DOCX Cleburne. Texas 76033-1043"'MAY.Bark.mgnlawyqr.com



Texas Justice Court Training CenterWTJPCALubbockApril 10-11, 2018Eviction Scenarios:Questions and Answers Randall L. SarosdyRebecca GlisanSCENARIO 1Plaintiff files an eviction suit in your court. The plaintiff acquired the premises (a residence on a lot) after a tax foreclosure sale at which he was the highest bidder. The defendant is an occupant of the residence. The defendant claims that the property belonged to her aunt who passed away and she inherited it and owns it. But she does not have a warranty deed or any proof of ownership. Apparently, after her aunt died no one paid the property taxes and there was a tax foreclosure sale. Both parties appear for trial. The defendant argues that she is entitled to judgment because the plaintiff only gave her a three day notice to vacate. She claims she is entitled to a 30 day notice to vacate under Property Code § 24.005(b), which states:“If a building is purchased at a tax foreclosure sale or a trustee's foreclosure sale under a lien superior to the tenant's lease and the tenant timely pays rent and is not otherwise in default under the tenant's lease after foreclosure, the purchaser must give a residential tenant of the building at least 30 days' written notice to vacate if the purchaser chooses not to continue the lease. The tenant is considered to timely pay the rent under this subsection if, during the month of the foreclosure sale, the tenant pays the rent for that month to the landlord before receiving any notice that a foreclosure sale is scheduled during the month or pays the rent for that month to the foreclosing lienholder or the purchaser at foreclosure not later than the fifth day after the date of receipt of a written notice of the name and address of the purchaser that requests payment.”The plaintiff claims this statute is not relevant because the defendant is not a tenant of a previous owner but claims to be the owner herself. So there is no lease. He claims she is just a tenant at sufferance because she used to have a legal right to be there but no longer does since he purchased the property at the tax foreclosure sale. He claims he only had to give her a 3 day notice to vacate under this sentence in Property Code § 24.005(b):“If the occupant is a tenant at will or by sufferance, the landlord must give the tenant at least three days' written notice to vacate before the landlord files a forcible detainer suit unless the parties have contracted for a shorter or longer notice period in a written lease or agreement.”How would you rule:For the Plaintiff: 3 day notice to vacate is all that is required.For the Defendant: the occupant was entitled to 30 days notice since it was a tax foreclosure sale.[No written answer for this scenario.]SCENARIO 2Email sent from a judge on November 3, 2017:On June 14, 2017 I heard an eviction suite and ruled in favor of the plaintiff for possession of the property only as plead by the Pro Se Plaintiff.? Defense attorney filed an appeal on July 5, 2017 which was dismissed at the county court because the appeal was not filed timely by the Defense even though in the interest of justice I did allow the writ to be appealed to the county court since Defense counsel argued that the appeal time was different for a manufacture home than a normal appeal even though the rule stated otherwise.? When the Plaintiff returned August 22, 2017 to file for their Writ of Possession for the Trailer and an error was discovered in the original trial judgment order.? I completed an order for a Nunc Pro Tunc to correct the wording on the original judgment of June 24th, 2017 to describe the Manufacture Home in the Judgment.? On August 23rd, 2017 Defense Counsel came and filed a second appeal since a Nunc Pro Tunc was done on August 22nd, 2017 siting that the Nunc Pro Tunc allowed for an appeal to be granted.? After consulting with the County Attorney’s Office, they felt that in the interest of fairness and justice, the appeal should be granted and heard by the county court.? This week, October 31st, 2017 the county court heard the appeal arguments and again dismissed the appeal, siting that the original appeal bond was filed more than 5 days from date of judgment and dismissed the appeal with prejudice.The Plaintiff has now returned and filed for another Writ of Possession.? My dilemma is that Rule 510.8(d) states clearly the Writ of Possession cannot be issued later than 60 days from date of judgment unless for good cause the judge may grant the Writ of Possession no later than 90 days from date of judgment.? The plaintiff is stating that the Writ of Possession should be issued because of the appeal and Nunc Pro Tunc date are within that 90 day range. Can you help shed some light on this for me please. ?I wish to make a proper ruling and it is my belief that the Plaintiff has to start the whole eviction procedure over again since