                                                                                      ACCEPTED
                                                                                  03-11-00420-CV
                                                                                          5695066
                                                                       THIRD COURT OF APPEALS
                                                                                  AUSTIN, TEXAS
                                                                             6/16/2015 1:27:40 PM
                                                                                JEFFREY D. KYLE
                                                                                           CLERK


                      Appeal No. 03-11-00420-CV
                ___________________________________               FILED IN
                                                           3rd COURT OF APPEALS
                                                               AUSTIN, TEXAS
                        In the Court of Appeals            6/16/2015 1:27:40 PM
                         Third Judicial District             JEFFREY D. KYLE
                             Austin, Texas                         Clerk

                ___________________________________

                               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
                ___________________________________

                     MOTION FOR REHEARING

                ___________________________________

                     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
      TO THE HONORABLE COURT OF APPEALS:

            NOW COMES David Penny, Appellant herein, and files the following

motion for rehearing:

                        POINTS RELIED ON FOR REHEARING

1.          The Court of Appeals erred in holding that “(a)fter an initial hearing

on the issue, the district court found that Mirazo had authority to prosecute…” At

the Rule 12 hearing on November 2, 2010, Mirazo did not call any witness, did not

introduce any testimony nor introduce any evidence, but merely relied on oral

argument (RR-Nov). The presiding judge stated that evidence was necessary under

Rule 12 (RR-Nov 45:18-20; Appendix #5). So at the November 2 Rule 12 hearing

the trial court expressly stated that evidence of authority was necessary, but Mirazo

had not produced any at that point. Then later that same day and without receiving

any new evidence the Trial Court summarily overruled the Rule 12 Motion.

            If the challenged attorney fails to show authority at the hearing, Rule

12 states that the Court shall refuse to permit the attorney to appear and shall

strike the pleadings. It is mandatory and there is no discretion. The subsequent

hearings were not rehearings of this issue, but hearings on Appellant’s Motion to

set aside the order denying the motion under Rule 12.

            Assuming for the sake of argument that Hyde had authority either as

manager or under the Operating Agreement to authorize litigation, at the hearing
on November 2, 2010, Mirazo did not introduce any testimony nor introduce any

evidence, that Hyde had authorized him to prosecute this case. To avoid the

requirements of Rule 12, the Court of Appeals then creates a new jurisdiction, the

right to conduct trials de novo and look outside the evidence (or lack thereof) at the

Rule 12 hearing to discover other evidence that would support the otherwise

defective ruling of the Trial Court.

2.           The Court of Appeals erred in holding that this Court can review a

district court’s decision on such a matter by trial de novo. Both appellant and

appellee in their supplemental briefs filed after oral argument agree that the

standard is “abuse of discretion” and not trial de novo. And Appellant then further

argues that when Mirazo produced no evidence to show authority at the November

2 hearing, the trial court had no discretion, but to strike the pleadings.

             By conducting a trial de novo at the appellate level, this court is

granting the appellee a second bite at the apple, which is not authorized by Rule 12.

This appellate court does not have jurisdiction to conduct trial de novo on

evidentiary issues.

                                          PRAYER

             For these reasons, David Penny, Appellant requests that this Court

grant this motion for rehearing, withdraw its prior opinion and judgment, and issue

an opinion and judgment reversing the trial court’s judgment (1) overruling Penny’s
motion to show authority, (2) striking Penny’s pleadings and (3) imposing

discovery sanctions; Appellant David Penny requests any other relief to which he

may be entitled.

                                       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 16th day of
June, 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 Motion for
Rehearing 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 722.


                                      __/ss/ Greg Gossett___________
                                      Greg Gossett
