                                                                                          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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