in Re Daryl Barnes and Demeatrice Goff

ACCEPTED 01-15-00060-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 6/10/2015 7:41:03 AM CHRISTOPHER PRINE 01-15-00496-CV CLERK

No. 01-15-00060 - CV xxxxxxxxxxxxxxxxxx

_________________________ FILED IN 1st COURT OF APPEALS In The Court Of Appeals HOUSTON, TEXAS 6/10/2015 7:41:03 AM First District Houston Texas CHRISTOPHER A. PRINE Clerk ________________________________________________________________

Daryl Barnes and Demeatrice Goff Appellants, V Kevin Fulton And National Housing Development Corporation Appellees _________________________________________________________ From The 129th Judicial District Court Harris County, Texas Case No.2012-34954

SUPPLIMENTAL TO PETITION FOR WRIT OF MANDAMUS

VERIFICATION OF PETITION FOR WRIT OF MANDAMUS – NATIONAL HOUSING DEVELOPMENT CORP. V. DARYL BARNES et.al

Relator's have reviewed Their petition and do hereby swear and affirm that that foregoing is true and correct to the best of their knowledge and has concluded that every factual statement in their petition is supported by competent evidence in the record. See Tex. R. App. P. 52.3(j). and acknowledge the same this 9th day of June 2012.

_______________________________

Daryl Barnes /s/Daryl Barnes Demeatrice Goff /s/ Demeatrice Goff 7741 James Franklin Houston, Tx 77088 Email: dbarnes.humble@gmail.com Email: dgoff.humble@gmail.com Phone (832)988-0403

APPENDIX INDEX PETITION FOR WRIT OF MANDAMUS Daryl Barnes and Demeatrice Goff

INDEX 1. Petitioners Motion for Rehearing 2. Letter to Judge Gomez requesting that a ruling be made 3. Fraudulent letter requesting that a ruling be made

THE RECORD There is no needed reference to the record

Petitioners ask the honorable court to disregard the exhibits as written in their statement of facts, while not unremarkable they are they are not germane to the petitioners argument as far as Judge Michael Gomez’s failure to rule on petitioners /relators Motion For Rehearing.

9th day of June, 2015. Daryl Barnes /s/Daryl Barnes Demeatrice Goff /s/ Demeatrice Goff 7741 James Franklin Houston, Tx 77088 Email: dbarnes.humble@gmail.com Email: dgoff.humble@gmail.com Phone (832)988-0403

9/17/2014 9:18:32 AM Chris Daniel - District Clerk Harris County Envelope No. 2518026 By: WILLIE J FRAZIER

CASE NO. 201234954

DEMEATRICE GOFF ) IN THE129th COUNTY Daryl Barnes ) JUDICIAL DISTRICT PLAINTIFFS, ) COURT V. ) COUNTY OF HARRIS NATIONAL HOUSING ) STATE OF TEXAS DEVELOPMENT ) CORPORATION, COLONY, ) LLC ) DEFENDANTS

Request for Rehearing and Motion for New Trial” COMES NOW the complainant by the undersigned attorney and within the reglementary period prescribed by the Rules of Court hereby files this motion for

Pursuant to RULE 505.3. of the Tex.R. Civ. P, Petitioners bring this their Motion for Rehearing and Reconsideration from the judgment of rendered by the honorable court granting summary judgment to the defendants

Introduction

Petitioners are acutely of the aware of the practical realities of the discretionary power of your honor and the practical realities of the judicial system itself. We know very little about the other cases that compete for the courts time and attention, and we know the honorable court works hard at the challenging task in the administration of justice on a daily basis. Nevertheless, its hard to imagine a a set of circunstancesunder which this case should not be allowed to proceed to trial

on the merits. As demonstrated below……… The motion for new trial was premised on Rule of Civil Procedure Pursuant to RULE 505.3.

[A]n order granting a new trial would not prevent the court from later rendering summary judgment on the same grounds as those asserted before the new trial was granted.” Zapata v. ACF Indus., Inc., 43 S.W.3d 584, 586 (Tex. App.—Houston [1st Dist.] 2001, no pet.); see also Stanley v. CitiFinancial Mortg. Co., 121 S.W.3d 811, 816 (Tex. App.—Beaumont 2003, pet. denied) (rejecting argument that granting of a new trial following summary judgment precludes subsequent summary judgment).

