Apartment Express LLC v. Southchase North Apartments

• Court: Court of Appeals of Texas
• Decided: June 22, 2015
• Docket: 14-15-00532-CV
• Status: Published

Opinion

ACCEPTED 14-15-00532-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 6/22/2015 12:00:00 AM CHRISTOPHER PRINE CLERK

14-15-00532-CV IN THE COURT OF APPEALS FOR THE FILED IN FOURTEENTH DISTRICT OF TEXAS 14th COURT OF APPEALS HOUSTON, TEXAS AT HOUSTON 6/21/2015 2:37:30 PM CHRISTOPHER A. PRINE Clerk § APARTMENT EXPRESS LLC APPELLANT Plaintiff § VS. SOUTHCHASE NORTH APPELLEE APARTMENTS Defendants __________________________________________________________________ On Appeal from the COUNTY COURT NUMBER 3 Of Harris County, Texas COUNTY CASE NUMBER 1062291& EV51C0158185

EMERGENCY MOTION TO DECLARE THE TRIAL COURTS JUDGEMENTS AND ORDERS VOID DUE TO LACK OF JURISDICTION OVER APARTMENT EXPRESS, LLC & FOR TEMPORARY RELIEF TO STAY ISSUANCE OF WRIT OF POSSESION AND EXECUTION WHILE COUTY COURT DETERMINES DEFENDANTS MOTION FOR REDUCTION OF SUPERSEDAS BOND TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

NOW COMES DEFENDANT, Apartment Express, LLC and hereby respectfully request this Honorable Court to Declare the Trial Court Judgments and Orders Void due to lack of Jurisdiction over Apartment Express, LLC and to issue temporary orders to stay the trial court’s order authorizing the Issuance of a Writ of Possession and its execution to Appellees Southchase North Apartments on June 16th, 2015, if Defendant fails to post the required bond by June 17th, 2015. See the exhibits attached thereto filed and served concurrently and incorporated herein by reference In support of Petitioner will show the following;

1. Apartment Express, LLC is Limited Liability Company properly organized with the Texas Secretary of State 2. Apartment Express, LLC and South chase North Apartments entered into a residential Apartment Lease Agreement and its renewal, which expires on 11/1/2015. 3. South chase North Apartments filed numerous forcible detainer suits seeking possession of the unit alleging that Apartment Express, LLC is holding over. 4. On April 20th, 2015 Judge Russ Ridgeway of the Justice of the Peace Precinct 5 Place 1 Dismissed this Case under cause # EV51C0158185on grounds of it being Res Judicata to cause CV51C0156377 5. Days after its case being DISMISSED Southchase North Apartments filed an appeal to the County Civil Court #3 and was subsequently granted a Judgment and Possession after Trial de Novo of its suit for forcible Detainer on June 10th, 2015. 6. The County Court set a Supersedes Bond for $6500.00. 7. Apartment Express, LLC filed a Emergency Motion for Reduce of the Supersedes Bond because the current amount set will cause substantial economic harm and prevent residents from remaining in the unit throughout the appeal process. 8. Datril Boston filed a Networth Affidavit on behalf of Apartment Express, LLC and deposited Cash in Lieu of the Supersedes Bond but the Court Clerks stated it will not stay the execution of the Writ Possession. 9. A limited Liability Company is not a natural person and cannot act on its own. If the defendant is a limited liability company, the manager, if any, and the registered agent shall be agents upon whom citation may be served. See Sec. 5.255, Texas Business Organizations Code. See also Sec. 152.801(d)(3), Texas Business Organizations Code 10. The Original Citation and its return identified Apartment Express LLC as the person served. 11.Under Tex. R. App.P. 24.2(c), appellate court may issue any temporary orders necessary to preserve parties rights. WHEREFORE, PREMISES CONSIDERED, Appellant respectfully request that this Honorable Court review this matter and determine that the Trial Courts Judgments and Orders are Void due to lack of Jurisdiction and alternately issue temporary Orders to Stay Issuance of the Writ of Possession and its Execution pending Court determination the Motion for Reduction of the Supersedes Bond.

