Ronnie Lawson and Leah Lawson v. Benjamin Keene, Kristi Keene, Gretchen Gayle Gullekson, Dayna Marie Twyman & KWI-8, L.L.C. D/B/A Keller Williams Realty

Opinion

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 timebarred ….

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