DATE 10/19/2015
                                                                                                             FILED IN
R




                                              NOTICE OF APPEALS                                       1st COURT OF APPEALS
                                            ASSIGNMENT OF COURT OF APPEALS                                HOUSTON, TEXAS
                                                                                                      10/19/2015 1:34:20 PM
TO:         1ST COURT OF APPEALS
                                                                                                      CHRISTOPHER A. PRINE
                                                                                                               Clerk

From:       Deputy Clerk: IRMA MEDINA
            Chris Daniel, District Clerk
            Harris County, T E X A S



CAUSE: 2014-31312

VOLUME                       PAGE                       OR          IMAGE # 67496111

DUE 12/15/2016                                        ATTORNEY 24010071

NOTICE OF APPEAL HAS BEEN ASSIGNED TO THE 1ST

DATE ORDER SIGNED:                         7/20/2015

MOTION FOR NEW TRIAL FILED: 8/17/2015

REQUEST TRANSCRIPT DATE FILED                                        N/A

NOTICE OF APPEAL DATE FILED                                         10/16/2015

NUMBER OF DAYS: ( CLERKS RECORD ) 120
FILE ORDERED: YES                                NO             IMAGED FILED:                   YES       NO

CODES FOR NOTICE OF APPEAL: BC, C

                                                                     CHRIS DANIEL
                                                                     Harris County, District Clerk


                                                                     By: /s/IRMA MEDINA
                                                                            IRMA MEDINA, Deputy

BC        NOTICE OF APPEAL FILED
BG        NOTICE OF APPEAL FILED – GOVERNMENT
C         JUDGMENT BEING APPEALED
D-        ACCELERATED APPEAL
OA        NO CLERK’S RECORD REQUEST FILED
O         CLERK’S RECORD REQUEST FILED (W/NOTICE OF APPEAL)
NA        AMENDED NOTICE OF APPEAL




AP9 R04-30-92 S:\FormsLib\Civil Bureau\Civil Courts & Post Judgment\Post Trial\Appeal Status Card              Revised 01-18-2013
                                                                                             10/16/2015 8:02:41 PM
                                                                          Chris Daniel - District Clerk Harris County
                                                                                             Envelope No. 7422009
                                                                                                     By: Irma Medina
                                                                                     Filed: 10/16/2015 8:02:41 PM

                                          CAUSE NO. 2014-31312

ROSE GUIDRY KINSEY                                  §             IN THE DISTRICT COURT
                                                    §
                                                    §
v.                                                  §
                                                    §            164TH JUDICIAL DISTRICT
                                                    §
ANGEL MORTGAGE INCOME                               §
RESOURCES AND                                       §
PRESTON JULIAN                                      §             HARRIS COUNTY, TEXAS


                            DEFENDANTS’ NOTICE OF APPEAL



TO THE HONORABLE JUDGE OF SAID COURT:


        COME NOW Defendants, Angel Mortgage Income Resources and Preston Julian

(collectively hereinafter referred to as “Defendants”), who file this Notice of Appeal.

Notice is hereby given that Defendants, seeks to alter the trial court’s Final Summary

Judgment and Order Signed Awarding Attorney’s Fees.

        1. The trial court, cause number, and style of this case are shown in the caption

            above.

        2. The Final Summary Judgment and Order Signed Awarding Attorney’s Fees

            was signed on July 20, 2015.

        3. Defendants filed a Motion for New Trial and Reconsideration on August 17,

            2015 extending the time to perfect an appeal until October 18, 2015.

        4. The Motion for New Trial and Reconsideration was denied by rule of law.

        5. Defendants desires to appeal all portions of the Judgment and award of

            attorney’s fees.
2014-31312 Defendants’ Notice of Appeal                                                1
        6. This appeal is being taken to either the First Court of Appeals or the

            Fourteenth Court of Appeals, in Houston, Texas.


                                          Respectfully submitted,



                                          _/S/ James A. Gray III_________
                                          James A. Gray III
                                          TBA No. 2410071
                                          6302 Drayton Hall
                                          Missouri City, Texas 77459
                                          Tel: (713) 598-0688
                                          Fax: (800) 524-4102
                                          Counsel for Defendants
                                          ANGEL MORTGAGE INCOME RESOURCES
                                          AND PRESTON JULIAN




                                   CERTIFICATE OF SERVICE

        I hereby certify that on October 16, 2015, a true and correct copy of the
 foregoing instrument was served on all counsel and parties pursuant to the Texas
 Rules of Civil Procedure by facsimile and/or electronic service, as follows:


 Marie Jamison
 WRIGHT & CLOSE, L.L.P.
 One Riverway, Suite 2200
 Houston, Texas 77056
 Telephone: (713) 572-4321
 Facsimile: (713) 572-4320
 jamison@wrightclose.com
 Counsel for Plaintiff