I, the undersigned, do hereby declare that I am the managing member and registered agent for Apartment Express, LLC and reside at the premises relevant o this suit. I declare under the penalty of perjury the forgoing it true and correct and that this declaration is executed at Houston, Texas on June 21, 2015

Respectfully Submitted,

APARTMENT EXPRESS LLC, A Texas Limited Liability Company

By: Datril Boston Managing Member CERTIFICATE OF SERVICE

I HEREBY CERTIFY THE MOTION HEREIN WAS FOWARDED TO SOUTHCHASE NORTH NORTH APARTMENTS THROUGH ITS ATTORNEY VIA ELECTRONIC TRANSMISSION ON THIS 21ST DAY OF JUNE, 2015

By: Datril Boston Managing Member I. C . ~ I

C.C.C.L. #3 IEv—crrAT1oN(1>osse§sinn)510.4—11>s1 '

1 06 229 1 Receipt Number: 0735436 Receipt Date: 03/30/ l 5 Tracking Number: K0l9457l Case Numbe r:vs1co15s'1ss ~e JusT1ce Coult : _

1:7 SOUTHCHASE NORTH APARTMENTS § Harris County, Texas

F\ Plaintiff <;/ ‘ g / 1 0° Precinct 5, Place 1

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4 3 pg APARTMENT EXPRESS LLC Defendant g 6000 CHIMNEY ROCK § SUITE 102 q« /a’ § HOUSTON, TX 77031-4012 713 661-2276 — (Eviction) 74/0 755%’ ‘/ Citation THE STATE or TEXAS COUNTY or HARRIS TO: ANY SHERIFF OR CONSTABLE OF TEXAS, OR PERSON AUTHORIZED BY COURT ORDER: Deliver this Citation to the Defendant, or leave a copy with some person over the age of sixteen years at the Defendant's usual place of abode, at least six days before the retum day of this Citation:

~ APARTMENT EXPRESS LLC 9330SYNOTT RD 201 HOUSTON. TX 77083 Phone Number: (000) - A

'Phone'Ntri:nber:*(000) -,

and return this Citation one day before/the day as Signed for trial. ' '

at least M l

TO THE DEFENDANT: THIS IS A SUIT T0 EVICT. YOU ARE torappaa;;?in person’for trial’i11 Justice Court Precinct 5 Place I on 04/20/15 at 08:00 A .M. to answer this eviction) agidn. Proper Attire isifiequired. No‘ShortS;‘Hgits_ or Tank Tops. Shirts must be tucked in. All bags (backpacks,-large bagS, etc.)«are'subject to inspection. Elecwahic devices {cell phones, lap tops, etc.) must be kept on silent or vibrate. "S. #1 '

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FAILURE TO APPEAR IN PERSON FOR TRIAL MAY RESULT .

YOU HAVE BEEN SUEB. you MAY EMPLOY AN ATTORN C:

IN A DEFAULT JUDGMENT BEI§l§G ENTERED AGA YOU FOR THE RELIEF VDEMANDED IN THE PETITION. Date Petition Filed: 03/30415 -3 ~ ~ RD HOUSTON, TX 77083 Nature of demand made by Plaintil‘f(s): Possession ofqtvlrfiehproperty kntfl ~~ 201 together with

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attomey’s fees, costs of court, interest as provided by law’-iandt encral ~ the petition is attached.

You may request a jury and pay a jury la in the amount oI’§8§:§;00'I'lo-In han three (3) days before the trial date. If you timely make a T’ demand for a jury trial, the case will be Heard by a jury. ~~ ‘ “

, s w- A tenant who is military duty mayhave speeiakrights or relief related to this V

This suit to evict involves immediate deadlines. under federal law. irreluding the service members civil rel‘. Section 501 et seq) or stateilawj including section 92.017, ‘

suit . . .

Texas Property Code. Calltthe State Bar of Texas toll-free nth]-877-9texbar if y ,-need help locating an attorney. If you cannot afford to hire an attorney, you may be eligiblofor free or low-cost legal asfistance; ' “71“ <1‘. .

