ACCEPTED
01-15-00188-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
11/25/2015 12:03:11 PM
CHRISTOPHER PRINE
CLERK
NO. 01-15-00188-CV
IN THE COURT OF APPEALS FILED IN
1st COURT OF APPEALS
FOR THE FIRST JUDICIAL DISTRICT HOUSTON, TEXAS
OF TEXAS 11/25/2015 12:03:11 PM
CHRISTOPHER A. PRINE
Clerk
MARK F. HANKS,
APPELLANT,
VS.
THE HUNTINGTON NATIONAL BANK,
APPELLEE
__________________________________________________________________
APPELLEE’S UNOPPOSED MOTION FOR LEAVE TO FILE AND FOR EXTENSION
OF TIME TO FILE APPELLEE’S FIRST SUPPLEMENTAL BRIEF
TO THE HONORABLE COURT OF APPEALS:
COMES NOW, The Huntington National Bank, Appellee herein, and
files this its Unopposed Motion for Leave to File and for
Extension of Time to File Appellee’s First Supplemental Brief and
in support would respectfully show the Court as follows:
I. BACKGROUND
Appellant is contesting Appellee’s right to possession of a
piece of residential real property in Houston. Appellee is in
title to that real property by virtue of a non-judicial
foreclosure sale that occurred on September 3, 2013. Appellee
requests an extension of time to file its First Supplemental
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Brief. Appellant reportedly remains in possession of the
residential real property at issue and will not be damaged or
harmed by any extension. Appellee continues to pay the ad valorem
taxes and maintain casualty insurance on the property.
II. CURRENT PROCEDURAL STATUS
The matter is before the Court on an appeal after a non-jury
trial in the County Civil Court at Law No. 4 of Harris County,
Texas, wherein judgment entered on February 23, 2015, in favor of
Plaintiff for possession of certain Harris County real property.
The underlying lawsuit is a forcible detainer action following a
non-judicial foreclosure sale which occurred on September 3, 2013,
as indicated above. Notice of Appeal was subsequently filed by
Defendant/Appellant. Appellant’s Brief was filed on or about
October 6, 2015. Appellee’s Brief was due November 5, 2015. One
prior extension of time was requested and granted, extending the
due date for Appellee’s Brief to November 20, 2015. Appellee’s
Brief was timely filed, but that filing was rejected on November
23, 2015. The basis of the rejection was corrected and refiling of
Appellee’s Brief is occurring contemporaneously with the filing of
this motion. Appellee had inquired by facsimile on November 23,
2015, about Appellant’s counsel’s position on the relief sought
herein. Appellant’s counsel responded indicating that Appellant
was not opposed.
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Appellee’s counsel noticed in reviewing Appellee’s Brief
after filing it that case law citations were unintentionally and
inadvertently omitted which supported Appellee’s position that an
express agreement trumps any implied-in-fact lease agreement.
Those omitted case law citations are (a) J.C. Woodard v. Southwest
States, Inc., 384 S.W.2d 674 (Tex. 1064); and (b) Vortt
Exploration Company, Inc. v. Chevron U.S.A., Inc., 787 S.W.2d 942,
944 (Tex. 1990). They should have been cited in reply to
Appellant’s first and second points of error and the argument in
response to those two (2) points of error. The existence of and
admissibility of an implied-in-fact lease agreement is the unpled
affirmative defense upon which Appellant’s first and second
issues/points of error are based. It is Appellant’s position that
an implied-in-fact lease agreement gave Appellant the right to
receive a ninety (90) notice to vacate. The trial court’s rulings
on Appellant’s requests at trial regarding the evidence of an
implied-in-fact lease agreement which are the basis of Appellant’s
first and second issues/points of error. For the reasons stated
above, the preparation and filing of Appellee’s Brief has not been
completed. Accordingly, this motion for leave and to extend is
being filed and Appellee seeks an extension of ten (10) days for
the filing of its First Supplemental Brief.
III. APPELLEE’S BASIS FOR EXTENSION.
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Appellee would show that good cause exists for leave of Court
to file its first supplemental brief and for an extension of
Appellee’s time to file that supplemental brief. An extension of
time to file that brief will not damage or harm Appellant, who
reportedly continues to occupy the premises at issue. Appellee
seeks additional time to file its first supplemental brief to
provide the Court the case law citations on express agreements v.
implied-in-fact agreements. Ten (10) additional days would be
sufficient and may be needed as the Thanksgiving holiday period
encompasses much of those ten (10) days.
IV. ARGUMENT.
Pursuant to Tex. R. App. Pro. 10.5(b) and 38.7, Appellee
seeks leave of the Court to file its First Supplemental Brief and
a ten (10) day extension of time to do so. Appellee has not had
any prior extensions of time to file its first supplemental brief,
although Appellee did have one fifteen (15) days extension of time
to file its original Brief. An extension of time will not harm or
injure Appellant or unduly disrupt this Court’s schedule. The
undersigned has personal knowledge of the statements and factual
basis for this motion.
WHEREFORE, PREMISES CONSIDERED, Appellee The Huntington
National Bank prays that following consideration of Appellee’s
Unopposed Motion for Leave and for Extension of Time for Filing of
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Appellee’s First Supplemental Brief, any response thereto and the
Court’s record, this Court enter an Order granting Appellee’s
Motion and granting such other relief which may be appropriate.
Respectfully submitted,
/s/ Rex L. Kesler
______________________
Rex L. Kesler
State Bar No. 11357500
2311 Canal Street, Suite 304
Houston, Texas 77003
(281) 501-3098 - Telephone
(281) 501-3191 - Telecopier
keslerhearings@gmail.com
Local Appellate Counsel
for Appellee
CERTIFICATE OF CONFERENCE
I hereby certify that I have contacted Appellant’s counsel by
facsimile regarding this motion and that he responded on November
24, 2015, by telephone message indicating that Appellant was not
opposed.
/s/ Rex L. Kesler
___________________
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the
foregoing pleading has been served in accordance with the Texas
Rules of Civil Procedure and Appellate Procedure on Appellant or
Appellant’s counsel of record on this 25th day of November, 2015.
/s/ Rex L. Kesler
___________________
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