                                                                                               ACCEPTED
                                                                                          14-13-00604-CV
                                                                            FOURTEENTH COURT OF APPEALS
                                                                                        HOUSTON, TEXAS
                                                                                     2/6/2015 11:50:01 PM
                                                                                     CHRISTOPHER PRINE
                                                                                                   CLERK

                             IN THE FOURTEENTH

                              COURT OF APPEALS                 FILED IN
                                                        14th COURT OF APPEALS
                                                            HOUSTON, TEXAS
                            HOUSTON, TEXAS
                                                        2/6/2015 11:50:01 PM
                                                        CHRISTOPHER A. PRINE
 _______________________________________________________________________
                                                                 Clerk

                            NO.14-13-00604-CV
________________________________________________________________________

MARY RIGGINS

VS.

RONALD HILL AND
LINDA C. HILL ET AL

________________________________________________________________________

________________________________________________________________________
                        MOTION FOR REHEARING

________________________________________________________________________
        Appealed from Cause No. 35391 in the 239TH Judicial District Court of
                             BRAZORIA COUNTY, TEXAS
                          th
  Transferred from the 412 Judicial District Court , The Honorable W. Edwin Denman,
                                    Presiding to the
             th
         239 Judicial District Court, The Honorable Patrick Sebesta, Presiding

________________________________________________________________________



                                                    Veronica L. Davis


                                                    /s/ Veronica L. Davis

                                                    Attorney for Appellant
                                                    226 N. Mattson
                                                    West Columbia, Texas 77486
                                                    (979) 345-2953
                                      TABLE OF CONTENTS



1.   Index of Authorities                                                                               I

2.   Statement of Facts/Summation                                                                       2

3.   Issues Presented                                                                                   1

1.   Whether Appellant’s attorney is entitled to a fee award
     under the Civil Rights Attorney’s Fees Award Act or any
     other act allowing for attorney’s fees in discrimination cases...................                  3

2.   Whether the Court of Appeals erred in its finding that
     Appellant’s appeal was frivolous................................................................   8


PRAYER FOR RELIEF                                                                                       16


CERTIFICATE OF SERVICE                                                                                  16




                                                      -i-
                                           TABLE OF AUTHORITIES

Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240,
      247 (1975) ...................................................................................                 13

BE&K Construction CO. v. National Labor Relations Board et al.
    536 U.S. 516 (2001).............................................................                                 13

Bounds v. Smith, 430 U.S. 817 (1977).............................................................                    13

California Motor Transp. Co. v. Trucking Unlimited, 404 U. S. 508,
      510 (1972)..................................................................................................   13

Christianburg Garment Co. v. EEOC , 434 U.S. 412, 422 (1978)..................                                       8

Farrar v. Hobby, 506 U.S.103, 111-112; 113 S.Ct. 566 (1992) ........................                                 7

F.D.Rich Co. v. Industrial Lumber Co. 417 U.S. 116, 126 (1974).....................                                  13

Foreca,S.A. v. GRD Development, Inc., 758 S.W.2d,744, 745–46 (Tex. 1988)                                             11

Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 846 ........                                      11
      (Tex. 2000)

Glassman v. Goodfriend, 347 S.W.3d 772, 782 (Tex.App.
      Houston [14th Dist] 2011...............................................................................        14,15

Green International, Inc. v. Solis , 951 S.W.2d 384 (Tex. 1977) .......................                              7

Herring v. Heron Lakes Estate Owners Association, Inc.
      (Tx.Civ.App. Houston[14th] 2011 .............................................................                  11

Intercontinental Group Partnership vs. K.B. Lone Star Homes, L.P..,
      295 S.W.3d 650 (Tex. 2007) ...................................................................                 6

In re Ford Motor Co., 988 S.W.2d 714, 723 (Tex. 1998) ...................................                            14

Mabon Ltd. v. Afri-Carib Enters., Inc., 29 S.W.3d 291, 300
     (Tex. App.-Houston [14th Dist.] 2000, no pet.)                                                                  12