DEMANDA PARA DESALOJAR ,

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Esta demand: para desalojar involucra plazas Irfiegliatos. Un inquilino que esta en servieio militar nctivopuede tener derechos especiales 0 y

soeorro en relacion con este trajepor Ia leyfederal, incl ‘dos los miembros del servicio civil relief aetuar (50 u.x.c. app. Seecion 501 y ss.) 0 la ley del estado, incluida la seceion 92.017, Texas Codfgdzde la Propiedod. Llangg ii colegio de Abogados de Texas (State Bar of Texas), llamada gratuita al I-877-9texbar si usted neeesita ayuda para local; as; qua abogado. Si noiesta a su alcance contratar a un abogado, usted pudiera ser elegible para asesoria legal gratuita 0 de bajo costo. _

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For further information, consult the Te xas Rules Sr Civil Procedure,sPart V, Rules of ‘Practice in Justice Courts. \ A copy of the Rules available at http://www.ip.hctx.net/ or at the Justice Court. ‘

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. 4 ‘I Issued on: 3/30/2015 //¥“.'/Ki»-/141', K7". l2l.’«(1‘/.’(,¢/7?/j,/A,

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THIS COURT "’ ~-‘CLERK 01-‘ v ,.,

-r’ Justice of the Peace, Precinct 5 Place 1: -

P ‘T Address ofPla1nt1ff . .

SOUTHCHASE NORTH APARTMENTS Address ofPlamt1fl‘s Attorney . 1

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9330 SYNOTT RD az —- -’ HOUSTON, Tx 77083 32‘ 7 "1

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Phone Number: (000) - ‘~46 fl’! 59 :L H‘ g‘ l

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-9 mmggug ‘ IUTZJ - 1:: EVCTl3Sl _ 33V 1 :5 v.» ~, "" Pagelofl SM! 3900’ (,, vimtllli q§~‘4 . 5.. ~~~ . . - Person To Serve: EXPRESS LLC APARTMENT

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~~ EV - CITATION (Possession) 510.4 — JPSI Receipt Number: 0735436 Receipt Date: 03/30/15 Cons Fee $75.00 Tracking Number: K0l9457l Case Number: EVS1C0l58l85 SOUTHCI-TASE NORTH APARTMENTS 1

§ In the Justice Court Plaintifi“ § Harris County, Texas vs. § Precinct 5, Place 1 APARTMENT EXPRESS LLC § Defendant § 6000 CHIMNEY ROCK § SUITE 102 § HOUSTON, TX 77081-4012 713 661-2276 Citation — (Eviction) THE STATE OF TEXAS COUNTY OF HARRIS TO: ANY SHERIFF OR CONSTABLE OF TEXAS, OR PERSON AUTHORIZED BY COURT ORDER: Deliver this Citation to the Defendant, or leave a copy with some person over the age of sixteen years at the Defendant's usual place of abode, at least six days before the return day of this Citation: APARTMENT EXPRESS LLC SYNOTT RD 20] 9330 » I” I ~ -,,

HOUSTON, Tx 77083 , ’ "

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Phone Number: (000) - _ ,

Phone‘Nnmber: (000) -

and return this Citation ~ at least one day before the ‘day assigned for trial. I To THE DEFENDANT: V‘ ,..~ =‘/

.; 2 THIS IS A SUIT T0 EVICT. YOU ARE ‘COMMANDER tasappgagin , K ;_

persorf”for.,trial"in Jilstice Court Precinct 5 Place 1 on A .M. tqftiriswer this eYiction action. /,

04/20/15 at 08:00 Proper AttireVls‘RgI/Tired. No ”Shorts,._Ha'ts Tank Tops. Shirts must be or tucked in. All bags (backpacks, la/rgebags, etc.)4._;a_tre‘subject to inspection. Electrdtigg; devices gcell phones, lap tops, etc.) must be kept " 5“ on silent or vibrate. ~’ ‘ = .

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YOU HAVE BEEN SUED. YOU Ivu§Y EI\/fr’LoY AN ATTORNEY. FAILURE To APPEXR IN PERSON FOR TRIAL MAY RESULT IN A DEFAULT JUDGMENT BEING ENTERED AcAn\$:r YOU FOR THE RELIEQDEMANDED IN’ THE PETITION.

