No.

11-0413

^
IN SUPREME COURT
OF TEXAS

:
IN THE

MOT8M FOB REHEMWIIHT REK

JUL 21 2011

SUPREME COURT OF TEXAS

BLAKE HAWTHORNE, Clerk FOR THE COURT OF APPEALS By~ ===_=_==__ Deputy
HOUSTON, TEXAS
ALETHA RAY,
Plaintiff-Petitioner
v.

CASTILIAN VILLAGE TOWNHOUSE ASSOCIATION,

Defendant-Respondent
01-10-00937

ON APPEAL FROM

First Court of Appeals

Houston Division

Motion for Rehearing on Petition for Review

ON BEHALF OF ALETHA BERNETTE RAY

Aletha Ray, Prose Party

9722 Seeker Street

Houston, Texas 77078

(832) 868-3085

www.talktoaray@yahoo.com
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TABLE OF CONTENTS

Table of Contents

ii

Index of Authorities

iii

1.

This bears all hallmarks of being grant-worthy

A. This case presents many conflicts ofimportantjurisprudential issues.

B. This case involvespractical concerns ofsubstantial andprocedural
importance.

C. This case also involves concerns ofstatutory importance.

Prayer
Certificate of Service

7
8

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LIST OF AUTHORITIES
Alvarado v. Farah Mfg. Co., 830 S.W.2d 911,914 (Tex. 1992)

Pages

Anderson v. Liberty Lobby, Inc.

477 U. S. 242, 248, 106 S. Ct. 2505, 2510,91 L.Ed.2d 202 (1986)
Baldwin v. Hale,

5
2

68 U.S. 223,17L.Ed531 85 Supreme Court, 1864

Bryant v. Texas American Bank Levelland, supra, writ granted 34 Tex.S.Ct.J.366 (Feb 27, 1991)
Bryant v. Texas American Bank Levelland,

795 S.W. 2d 915, Tex. Court of Appeals, Amarillo, 1990

Caruso v. Shropshire,

954 S.W. 2d 115 (Tex. App.-San Antonio, 1997)

Celotex Corp. v. Catrett, 477 US 317Supreme Court, 1986 Chesbrough v. State,

465 S.W. 2d 224Tex: Court of Civil Appeals, 4th Dist. 1971

City of Houston v. Clear Creek, [132 S.W.3d 469] Basin Authority, 589 S.W.2d 671, 676 (Tex.1979)

6
4

City of Houston v. Clear Lake Basin Authority, 589 S.W.2d 671 (Tex. 1979
City of San Antonio v. Garcia,

974 S.W.2d, 756, 758 (Tex. App.-San Antonio, 1998 (no pet)
Cleveland Board of Education v. Loudermill, 470 U.S. 532(1985)

Consolidated Capital Sp. Trust v. Summers, 737, S.W. 2d, 327-Tex: Court of Appeal, 1987

In re Cunningham, Case No. 05-32951-SGJ-13 (Bankr. N.D. Tex 4/9/2008) (Bankr.N.D. Tex. 2008)
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LIST OF AUTHORITIES
Drawsea, Inc. v. Trinity Meadows Properties, 132 S.W.3d 467 (TEX. App. 2003)
First Nat. Bank of Kerrville v. O'Dell,

Pages
5

856S.W.2d410-Tex. Supreme Court, 1993

Fuentes v. Shevin, 407, U.S. 67(1972)

Greenhalgh v. Service Lloyds Ins. Co., 787 S.W.2d 938 (Tex-Supreme Court 1990)

Goswami v. Metropolitan Savings and Loan Association, 751 S.W.2d 487, 491 (Tex.1988)
Henderson v. Jimmerson,

234S.W.2d710,Tex.Civ.App. 1951,ref.,n.r.e
Hausmann v. Texas Savings & Loan Assoc,

585 S.W. 2d 796Tex. Court of Civ. Appeals, 8th Dist, 1979

Kelso v. Wheeler,

3
6

Tex. Civ. App, 310 S.W. 2d 148

Lee v. Key West Towers, Inc., 783 SW 2d 586Tex. Supreme Court1989
Martinez v. Mikel,960 S.W.2d 158, 160

(Tex. App.-San Antonio 1997, (no pet)

McCallum Highlands, Ltd. V. Washington Capital Dus, Inc.,

66 F.3d 89, 92 (5th Circuit), 1995

Nelson, 134 BR 83 8Bankr. Court, N.D.Texas 1999
Newman v. Woodhaven National Bank, Inc., 762 S.W.2d 374

(Tex. Civ. App-Ft. Worth, Texas 1988, no writ)

Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546, 548-49 (Tex. 1985)
Rogers v. Gonzales, 654 S.W.2d 546, 54849 (Tex. 1985)
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LIST OF AUTHORITIES
Saenz v. Gonzalez

