Shawn Ibrahim, Inc., Mahmood Aktar and Muhammad Amin v. Suncoast Environmental and Construction,Inc. Sunnyland Development, Inc. Ajaz R. Siddiqui And Najeeb R. Siddiqui ( 2015 )

ACCEPTED
01-14-00583-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
6/16/2015 12:08:35 PM
CHRISTOPHER PRINE
CLERK
NO. 01-14-00583-CV
In The FILED IN
1st COURT OF APPEALS
Court Of Appeals HOUSTON, TEXAS
For The 6/16/2015 12:08:35 PM
CHRISTOPHER A. PRINE
First District of Texas Clerk
SHAWN IBRAHIM, INC., MAHMOOD AKHTAR, AND MUHAMMAD AMIN
Appellants,
v.
SUNCOAST ENVIRONMENTAL & CONSTRUCTION, INC., SUNNYLAND
DEVELOPMENT, INC., AJAZ R. SIDDIQUI, AND NAJEEB R. SIDDIQUI
Appellees.
On Appeal from the 61st District Court
Harris County, Texas
Trial Court Cause No. 2011-02593
APPELLANT’S MOTION FOR REHEARING
Herbert W. Fortson, III
SBN: 07277300
Micah B. Fortson
SBN: 24083012
Fortson, Frazer, & Siegrist, P.C.
2702 Jackson Street
Houston, Texas 77004
T: (713) 533-1520
F: (713) 533-1571
herb@fortson-co.com
micah@fortson-co.com
ATTORNEYS FOR APPELLANTS
TO THE HONORABLE FIRST COURT OF APPEALS:
COMES NOW APPELLANT, Shawn Ibrahim, Inc., and pursuant to Texas
Rules of Appellate Procedure 49, et seq. files this motion for rehearing, and in
support would show:
MOTION FOR REHEARING
The Court’s opinion in this matter, issued June 2, 2015, erroneously
applied the presumption that the trial court had before it and determined all facts
necessary in support of the judgment absent any record of what evidence the trial
court considered. See No. 01-14-00583-CV, Memorandum Opinion, pp. 5, 9, and
10. This presumption was improper and wholly prevented appellate review of the
merits. Appellants request a rehearing to apply the correct presumption required by
Tex. R. App. P. 34.6(c)(4) that the partial reporter’s record designated by the
parties is the entire record for purposes of reviewing the issues stated in the request
for a partial reporter’s record.
FACTS
On August 7, 2014 appellants filed, and served on all parties, their request
for a partial reporter’s record. Although filed three weeks after the date to perfect
the appeal it included a statement of the points or issues to be presented on appeal
in compliance with Texas Rule of Appellate Procedure 34.6(c)(1). See Exhibit A.
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As a result of the brief deadline extensions granted to each side, appellees had six
and a half months to brief the stated issues during which time they made two
requests to supplement the reporter’s record.
ARGUMENT
Because appellants filed a request for a partial reporter’s record and
statement of issues without adversely affecting appellees position the Court should
presume the designated partial record is complete for purposes of reviewing the
stated issues.
Texas Rule of Appellate Procedure 34.6(c) allows for and encourages a
party to request a partial reporter’s record when only limited issues are being
presented on appeal. When such a partial reporter’s record is requested the
appellant must include in the request a statement of the points or issues to be
presented on appeal and will then be limited to those points or issues. Tex. R. App.
P. 34.6(c)(1). Because the appellee has the opportunity to designate additional
exhibits and testimony from the reporter’s record (Tex. R. App. P. 34.6(c)(2)) the
appellate court must presume that the partial reporter’s record designated by the
parties constitutes the entire record for purposes of reviewing the stated points or
issues. Tex. R. App. P. 34.6(c)(4); Bennett v. Cochran, 96 S.W.3d 227, 230 (Tex.
2002) (per curiam). This presumption applies even if the statement includes a point
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or issue complaining of the legal or factual insufficiency of the evidence to support
a specific factual finding identified in that point or issue. Tex. R. App. P.
34.6(c)(4).
In Bennett the Supreme Court of Texas held that although the appellant filed
his statement of issues two months late, the Rule 34.6(c)(4) presumption was
appropriate for a meritorious appellate review because the appellee was not
deprived of an opportunity to designate additional portions of the record and was
not otherwise prejudiced by the late filing. Bennett, 96 S.W.3d at 230; see also
Burns v. Mullin, 2013 Tex. App. LEXIS 12730; 2013 WL 5631031, 4 (Tex. App.
