David Penny v. El Patio, LLC D/B/A El Patio Motel

Opinion

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

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DAVID PENNY

Appellant, v.

EL PATIO, LLC D/B/A EL PATIO MOTEL,

Appellee.

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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