Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
AMERICAN BANK, N.A. AS TRUSTEE OF THE LISA MARIE BUCKLEY TRUST AND CO-TRUSTEE OF THE JOHN BUCKLEY, JR. TRUST AND KELLY ROSE KINARD TRUST, ET AL., Appellants,
MOOREHEAD OIL & GAS, INC., MOOREHEAD ACQUISITION, LLC, AND MOOREHEAD OIL & GAS, LLC, Appellees.
Appellant American Bank N.A.'s Motion to Show Authority
and Appellees' Motion to Strike American Bank, N.A.'s
Appeal, or in the Alternative, Motion to Show Authority.
Justices Rodriguez, Contreras, and Hinojosa
an appeal of a summary judgment rendered by the 28th District
Court of Nueces County, Texas, in a proceeding to determine
the fair value of ownership interests in corporate stock
under section 10.361 of the Texas Business Organizations
Code. See Tex. Bus. Orgs. Code Ann. § 10.361
(West, Westlaw through 2017 1st C.S.). Attorney Matthew W.
Bobo filed the notice of appeal and has filed an
appellants' brief, both of which identify appellants as:
American Bank, N.A. as trustee of the Lisa Marie Buckley
Trust and co-trustee of the John Buckley, Jr. Trust and Kelly
Rose Kinard Trust, John Buckley, Jr. Trust, Lisa Marie
Buckley Trust, Kelly Rose Kinard Trust, together with John
Buckley, Jr., Lisa Marie Buckley, and Kelly Kinard, as
trustee, co-trustee, and/or trust beneficiaries of the John
Buckley, Jr. Trust, Lisa Marie Buckley Trust and Kelly Rose
Kinard Trust, and/or shareholders[.]
brief additionally identified "Trustee" as American
Bank, N.A. (the Bank) and listed separate counsel for the
Bank. See Tex. R. App. P. 38.1(a).
the Court is the Bank's "Motion to Show Authority
and Response to Appellants' Brief" arguing that,
although it "consented" to Bobo filing the instant
appeal, it objects to certain statements and arguments made
in Bobo's brief because they were "made outside the
scope of any contemplated representation" of the Bank.
In its motion, the Bank asks that we: (1) order Bobo to
withdraw the objected-to statements and arguments; (2) order
Bobo to "withdraw from joint representation" of the
Bank along with the other appellants; or (3) order the brief
to be "amended or redrawn to exclude the bank as a party
to such brief as it is currently filed." The Bank notes
that, although it objects to certain statements and arguments
in the brief, it joins in the rest of the brief and
"continues to stand fully in support" of the other
appellants' efforts to reverse the trial court's
judgment. The Bank attached to its motion an affidavit by its
counsel accompanied by several exhibits, including a letter
from the Bank's counsel to Bobo regarding the potential
appeal of the trial court's final judgment. The letter
points out the then-pending appellate deadlines and seeks to
"confirm that [Bobo] will be representing the three
trusts and the beneficiaries with respect to the appeal of
the order that has been entered by [the trial court]."
has filed a response to the Bank's motion, again
identifying the appellants and "Trustee" as set
forth above, and stating that his "representation has at
no time been that of counsel to the Bank." Instead, Bobo
states that his "representation has been strictly
limited to" the other named appellants. Bobo's
response additionally notes that the affidavit and exhibits
attached to the Bank's motion are not part of the
appellate record and therefore cannot be considered "in
determining the substantive issues" of the appeal.
Appellees also filed a response to the Bank's motion
asking us to "disregard" the evidence attached to
the motion for any purpose other than determining the scope
of Bobo's representation.
have filed a separate "Motion to Strike American Bank
N.A.'s Appeal, or in the Alternative, Motion to Show
Authority" in which they argue that Bobo "plainly
held himself out as counsel for the Bank in both the Notice
of Appeal and in Appellants' Brief." Appellees ask
that we strike the Bank's notice of appeal and briefing,
or in the alternative, cause Bobo to appear before this Court
and show his authority to act as counsel for the Bank.
See Tex. R. Civ. P. 12.
fully considered the Bank's motion, appellees'
motion, the responses thereto, and the record, we are of the
opinion that the motions should be denied. Although the
notice of appeal and appellants' brief filed by Bobo in
this cause are ambiguous regarding the identity of the
appellants, we do not believe it is necessary to strike those
documents given the representations by both Bobo and the
Bank's counsel as set forth above. Instead, we believe it
is sufficient to protect the interests of the parties for
this Court to construe both documents as being filed solely
on behalf of the non-Bank appellants. Therefore, nothing in
the brief will be construed as a judicial admission on the
part of the Bank.
we assure the parties that, in accordance with the law, this
Court will decide the substantive merits of the appeal
exclusively on the materials that have properly been made a
part of the appellate record. See, e.g., Sabine Offshore
Serv., Inc. v. City of Port Arthur, 595 S.W.2d 840, 841
(Tex. 1979) ("Affidavits outside the record cannot be
considered by the Court of Civil Appeals for any purpose
other than determining its own jurisdiction.").
foregoing reasons, the Bank's Motion to Show Authority
and appellees' Motion to Strike the Bank's Appeal, or
in the ...