Pages

94 S.W.3d 2002 (Tex. App)-No. 04-01-00804-CV)

Schepps v. American Dist. Telegraph Co. of Texas, Tex. Civ. App, 286 S. W.2d
Shearer v. Allied Live Oak Bank,

758 S.W.2d 940 Tex. App.-Corpus Christi, 1988 Slaughter v. Quails, 139 Tex 340, 162 S.W. 2d 671 (1942) Spring Branch Indep. Sch Dist. V. Stamos, 695 S.W.2d 556 (Tex. 1985)
State Farm Fire & Cas. Co. v. Morua,

979 S.W.2d 616 (Tex., 1998) Su Inn Ho v. University of Texas at Arlington,

6,7

984 S.W. 2d672Tex: Court of Appeals 7th Dist. 1998

Walmart Stores, Inc. v. Lynch, 981 S.W.d 353(Tex.App., Texarkana, 1998) Windsor v . Mc veigh, 93 U.S. 274, 23 L.Ed. 914Supreme Court, 1876

2
7

University of Texas Med. School v. Than, 901 S.W.2d 926 (Tex. 1995)
STATUES

Texas Constitution Article I, Section 19 Deprivation of Life, Liberty;

Due Course of Law 1

Texas Property Code, Section 51.002 Sale of Real Property Under Contract Lien

2,3

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Statues, Conts.
TRCP 63 - Amended Instrument TRCP 65 - Substitute Instrument

Pages
5 6

TRCP 166-Summary Judgment

4,5

TRCP 197.1 - Interrogatories Verification

6, 7

-VI-

Motion for Rehearing on Petition for Review

TO THE HONORABLE SUPREME COURT OF TEXAS:

Aletha B. Ray, Petitioner ("Plaintiff) files this Motion for Rehearing:

1. Plaintiff filed Petition for Review on May 27,2011 which was denied by this Court on or about July 8,2011 via postcard, mailed on July 11,
2011 to Petitioner.

2.

Petitioner Aletha Ray hereby requests rehearing on all issues raised in her Petition for Review as filed by the party in this action.

3.

This case presents important jurisprudential issues bears all the hallmarks of a conflict that exists among the United States Supreme Court along with many state legislatures and state Supreme Court have taken action and rendered opinion regarding the constitutional and statutory rights of a resident and a citizen.

I.
A.

This case bears all the hallmarks of being grant worthy

This case presents important jurisprudential issues.
The first issue in this case that was preserved involves the constitutional sufficiency of

notice and opportunity to real property owners in the State of Texas after a Homeowner's
Association decides to foreclose on the property interest of citizens without providing the

required procedural due process rights of relevant notice and an opportunity to prevent seizure.
The Texas Constitution, Article I, Section 19DEPRIVATION OF LIFE, LIBERTY, ETC.; DUE

COURSE OF LAW, states the following: "No citizen ofthis State shall be deprived oflife,

liberty, property, privileges or immunities, or in any manner disfranchised, except bythe due
course ofthe law ofthe land. " This case presents important jurisprudential conflict and issues
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regarding the importance of the Due Process Clause. In Fuentes v. Shevin, 407 U. S. 67 Supreme Court, 1972, the United States Supreme Court indicated thatfox more than a century

the central meaning of procedural due process has been clear: "Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be
notified." Baldwin v. Hale. 1 Wall. 223, 233. See Windsor v. McVeish, 93 U. S. 274. It is

equally fundamental that the right to notice and an opportunity to be heard "must be granted at a
meaningful time and in a meaningful manner." In Su Inn Ho v. University ofTexas at Arlington,

984 S. W. 2d672 - Tex: Court ofAppeals, 7th Dist. 1998, the Court ofAppeals stated that the
principle ofequal protection clause guarantees that all persons similarly should be treated alike; and in University ofTexas Med. School v. Than, 901 S.W. 2d 926 (Tex. 1995), this Court held that the proper remedy for a due process violation is to give the claimant the process that was due. There are two components of the protections afforded by the clausesubstantive and procedural. The substantive component of the Due Course of Law Clause protects citizens from state action arbitrarily or capriciously depriving them of an interest in life, liberty, or property. See Spring Branch Indep. Sch Dist. V. Stamos, 695 S.W. 2d 556 (Tex. 1985); and See Cleveland Board of
Education v. Loudermill, 470 US. 532 (1985).

