No. 03-13-00590-CV

In the Court of Appeals

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

ACCEPTED

03-13-00590-CV

4501493

THIRD COURT OF APPEALS

AUSTIN, TEXAS

3/13/2015 11:40:39 PM

JEFFREY D. KYLE

CLERK
the trial court in amemorandumopinion signed on behalf of the Court byChief 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

anyaward of attorney’sfees.Further,theAppellee’sNotice toVacate

1

is onlya three-day

notice, which by the terms of the applicable statute cannotsupport a claimfor attorney

fees–not at trial, and not prospectivelyon appeal,whether or not theremight 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 landlordmust give a tenantwho is unlawfullyretaining

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

demandmust be sent byregistered mail or bycertifiedmail, return receipt

requested, at least 10 days before the date the suit is filed.

The record does not contain proof of a notice sufficientto satisfythe plainlanguage

of the statute. Therefore, the award of prospective attorney’s feesshould be reversed.

AsthisCourt noted, Appellant’s counsel did in fact object to the award at trial, though

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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 ofthe applicable statute in thePropertyCode and the civilrules 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 byTexasRule of Appellate

Procedure 9.4(i)(1) is 372, which, when added to the 1,430 wordsin 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, bymailing in accordancewith 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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