David Penny v. El Patio, LLC D/B/A El Patio Motel
03-11-00420-CV
| Tex. App. | Apr 20, 2015Background
- Appellant David Penny filed a Rule 12 motion (motion to show authority) challenging the opposing counsel's authority to prosecute the case.
- El Patio, LLC (appellee) responded and attached an affidavit of Steven Hyde, an operating agreement, and unanimous consents as exhibits.
- At oral argument, the court asked the parties to brief the applicable standard of review (de novo vs. abuse of discretion).
- Appellee argues the correct standard is abuse of discretion because trial courts weigh evidence in Rule 12 proceedings.
- The brief surveys Texas appellate authority applying abuse of discretion and explains how contrary Austin-line authority can be reconciled with that approach.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard of review for Rule 12 motion | Metz/Evangelical support de novo review of court conclusions | Urbish and multiple courts support abuse of discretion because trial courts weigh evidence | Abuse of discretion is the correct standard; de novo reserved for pure legal questions |
| Whether evidence was filed with appellee's response | Penny implies appellee may not have filed evidence | El Patio identifies record citations showing affidavit and exhibits were filed with its Response | Court accepts that El Patio filed the affidavit, operating agreement, and consents with its response |
| Burden at hearing on motion to show authority | Moving party must prove lack of authority | Respondent must produce evidence of authority; failure to appear can be dispositive | Failure to meet Rule 12 burden (e.g., not appearing) supports denial; trial court may weigh evidence |
| How to reconcile conflicting precedent | De novo decisions control when legal question only | Abuse of discretion governs mixed fact/law matters; de novo review is consistent for pure legal issues | Courts should apply abuse of discretion generally; de novo review remains for purely legal questions |
Key Cases Cited
- Urbish v. 127th Judicial Dist. Court, 708 S.W.2d 429 (Tex. 1986) (trial-court ruling on motion to show authority reviewed for abuse of discretion)
- R.H. v. Smith, 339 S.W.3d 756 (Tex. App.—Dallas 2011) (applies Urbish and reviews Rule 12 ruling for abuse of discretion)
- In re Guardianship of Benavides, 403 S.W.3d 370 (Tex. App.—San Antonio 2013) (follows Urbish; emphasizes trial court weighs evidence on Rule 12 motions)
- Lliff v. Lliff, 339 S.W.3d 74 (Tex. 2011) (abuse of discretion includes failing to analyze or correctly apply the law)
- Golf Reg’l Educ. Television v. Univ. of Houston, 746 S.W.2d 803 (Tex. App.—Houston [14th Dist.] 1988) (defers to trial-court fact findings and supports deference in review)
- State v. Evangelical Lutheran Good Samaritan Soc’y, 981 S.W.2d 509 (Tex. App.—Austin 1998) (applies de novo review where the Rule 12 issue is a pure question of law)