the original judgment was signed on June 14th, 2017 and I cannot find any precedent stating otherwise where the Writ of Possession issuance date starts over when an appeal is dismissed at the county level or when a Nunc Pro Tunc is done from an error on the original judgment date. How would you rule:The plaintiff has to file a new suit: it’s more than 90 days from the original judgment.The plaintiff is entitled to a writ of possession: it is less than 90 days from the nunc pro tunc judgment which the defendant treated as a “new” judgment to file a second appeal; if it was good enough for a second appeal it is good enough for a writ of possessionAnswer given to Scenario 2:Judge:? I agree with you that there is no provision in the rules for extending the time limit for issuance of a writ of possession more than 90 days after signing the judgment for possession. So if we are going by the original date (June 24), it is too late to issue a writ of possession.? But in this case the plaintiff has a really good (maybe compelling) argument that you should go by the date of the nunc pro tunc judgment since the defendant treated it as a new judgment in order to get a second appeal.? And it is only because of that second appeal that the plaintiff’s time ran out in which to get a writ of possession.? Technically, a nunc pro tunc judgment is not a new judgment; it relates back to the original judgment (and literally means “now for then”). And so really a second appeal should not have been granted. But since it was granted, and the nunc pro tunc judgment was in effect treated as a new judgment, at the defendant’s request, would it not be unfair to the plaintiff to make him file a new suit to get a new judgment for possession? In other words, if the nunc pro tunc judgment was a new judgment for purposes of the appeal, why isn’t it a new judgment for purposes of the writ of possession (and within the 90 days)? Furthermore, if the plaintiff has to file a new suit, and there is a judgment against the defendant, this time the defendant may not miss the five day time for appealing and may perfect his appeal on time and therefore the plaintiff would have to go through a trial do novo in the county court (which would be the third trial in this case).? So as I see it, it comes down to this: if you literally apply the 90 day rule to the original judgment, he is out of time now and has to file a new suit; but if you treat the nunc pro tunc judgment as a “new” judgment (which the defendant did in order to appeal a second time), then the plaintiff is within 90 days of the day that “new” judgment was entered.? If we are applying “fairness and equity” as the County Attorney said in giving the defendant a second appeal, I don’t see how we can’t apply it to the plaintiff too.? So for me if the nunc pro tunc judgment was good enough for an appeal, then it should also be used as the date to calculate the 90 days.SCENARIO 3If an attorney efiled only a notice of appeal a day after the deadline on an eviction suit due to non-payment of rent and the appeal was not perfected since no appeal bond was attached nor have we received an appeal bond since the attorney was notified last week that the appeal was not perfected and plaintiff has now requested a writ of possession.? Yesterday the attorney sent a letter stating that his signature as Attorney of Record bounds him as surety.Now he is stating that if I refuse to accept what he efiled he will seek a Writ of Mandamus.Your thoughts if you can.Here is the letter from the attorney:Attorney at Law13 North Main StreetTel. 817-558-4719P.O. Box 1063Fax 817-645-3Cleburne. Texas 76033-1043"'MAY.Bark.February 23, 2018Re: Cause No.: JP2-CV180009; Chaney v. HumphreysDear Ms. Ashley,In response to your email yesterday, yes, I had received your prior message. In response, I sent a letter directly to Judge Monk. However, I would like to respond directly to some of the issues raised.First, the Texas Rules of Civil Procedure say nothing on appeal being perfected "before the close of business." Tex. R. Civ. Pro. 510.9(a). In fact, since the appeal bond was efiled, I could've filed as late as I I :59PM on the day it was due. Tex. R. Civ. Pro. 21(f)(5).Second, while it concededly contained some typos, the document I filed was an appeal bond. My signature as Attorney of Record bounds me as surety. In an abundance of caution, I am filing amended appeal bond as allowed by Tex. R. Civ. Pro. 506(g). The court may not dismiss my appeal without giving me this opportunity to correct any defects.Please advise as soon as possible if the court recognizes the appeal as perfected or if I need to file a writ of mandamus.How would you rule:Issue the writ of possession; he didn’t perfect an appealDocument exactly what was filed and when it was filed and send it to the county court and if they bounce it back then issue a writ of possessionAnswer given to Scenario 3:Judge:I