                                                _/S/ James A. Gray III_________
                                                  James A. Gray III

2014-31312 Defendants’ Notice of Appeal                                           2
                                                                                             8/17/2015 6:41:54 PM
                                                                        Chris Daniel - District Clerk Harris County
                                                                                           Envelope No. 6532540
                                                                                                By: Bonisha Evans
                                                                                     Filed: 8/17/2015 6:41:54 PM

                                         CAUSE NO. 2014-31312

 ROSE GUIDRY KINSEY                                    §        IN THE DISTRICT COURT
                                                       §
                                                       §
 v.                                                    §    164TH JUDICIAL DISTRICT
                                                       §
                                                       §
 ANGEL MORTGAGE INCOME                                 §
 RESOURCES AND                                         §
 PRESTON JULIAN                                        §        HARRIS COUNTY, TEXAS

       DEFENDANTS ANGEL MORTGAGE INCOME RESOURCES AND
   PRESTON JULIAN’S MOTION FOR RECONSIDERATION AND NEW TRIAL

TO THE HONORABLE JUDGE OF SAID COURT:

        COME NOW Defendants Angel Mortgage Income Resources and Preston Julian

(collectively hereinafter referred to as “Defendants”), who file this Motion for

Reconsideration and New Trial and in support thereof, respectfully show this Court as

follows:



                                          I.      BACKGROUND

        Plaintiff Rose Guidry Kinsey (hereinafter referred to as “Plaintiff”) brought suit

against Defendants asserting breach of contract and seeking a declaratory judgment. In

December of 2014, Plaintiff filed a Motion for Summary Judgment claiming there were no

issues of material fact and that she was entitled to judgment as a matter of law on her

breach of contract and declaratory judgment claims. This Court granted Plaintiff’s motion

and entered an Order for Interlocutory Summary Judgment on January 16, 2015. On March

5, 2015, Plaintiff filed a Motion for Summary Judgment seeking reasonable and necessary

attorneys’ fees as well as costs and expenses.

Defendants’ Motion for Reconsideration and New Trial                                         1
         Defendants now file this Motion for Reconsideration and New Trial because this

Court entered an Order as to Plaintiff’s breach of contract claim without requiring that

Plaintiff prove all elements of her claim. Additionally, this Court entered an Order as to

Plaintiff’s attorneys’ fees; however, Plaintiff is not entitled to attorneys’ fees. Accordingly,

Defendants move for reconsideration of this Court’s prior Orders and respectfully request

the Court consider the following:



               II.     MOTION FOR RECONSIDERATION AND NEW TRIAL

1.       Plaintiff failed to establish all elements as to her breach of contract claim.

         On December 19, 2014, Plaintiff filed a Motion for Summary Judgment asserting a

breach of contract and seeking a declaratory judgment as to a dispute regarding the

percentage of interest to be charged under a note held by Defendants. Defendants responded

to Plaintiff’s motion by showing that Plaintiff failed to establish the element of damages

under her breach of contract claim and therefore, could not succeed on her Motion for

Summary Judgment. The basis of Defendants’ argument was that the only monetary losses,

if any, suffered by Plaintiff were the attorneys’ fees she incurred in bringing suit; a choice

she made and, expenses she chose to incur without suffering any other damages. But what

Plaintiff fails to acknowledge is that attorneys’ fees alone are not sufficient to support the

element of damages under a breach of contract claim because the damages must be caused

by the defendant’s breach of the contract, not the investigation, filing and prosecution of a

lawsuit.1 Plaintiff failed to establish any damages.



1   B&W Sup. Beckman, 305 S.W.3d 10, 16 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).

Defendants’ Motion for Reconsideration and New Trial                                         2
        Because evidence of damages is necessary to support a finding for breach of contract

and Plaintiff failed to establish such damages, this Court was without the necessary

evidence to enter a judgment against Defendants.

        Even if Plaintiff did establish some evidence of damages—which Defendants

vehemently deny—Plaintiff failed to prove that Defendants’ alleged breach caused such

damages. As such, Defendants request that this Court vacate its Order granting Plaintiff’s

Motion for Summary Judgment and grant a new trial regarding the same.



2.      Attorneys’ fees cannot be awarded against a partnership under Chapter 38
        of the Texas Civil Practice and Remedies Code.