~ ‘ *7” Date Petition Filed: 03/30/15 I

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Nature of demand made by Plaintifif/s): Posgssion ofgie property kno 93,350 83% 7 RD 201 , HOUSTON, U 77083 together with ,

attomey’s fees, costs of eoui-t,,inte1fé‘st‘as provided by lzitwaggd epetition ‘

g_ eral rel f. is att$‘ched. r1 . as». ,_V ~s!§>>~,‘1:

You may request a jury and pay a jury we in the amount o'f«S22;l)0'%%n#' than three (3) days before the trial date. ‘If you timely make a demand for a jury trial, the case will be liaard by a jury. ~ »: SU To E » w This suit to evict involves immediate deadlines. A tenant who is _ V

H on a military duty may? have special rigljts or relief related to this ‘

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suit under federal law, including the service members civil re A

(50 u.s.c." Section 501 effseq) or stateflaw; including section 92.017, .

Texas Property Code. Call;the',_State Bar of Rfiexas toll-free a 77-9texbar if y need help locating an attorney, Iiyou cannot afford to hire an attorney, you may be elfgiblefor free or low-cost legal :1 U tance; I

DEMANDA PARA DESALOJAR *3‘ ,3 I

Esta demanda para desalojar involucrawplazos infiiefiiatos. Un inquilino que esta en servifmmilitar activogpueye tener derechos especiales o socorro en relacion con este trajepor la"ley?'federal,'1I1cg;Iidos los miembros del servicio givil relief actuar (50 iuic. app. Seceion 501 y ss.) la 0 ley del estado, incluida la seccion./92,017, Texas Codlgoiiy Ia Propiedad. Llarge ’§l colegio demAbugMlos dc Texas (State Bar of Texas), llamada gratuita al 1-877-9texbar‘ si ustgd necesitg ayuda par§»1t)§:1lizar'.‘,ieg;‘yIl-/’iaI)“'¢’>gI1do. Si no esta a s_y'alcan'ce contratar a un abogado, usted pudiera ser elegihle para aaesoria legal gratuita’ o dfie bajo costo. , ‘ »

For further information, consult the Texas Rules of Civil Prqcedqre,~Paar.t Y’, Rules of Practice in Justice Courts. A copy of the Rules is available at httg://www.ip.IIctx:net/,or at the Justice Court.

Issued on: 3/30/2015 ~

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‘CLERK or THE COURT Justice of the Peace, Precinct 5 Place 1

Address of Plaintiff Address ofPlaintifl‘s Attorney SOUTHCHASE NORTH APARTMENTS 9330 SYNOTT RD HOUSTON, TX 77083 ,

Phone Number: (000) -

JUTZJ EVCT135l Page 1 of] CAUSE #2 EV51C01581B5 TRACKING #: KO194571

WRIT OF CITATION SOUTHCHASE NORTH IN APARTMENTS FORCIBLE DETAINER VS. APARTMENT EXPRESS LLC JUDGE RUSS RIDGWAY 9330 SYNOTT ROAD Justice of the Peace Precinct Five, Place One ~ 201 HOUSTON, TX 77083 Harris County, Texas

Constable Forcible Detainer Return 5-1

Received on 03/31/2015 at 12:32 PM Executed on 04/10/2015 at 7:55 this Writ , . AM by delivering a copy of this Citation together with a copy of the Petition:

To: APARTMENT EXPRESS LLC At: 9330 SYNOTT ROAD 201 HOUSTON, TX 77083 By: BY POSTING TO THE DOOR AND MAILING PER RULE 510.4C Date Signed: April 13, 2015

Attempts: _3_

W Phil Camus, Constable Precinct #5 Harris County Texas

Signature: H12tc::n',<€1t<)e’xl;rs?%I<§‘s)3/4

Printed Title and Name: DEPUTY SHIS-E P G EV-Docket Sheet 06 22 9 1 JUDGE RUSS RIDGW Justice of the Peace Place C.C.C.L- #3anis County 5, 1 State of Texas

Eviction Doe. ' ~ -.