don’t have his initial letter that he now claims is an “appeal bond” but that argument seems pretty far fetched to me.? Rule 510.9(a) says clearly the way you appeal an eviction case is to file an appeal bond, make a cash deposit or file a statement of inability to afford payment of court costs.? If his initial letter was just a notice of appeal and did not state a bond amount or that it was conditioned on the appeal being prosecuted to effect, I don’t see how the notice qualifies as an appeal bond. As far as efiling is concerned, if he had filed an appeal bond by the deadline for an appeal and he did it at 11:59 p.m. that might be okay.? His other argument is that he is amending his “appeal bond” and can do this under Rule 506.1(g). That rule really seems to apply to a county court since it says an appeal must not be “dismissed” without giving the appellant a chance to correct defects within seven days.? I realize the landlord is asking for a writ of possession but I think what I would do to avoid a further shoot out is to document exactly what was filed and when it was filed, noting that he filed a “notice of appeal” but now claims it was an “appeal bond” and is relying on Rule 506.1(g) to try to correct the deficiencies and send all that to the county court and let them decide whether they think the appeal was perfected or not.? I would tell the landlord that the attorney is claiming his appeal is valid and everyone can let the county court decide yeah or nay on that. If the appeal was not perfected, then your judgment for possession is still valid and it can be enforced by a writ of possession.? If the county court says the appeal was no good, I would think they would send the case back to you fairly quickly.Let me know what you decide to do and what happens. Thanks.Response from the Judge:Good Morning Sir,I did speak to the County Attorney here yesterday afternoon and he gave almost the exact same answer.? He knows this attorney (which is the same attorney on the last eviction appeal nightmare I had) and that this attorney tries to bully his way around and that it would be best to send what we had as an “appeal” and let the county clerks and county court at law hash it out.? The plaintiff was also understanding and stated that he would get with an attorney to help him out at the county level.Thanks,SCENARIO 4More increasingly manufactured home communities are insisting that their lease agreement creates a lien on manufactured housing owned by a tenant. Because of this claim the managers of the communities are refusing to arrange for movers for the manufactured home under the writ of possession and requesting that the tenant be removed from the home and the property. The managers of the community wish to hold the home ransom based on the lien and then then sell it for back rent. 1. Is it legally binding for manufactured home communities to place a lien through a lease agreement on the manufactured home owned by a tenant? 2. Do the managers have the right to choose not to request a writ for the manufactured housing (personal property PC 2.001) and request that the constable remove only the tenant and personal property other that the manufactured home when the writ clearly directs removal of personal property {P {PC 24.0061(C),(D)}? 3. If the constable follows the writ strictly and ignores the managers request in this instance, does the constable have any liability?You would rule:A. Whether or not the landlord has a lien is not relevant to the whether the landlord is entitled to a judgment for possession of the land on which the manufactured home is located.B. The landlord is entitled to remove just the tenant and sell the manufactured home to pay off the delinquent rent. Answer given to Scenario 4:Without more information and legal research, we are unable to say whether or not the manufactured home community would have a valid and enforceable lien on the tenant’s manufactured home. However, even if the lien is valid, that is a separate issue and process from an eviction. If there is a valid lien, it will follow the manufactured home wherever it goes and the eviction and writ of possession process will be the same whether there is a lien or not. The constable will not have any liability issues for executing a valid writ as long as they do so in good faith and only use reasonable force.If a manufactured home community landlord gets a writ of possession, this orders that possession of the LOT (and not the manufactured home) be returned to them.Note, however, that even if a landlord gets a writ of possession, a constable is not required to physically remove a manufactured home. So if the manufactured home owner does not make arrangements to remove their home, then they can be removed from the lot without their manufactured home and it will be up to the landlord to remove the manufactured home. If the landlord does not do this or if there is a dispute about