                                                                              ACCEPTED
                                                                          01-15-00114-CV
                                                               FIRST COURT OF APPEALS
                                                                       HOUSTON, TEXAS
                                                                     10/5/2015 4:24:34 PM
                                                                    CHRISTOPHER PRINE
                  01-15-00114-CV                                                   CLERK


                      INTHE

           FIRST COURT OF APPEALS                        FILED IN
                                                  1st COURT OF APPEALS
                                                      HOUSTON, TEXAS
               AT HOUSTON TEXAS
                                                  10/5/2015 4:24:34 PM
                                                  CHRISTOPHER A. PRINE
                                                          Clerk

            CHRISTINA LIVINGSTON,

                     Appellant,

                         v.
FEDERAL NATIONAL MORTGAGE ASSOCIATION
              FANNIE MAE,

                      Appellee.

 Appeal from the County Court At Law No. Four (4) of
                 Harris County Texas



   APPELLANT'S MOTION FOR REHEARING


               Arturo R. Eureste
            State Bar No. 06702250
     Law Office of Dovalina & Eureste L.L.P.
              122 Tuam St., Suite 100
               Houston Texas 77006
               Phone: (713)624-1010
                Fax: (713)624-1010
            Email: art@eurestelaw.com
             Attorney for Appellant
              Christina Livingston
                                             01-15-00114-CV

                                     CHRISTINA LIVINGSTON,

                                                 Appellant,

                                                      v.

                    FEDERAL NATIONAL MORTGAGE ASSOCIATION
                                  FANNIE MAE,

                                                 Appellee.


                               IDENTITY OF PARTIES & COUNSEL


Appellant:                                                 Counsel:

Christina Livingston                                       Arturo R. Eureste
                                                           State Bar No. 06702250
                                                           Law Office of Dovalina & Eureste L.L.P.
                                                           122 Tuam St., Suite 100
                                                           Houston Texas 77006
                                                           Phone: (713)624-1010
                                                           Fax: (713)624-1010
                                                           Email: art@eurestelaw.com
                                                           Attorney for Appellant


Appellee:                                                  Counsel:

Federal National Association                               Jeffrey Ben Hardaway
Fannie Mae                                                 State Bar No. 24038254
                                                           Codilis & Stawiarski, P .C.
                                                           650 North Sam Houston Parkway East 450
                                                           Houston, TX 77060
                                                           Tel. (281)925-5356
                                                           Fax. (281)925-5356
                                                           Email: j effhardaway@tx.cslegal.com
                                                           Attorney for Appellee




Appellants Motion for Rehearing: Page 2 of39
Christina Livingston v. Federal National Mortgage Association Fannie Mae
01-15-00114-CV (Tex.App.-Houston [1'' Dist]).
                                                           TABLE OF CONTENTS
                                                                                                                                               Page
  IDENTITY OF PARTIES AND COUNSEL . .. .. .. .. . .. . .. .. . .. . . .. . .. . . . . .. . . .. . .. •...                                       2

  INDEX OF AUTHORITIES ..... ....... ......... ........... ... ... .. ....... ... ..... ... .....                                               3

  STATEMENT OF CASE....................................................................                                                         4

  ISSUES PRESENTED .................................................................... .
  1. CAN THIS COURT GRANT A "MOTION FOR REVIEW" WHEN THE CASE
  WAS DISMISSED FOR LACK OF PROSECUTION DUE TO APPELLANTS
  FAILURE TO FILE THEIR BRIEF?


  SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...    5

  ARGUMENT...................................................................................                                                   5

  PRAYER..........................................................................................                                              6

  CERTIFICATE OF SERVICE............................................................                                                            7

  APPENDIX....................................................................................                                                  8


                                                         INDEX OF AUTHORITIES
                                                                CASES
  Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 & n.91 (Tex. 2001).                                                                              5
  In re K.C.B., 251 S.W.3d 514, 517 (Tex. 2008).                                                                                                5
  Grand Prairie Indep. Sch. Dist. v. Southern Parts Imports; Inc., 813 S.W.2d 499,                                                              5
  500 (Tex.1991).
  Hone v. Hanafin, 104 S.W.3d 884, 887 (Tex. 2003) (per curiam);                                                                                6

                                                          TEXAS CONSTITUTION

  Texas Constitution Article XVI Section 50.                                                                                                    4

                                                                 TEXAS STATUES

   Texas Property Code Section 24                                                                                                               4
   Tex.R.App.P. §§ 38.8(a)(l)                                                                                                                   6
   TEX R. APP. P. 10.5(b)(l)(C).                                                                                                                6




Appellants Motion for Rehearing: Page 3 of 39
Christina Livingston v. Federal National Mortgage Association Fannie Mae
01-15-00114-CV (Tex.App.-Houston [l'' Dist]).
                                          STATEMENT OF CASE

    Appellant brought this appeal on the grounds that the Justice of the Peace Court in Harris

County and the County Court at Law No. Four in Harris County, Honorable Judge Roberta

Lloyd, did not have jurisdiction to enter an eviction order removing Appellants right of

possession in her homestead residence or in the alternative, that provisions in Deeds of Trust that

create a landlord tenant relationship of a homeowner and his mortgagee after foreclosure should

be declared unconstitutional because these provisions violate the Texas Constitutionl and the

United States Constitution2 by failing to afford due process safeguards against wrongfully

foreclosed homeowners.

    This Appeal was filed on February 5, 2015.                On May 13, 2015, Appellant filed their

docketing statement. On May 19, 2015 this Honorable Court sent notices to the parties that the

reporter's record was filed and that Appellants brief was due within thirty (30) days of that date.

Appellant concluded and scheduled a filing deadline date of June 18, 2015 for the brief.

    Appellant failed to file its brief within the deadline period because Appellant's office was

faced with an avalanche of new cases and an overwhelming amount of activity on existing cases.

The firm was also faced with changes in employees, while at the same time, equipment was

being updated and repaired. The office also expanded to include a department in modifications

and litigation concerning new modification laws and rules. During all this extraordinary activity,

the likes the firm had never had before, this appellate case was lost in the activity. Although the

briefing deadline was scheduled for preparation the scheduling was missed.

        Because Appellant failed to file his brief within the time period required, this Court

dismissed his case for lack of prosecution on September 15, 2015. Once Appellant became

aware of the dismissal, he filed this motion for rehearing within the deadline period. Appellant

1 Tex. Const. Art. XVI§ 50 & Art. I§ 19
2 US Const. Amend. V
Appellants Motion for Rehearing: Page 4 of39
Christina Livingston v. Federal National Mortgage Association Fannie Mae
01-15-00114-CV (Tex.App.-Houston [1'' Dist]).
received the notice of dismissal by email which allowed Appellant an additional three days in

addition to the 15 days given to file a motion for rehearing.

                                     SUMMARY OF ARGUMENT

    Appellant brings this Motion for Review to allow Appellant to submit his late brief.

Appellant's delay was not due to deliberate or intentional noncompliance.          Instead, due to

circumstances amounting to "plausible good faith justification" Appellant failed to meet the

deadline.

    Appellant asserts the Appellee will not be prejudiced. Appellee has as security, a paid bond

by Appellant to cover cost of Appellee during this appeal.


                                               ARGUMENT

Issue 1: CAN THIS COURT GRANT A "MOTION FOR REVIEW" WHEN THE CASE
WAS DISMISSED FOR LACK OF PROSECUTION DUE TO APPELLANTS FAILURE
TO FILE THEIR BRIEF?

    "The Supreme Court of Texas has made clear that courts of appeal should strive to determine

cases on the merits rather than on a procedural technicality that is easily corrected. " Lehmann v.