The second jurisprudential issue that were preserved involves the denial of the statutory

requirement regarding the Notice of Sale under Texas Property Code 51.002 regarding notice of
foreclosure to homeowners which states the following: Texas Property Code 51.002 required

the trustee to post notice of trustee sale at least 21 days before the date ofthe Trustee's Sale,

give the debtor written notice by certified mail, at least 21 days before such sale, and file in
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the Clerk's Office at least 21 days before the sale. In Bryant v. TexasAmerican Bank

Levelland, supra, writ granted, 34 Tex. S. Ct J 366 (Feb. 27, 1991), the Texas Supreme Court
granted and issued a Writ ofError in this case and indicted that Texas American Bank Levelland

did not comply with the statutory requirement on TexasProperty Code 51.002 and determined

that the foreclosure was illegal. The Texas Property Code is intended to give "minimum level of

protectionfor the debtor." See Hausmann v. Texas Savings &Loan Assn., supra at 799. In Nelson 134 BR 838Bankr. Court, N.D. Texas 1999, it states that the Texas Property Code
51.002 required the trustee to post notice of trustee sale at least 21 days before the date of the

Trustee's Sale, give Defendant written notice, by certified mail, at least 21 days before such sale,

and file in the Clerk's Office at least 21 days before the sale. If Plaintiff failed to comply with
the provision of the Texas Property Code, or the express provision of the Deed of Trust, such
Trustee's Sale is void and maybe set aside. See Shearer v. Allied Live Oak Bank,

758 S. W.2d940 Tex. App.-Corpus Christi, 1988.

In First Nat. BankofKerrville v. O'dell, 856 S.W.2d 410- Tex. Supreme Court, 1993,
states that the bank took it upon itself to make the legal determination that O'Dell was not

obligated under any part of the indebtedness evidence by the $570,000 note, and consequently
was not entitled to certified mail notice under section 51.002 of the Texas Property Code. The Texas Supreme Court reversed this decision. A trustee'spower to sell a debtorproperty derives

solelyfrom the deed oftrust pursuant to whichforeclosure occurred, and thepowers conferred
within must be strictlyfollowed. See Slaughter v. Quails, 139 Tex 340, 162 S.W. 2d 671 (1942).

In Consolidated CapitalSp. Trust v. Summers, 737, S.W. 2d, 327-Tex: Court ofAppeal, 1987, the
law is clear that a trustee must adhere strictly to the terms of the power of sale set forth in a deed

of trust. See Caruso v. Shropshire, 954 S. W. 2d 115 (Tex. App.-San Antonio, 1997); In re Cunningham, Case No. 05-32951-SGJ-13 (Bankr. N.D. Tex 4/9/2008) (Bankr.N.D. Tex. 2008);
Newman v. Woodhaven National Bank, Inc., 762 S.W.2d 374 (Tex. Civ. App-Ft. Worth, Texas
1988, no writ).

The third jurisprudential issue that were preserved involves the defective

application of the Texas Rules of Civil Procedure 166 Summary Judgment regarding genuine material fact issues and a abuse of discretion. This is an appeal from a defective
summary judgment. The standards for reviewing a motion for summary judgment are well
established. As mandated by this court, they are: (1). The movant for summary judgment has the

burden of showing that there is no genuine issue of material fact and that it is entitled to

judgment as a matter of law; (2). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true; (3). Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved
in its favor. In Celotex Corp. v. Catrett, 477 U S. 317Supreme Court, 1986, the UnitedStates

Supreme Court reversed the ruling when itstated that Celotex Corporation's Motionfor
Summary Judgment under Federal Rules ofCivil Procedures 56 wasfatally defective because
there were no efforts made to adduce any evidence in theform ofaffidavits to support its
motions, and Mrs. Catrett submitted into evidence three documents thatprecluded the entryof
the Motionfor Summary Judgment.

In City ofHouston v. Clear Lake Basin Authority, 589 S. W.2d 671 (Tex. 1979), the Texas

Supreme Court of Texas reversed and remand this case because there were fact issues that
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existed. In Goswami v. Metropolitan Sav. And Loan Ass 'n, 751 SW 2d 487-Tex: Supreme Court 1988), the Supreme Court reversed and remand his case because Goswami's Summary Judgment

proof raised a fact issue to defeat the motion. See Nixon v. Mr. Property Management Company, Inc., 690 S.W. 2d 546, 548-49 (Tex. 1985); City ofSan Antonio v. Garcia, 974 S.W. 2d, 756, 758 (Tex. App.-San Antonio, 1998(nopet); Martinez v. Mikel, 960 S. W.2d158, 160(Tex. App.-San
Antonio 1997, (nopet); and Saenz v. Gonzalez 94 S W.3d2002 (Tex. App.-No. 04-01-00804CV); Drwsea, Inc., v. TrinityMeadows Properties, 132 S.W. 3d 46?'(Tex. App. 2003); and
Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248, 106 S.CT. 2505, 2510 911, Ed.2d (202) 1986.