who owns the manufactured home at this point, that is between the landlord and tenant and could become the issue of a separate proceeding.SCENARIO 5We have an Eviction case involving a Tenant who has a mobile home on a "leased" site. The Mobile home is Mortgaged. The Tenant has not paid rent and the Owner leasing the land to the Tenant has filed an eviction. There is some discrepancy with the interpretation of the law in Property Code 94.203 (d) "Notwithstanding other law, a court many not issue a Writ of Possession in favor of a landlord before the 30th day after the date the judgment for possession is rendered" and then goes on to say "if the tenant has paid the rent amount due under the lease for that 30 day period" Of course the Tenant has not paid rent in 2 months in this case which is why the eviction was filed. So does this mean the court can issue the Writ of Possession on the 6th day after the Judgment was signed as in normal eviction cases? and, Section 94.206 (2) of the Property Code states that "the landlord notifies the tenant in writing that the payment is delinquent; and (3) the tenant has not tendered the delinquent payment in full to the landlord before the 10th day after the date the tenant received notice" The question is: does this mean the Landlord must give a 10 Day notice to pay rent, and if it is not paid by that 10th day, then give them a 3-day notice to vacate?How would you rule:A Writ of possession may issue as long as the landlord gave the tenant 10 days to pay the rent and a 3 day notice to vacate.Better hold off on issuing the writ of possession for 30 days.Answer given to Scenario 5:In a situation where the tenant owns the mobile home and the landlord owns the mobile home lot:Writ of possession under §94.203(d)A writ of possession where the tenant?has not?paid rent for that 30-day period is issued like a writ of possession in a normal eviction case.Therefore, the writ of possession can be issued on the 6th?day after the date a judgment for possession is signed, or the day following the deadline for the defendant to appeal the judgment, whichever is later.?TRCP?Rule 510.8(d)(1).Where specific rules of Property Code §94.203 don’t apply, the landlord proceeds with obtaining a writ of possession pursuant to Property Code Chapter 24.?Property Code?§94.203(a).Length of notice to pay rent and vacate under §94.206(2)A landlord may terminate the lease agreement and evict the tenant for nonpayment of rent?if?the landlord gives a notice to the tenant that the rent is delinquent,?and?the tenant fails to pay the rent within ten days of the notice.??Property Code?§94.206.At that point the landlord would have to give the tenant a notice to vacate which would have to be three days written notice unless the lease provides for a longer or shorter period.??Property Code?§24.005(a).SCENARIO 6 Here's our situation: We had a Commercial Landlord come in and ask if they "the landlord" gives the tenant a notice to vacate, but the tenant goes and tells the landlord that they have a partial payment and will pay the rest at the end of the month. The landlord takes the money and agrees to the rest of the payment later, either in writing or verbal. The tenant does not pay the balance. Does this void the notice to vacant or can they the landlord proceed forward like nothing happened. when answering could you please let me know where in the law it states the answer. You would rule:The notice to vacate is valid; the landlord does not have to give a new one.The new agreement in effect rescinded the notice to vacate and the landlord has to serve a new notice to vacate.The landlord needs to consult a lawyer rather than ask the court for legal advice.Answer given to Scenario 6:The landlord of the commercial lease is obviously asking the court to give him legal advice -- which you must not do. The landlord should instead consult an attorney who can advise him on whether the notice to vacate is valid and effective or whether he needs to serve a new notice to vacate. This issue is not currently before the court and therefore there is nothing the court needs to decide. The issue will only come before the court if the landlord proceeds with an eviction suit relying on the prior notice to vacate and the tenant asserts as an affirmative defense that the notice to vacate was withdrawn by virtue of the parties’ agreement. See Jimmerson v. Homecomings Financial LLC, 2008 WL 2639757, at *2 (Tex. App.