Houston [14th Dist] 2013, no pet.) (“[a] late-filed statement of points or issues may
support the presumption that the record is complete unless the appellee
demonstrates that the late filing of the statement adversely affected him”); See also
Pye’s Auto Sales, Inc. v. Gulf States Fin. Co., 2007 Tex. App. LEXIS 4222, 2007
WL 1559933 (Tex. App. – Houston [1st Dist.] 2007, no pet.) (holding that the Rule
34.6(c)(4) presumption did not apply because the appellant had failed entirely to
file a statement of issues along with the request for partial reporter’s record).
Although in Bennett the statement of issues was filed two months late and
gave appellee two months to prepare his brief, in this case, the statement of issues
was only three weeks late and gave the appellee more than six months to prepare a
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brief. Here, just as in Bennett and Burns, without a showing of prejudice, the spirit
of the rules, “designed to further the resolution of appeals on the merits” requires
an appellate review of the issues, under the requisite presumption of a complete
record, even if the statement of issues was late filed. Tex. R. App. P. 34.6(c)(4);
Bennett, 96 S.W.3d at 230; Burns. 2013 Tex. App. LEXIS 12730; 2013 WL
5631031 at 4.
The Standby Creditor’s Agreement is the lynchpin of appellants’ case and
the basis for determining and calculating the disputed note terms and the usurious
interest charged. The issues regarding the Standby Creditor’s Agreement were
stated in the statement of issues attached to the request for partial reporter’s record.
See Exhibit A, §§ 3.2(a-c) and 3.3(b-c). Appellant’s statement of issues and the
requisite Rule 34.6(c)(4) presumption were disregarded by this Court when it
presumed the trial court heard evidence absent from the partial record to support its
judgment that the standby creditor’s agreement did not bar recovery. Because the
incorrect presumption was applied avoiding a review of the merits, a rehearing
should be granted to review the issues under the proper presumption of a complete
record.
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PRAYER
For the reasons stated above, Appellant, Shawn Ibrahim, Inc., requests that
this Court grant a rehearing to review the merits of appellants’ claims under the
Rule 34.6(c)(4) presumption that the partial reporter’s record designated by the
parties is the complete record for purposes of reviewing appellants’ stated issues.
Respectfully submitted,
FORTSON, FRAZER & SIEGRIST, P.C.
/s/ Micah B. Fortson
Herbert W. Fortson, III
SBN: 07277300
Micah B. Fortson
SBN: 24083012
Fortson, Frazer, & Siegrist, P.C.
2702 Jackson Street
Houston, Texas 77004
T: (713) 533-1520
F: (713) 533-1571
ATTORNEYS FOR APPELLANTS
CERTIFICATE OF COMPLIANCE
I hereby certify that this document complies with the formatting
requirements of the Texas Rules of Appellate Procedure and, Pursuant to Tex. R.
App. P. 9.4(i)(3), this motion, created in Microsoft Word 2010, contains 905
words, excluding portions exempted under the rules.
/s/ Micah B. Fortson
Micah B. Fortson
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CERTIFICATE OF CONFERENCE
I hereby certify that, pursuant to Texas Rule of Appellate Procedure
10.1(a)(5), a reasonable attempt to confer with all other parties about the merits of
this motion and whether the parties oppose the motion was made.
/s/ Micah B. Fortson
Micah B. Fortson
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument was
served via electronic service or email on this the 16th day of June, 2015 to the
following:
Joe Yardas
100 I-45 North, Suite 200, Box 200
Conroe, Texas 77301
(936) 756-1020 Telephone
(936) 494-1232 Facsimile
jyardas@suddenlinkmail.com
Attorney for Defendant
Sunnyland Development, Inc.
Ronald Max Raydon
1718 Fry Road, Suite 450
Houston, Texas 77084
(281) 398-6402 Telephone
(281) 398-6403 Facsimile
ron@raydonlaw.com
Attorney for Defendants
Suncoast Environmental and Construction, Inc.,
Ajaz R. Siddiqui and Najeeb R. Siddiqui
/S/ Micah B. Fortson
Micah B. Fortson
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