Case Number:

W Plaintiff: SOUTHCHASE NORTH APARTMENTS Plaintifi’ S Attorney: Defendant APARTMENT EXPRESS LLC Defendant’s Attorney:

/ : ‘ , . Date: 04/20/15 Fl? 32 _ 4 Auaeoo M...a..+ ._, \7lwa E Plaintiff Present: Yes No Defendant Present: Yes No '

Lease: Yes * No Monthly Weekly Rent Due 5 Grace Period: Last Date Rent Was Paid: ‘ Paid To: Any Attempt To Pay Rent Since: Yes No Date Attempt Made:

~ Attempt: Refused Accepted Monthly Rental: ‘i ‘D The amount of rent to be paid each rental pay period during the pendency of any appeal: $ 4 ‘D lfyou are the tenant and file a pauper‘s affidavit to appeal-anfé .‘ on for nonpa ent ofrent, you must pay the ~~ '”' ‘ . ’ .~' l:- initial deposit of rent into the registry of thejustice eaun within five (5) days ofthddate ,

~ , you file the paupérjs affidavit. z

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DEFAULT FOR PLAINTI If‘ Be remembered on this day, a day of regular tertgn of this CoI'Ifl,garite to be heard the above rlurh bered, styled; nafigd Plaintiff and it Defendant; the Plaintiff being present, announced ready for trial, the Defendant, although having been duly, legally, and regul arly c' ell’ d servedzwtliviarpcess, said citation with the offIcer‘s return thereon having been on file with the clerlé pfthis Court, "led to appearor apsvyer'-in behalf, but w ally default. J:here'fo.re, it is the detennination of this Court, judgment is in the,“amount of 3‘ 3 ’ favor of the Plaintiff I

ct damages and S 3*’ .. attb_;ney fees with interest thereon at the legal rate per annum, and all /‘ '

costs ofsuit, ;‘ '3; »

$é____: 3:; .

~ "I Writ to issue on Bond

~~ “and the Appeal is set at * _.,»«. gt Signed: '

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Justice of the Peace ‘

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Be remembered on this ffk . 23

day, a day of regular term of thi en .

it ~ styled, nagied Plainiifi‘ arid , Defendant; both being present, announced ready for trial, the Court having heard all the evideii - gnient is ~~~ for the Plaintgvfi‘. ' ‘

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Writ of Possession to issue on App urther, the Plaintiff shall be entitled to

~~ $ darnagesand S ' rcon at the legal rateper annum, aridall costs of suit.

~ T3 . I Signed: =' 3 ' '

:7, ‘x , , «a Justice of the Peace 7:; y :-A “*2? ‘g’ ' " °

39, JUDG NT FOR THE DEFE DANT ‘ . 2 Be remembered on this day, a\day’df regular tenn of it Court came to be heard the above numbered, named Plaintiff Defendant; both being ‘present, styled, announced ready for trial, the Court having heagctéll the evidgce, the Court has determined ludgrnent is Np for the Defendant. T ISSUE,

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5" Appeal date is antf'Appeiil Bond is setfiitfi I '

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A.‘ , Further, the Defendant shall be ‘

4— "- to g n EN‘ entitled and attorney , 5

fees. 1:; .

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Signed: ii V’ V

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‘ Justice of the Peace VP 2 4 ' ' '

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NOTICE TO PARTIES INTENDINGTO APPEAL: ,v 1 .

K 7‘ F“ If you intend to appeal the ‘.1 Judgment of the Justice Court by filing a Pt-'1upe’r‘§ Atfidavit, you have the right to request the appointntatflfg attomem represent you in

5% " the proceedings in the County Civil Courts at Law. You may exercise this right alter the Pauper's Affidavit has been approved angjhe perfegi. You must make your request for the appointment of an attorney, in writing, to the County Civil Court at Law in which the appeal isfiled. An appointed attomey’s representation is in the trial de novo in County Civil Court at Law. The County Civil Court at Law may terminate the representation for cause.

DISMISSED No One Present On: Plaintiff Not Present On: Court Settings: ”"\A CVSHD/5~(p3\.l 7 l

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.lU4RM " ‘-5 ‘~ EVDOC RECORDER‘S MEMORANDUM: Page 1 °f 1

At the time of recordation, this instrument was found to be inadequate for the best photogiaphic reproduction because of illegibility, carbon or photo copy, discolored paper, etc. All blackouts, additions and changes were present at the time the instrument Justice ofthe peace 4 ~ 2 0 .1C was filed and recorded.