—Fort Worth July 3, 2008, no pet.) (tenant waived complaint about notice to vacate by failing to object to the notice at trial). Generally, a landlord does not need to serve a new notice to vacate as long as an eviction suit is filed within a reasonable time after the notice to vacate was served. The controlling statute does not define what that time is but the purpose of the statute is fulfilled if the tenant received fair notice of the landlord’s intent to evict him. This issue is governed by Section 24.005, Property Code. The tenant would have to argue here that even though he breached the agreement to pay the rent, the landlord withdrew the notice to vacate as part of that agreement and now must serve a new notice to vacate. This would require proof of the agreement reached by the parties. If the tenant is unable to prove the landlord withdrew the notice to vacate as part of that agreement (regardless of whether or not the tenant paid the rent), then the prior notice would in all likelihood be valid provided it was properly served. But you do not need to address this issue at this time since an eviction suit has not yet been filed in your court. SCENARIO 7Squatters that are living in a property that has been foreclosed on and purchased by a new owner. The new owners don't have names of any of the occupants as there was never a lease. There has been no water, electric, etc. to the home but the squatters brought in a generator. They have given notice of 'owner desires possession' now they need to file eviction but have no names. What would be acceptable for names in this situation for the constable to serve. Can they use tenant 1,2 or 3? They are not sure how many people are squatting. The officer she spoke with sent her to us. I told her to seek legal advice but I am curious. (The new owner has been told this house is a "drug" house.)You would rule:The new owners may file an eviction suit against “John Doe and all occupants.”The new owners need to get law enforcement over there to clean these deadbeats out of this drug house. Answer given to Scenario 7:First of all, you did the right thing by telling the owner to seek legal advice! In this situation what we would expect a lawyer to tell her is to file a petition for eviction using “John Doe and all occupants” since she does not know the name of the squatters and does not have a lease with them. The petition should explain these facts and that a notice to vacate was given (it can be oral and immediate). Assuming service of a citation by personal service or delivery to the premises, we believe the court could hear the case and grant a judgment of possession and a writ of possession.SCENARIO 8Is there a landlord tenant relationship created such that the court has jurisdiction in a FED case in the following fact situation: Homeowner defaults on HOA dues. HOA sues, obtains a judgment, forecloses and is now the highest bidder and purchases the home. HOA seeks to evict and defense counsel states there is no L/T relationship thus depriving the court of jurisdiction.You would rule:Yes, the homeowner is now a tenant at sufferance and the purchaser may evict him.No, title is in dispute and there was never any landlord/tenant relationship so the court may not hear this case.Answer given to Scenario 8:You should examine the homeowner’s deed of trust and determine whether it has a clause stating that any person on the property after a foreclosure sale is conducted shall be a tenant at sufferance and may be removed by writ of possession. That is what happened in Bank One v. Villalon, 2003 WL 25695164 (Tex. Co. Ct. at Law, Feb. 27, 2003) (trial order), aff’d Villalon v. Bank One, 176 S.W.3d 66, 71 (Tex. App.—Houston [1st Dist.] 2004, pet. denied). In that case Bank One foreclosed on the deed of trust held by the owner of the property. The deed of trust contained a provision stating that any person remaining on the property after a foreclosure sale is a tenant at sufferance and may be removed by writ of possession. The Court of Appeals noted that “[t]he landlord-tenant relationship between Bank One and Villalon was established in the deed of trust.” 176 S.W.3d at 71. Even though Villalon claimed that the foreclosure was wrongful, the court of appeals held that Bank One was entitled to immediate possession and Villalon could bring a wrongful foreclosure claim later in district court. See also Trimble v. Federal National Mortgage Association, 2016 WL 7368060 at *3 (Tex. App.—Houston [1st Dist.] Dec. 20, 2016, no writ). The court in Yarbrough v. Household Finance Corp. III, 455 S.W.3d 277, 280-81 (Tex. App.—Houston [14th Dist.] 2015, no pet.) explained this situation as follows: “[A] deed of trust may include a tenancy-at-sufferance clause that creates a landlord-tenant relationship when the property is foreclosed.?See [Pinnacle Premier Props., Inc. v. Breton,?447 S.W.3d 558, 564-65 (Tex. App.– Houston [14th Dist.] 2014, no pet. h.)?(op. on reh'g)].?Under these circumstances, a defendant's complaints about defects in the foreclosure process generally do not require a justice court to resolve a title dispute before determining the right to immediate possession, and the justice court has jurisdiction.?See, e.g.,?id.?at 564;? HYPERLINK "(sc.DocLink)" Glapion v. AH4R I TX, LLC,?No. 14–13–00705–CV, 2014 WL 2158161, at *2 (Tex.App.–Houston [14th Dist.] May 22, 2014, no pet.)?