September 28, 2015
/'RECEIVED \
IN THE THIRD COURT OF APPEALS
OF TEXAS AT AUSTIN AUG 2 0 2015
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TWRD COURT OF APPEALS,
V JEFFREY D.KYLE /
No. 03-14-00404-CV
KEVIN TOWER AND KARRIE LYNN TOWERv
Appellants,
BANK OF AMERICA, N.A.
Appellee.
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APPELLANTS MOTION FOR REHEARING
COMES NOW APPELLANTS Kevin Tower and Lynn Tower ("Appellants") and files
this their Motion for Rehearing pursuant to Texas Rules of Appeallate Procedure 49.1, and in
support thereof, would showas follows:
I. FACTS
1. This matter originated from the Hays County Court at Law. Appellants' were the
Defendant's ina case styled, Bank ofAmerica, AU. v. Kevin Tower, Cause No. 13-0320-C.
2. Appellant descided to initially appeal this matter from the trial court to this Court
because the trial court failed to allow the Defendant the right to submit any contraverting
evidence, rather the court descided to adjourn toconsider the Defendants/Appellants objections.
"THE COURT: Anything further? What I would like to do is look
through all of the documents one more time and come to a decision
regarding your objection -"
If the Court will review the reporters record RR Vol. 1 Page 4 Line 19-25 it is clear that the
Plaintiff presented its business records affidavit for the trial courts consideration. Defendants
'RRVol. 1 Page 15 Line5-8
Appellants Motionfor Rehearing
Page I of6
counsel immediately objected to the business records affidavit.2 The entire proceeding was
argument with regard to the objection and not presentation of further evidence nor the
opportunity of the Defendant to present its defense. The trial court led the parties at trial (and the
reporter's record affirms this belief) to the belief that it would recall the case and allow the
Defendant to present its defense, rather the trial court presented its judgment without the right of
the Defendants to present oral evidence by testimony and written evidence by exhibits.
II. ARGUMENT & AUTHORITIES
3. Tex. R. App. P. 49.1 allows a Defendant, upon motion to have the appeals
judgment or order reconsidered. Tex. R. App. P. 49.1 demands that this be done within fifteen
(15) days from the rendering of the appeals court descision. Despite the fact that Appellants did
not receive the descision until days after its rendering, Defendants do however file this Motion
for Rehearing timely and within the fifteen days.
4. The specific points relied on for the rehearing are as follow:
a. Violation of the Due Process of Law; and
b. Failure of the panel to render an opinion consistent with Texas Rules
of Appellate Process §47.1
5. Violation of the Due Process of Law: The Fifth and Fourteenth Amendments of
the United States Constitution prohibit government actions that deprive an individual of life,
liberty, or property without due process of law.3 The Fifth Amendment states, in relevant part,
that "[n]o person shall be ... deprived of life, liberty, or property, without due process of law." Id.
The Fifth Amendment ensures that the federal government will follow adequate procedures if it
seeks to impair an individual's constitutionally protected interests. See id.
2RR Vol. 1Page 4 Line 19-25; RR Vol. 1Page 5 Line 1-4
3U.S. CONST, amend. V; id. amend. XIV
Appellants Motionfor Rehearing
Page 2 of6
6. The Fourteenth Amendment similarly restricts actions by the states, stating: No
State shall make or enforce any law which shall abridge the privileges or immunities of citizens
of the United States; nor shall any State deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its jurisdiction the equal protection of the
laws. Id. amend. XIV. Together, the Fifth and Fourteenth Amendments restrict any government
action aimed at depriving an individual oflife, liberty, or property interests.4
7. Texas Constitution as well provides the same procedural protections. The Texas
Constitution Bill of Rights:
Sec. 19. DEPRIVATION OF LIFE, LIBERTY, ETC.; DUE
COURSE OF LAW. No citizen of this State shall be deprived of
life, liberty, property, privileges or immunities, or in any manner
disfranchised, except by the due course of the law of the land.
8. Texas Rules of Civil Procedure § 265 requires that the Order of Proceedings on
Trial are conducted in a specific manner, this to protect Due Process of all parties. The
Defendants/Appellants trial was not conducted in a format which complied with §265, thereby
breaching Defendants/Appellants Due Process rights.
9. Failure of the panel to render an opinion consistent with Texas Rules of
Appellate Process §47.1: Despite the fact that Appellants designated as an issue on appeal that
the trial court failed to allow a proper defense in violation of the Defendants/Appellants Due
Process rights. The issue appeared as follows:
ISSUE 2: The trial court erred in issuing an improper judgment and prevented the
Appellant from properly presenting its appeal.
See U.S. CONST, amend. XIV, § 1. Property interests include interests in all of the traditional forms of real and
personal property. The government may not deprive an individual of property without providing a fair adiudicatorv
process. Cf. id. This right also may apply where the property interest is less tangible.
Appellants Motionfor Rehearing
Page 3 of6
The Defendants/Appellants were not given the ability to be heard at a meaningful time and in a
meaningful manner.5
10. Texas Rules of Appellate Procedure § 47.1 requires that the appellate courts: "The
court of appeals must hand down a written opinion that is as brief as practicable but that
addresses every issue raised and necessary to final disposition of the appeal." The panel's
opinion failed to mention and'or consider the issue of the trial courts failure to follow the
appropriate and mandated order of proceedings.
Respectfully submitted:
Kevin Tojwef **^ s •
Mathews v. Eldridge, 424 U.S. 319,333, 96 S.Ct. 893, 902,47 L.Ed.2d 18(1976) (quoting Armstrong v. Manzo
380U.S. 545, 552,85 S.Ct. 1187, 1191, 14 L.Ed.2d 62(1965)); Merriman v. Sec. Ins. Co. ofHartford 100 F 3d
1187, 1191 (5th Cir. 1996).
Appellants Motionfor Rehearing
Page 4 of6