Maher v. Gagne 448 U.S.122 (1980).................................................................                   5

                                                               -ii-
M.L.B. v. S.L.J., 519 U.S. 102 (1996).................................................................                    13

Newman v. Piggie Park Enter. Inc. 390 US 400, 402 (1968)...........................5,8,9, 10

Pres. Coal. of Erie County v. Fed. Transit Admin., 356 F.3d 444,
       450-51 (2d Cir.2004)...........................................................................                    7

Procunier v. Martinez, 416 U.S. 396 (1974)................................................                                13

Redman v. Whitney, 541 S.W.2d 889 (Tex.Civ..App.-Austin 1976,
     writ ref’d n.r.e.) .... .......................................................................................      11

Shaw v. Palmer, 197 S.W.3d 854, 856 (Tex.App.-Dallas 2006) ...........................                                    12

Solum Engineering, Inc. v. Hood, 14-13-00428-CV,
      Tex.App.Houston [14th] 2014.................................................................                        14

Tennessee v. Lane, 541 U.S. 509 (2004)................................................................                    13

Texas Civil Practice & Remedies Code §§38.002 .............................................                               6,7

Tex. Rule Civ. Proc. §166a.....................................................................................           6

United States Constitution, 11th amendment.............................................................. 6

United States Constitution, 14th Amendment ....................................................                           13

42 U.S.C. § 1981...................................................................................................       4

42 U.S.C. § 1983.......................................................................................................   4

42 U.S.C. § 1985........................................................................................................ 4

42 U.S.C. § 1986........................................................................................................ 4

42 U.S.C. 1988(2000) Civil Rights Attorney Fee Awards Act ..........................2,3, 4,5, 6

42 U.S.C. 2000bb et seq Religious Freedom Restoration Act of 1993.....................                                    4

42 U.S.C. 2000cc the Religious Land Use and Institutionalized
      Persons Act of et seq.     ...................................................................                      4

                                                                -iii-
42 U.S.C. 2000d et seq.title VI of the Civil Rights Act of 1964................................ 4

42 U.S.C. §2000e-5k (2006) 706(k) of Title VII of the Civil Rights Act...........                                     1

42 U.S.C. §§ 3404-3606. ....................................................................................          4

42 U.S.C.§ 3613(c). .........................................................................................         4

20 U.S.C. 1681 et seq.

Title VIII of the Civil Rights Act of 1968.........................................................                   4

24 C.F.R. 100.201(a)............................................................................................      3

24 C.F.R. 100.201(a)(2)............................................................................................   3

Federal Housing Act § 894(f), (f)(3)(B) .......................................................                       2

Ehrenzweig, Reimbursement of Counsel Fees and the Great Society.
      54 California Law Review 792 (1966)........................................................                     13




                                                               -iv-
                              MOTION FOR REHEARING

TO THE HONORABLE COURT:

       COMES NOW, MARY RIGGINS, Plaintiff, in the above entitled and numbered

cause and seeks this Motion for Rehearing and in support thereof would show that the

Court of Appeals erred in its determination that all matter on which this appeal is based

had already been reviewed by the court. Moreover, this Court erred in its determination

that Appellant’s counsel filed a frivolous appeal.

           FACTUAL SUPPORT FOR REHEARING WHICH PRESENTS

                               NEW BASES FOR REVIEW

       Appellant filed an appeal which was docketed as Cause No. 14-09-00495-CV in

which Appellant sought reversal of a grant of summary judgment and reversal of an

attorney’s fee award. Eight issues were presented, including whether a court may grant

prospective attorney’s fees if Appellant appealed. Appellant, believing that it would

prevail on the most poignant issues, did not raise every possible issue in the case.

       Forty thousand dollars, the original settlement amount agreed on ,was placed in the

registry of the Court by Appellee’s counsel. After the appeals in this case were

exhausted, both parties made a demand for dissemination of those funds from the registry

of the court.