        On March 5, 2015, Plaintiff filed a Motion for Summary Judgment as to her attorneys’

fees. The Court entered an Order granting Plaintiff’s fees; however, Plaintiff was not

entitled to recover such fees. Not only did Plaintiff fail to establish all elements of her breach

of contract claim, but even if Plaintiff were able to—which she cannot— under the relied

upon statute, attorneys’ fees cannot be awarded against a partnership, nor, therefore,

against an entity sued in its capacity only as a partner. Specifically, partnerships are not

subject to the fee-shifting scheme under Chapter 38 of the Texas Civil Practice and

Remedies Code. The legislature included “individuals” and “corporations,” but not

partnerships; therefore, such an award by the Court against a partnership, is improper. As

such, Defendants respectfully requests that this Court reconsider its prior Order awarding

Plaintiff’s attorneys’ fees and vacate the same.




Defendants’ Motion for Reconsideration and New Trial                                       3
3.      Plaintiff is not entitled to attorneys’ fees under the Declaratory Judgment
        Act.

        Plaintiff was not entitled to an award of attorneys’ fees under her breach of contract

claim, as explained above; therefore, Plaintiff cannot use the Declaratory Judgment Act to

recover otherwise unrecoverable fees.

        Plaintiff’s Motion for Summary Judgment as to attorneys’ fees was heard on July 17,

2015—despite her failure to prove damages under her breach of contract claim. In addition

to a lack of damages, Plaintiff was not entitled to recover attorneys’ fees under Chapter 38

of the Texas Civil Practice and Remedies Code because such statute does not allow recovery

against partnerships. Nonetheless, Plaintiff was awarded attorneys’ fees under the

Declaratory Judgment Act. Such award is improper and Texas law supports the assertion

that the outcome reached on July 17, 2015, was the wrong result. Specifically, the prevailing

jurisprudence of MBM Financial held that “when a claim for declaratory relief is

merely tacked onto a standard suit based on a matured breach of contract,

allowing fees under Chapter 37 would frustrate the limits Chapter 38 imposes on

such fee recoveries.2 [Further], granting fees under Chapter 37 when they are not

permitted under the specific common-law or statutory claims involved would violate the rule

that specific provisions should prevail over general ones.3 While the Legislature intended

the Act to be remedial, it did not intend to supplant all other statutes and remedies.”4

        Because Plaintiff could not recover fees against Defendants under Chapter 38 of the

Texas Civil Practice and Remedies Code, it follows that she cannot recover fees under the


2 MBM Financial v. Woodlands Operating Co., 292 S.W.3d 660 (Tex. 2009) (emphasis added).
3 Id.
4 Id.

Defendants’ Motion for Reconsideration and New Trial                                       4
Declaratory Judgment Act because her declaratory judgment claim was merely tacked on

to her breach of contract claim—making an award of attorneys’ fees improper.



4.      The Order entered by the Court does not reflect the ruling made on July 17,
        2015.

        During the July 17, 2015, hearing on Plaintiff’s Motion for Summary Judgment as to

attorneys’ fees, the Court ruled in favor of Plaintiff. However, the basis of the Court’s ruling

is not reflected in the Order entered. Specifically, following the hearing, Plaintiff’s counsel

drafted the Order. Defendants’ counsel immediately objected to the Order via email

correspondence. Plaintiffs’ counsel refused to acknowledge Defendants’ objections. The

Court signed the Order, which was not agreed to by Defendants. In addition to being opposed

to the form of the Order, Defendants objected to the contents of the Order, as the contents

did not accurately reflect the reasons and ruling of the Court from the bench. As a result,

Defendants move for reconsideration of this Court’s Order and additionally request that

such Order is vacated.



                                           III.    CONCLUSION

        Defendants respectfully request that this Court consider its Motion for

Reconsideration and New Trial because Plaintiff failed to establish her claim for breach of

contract by failing to prove the element of damages; therefore, Plaintiff’s Motion for

Summary Judgment should not have been granted. And, even if Plaintiff’s Motion for

Summary Judgment was properly granted—which Defendants deny—Plaintiff was not

entitled to recover attorneys’ fees under Chapter 38 of the Texas Civil Practice and

Defendants’ Motion for Reconsideration and New Trial                                     5
Remedies Code. Because attorneys’ fees under Plaintiff’s breach of contract claim are

unpermitted under the statute, Plaintiff should not have recovered her attorneys’ fees under

the Declaratory Judgment Act. Lastly, the Order entered by the Court does not reflect the

reasons and rulings of the Court in the July 17, 2015, hearing, and as such, Defendants

respectfully request this Court vacate it prior Order granting Plaintiff’s Motion for

Summary Judgment and further vacate its Order awarding attorneys’ fees. Defendants

further request a new trial on the merits.



                                               IV.     PRAYER

        WHEREFORE, PREMISES CONSIDERED, Defendants pray that this Court grant

its Motion for Reconsideration and New Trial, vacate its Order granting Plaintiff’s Motion

for Summary Judgment, vacate its Order awarding Plaintiff’s attorneys’ fees, and grant

Defendants such other and further relief, both general and special, to which Defendants

may show itself to be justly entitled.


