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NO. 01-15-00188-CV

IN THE COURT OF APPEALS

FOR THE FIRST JUDICIAL DISTRICT

OF TEXAS 

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 

ACCEPTED

01-15-00188-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

11/25/2015 12:03:11 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 11/25/2015 12:03:11 PM CHRISTOPHER A. PRINE Clerk
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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

___________________