       Appellee’s counsel sought attorney’s fees in the amount of $10,500.00 for

attorney’s fees. $3500.00 of said amount were for attorney’s fees in response to




                                              -1-
Appellant’s appeal to the Supreme Court of Texas. Appellant contends that since

Appellee had declined to respond to a brief in connection with its Petition for Review, it

was therefore not entitled to same.

          Moreover, Appellant contended that the order was void abinitio because, there was

no contract because its terms were speculative and prospective

          After Appellant appealed this judgment and the matter was returned to the trial

court pertaining to the matter concerning the Appellee’s attorney’s fee award, a series of

actions transpired to determine the amount of fees owed , if any, to counsel for Appellee

from the $40,000.00 placed in the registry of the Court. Moreover, Appellant sought to

have determined its entitlement to additional attorney’s fees pursuant to the Civil Rights

Attorney Fee Awards Act codified at 42 U.S.C. 1988(2000) and 706(k) of Title VII of the

Civil Rights Act, codified at 42 U.S.C. §2000e-5k (2006) which were not the subject of

the Appeal in Cause No. 14-09-00495-CV. The Court denied same. (CR p. 668-670-

order).

          It is from the denial of the attorney’s fees under said act, along with its other

motions that Appellant appeals. Appellant further appealed the grant of attorney’s fees to

Appellee.

               SUMMATION OF FACTS WHICH SUPPORT REVIEW OF

                      GRANT PERTAINING TO ATTORNEY’S FEES

          Appellant resided in the West Columbia Manor Apartments, a subsidized housing




                                                 -2-
complex, required by law to comply with Federal Housing regulations under the Federal

Housing Act § 894(f), (f)(3)(B) at 42 U.S.C.A. 3605(f),3604(f)(3)(B); 24 CFR

§100.201(a); 101.201(a)(2) which required the Appellees to provide accommodations for

both physically and mentally disabling conditions. Due to the failure of the apartment

complex to provide Appellant a downstairs apartment due to her physically disabling

condition, Appellant fell. Appellant was transported by ambulance to the hospital for

injuries sustained in the fall. Immediately thereafter, Appellee placed an eviction notice

on her door from which a number of eviction and other legal actions ensued.

       After much legal wrangling, the parties agreed to settle. Due to failure to promptly

pay the proceeds of said settlement, Appellant withdrew her consent to settle. Appellee,

in response, sought a Motion to Enforce the Settlement Agreement/Motion for Summary

Judgment and deposited money in the registry of the Court. Appellant contends that the

alleged Rule 11 agreement was neither a contract nor was it enforceable.

                                       ISSUE ONE.

       Whether Appellant’s attorney is entitled to a fee award under the Civil Rights

       Attorney’s Fees Award Act or any other act allowing for attorney’s fees in

       discrimination cases.

       This Honorable Court, in its revised opinion, reprimands the Appellant for

relitigating the same issue which has already been entertained on Appeal. The issue of

whether the Appellant entitled to attorney’s fees under the Civil Rights Attorney Fee




                                             -3-
Awards statute. Whether the Court of Appeals upholds the fee award to Appellee does

not negate Appellant’s entitlement to same as a matter of law. This cause of action

emanated from claims of housing discrimination, and discrimination on the basis of

handicapping condition, as well as racial discrimination.

        Appellant requested the grant of attorney’s fees prior to the issuance of mandate in

this case. Case law indicates that it is proper to make such a request prior to the cessation

of litigation.

        Pursuant to the Civil Rights Attorney Fee Award Act, codified at 42 U.S.C. §

1988:

        In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982,
        1983, 1985, and 1986 of this title, title IX of Public Law 92–318 [20 U.S.C. 1681
        et seq.], the Religious Freedom Restoration Act of 1993 [42 U.S.C. 2000b et seq.],
        the Religious Land Use and Institutionalized Persons Act of 2000 42 U.S.C.
        2000cc et seq.], title VI of the Civil Rights Act of 1964 [42 U.S.C. 2000d et seq.],
        or section 13981 of this title, the court, in its discretion, may allow the prevailing
        party, other than the United States, a reasonable attorney’s fee as part of the
        costs....