(mem.op.);?Maxwell v. U.S. Bank Nat'l Ass'n,?No. 14–12–00209–CV, 2013 WL 3580621, at *2–3 (Tex.App.–Houston [14th Dist.] July 11, 2013, pet. dism'd w.o.j.)?(mem.op.).”Therefore, if the homeowner here does not dispute the HOA’s foreclosure of its lien and its ownership as a result of the foreclosure sale, then the question is whether the owner became a tenant at sufferance by virtue of the foreclosure. If he did then a forcible detainer action may be brought under Section 24.002, Property Code. SCENARIO 9Two Part question, If a plaintiff files an Eviction Petition with defendant listed as Defendants names and/or all occupants and the citation is sent out the same name style. Then the officer serves the occupant with citation. The occupant comes in and request/pays for a Jury Trial, their name is not a party to the case other than the and/or all occupants so we set for Jury Trial? If the same occupant did not request for Jury Trial but came in on Trial Date but the named defendant failed to appear would the judgment reflect as Default Judgment or would it be Judgment for plaintiff as the and/or all occupant appeared?You would rule:The occupant should be allowed to defend the case since he is living there and will be evicted if he is not allowed to answer.The occupant is not a tenant and the landlord is entitled to sue just the tenant; if the tenant fails to appear then the landlord is entitled to a default judgment even if an occupant shows up.Answer given to Scenario 9:Rule 510.6 states that the defendant must appear for trial on the day set for trial in the citation. The occupant has not been named as a defendant but Rule 500.4(a) says that an individual may be represented by an authorized agent in an eviction case. Therefore, it is possible that the occupant is acting as the authorized agent for the defendant. It is also possible that the plaintiff named only one tenant on the lease and the occupant is also a tenant who must be named in order to be evicted. Although this requirement is expressly stated in Rule 510.3(c) sometimes a plaintiff serves only one tenant “and all occupants” in order to avoid paying an additional service fee even though other persons residing in the premises are actually tenants and not just “occupants.” Given those possibilities it is best to set the case for trial and determine whether the occupant is either an authorized agent for the defendant or a tenant on a written lease (if so the plaintiff may not evict him without naming him as a defendant). Whether or not a jury trial is requested does not change the nature of the issues to be addressed. If the occupant is not an authorized agent for the defendant and is not himself a tenant, then the defendant failed to appear and a default judgment may be entered against the defendant “and all occupants.” If the occupant is in fact a tenant, a default judgment may be entered against the defendant but not against the occupant who has not been named. If the occupant is an authorized agent for the defendant then the case may he heard on the merits and if the plaintiff prevails the court should enter a judgment for the plaintiff and not a default judgment.SCENARIO 10Is it stated it the statutes that a landlord cannot refuse to accept a tenant's rent on or prior to the date rent is due and then evict the tenant for non-payment of rent? Lately our court has had several tenants make the claim that their landlord would not accept their rent and now are trying to evict them for non-payment of rent. You would rule:If the tenant tenders the full amount of rent and the landlord refuses to accept it, the tenant has not breached the lease and cannot be evicted.The landlord may refuse to accept the rent and terminate the lease and then evict the tenant. Answer given to Scenario 10:No, that is not stated in the Property Code or other statutes; however, if a tenant tenders the full amount of the rent due on or before the due day, then even if the landlord refuses to accept it, the tenant has not breached the lease and that would not be a basis on which a landlord could seek to evict the tenant. If the tenant is not in breach of the lease, the landlord would have to properly terminate the lease (which might require 30 days’ notice if, for example, it is a month to month lease and does not require a different notice of termination period). If the tenant then refuses to vacate, the landlord would have to give the tenant a notice to vacate before filing an eviction suit. But if the landlord has not terminated the lease, the landlord does not have a right to refuse to accept the rent due if tendered by the tenant, and then to evict the tenant based on non-payment of rent. SCENARIO 11On October 19,2012 Plaintiff/S. Holdings filed an Eviction on a Defendant/Brandon C. The Constable's office served it with a notation made on the paperwork that another party/Jason B was served with the citation and that he stated to the