NO JUDGMENT WITHOUT SERVICE

1) Confusion abounds when the rules are not followed, in the instant cause of action the rules were not followed 2) The law presumes that a trial court will hear a case only after giving proper notice to the parties. Ashworth, 274 S.W.3d at 329; Jones v. Tex. Dep't of Public Safety, 803 S.W.2d 760, 761 (Tex. App.- Houston [14th Dist.] 1991, nowrit). Also see Tex.R,Civ.P 124 3) Specifically, to satisfy due- process requirements, a defendant in a post- answer default case must have been given notice that the case could be decided on the merits in the event the defendant failed to appear. See Masterson v. Cox, 886 S.W.2d 436, 439 (Tex. App.- Houston [1st Dist.] 1994, no writ). 4) "Rules relating to service of process are mandatory, and a failure to comply therewith, if a judgment be rendered against a party who was not served in accordance with those rules (and who did not waive service of citation or appear voluntarily) renders the judgment void."Strawder v. Thomas, 846 S.W.2d 51, 62 (Tex. App.-Corpus Christi 1992, no writ). 5) Defendants Motion for No Evidence Summary Judgement was set for submission on June 30th 2014 at 8:00 a.m . Petitioner Barnes spoke with the clerk of the court and was told to disregard the Submission and Notice Of Hearing set for June 30th 2014. 6) Defendants submitted documents with the title Notice Of Hearing, instead of Notice Of Submission although the plain language of the document clearly show it as a Notice Of Submission. 7) Defendants 2nd Motion for No Evidence Summary Judgment was set for submission on July 7th ,2014 at 10:30 a.m as evidenced by defendants Notice Of Hearing ( exhibit A). Apparently this particular setting was

actually treated as if it was a Notice Of Oral Hearing on the Defendants Motion for No Evidence Summary Judgment. 8) The Honorable court contacted the petitioners on July 7th,2014 inquiring if I knew of the oral hearing , as petitioners were a no-show for the oral hearing. At that point confusion arose because of the hearing held on July 7th 2014 ,petitioners would think that it would have to be dismissed as a matter of routine, if not at the very least re-set for lack of Service. 9) The Order signed by the honorable court is the order that was disregarded by the petitioners on the direction of the clerk.

Conclusion The judgment should be set aside because the petitioners have shown

(1) his failure to reply to the motion for summary judgment was not intentional or the result of conscious indifference but was due to an accident or mistake; and legal sleight of hand by the defendants

(2) The petitioners cause of action have merit

(3) a new trial would cause no delay or injury to the defendants outside of the fact that they are defendants in a legal cause of action and would simply recreate the same dynamics that existed before the order was signed

(4) the party exercised diligence in prosecuting their cause action (5)Petitioners were not properly served by the defendants Neither were the documents……..

The petitioners were not was not served in accordance rule TRCP 124 (and did not waive service ) therefore the judgment should be rendered void." as per Strawder v. Thomas, 846 S.W.2d 51, 62 (Tex. App.-Corpus Christi 1992, no writ).

CERTIFICATE OF SERVICE

I hereby certify that I have forwarded a true and correct copy of the foregoing Request For Rehearing And Motion For New Trial to all Defendants in accordance with the Texas Rules of Civil Procedure., on this 17th, day of September, 2014

Demeatrice Goff /s/ DemeatriceGoff Daryl Barnes /s/Daryl Barnes 7741 James Framklin Houston, TX 77338 (832) 988-0403 dbarnes.humble @gmail.com

CASE NO. 201234954

DEMEATRICE GOFF ) IN THE129th COUNTY Daryl Barnes ) JUDICIAL DISTRICT PLAINTIFFS, ) COURT V. ) COUNTY OF HARRIS NATIONAL HOUSING ) STATE OF TEXAS DEVELOPMENT ) CORPORATION, COLONY, ) LLC ) DEFENDANTS

ORDER

The motion of Petitioner , Daryl Barnes et.al.,, REQUEST FOR REHEARING AND MOTION FORNEW TRIAL for PETITIONER’S” came for hearing before me on this ________ day of November , 2014

After full consideration of the evidence submitted by the parties, it appears and the court finds that The Petitioners, are entitled to judgment as a matter of law.