Har-Con Corp., 39 S.W.3d 191, 205 & n.91 (Tex. 2001). "In the past [this court has] tried to

ensure that the right to appeal is not lost by an overly technical application of the law." Id.

"[W]e have instructed the courts of appeals to construe the Rules of Appellate Procedure

reasonably, yet liberally, so that the right to appeal is not lost by imposing requirements not

absolutely necessary to effect the purpose of a rule." Id. "[J]ustice is not served when a case

like this, ripe for determination on the merits, is decided on "a procedural technicality" that can

easily be corrected.... " In re K.C.B., 251 S.W.3d 514, 517 (Tex. 2008). See also Grand

Prairie Indep. Sch. Dist. v. Southern Parts Imports, Inc., 813 S.W.2d 499, 500 (Tex.1991).

    "Whether we grant a motion for extension hinges on whether the appellant provides a

reasonable explanation for the untimeliness of the filing, that is, a "plausible good faith
Appellants Motion for Rehearing: Page 5 of 39
Christina Livingston v. Federal National Mortgage Association Fannie Mae
01-15-00114-CV (Tex.App.-Houston [1'' Dist]).
justification for filing their notice of appeal when they did." Hone v. Hanafin, 104 S.W.3d 884,

887 (Tex. 2003) (per curiam); see also TEX R. APP. P. 10.5(b)(l)(C) and 38.8(a)(l). "Thus,

under the liberal standard applied in these cases, any reason short of deliberate or intentional

noncompliance qualifies as reasonable." Id.

    Appellant has filed with this review his required brief. See Exhibit "A". Along with his

brief, Appellant has included a Motion to Extend Time to File his Brief. See Exhibit "B".

Appellant asserts the inability to tract the brief deadline and meet the requirement was not due to

intentional delay but mistake and accident. The calendar date for the brief deadline was lost

when Appellant's electronic calendaring failed in combination with an extraordinary amount of

activity from new and existing cases, the likes of which had never been experienced by the firm.

                                                 PRAYER

    Because of the reasons set forth above, Appellant humbly prays this Court grant his Motion

for Rehearing and reverse the dismissal of this case.




                                    CERTIFICATE OF SERVICE
Appellants Motion for Rehearing: Page 6 of39
Christina Livingston v. Federal National Mortgage Association Fannie Mae
01-15-00114-CV (Tex.App.-Houston [1" Dist]).
                                    CERTIFICATE OF SERVICE

  I certify that on October 5, 2015, I served a copy of APPELLANT'S MOTION TO EXTEND

TIME TO FILE BRIEF on the parties listed below by method indicated therewith:


                                                           By: Isl Arturo R. Eureste
                                                            Arturo R. Eureste


Jeffrey Ben Hardaway                                        Via Email Delivery
Codilis & Stawiarski, P.C.
650 North Sam Houston Parkway East 450
Houston, TX 77060
Tel. (281)925-5356
Fax. (281 )925-5356
Email: jeffhardaway@tx.cslegal.com




Appellants Motion for Rehearing: Page 7 of 39
Christina Livingston v. Federal National Mortgage Association Fannie Mae
01-15-00114-CV (Tex.App.-Houston [1 81 Dist]).
                                           No. 01-15-00114-CV

                                      CHRISTINA LIVINGSTON,

                                                 Appellant,

                                                      v.
                     FEDERAL NATIONAL MORTGAGE ASSOCIATION
                                  FANNIE MAE,

                                                  Appellee.



                                      APPELLANT'S APPENDIX


                                         LIST OF DOCUMENTS

                                                                           Exhibit
              1. Appellant's Brief                                           A
              2. Appellant's Motion to Extend Time to File Brief             B




Appellants Motion for Rehearing: Page 8 of39
Christina Livingston v. Federal National Mortgage Association Fannie Mae
01-15-00114-CV (Tex.App.-Houston [1'' Dist]).