deputy that no one by that name lived there. On the day of court October 26, 2012 a Default Judgment was awarded to the Plaintiff, and a copy was mailed to the Defendant/Brandon C. The Default Judgment letter was returned by the USPS to the court with another forwarding address. From what I reviewed in the case I do not believe that the clerk at that time forwarded it to the new address. Now Brandon C. defendant that was listed on the citation has come into our office wanting this Judgment removed from his record. He did live at this property had given notice and moved out prior to September 1, 2011. He did attempt to contact the Plaintiff/S. Holdings that had filed the eviction and was told that they had been closed down by the State of Texas a couple of years ago. He is now being blocked from renting due to being incorrectly labeled as the tenant. I have found on the original filing that someone, not sure who did it, changed the defendant's name on the original petition filed to Defendant/Jason B. however none of the citations issued have this name on them. Our court has a new Judge and staff that none of which were here at the time of the filing or court date. What if any remedy is there for this case?You would rule:This is easy: there’s no case pending so there’s nothing for the court to do.The only thing he might be able to do is file a bill of review and he might not even be able to do that.He needs to get himself a good lawyer who can advise him on his rights.Answer given to Scenario 11:The remedy available to the defendant in this situation is to file a bill of review to set aside the default judgment that was rendered against him. A bill of review may be filed within four years of the date of the judgment and is available if the defendant was denied due process because he was never properly served with the citation. See Caldwell v. Barnes, 975 S.W.2d 535, 537 (Tex.1998); Richards v. Commission for Lawyer Discipline, 81 S.W.3d 506 (Tex.App.–Houston [1st Dist.] 2002). Please keep in mind that the court may not give the defendant legal advice but may suggest that the defendant consult an attorney; if the defendant here were to do so the attorney would in all likelihood recommend the filing of a bill of review. SCENARIO 12An apartment complex and an attorney have teamed up to file a number of cases involving past due rents on apartment tenants who move out before the lease is up. I have two questions: 1) Is the apartment complex required to mitigate damages in this case? in other words, If tenant moved out owing 8 months at $8,000, do they just flat out sue for 8K? 2) In every case, the attorney seeks $3,500 for attorney fees. In a default judgment situation, don't I have a duty to swear in an attorney and have him testify concerning what seems to be a hefty legal bill?You would rule:The apartment complex is entitled to the balance of the rent under the lease (for example, $8,000 for the remaining 8 months).The apartment complex has to mitigate their damages and get a new tenant in; they can only recover for rent currently due. Answer given to Scenario 12:(1) Property Code § 24.0051 permits the recovery of “unpaid rent” in an eviction suit and the landlord’s damages clearly include rent that is past due. But does it include future rent? Normally, it does not because once a tenant breaches the lease the landlord has a duty to mitigate his damages; if he evicts the tenant, or the tenant vacates the apartment before the lease is up, the landlord must make good faith efforts to find a substitute tenant. If the landlord is able to re-lease the premises, he would only be entitled to the difference between the rent in the original lease and the new lease. Therefore, future damages are highly speculative and a plaintiff may normally recover damages only for past unpaid rent.(2) Yes, the landlord should put on evidence of the attorney’s fees claimed. See Powell v. Mel Powers Inv. Builder, 590 S.W.2d 837 (Tex. Civ. App.—Houston [14th Dist.] 1979, n.w.h.). This may be done by affidavit or by the attorney taking the stand and introducing into evidence the fee statements or testifying as to the amount of the legal fees. “A trial judge may consider several factors in awarding the amount of attorney's fees, including the quality of legal work, the time and effort required by the attorney, the nature and intricacies of the case and the benefit resulting from the litigation.” Carlson's Hill Country Beverage v. Westinghouse Road Joint Venture, 957 S.W.2d 951, 956 (Tex. App.