The motion of Petitioner’s , Demeatrice Goff , REQUEST FOR REHEARING AND MOTION FOR NEW TRIAL is GRANTED as follows.

It Is Ordered that case No. 201234954 Daryl Barnes et.al., v. National Housing Development Corporation, LLC et.al., be reopened

It Is Ordered that the judgment is rendered void.

It is further ordered that defendants . National Housing Development Corporation LLC.et.al., reset their motion for no-evidence summary judgement for oral hearing or in the alternative reset for submission per their convenience and the rules.

Any other remedy available to the petitioners Dated: ______________

_____________________________ The Honorable Michael Gomez, HARRIS COUNTY DISTRICT COURT JUDGE

.

VERIFICATION OF SUBMITTED DOCUMENTARY EVIDENCE

Relator's have reviewed this document (Petitioners Motion for Rehearing) and do hereby swear and affirm that that foregoing is a true , correct and unaltered copy of Petitioners Motion for Rehearing, and acknowledge the same this 9th day of June 2015.

Daryl Barnes /s/Daryl Barnes Demeatrice Goff /s/ Demeatrice Goff 7741 James Franklin Houston, Tx 77088 Email: dbarnes.humble@gmail.com Email: dgoff.humble@gmail.com Phone (832)988-0403

VERIFICATION OF SUBMITTED DOCUMENTARY EVIDENCE

Relator's have reviewed this document (Letter to Judge Gomez requesting that a ruling be made) and do hereby swear and affirm that the foregoing is a true , correct and unaltered copy of the Letter to Judge Gomez requesting that a ruling be made , as found in the court docket and acknowledge the same this 9th day of June 2015.

Daryl Barnes /s/Daryl Barnes Demeatrice Goff /s/ Demeatrice Goff 7741 James Franklin Houston, Tx 77088 Email: dbarnes.humble@gmail.com Email: dgoff.humble@gmail.com Phone (832)988-0403

Daryl Barnes Demeatrice Goff

January 29th2015

ECF Hon Michael Gomez 129th Judicial District Court Harris, County TX, 201 Caroline 10th floor

Re: Daryl Barnes et.al., V Kevin Fulton and National Housing Development Corporation Civil Action No. 201234954 Dear Judge

We are counsels pro se in the afore mentioned cause of action styled and captioned above, we filed a motion for rehearing on Sept 17th 2014 , to date that ruling has not been forthcoming. For the purposes of appeal we respectfully ask that the honorable judge rule on the petitioners motion for rehearing so that the appellate brief is not legally deficient and that a complete record can be created for transfer and filing in the Houston First Court Of Appeals.

Respectfully Submitted Cc all attorneys of record

Daryl Barnes /s/ Daryl Barnes dbarnes.humble 832-988-0403

VERIFICATION OF SUBMITTED DOCUMENTARY EVIDENCE 4

Relator's have reviewed this document (Fraudulent letter requesting that a ruling be made) and do hereby swear and affirm that the foregoing is a true , correct and unaltered copy of the Letter to Judge Gomez requesting that a ruling be made , as found in the court docket and acknowledge the same this 9th day of June 2015.

Daryl Barnes /s/Daryl Barnes Demeatrice Goff /s/ Demeatrice Goff 7741 James Franklin Houston, Tx 77088 Email: dbarnes.humble@gmail.com Email: dgoff.humble@gmail.com Phone (832)988-0403

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W QJ Daryl Barnes

Y( Demeatrice Goff

NH W January 29th2015

XY )N JQ ECF Hon Michael Gomez

SN 129th Judicial District Court

)F Harris, County TX, 201 Caroline 10th floor

NX Re: Daryl Barnes et.al.,

W V (M Kevin Fulton and National Housing Development Corporation TK Civil Action No. 201234954 Dear Judge HJ KN 4K

We are counsels pro se in the afore mentioned cause of action styled and captioned above, we filed a motion for rehearing on Sept 17th 2014 , to date that ruling has U^

not been forthcoming. For the purposes of appeal we respectfully ask that the (T

honorable judge rule on the petitioners motion for rehearing so that the appellate FQ

brief is not legally deficient and that a complete record can be created for transfer HN

and filing in the Houston First Court Of Appeals. KN

Respectfully Submitted TK

Cc all attorneys of record :S

Daryl Barnes /s/ Daryl Barnes dbarnes.humble 832-988-0403