        The Fair Housing Act, Title VIII of the Civil Rights Act of 1968, as amended by

the Fair Housing Amendments Act of 1988, P.L. 100-430, prohibits discrimination on the

basis of race, color, religion, sex, handicap, familial status (having children), or national

origin in the sale or rental of housing, the financing of housing, or the provision of

brokerage services. 42 U.S.C. §§ 3404-3606. An aggrieved person may bring a civil

action, in which the prevailing party, other than the United States, may recover reasonable

attorneys’ fees and costs. 42 U.S.C.§ 3613(c).


                                               -4-
       Because the word may appears in the statute, Appellee contends that such an

award to Appellant is permissive, rather than mandatory. However, the courts have found

that once the plaintiff is found to be a prevailing party, the fee is awarded as a matter of

course except in “special circumstances that would render an award unjust.” Newman v.

Piggie Park Enter. Inc. 390 US 400, 402 (1968).

       Because this case sounded in civil rights violations, Appellant contends that her

attorney is entitled to attorney’s fees in connection therewith, as she was a prevailing

party, as defined by law.

       In a state case which involved a matter which was not related to a civil rights

violation, as well as one with civil rights implications, the question was raised on how to

resolve an attorney’s fee award in such an instance. In Maher v. Gagne 448 U.S.122

(1980), a party charged a state with having violated a non-civil rights law. However, the

plaintiff in Maher also raised a constitutional claim, and that was decisive. Prior to trial,

the case was settled favorably for the plaintiff, without the constitutional issue’s being

reached. The state argued that the Eleventh Amendment prohibited a fee award because

the case involved a purely statutory, non-civil rights claim. The Court held, however, that,

under § 1988(b), a federal court, notwithstanding the Eleventh Amendment, may award

attorneys’ “fees in a case in which the plaintiff prevails on a wholly statutory, non-civil

rights claim pendent to a substantial constitutional claim or in one in which both a

statutory and a substantial constitutional claim are settled favorably to the plaintiff




                                               -5-
without adjudication.” Id. at 132. It further stated that:

       Under 1988 the district courts' authority to award attorney's fees is not
       limited to cases in which 1983 is invoked as a remedy for a constitutional
       violation or a violation of a federal statute providing for the protection of
       civil or equal rights.


       The Court further determined that settlement did not preclude a party from being a

prevailing party.


              The fact that respondent prevailed through a settlement rather than
              through litigation does not preclude her from claiming attorney's fees
              as the "prevailing party" within the meaning of 1988. Id at 123.


       The trial court in the instant case denied Appellant’s Motion for a grant of

Attorney’s Fees presumably by failing to rule on same. The trial court, did however,

modify or reform the judgment to eliminate the attorney fee award to Appellee for appeal

to the Supreme Court since the Appellee filed did not file a brief in that regard.

       Appellee presumably seeks attorney’s fees because the court granted his Motion to

Enforce Settlement Agreement/Motion for Summary Judgment. Motions for Summary

Judgment are regulated by Tex. Rule Civ. Proc. §166a and contain no provisions for

attorney fees. Consequently, Appellee must be seeking his claim for attorney’s fees under

the Texas Civil Practice & Remedies Code §§38.002 which requires a prerequisite of

thirty day presentment prior to hearing, which was not met and 38.001 discussed supra.

       The Texas Supreme Court in Intercontinental Group Partnership vs. K.B. Lone



                                               -6-
Star Homes, L.P.., 295 s.w.3d 650 (Tex. 2007) citing the holding in Green

International, Inc. v. Solis , 951 S.W.2d 384 (Tex. 1977) held:

       that before a party is entitled to fees under section 38.001, that “party must (1)
       prevail on a cause of action for which attorney's fees are recoverable, and (2)
       recover damages.” [Emphasis added] If Green and Chapter 38 applied to this
       case, KB Home could not recover attorney's fees since it did not recover any
       damages.

