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 ( 2015 )

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 time-
barred….
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
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