Kevin Tower v. Bank of America, N.A.

Opinion

September 28, 2015 /'RECEIVED \ IN THE THIRD COURT OF APPEALS OF TEXAS AT AUSTIN AUG 2 0 2015 **************************************** 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.

****************************************

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