       Appellee failed to meet the foregoing requirements to obtain attorney’s fees under

Chapter 38 of the Texas Civil Practice & Remedies Code. Same constitutes Appellant’s

basis for declaring that the judgment of this Honorable Court was void ab initio, because

no basis existed for the award of attorney’s fees.

       In Farrar v. Hobby, 506 U.S.103, 111-112; 113 S.Ct. 566 (1992) a federal civil-

rights case, the Court elaborated:

       [T]o qualify as a prevailing party, a  plaintiff must obtain at least some relief on
       the merits of his claim. The plaintiff must obtain an enforceable judgment against
       the defendant from whom fees are sought, or comparable relief through a consent
       decree or settlement. Whatever relief the plaintiff secures must directly benefit him
       at the time of the judgment or settlement. [Emphasis added]

The Court concluded that the plaintiff “prevailed” in Farrar because he was

awarded one dollar in damages:

       A judgment for damages in any amount, whether compensatory or nominal,
       modifies the defendant's behavior for the plaintiff's benefit by forcing the
       defendant to pay an amount of money he otherwise would not pay.
       Since settlement occurred in favor of Appellant, Appellant remains the prevailing
       party and Appellee is not entitled to attorney’s fees as a prevailing party, even
       though summary judgment was granted in his favor, because Appellee was not
       awarded damages.



                                              -7-
       The law on awarding attorney's fees in civil rights cases is controlled by the

Supreme Court's case, Christianburg Garment Co. v. EEOC , 434 U.S. 412, 422

(1978).

       Although a prevailing plaintiff in a Title VII proceeding is ordinarily to be
       awarded attorney's fees by the district court in all but special circumstances, a
       prevailing defendant is to be awarded such fees only when the court, in the
       exercise of its discretion, has found that the plaintiff's action was frivolous,
       unreasonable, or without foundation. [Emphasis added]

       The Court expounding on its reasons stated:

       (a) There are at least two strong equitable considerations favoring an attorney's fee
       award to a prevailing Title VII plaintiff that are wholly absent in the case of a Title
       VII defendant, viz., the plaintiff is Congress' chosen instrument to vindicate "a
       policy that Congress considered of the highest priority," Newman v. Piggie Park
       Enterprises, 390 U. S. 400, 390 U. S. 402, and when a district court awards
       counsel fees to a prevailing plaintiff, it is awarding them against a violator of
       federal law. Pp. 434 U. S. 418-419


       Therefore, the trial court erred in failing to award attorney’s fees to Appellant.

Said denial was a new matter for determination. Therefore, this Honorable Court erred in

its position that this matter was a part of its previous determination.. Therefore, it was

ripe for determination by appeal.

                                              II.

       Whether the Court of Appeals erred in its finding that Appellant’s appeal was

       frivolous.

       The Court of Appeals asserts that the appeal is frivolous because:

       1)     Davis seeks to relitigate the issues already resolved by the judgment, which


                                              -8-
              was final by appeal before Riggins perfected this appeal.

       First, Appellant does not seek to resolve relitigate issues resolved by the judgment.

The Court did not resolve the issue of her entitlement to attorney’s fees as set out in the

preceding issue. As previously set out, given the nature of the complaint, the Appellant,

Mary Riggins raises issues of discrimination on the basis of race, handicapping condition,

and housing. The statutes heretofore cited provide a basis for an attorney’s fee award for

which Appellant seeks relief in the form of attorney’s fees. That issue was never litigated.