—Austin 1997, no pet.). You have considerable discretion in ruling on a request for attorney’s fees to award only what is reasonable based on the evidence presented to you at the hearing. SCENARIO 13This is a question concerning whether the right to a jury trial in an eviction case can be waived by a residential tenant in a written lease agreement. In a recent case, the plaintiff sued the tenant for both a non- payment of rent and a lease violation for other than non-payment. The lease was entered into on April 1, 2016. The lease contained a provision for the waiver of a jury trial for any matters under the lease. (Assume the provision was adequate in terms of its conspicuousness. ) Tenant timely asked and paid for jury trial; Plaintiff moved to Quash the demand for jury trial per R.510(b). I questioned the enforcement of the provision waiving jury trial under the 2016 amendment to Section 92.006(h) of the Property Code. Plaintiff responded that the eviction was being pursued under Chapter 24 of the Property Code, so the effect of the Chapter 92 restriction did not apply because none of the so-called "Chapter 92 issues" were being litigated--ie, distinguishing FED actions (Chapter 24) from the Chapter 92 matters. But 92.0081 refers to the fact that a landlord is not prevented "by this section [92.0081]" from pursuing "other available remedies, including the remedies provided by Chapter 24." QUESTION: What is the proper way to evaluate whether a jury trial properly requested may be waived, if waiver is permitted at all for a residential tenant?You would rule:A waiver of a jury trial for an eviction suit is valid and enforceable; therefore, if the tenant waived a jury in the lease he only gets a bench trial.The right to a jury trial is fundamental and cannot be waived.Answer given to Scenario 13:The Texas Supreme Court has held that a waiver of the right to a jury trial in a commercial lease is enforceable. See In re Prudential Ins. Co. of America, 148 S.W.3d 124, 128-36 (Tex. 2004); In re Bank of America, N.A., 278 S.W.3d 342, 344-46 (Tex. 2009). However, we have not located any cases that address whether a waiver of the right to a jury trial in a residential lease is enforceable. In the absence of any controlling case authority, we would carefully review Chapters 92 and 24 of the Property Code and Rule 510.7(b) of the Texas Rules of Civil Procedure. As you point out, Section 92.006(h), Property Code, states: “A tenant's right to a jury trial in an action brought under this chapter may not be waived in a lease or other written agreement.” The landlord argues that an eviction suit is “brought under” Chapter 24, not Chapter 92. However, Chapter 92 is entitled “Residential Tenancies” and Section 92.002 states: “This chapter applies only to the relationship between landlords and tenants of residential rental property.” The landlord has a plausible argument that the jury waiver prohibition applies only to actions specifically brought under Chapter 92 (e.g. for a security deposit or for a wrongful lockout). However, an action “brought under” this Chapter could also mean an action brought to enforce rights of either party under a residential lease, including rights enforced by bringing a forcible detainer action under Chapter 24. Under that construction Chapter 92 must be read in conjunction (“in pari materia”) with Chapter 24 and the prohibition on waiver of a right to a jury trial would apply to any residential lease, not just to the few limited actions specifically authorized under Chapter 92. While plausible arguments may be made either way, we think the presumption in favor of the right to a jury trial weighs in favor of the broader construction of Chapter 92, i.e. the right may not be waived in a residential lease. See, e.g., In re Credit Suisse First Boston Mortgage Capital, L.L.C., 257 S.W.3d 486, 490 (Tex. App.—Houston [14th Dist.] 2008, orig. proceeding) (“Unlike arbitration agreements, which are strongly favored under Texas law, the right to a jury trial is so strongly favored that contractual jury waivers are strictly construed and will not be lightly inferred or extended.”).This presumption is expressed in Rule 510.7(b), which states: “Any party may file a written demand for trial by jury by making a request to the court at least 3 days before the trial date. . . . If a jury is demanded by either party, the jury will be impaneled and sworn as in other cases; and after hearing evidence it will return its verdict in favor of the plaintiff or the defendant.” Can the parties by private agreement override the right of a jury trial granted to either side under the Rules of Civil Procedure in justice court? The right to a jury trial is “so strongly favored,” In re Credit Suisse First Boston Mortgage Capital, L.L.C., supra, that we think the court should resolve any doubts in favor of granting a jury trial to the party requesting it. We recognize that the issue is not free from doubt but in the absence of any authority holding that a waiver in a residential lease is enforceable we suggest the better practice would be to allow a jury trial if requested. Of course, the court also has authority to grant a judgment notwithstanding the verdict, if necessary, under Rule 510.8(a). ................
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