when the claims were discovered.

Appellants’ Br. 36-38. Nonetheless, the Appellees urge the Court to limit

that substantive argument only to the DTPA claim—treating this passage

as, effectively, waiving a claim.

      Finding such a technical waiver does not serve the interests of

justice. And there is no prejudice to permitting the amendment. Indeed, as

the Appellees acknowledge, the limitations arguments they have briefed

for the DTPA apply equally to limitations for negligent misrepresentation.

See App’ee Br. 35 (“In any event, those [negligent-misrepresentation]

claims fail for the same reasons the DTPA claims were defeated…”).

                                           V.

      The motion under Rule 38.7 should be granted and, consistent with

that order, the statute-of-limitations argument within the Appellant’s Brief

should be deemed to extend to the negligent-misrepresentation claim.2




2
  The Court may choose to permit a specific amendment (such as simply adding “and
negligent misrepresentation” on page 36), or it may choose to treat this motion as
itself supplementing the original brief to make this substantive argument. E.g., Roper v.
CitiMortgage, Inc., 2013 Tex. App. LEXIS 14518, at *66 n.17 (Tex. App.—Austin Nov.
27, 2013, pet. denied) (under Rule 38.7, treating a motion as a supplemental brief).

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Respectfully submitted,

/s/ Don Cruse
 
Don Cruse
State Bar No. 24040744
LAW OFFICE OF DON CRUSE
1108 Lavaca Street, Suite 110-436
Austin, Texas 78701
[Tel.] (512) 853-9100
[Fax] (512) 870-9002
don.cruse@texasappellate.com

COUNSEL FOR APPELLANTS
  




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                    CERTIFICATE OF C ONFERENCE
     I conferred with counsel for the Appellees, who informed me that
the motion is opposed.

                                   /s/ Don Cruse
                                   Don Cruse




                        CERTIFICATE OF SERVICE
     I certify that on May 18, 2015, this Motion to Amend was served on
counsel of record electronically:

           D. Todd Smith
           SMITH LAW GROUP, P.C.
           1250 Capital of Texas Highway South
           Three Cielo Center, Suite 601
           Austin, Texas 78746
           Counsel for Appellees

                                   /s/ Don Cruse
                                   Don Cruse




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