       The policy considerations underlying an award of attorneys' fees in civil rights
       actions are clear. In civil rights litigation, individual litigants assume the position
       of "private attorneys general " vindicating a congressional policy against
       discrimination. When the Civil Rights Act of 1964 was passed, it was understood
       "that the Nation would have to rely in part upon private litigation as a means of
       securing broad compliance with the law." Newman v. Piggie Park Enterprises,390
       U.S. 400, 401, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263, 1265 (1968). It is only through
       attorneys' fees provisions that litigants can be assured of the competent counsel
       they need for the effective enforcement of their right not to be discriminated
       against. Newman v. Piggie Park Enterprises, supra, 390 U.S. at 402, 88 S.Ct. at
       966, 19 L.Ed.2d at 1265.


       2)     Riggins has not shown and the record does not reflect, any reasonable

              ground for concluding that the Judgment is void.

       Appellant would show this court that no contract existed. The language in the

document (Rule 11) which Appellee sought to enforce was unenforceable as a contract

because it was prospective in nature and therefore unenforceable. Because of its

prospective terms, it could not be viewed as binding until its terms were carried out.

       Specifically, the terms of the alleged agreement could, at best, be considered


                                              -9-
condition precedents to a contract and not a contract itself. For example, the following

statements are contained in the alleged Rule 11 agreement: (Clerk’s Record, Vol 11, pgs.

490-494).

       a.     Page 1,Paragraph 1; “If the terms of this letter are followed, then you will
              receive your check at the hearing and I get the release and judgment at the
              hearing.” [ Emphasis added]

       b.     Page 1, paragraph 3 “This agreement is CONTINGENT upon this matter
              being completely resolved with no further attorney’s fees or time, except
              that specifically contemplated by the terms of this agreement.”

       c.     Page 2, 2nd full paragraph- Verification that there are no existing Medicare
              or hospital liens.-- “If all other terms are agreeable, I will also need to
              verify three items regarding liens. I will not check liens unless all other
              terms are agreeable.......”

       d.     Page2, last paragraph The appointment of an ad litem to review the Final
              Compromise and Settlement Agreement; “This agreement is expressly
              contingent upon a guardian ad litem being appointed by the Court to review
              the proposed settlement on behalf of your client and the court approving the
              settlement......”

       e.     Page 3 .... In the event that the agreement is not approved, the executed
              release is thereby rescinded, the take nothing judgment is non-binding, the
              settlement check will be tendered back to me immediately in open court,
              and the parties shall proceed with the litigation in this cause.

       At the time of this writing, a check had not been tendered, a release had not been

executed and it is clear that this document was not intended as a final executed contract.

       The document also contains the language, “Here is how I hope and expect things

to transpire if our clients agree on this settlement and there are no medical and hospital

liens.” [Emphasis added] (See Clerk’s Record Vol.II, pages 490-494;- pg 3 of the




                                             -10-
document- 2nd full paragraph).

       A mere expression of a desire or hope is not a commitment that becomes a binding

contract when it is accepted by the person to whom it was expressed. Redman v.

Whitney, 541 S.W.2d 889 (Tex.Civ..App.-Austin 1976, writ ref’d n.r.e.) . Redman goes

on to state that:

       It is fundamental contract law that, under ordinary circumstances, if one's promise
       is conditioned on the happening or occurrence of a future event, that condition
       must be fulfilled in the exact manner expressed in the contract before the promisor
       can be forced to perform his obligations.

       Appellant asserts that condition precedents were never met, therefore, there was no

binding Rule 11 agreement, as asserted by this Court.

       The Court in Herring v. Heron Lakes Estate Owners Association, Inc.

(Tx.Civ.App. Houston[14th] 2011 held as follows”

       If the parties do not intend to be bound until other terms are negotiated or until a
       formal document is executed, then “there is no binding contract, but only an
       agreement to agree.” Mabon Ltd. v. Afri-Carib Enters., Inc., 29 S.W.3d 291, 300
       (Tex. App.-Houston [14th Dist.] 2000, no pet.); accord Fort Worth Indep. Sch.
       Dist. v. City of Fort Worth, 22 S.W.3d 831, 846 (Tex. 2000); Foreca, 758 S.W.2d
       at 745–46. The key question is whether the parties intended for a formal document
       to be executed as a condition precedent to being bound by contract. Foreca, 758
       S.W.2d at 745–46. See generally Williston on Contracts 4:11 (4th ed. 2007).


