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
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
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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
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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
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