                                                                                                                 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



C: bb hanks m app mte2                         Page 1 of 5
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.


C: bb hanks m app mte2                    Page 2 of 5
          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.


C: bb hanks m app mte2                          Page 3 of 5
          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


C: bb hanks m app mte2                   Page 4 of 5
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
                                                ___________________


C: bb hanks m app mte2            Page 5 of 5