       Clearly, the parties were not intending to be bound by this document. The

document is full of language which indicates that certain conditions must be met, and that

the Final Compromise and Settlement Agreement must be approved by the court and the

ad litem. Therefore, it is clear that if the parties intended to be bound by the alleged rule


                                              -11-
11 agreement, there would have been no need for the ad litem to approve an agreement

that had already been signed, nor would there have been any need for the Final Settlement

and Release Documents tendered by Appellees. (Tr. Pgs 382-394).

        As heretofore stated, the document is prospective in nature, and can only be

viewed as an agreement to agree. Therefore, no contract existed in the first place.

The Court in Shaw v. Palmer, 197 S.W.3d 854, 856 (Tex.App.-Dallas 2006) stated that if

an alleged agreement is so indefinite that it is impossible to fix the legal obligations and

liabilities of the parties, the agreement can not constitute an enforceable contract.

       The Court of Appeals appears to have committed an error of law in construing the

Rule 11 agreement as a contract, therefore, same supports Appellant’s contention that the

judgment was void ab initio..

       3)      ..Riggins challenges to the enforcement of the Judgment as modified by this

               Court, the record does not show any reasonable ground for concluding that

               the West Columbia Parties were required to file a response or a brief to be

               entitled to recover the appellate fees awarded in the judgment.

       Awarding attorney fees to a Defendant simply for the Plaintiff appealing is against

the foundation of our legal system. Same constitutes a violation of equal protection under

the law, equal access to redress her grievances, in that the 412th Judicial District trial court

placed restrictions on her ability to appeal, in violation of the United States Constitution,

amendments 1 and 14 and the Texas Constitution, Bill of Rights, Article 1 §§ 3 and 3a.




                                               -12-
The Fourteenth Amendment of the United States Constitution which allows a person to

seek redress for grievances through the justice system. If a person is awarded attorney’s

fees, simply for seeking an appeal, the Court of Appeals and the Supreme Court would

simply exist for those who could afford it.

               The right of access to the Courts is clear according to the U.S. Supreme

Court. Bounds v. Smith, 430 U.S. 817 (1977); M.L.B. v. S.L.J., 519 U.S. 102 (1996).

The Supreme court has stated the right of access to the courts is also protected by the First

Amendment. BE&K Construction CO. v. National Labor Relations Board et al. 536

U.S. 516 (2001)("the right to petition extends to all departments of the Government,” and

that “[t]he right of access to the courts is ....but one aspect of the right of petition.").

California Motor Transp. Co. v. Trucking Unlimited, 404 U. S. 508, 510 (1972). See

Tennessee v. Lane, 541 U.S. 509 (2004)(recognizing "the fundamental right of access to

the courts"); Procunier v. Martinez, 416 U.S. 396 (1974).

       Coupled with the fees resulting in denial of access to the court, the court in

Alyeska Pipeline Service Co. v. Wilderness Socierty, 421 U.S. 240, 247 (1975) was

concerned with the effects of plaintiffs who sustained a fee award against them.

       The principal justification for the rule [American] is that a strict policy of shifting
       fees to the losing party would discourage impecunious plaintiffs due to fear of
       failure and the resulting burden of satisfying the defendant’s attorney’s fees.
       F.D.Rich Co. v. Industrial Lumber Co. 417 U.S. 116, 126 (1974). The American
       rule has been criticized as an unwarranted impediment to indigent plaintiffs, since
       deduction of fees from damage recoveries will not making a prevailing plaintiff
       whole. See Ehrenzweig, Reimbursement of Counsel Fees and the Great Society.
       54 California Law Review 792 (1966).