The fourth jurisprudential issue that were preserved involves the abusive

interpretation of the Texas Rules of Civil Procedures Rule 63 regarding Amended or

Substitute Instrument. Rule 63 of the Texas Rules of Civil Procedure provides: Parties may

amend their pleadings provided, thatany amendment offeredforfiling within seven days ofthe trial, shall befiled only after leave ofthejudge is obtained, which leave shall be grantedby the

judge unless there is a showing that such amendments will operate as a surprise ofthe opposite

party. Accordingly, pleadingamendments sought within seven daysofthe time oftrial are to be
granted unless there has beena showing ofsurprise to the opposite party. Rogers v. Gonzales,
654 S.W.2d 509. 515 (Tex.App.-Corpus Christi 1983. writ refd n.r.e. As we held in Goswami,

Metropolitan Savings & Loan, Assoc, 751 S.W.2d 487 (Tex. 1988), Rule 63 is to be liberally
construed. Thus, where "the record is silent of any basis to conclude that the amended petition

was not considered by the trial court, and inasmuch as [there was no showing of] surprise or

prejudice, leave of court is presumed." Id. at 490. As in Goswami, the record here does not
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reflect whether leave of court was requested or granted, nor is there any indication that the trial court refused leave to file the amended petition. Since there is no basis in the record to conclude

that Eid's amended petition was not considered by the trial court, and inasmuch as the Lees did not show any surprise or prejudice, leave of court is presumed. We therefore conclude that the

question of Eid's personal liability was properly before the appellate court for review. Under Rule
63 and 66, a trial court does not have discretion to refuse an amendment unless the opposing party

presents evidence, surprise, or prejudice; Greenhalgh v. Service Lloyds Ins. Co., 787'S.W2d938 (Tex-

Supreme Court 1990). See Lee v. Key West Towers, Inc., 783 SW 2d 586Tex. Supreme Court

1989; Rogers v. Gonzales, 654 S.W.2d 546, 54849 (Tex. 1985)

Rule 65 of the Texas Rules of Civil Procedures provides that the instrument for which it

is substituted for shall no longer be regarded as a part of the pleading in the record of the cause.

The amended petition, unchallenged by exceptions, stands in the place of the original petition as

part of the record in the case. Rule (65 T.R.C.P.; Kelso v. Wheeler, Tex. Civ. App, 310 S. W. 2d
148. The law is well settled that an amended pleading completely supersedes and supplants the

pleading which is amended. Henderson v. Jimmerson, 234 S. W.2d 710, Tex.Civ.App. 1951, refi,
n.r.e. This court in Schepps v. American Dist. Telegraph Co. ofTexas, Tex.Civ.App, 286 S.W.2d
684, in affirming a summary judgment, said that the trial court was duty bound to consider

plaintiffs last amended original pleadings in full on the hearing for summaryjudgment. See

Chesbroughv. State, 465 S.W. 2d 224Tex: Court ofCivil Appeals, 4th Dist. 1971.
The fifth jurisprudential issue that were preserved involves the defective application
and an abuse of discretion of the Texas Rules of Civil Procedures 197 relating to the use

unverified interrogatories as official testimony. In State Farm Fire & Cas. Co. v. Morua,

979 S. W. 2d 616 (Tex., 1998) citing Alvarado v. Farah Mfg. Co., 830 S W.2d911, 914 (Tex.

1992), the Texas Supreme Court ruled that interrogatories serve to flush out the facts of the case

and to prevent trial by ambush. Given the fact-intensive nature of interrogatories, requiring

verification promotes the purpose of discovery and "avoids the inevitable disputes over who said
what when." State Farm Fire & Cas. Co. v. Morua, 979 S. W.2d616 (Tex., 1998). Requiring

verification throughout discourages pretrial gamesmanship and helps facilitate full examination
at trial. See Wal-Mart Stores, Inc. v. Lynch, 981 S. W. 2d 353 (Tex. App.-Texarkana, 1998).

PRAYER

For the foregoing reasons, Petitioner, Aletha Ray, respectfully requests and moves this
Court to rehear this case because the specific constitutional and statutory structure set up to

define what governmental bodies are required to follow as described in the Constitution, the

Texas Property Codes, and the rules have been violated, and such violation caused Petitioner to be deprived of her rights to redress under the Texas and Federal Constitutions and the Texas
Property Codes.

Respectfully submitted,

detfia B. Ray
9722vSeeker Street

Houston, Texas 77078

832-868-3085

www.talktoarav@yahoo.com

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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Motion for Rehearing
has been mailed to Ms. Tammi Enoch, Attorney, Shannon, Gracey, Ratliff &

Miller, LLP, 1301 McKinney Street, Suite 2920, Houston Texas 77010 on this the

19th day of July, 2011 by either certified mail, delivery confirmation, facsimile, or
certificate of mailing.

Aletha Ray

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