                                         Respectfully submitted,



                                                           /s/ James A. Gray III
                                                           James A. Gray III
                                                           TBA No. 2410071
                                                           6302 Drayton Hall
                                                           Missouri City, Texas 77459
                                                           Tel: (713) 598-0688
                                                           Fax: (800) 524-4102
                                                           Counsel for DEFENDANTS
                                                           ANGEL MORTGAGE INCOME
                                                           RESOURCES AND PRESTON
                                                           JULIAN


Defendants’ Motion for Reconsideration and New Trial                                 6
                                 CERTIFICATE OF CONFERENCE

       This is to certify that on the 17th day of August, 2015, the undersigned conferred with
the offices of Plaintiff’s counsel and we were unable to reach an agreement on this motion.

                                                       /s/ James A. Gray III
                                                       James A. Gray III




                                  CERTIFICATE OF SERVICE

       I hereby certify that on August 17, 2015, a true and correct copy of the foregoing
 instrument was served on all counsel and parties pursuant to the Texas Rules of Civil
 Procedure by facsimile and/or electronic service, as follows:


 Marie Jamison
 WRIGHT & CLOSE, L.L.P.
 One Riverway, Suite 2200
 Houston, Texas 77056
 Telephone: (713) 572-4321
 Facsimile: (713) 572-4320
 jamison@wrightclose.com
 Counsel for Plaintiff



                                                       /s/ James A. Gray III
                                                       James A. Gray III




Defendants’ Motion for Reconsideration and New Trial                                   7
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JU2FN (NSD#)     JUSTICE INFORMATION MANAGEMENT SYSTEM      OCT 19, 2015(C1)
INT6510                     CIVIL CASE INTAKE               OPT: _____ - INT
                          GENERAL PARTY INQUIRY             PAGE:    1 -    2

CASE NUM: 201431312__ PJN> __ TRANS NUM: _________ CURRENT COURT: 164 PUB? _
CASE TYPE: BREACH OF CONTRACT               CASE STATUS: DISPOSED (FINAL)
STYLE: KINSEY, ROSE GUIDRY                VS ANGEL MORTGAGE INCOME RESOURCES
=============================================================================
                        **** INACTIVE PARTIES ****
  PJN PER/CONN COC BAR          PERSON NAME                 PTY   ASSOC. ATTY
  NUM    NUMBER                                            STAT
_     00005-0001 DEF 24010071 JULIAN, PRESTON                    GRAY, JAMES A
_     00005-0001 DPS          JULIAN, PRESTON
_     00004-0001 AGT          ANGEL MORTGAGE INCOME RESOURCE
_     00003-0001 DEF 24010071 JULIAN, PRESTON                    GRAY, JAMES A
_     00003-0001 DPS          JULIAN, PRESTON
_     00002-0001 DEF 24010071 ANGEL MORTGAGE INCOME RESOURCE     GRAY, JAMES A
_     00002-0001 DPS          ANGEL MORTGAGE INCOM
_     00002-0001 PAD 00796559 FLOWERS, JOEL BENJAMIN III

==> (9) CONNECTION(S) FOUND
1=ACTIVE      2=ATY. INQ.   3=ACT.ENTRY   4=ISS. SERV.   5=DOC. INQ.
6=CASE INQ.   7=BACKWARD    8=FORWARD     9=PTY. ADDR.   10=REFRESH    11=HELP
JU2FN (NSD#)     JUSTICE INFORMATION MANAGEMENT SYSTEM      OCT 19, 2015(C1)
INT6510                     CIVIL CASE INTAKE               OPT: _____ - INT
                          GENERAL PARTY INQUIRY             PAGE:    2 -    2

CASE NUM: 201431312__ PJN> __ TRANS NUM: _________ CURRENT COURT: 164 PUB? _
CASE TYPE: BREACH OF CONTRACT               CASE STATUS: DISPOSED (FINAL)
STYLE: KINSEY, ROSE GUIDRY                VS ANGEL MORTGAGE INCOME RESOURCES
=============================================================================
                        **** INACTIVE PARTIES ****
  PJN PER/CONN COC BAR          PERSON NAME                 PTY   ASSOC. ATTY
  NUM    NUMBER                                            STAT
_     00001-0001 PLT 24044647 KINSEY, ROSE GUIDRY                JAMISON, EDIT




==> (9) CONNECTION(S) FOUND
1=ACTIVE      2=ATY. INQ.   3=ACT.ENTRY   4=ISS. SERV.   5=DOC. INQ.
6=CASE INQ.   7=BACKWARD    8=FORWARD     9=PTY. ADDR.   10=REFRESH    11=HELP