                                                -13-
       Appellant contends that a monetary penalty which will prevent its access to the

courts in tantamount to a sanction and constitutes an abuse of discretion for which

mandamus lies. In Solum Engineering, Inc. v. Hood, 14-13-00428-CV,

Tex.App.Houston [14th] 2014, this Honorable Court found as follows:

       Solum also contends that it is entitled to mandamus relief because the sanctions
       order "imposes severe monetary restrictions that also threaten the litigation and
       penalize [Solum] for exercising its legal rights." See In re Ford Motor Co., 988
       S.W.2d 714, 723 (Tex. 1998) ("[A]ppeal is not an adequate remedy when a court
       imposes a monetary penalty on a party's prospective exercise of its legal rights.")


       The language of the trial court in the instant cause imposed such a penalty.

Appellant believes that this Honorable Court is duty bound to correct same.

       4)     The West Columbia parties filed a Rule 45 motion asking the court to
              assess damages against Davis more than $54,000.00 in damages. At no
              time has Davis undertaken to refuted the stated reasons for the Rule 54
              damages sought


       This court posits that since Davis failed to refute the reasons stated in Appellee’s

request for damages pursuant to Rule 45, they are deemed uncontroverted. The Court

obviously failed to recognize the calendar of events in this cause. Upon tender of the

Appellee’s brief on December 3, 2013, the matter was immediately submitted to the

Court on December 18, 2013. Appellant lacked the time to answer. The Court in

Glassman v. Goodfriend, 347 S.W.3d 772, 782 (Tex.App.Houston [14th Dist] 2011, the

court stated that a Court of Appeals may make a finding that an appeal is frivolous, after

notice and a reasonable opportunity for a response. Appellant contends that fourteen days


                                             -14-
was not a reasonable time.

       Without any comment from Appellant, this Court can plainly see that the billing

schedule submitted began in 2009. A review of the State Bar of Texas’s website fails to

reveal an attorney named Debra Ibarra. The billing statement indicates that she is a

partner in the firm of L. Cullen Moore.

       Rather it is Appellee’s Motion that seeks to relitigate fees already submitted. Fees

for the grant of summary judgment was all that was allowed. The trial court denied fees

for Supreme Court appellate review. The document that purports to be a contract

provides no basis for any fee.

       Therefore, this Honorable Court erred in the granting of a fee award to Appellees.

       In Glassman at 782-783, the court considered certain factors in determining that

an appeal was frivolous: 1) that the appeal was taken in bad faith; 2) that a party has

reasonable grounds for believing the case could be reversed.

       Appellant contends that this appeal was not taken in bad faith. The appeal was

taken because Appellant was entitled to attorney fees. Moreover, because no contract

existed in the first place and because Appellee was not a prevailing party, sufficient

grounds existed for belief that the case should be reversed.

       WHEREFORE PREMISES CONSIDERED, Appellant prays that this

Honorable Court:

       1.     Reverse the decision of the trial court denying Appellant attorney’s fees;




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       2.     That it reverse its decision affirming the judgment of the trial court;

       3.     That it issue a finding that the appeal is not frivolous;

       4.     That it reverse its order granting damages under Appellate Rule 45 to

              Appellee;

       5.     That it grant attorney’s fees to Appellant for all costs incurred herein since

              the inception of this cause;

       6.     That costs be taxed against Appellee;

       6.     For such other and further relief to which Appellant may be entitled.

                                                    Respectfully submitted,

                                                    /s/ Veronica L. Davis

                                                    Respectfully submitted,
                                                    Veronica L. Davis
                                                    Attorney for Appellant
                                                    226 N. Mattson
                                                    West Columbia, Texas 77486
                                                    (979) 345-2953



                               CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of this Motion for Rehearing has been
submitted for service by efiling to counsel for Appellees by and through their counsel of
record, L. Cullen Moore at 2801 South Post Oak Blvd. Suite 250, Houston, Texas 77056
on this the 6th day of February, 2015.
                                                            /s/ Veronica L. Davis




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