Lance Richards v. US Bank National Association, as Trustee for Credit Suisse First Boston Mortgage Securities Corp., Home Equity Asset Trust 2003-7, Home Equity Pass-Through Certificates, Series 2003-7

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ACCEPTED 03-13-00590-CV 4501493 THIRD COURT OF APPEALS AUSTIN, TEXAS 3/13/2015 11:40:39 PM JEFFREY D. KYLE CLERK No. 03-13-00590-CV In the Court of Appeals March 16, 2015 for the Third Court of Appeals District of Texas Sitting at Austin, Texas ______________________________________________________________________ Lance Richards and all other occupants of 12306 Bainbridge Lane, Austin, TX 78750, Appellant vs. US Bank National Association, as Trustee for Credit Suisse First Boston Mortgage Securities Corp., Home Equity Asset Trust 2003-7, Home Equity Pass-Through Certificates, Series 2003-7, Appellee _______________________________________________________________________ Appealed from the County Court at Law No. 4 of Williamson County, Texas The Honorable John McMaster, Presiding ________________________________________________________________________ MOTION FOR RECONSIDERATION ________________________________________________________________________ TO THE HONORABLE COURT OF APPEALS: Appellant, Lance Richards, respectfully submits this Motion for Rehearing under Texas Rule of Appellate Procedure 49.1 and any other applicable law. I. On the 11th day of February, 2015, this Court’s panel upheld the judgment of MOTION FOR REHEARING the trial court in a memorandum opinion signed on behalf of the Court by Chief Justice Rose (the “Opinion”). II. This Court erred in overruling Appellant’s Points of Error, because at neither the trial court level nor the county court at law did Appellee’s pleadings provide for any award of attorney’s fees. Further, the Appellee’s Notice to Vacate1 is only a three-day notice, which by the terms of the applicable statute cannot support a claim for attorney fees–not at trial, and not prospectively on appeal, whether or not there might be conduct construed as trial by consent: Sec. 24.006. ATTORNEY'S FEES AND COSTS OF SUIT. (a) Except as provided by Subsection (b), to be eligible to recover attorney's fees in an eviction suit, a landlord must give a tenant who is unlawfully retaining possession of the landlord's premises a written demand to vacate the premises. The demand must state that if the tenant does not vacate the premises before the 11th day after the date of receipt of the notice and if the landlord files suit, the landlord may recover attorney's fees. The demand must be sent by registered mail or by certified mail, return receipt requested, at least 10 days before the date the suit is filed. The record does not contain proof of a notice sufficient to satisfy the plain language of the statute. Therefore, the award of prospective attorney’s fees should be reversed. As this Court noted, Appellant’s counsel did in fact object to the award at trial, though 1 Inter alia, County Clerk’s Official Record, page 61. MOTION FOR REHEARING 2 not with great elaboration. Conclusion Rehearing of this case, by the panel or en banc, and vacating of the February 11, 2015 memorandum opinion and judgment, would be consistent with the apparent purpose of the applicable statute in the Property Code and the civil rules and any herein cited or briefing-cited rulings of Texas courts. In the interest of justice in this matter, Appellant asks that the Court grant this motion for rehearing. Respectfully submitted, /s/ Michael Brinkley ____________________________________ Michael Brinkley State Bar No. 03004300 BRINKLEY LAW PLLC P. O. Box 820711 Fort Worth, Texas 76182-0711 (817) 284-3535 (888) 511-5854; fax (888) 511-0946 michael@brinkleypllc.com Attorney for Appellant MOTION FOR REHEARING 3 Certificate of Compliance for T.R.A.P. 9.4(i)(3) I certify that the word count indicated by my word processing software for the portions of the Appellants’ Motion for Rehearing covered by Texas Rule of Appellate Procedure 9.4(i)(1) is 372, which, when added to the 1,430 words in Appellant’s brief, totals 1,802 words. Dated: March 13, 2015. /s/ Michael Brinkley _____________________________________ Michael Brinkley Certificate of Service I certify that a true and correct copy of the foregoing has been served on the following counsel and/or pro se parties of record, by mailing in accordance with Texas Rule of Appellate Procedure 9.5, on March 13, 2015. Mark D. Hopkins HOPKINS & WILLIAMS, PLLC 12117 Bee Caves Road, Suite 260 Austin, Texas 78738 fax (512) 600-4326 attorney for Appellee. /s/ Michael Brinkley _____________________________________ Michael Brinkley MOTION FOR REHEARING 4