                                                                                 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
                          gregg@ghtxlaw.com
                   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




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