Frank M. Seliger v. Ethiopian Evangelical Church

Opinion

ACCEPTED

03-14-00621-CV

5225035

THIRD COURT OF APPEALS

AUSTIN, TEXAS

5/11/2015 10:12:28 AM

JEFFREY D. KYLE

CLERK

03-14-00621-CV

FILED IN

3rd COURT OF APPEALS

IN THE COURT OF APPEALS OF TEXAS AUSTIN, TEXAS THIRD DISTRICT, AUSTIN 5/11/2015 10:12:28 AM JEFFREY D. KYLE

Clerk

FRANK SELIGER,

Appellant,

vs.

ETHIOPIAN EVANGELICAL CHURCH Appellee.

On Appeal from the County Court at Law No. 1 Travis County, Texas

Trial Court Cause No. C-1-CV-14-005819

APPELLEE’S BRIEF

Respectfully submitted,

By: /s/ James Minerve

____________________________

James Minerve

State Bar No. 24008692

115 Saddle Blanket Trail

Buda, Texas 78610

(210) 336-5867

(888) 230-6397 (Fax)

jgminerve@aol.com

jgm@minervelaw.com

Attorney for Appellee, Ethiopian Evangelical Church

i

IDENTITY OF THE PARTIES

Appellant

Frank Seliger 2108 E. Yager Lane Austin, Texas 78754 Appellant, Pro Se

Appellee

Ethiopian Evangelical Church By: James Minerve State Bar No. 24008692 115 Saddle Blanket Trail Buda, Texas 78610 (210) 336-5867 (888) 230-6397 (Fax) jgminerve@aol.com jgm@minervelaw.com Attorney for Appellee Ethiopian Evangelical Church

ii

TABLE OF CONTENTS

Identity of Parties and Counsel ................................................................................. ii Table of Contents ..................................................................................................... iii Table of Authorities ..................................................................................................iv Statement of Jurisdiction............................................................................................ 1 Statement of the Case................................................................................................. 1 Issues Presented ......................................................................................................... 1 Statement of Facts ...................................................................................................... 1 Argument and Authorities.......................................................................................... 3

ISSUE 1: Whether Frank Seliger, as a holdover tenant, after receiving a Notice to Vacate on February 17, 2014, has the right to possession of Appellant’s property.

Conclusion ................................................................................................................. 5 Prayer ......................................................................................................................... 5 Certificate of Service ................................................................................................. 6 Certificate of Compliance .......................................................................................... 6

iii

TABLE OF AUTHORITIES

CASES

Coinmach Corp. v. Aspenwood Apartment Corp., 417 S.W.3d 909 (2013) ............. 4 Gym-N-I-Playgrounds, Inc. v. Snider, 220 S.W.3d 905, 908 (Tex. 2007) ................ 4 ICM Mortgage v. Jacob, 902 S.W.2d 527, 530 (Tex.App.—El Paso 1994 .............. 5 In Re Brunson, 498 B.R. 160 – Bankr. Court, WD Texas (2013) ............................. 5 STATUTES

Texas Property Code, Chapter 51 .............................................................................. 1 Texas Property Code Chapter 92 et seq ..................................................................... 1 CONSTITUTION

Texas Constitution Art. 5, Sec. 6 ............................................................................... 1

iv

STATEMENT OF JURISDICTION This Court has jurisdiction of the appeal because Appellant filed a final Judgment from the Travis County Court at Law #1, Travis County, Texas. Texas Texas Property Code Chapter 92 et seq. and Texas Constitution, Art. 5, Sec. 6.

This Court has jurisdiction concerning appeal of forcible detainer proceedings, Texas Property Code, Chapter 51.

STATEMENT OF THE CASE

This an appeal of a forcible detainer proceeding from the Travis County Court at Law #1. The jury ruled against Appellant and judgment issued on September 15, 2014 in favor of Appellee.

Appellant was a hold over tenant whose one-year lease ran from July 1, 2012 to June 30, 2013.

ISSUE PRESENTED

Whether Frank Seliger, as a holdover tenant, after receiving a Notice to Vacate on February 17, 2014, has the right to possession of Appellant’s property.

STATEMENT OF FACTS

TIMELINE

July 1, 2012 Appellant takes possession of Appellee’s property after signing a one year lease.

July 1, 2013 Appellant becomes a holdover tenant.

2

September 14, 2013 Appellant is sent a text message reminding him he needs to find another place to live.

January 7, 2014 Appellant served with Notice of Landlord’s intent not to renew.

February 17, 2014 Appellant is served with 3-day notice to vacate.

March 10, 2014 Appellant served with forcible detainer suit, KBRealton Management v. Frank M. Seliger, Cause No. J1-CV-14-

070621 JP Court Precinct 1. KBRealtron was the Management company for the church.

March 10, 2014 Appellant demands jury trial.

April 3, 2014 Verdict rendered in favor of KBRealtron. Judgment signed.

April 8, 2014 Appellant appeals.

April 11, 2014 Case filed in Travis County Court, Cause No. C-1-CV-14-003211.

April 22, 2014 Jury demand by Appellant.

May 15, 2014 Order of Dismissal – “KBRealtron Management is not the owner of the subject premises and is not entitled to bring this suit in its own name.”

May 15, 2014 Forcible detainer filed in JP #1, Cause No. J1-CV-14-

071107, Ethiopian Evangelical Church v. Frank Seliger.

May 27, 2014 Appellant filed jury demand. June 16, 2014 Jury finds in favor of Appellee.

June 24, 2014 Appellant appeals to County Court, Cause No. C-1-CV-

14-005819.

August 26, 2014 Jury trial. Jury finds for Appellee.

3

September 16, 2014 Judgment issued. September 24, 2014 Appellant’s notice of appeal to 3rd Court of Appeals.

ARGUMENTS AND AUTHORITIES ISSUE I

Whether Frank Seliger, as a holdover tenant, after receiving a Notice to Vacate on February 17, 2014, has the right to possession of Appellant’s property.

Landlord (Appellee) and Tenant (Appellant), signed a one-year lease on July 1, 2012 (RR Vol. 3, Plaintiff’s Exhibit 1).

Appellant understood that the term of the lease was only one year, as Appellee had future plans for the property.

At the end of the lease, July 1, 2013, Appellee’s plans had not yet been finalized, and Appellee allowed Appellant to stay on the property on a month-to- month basis.

On September 24, 2013, Appellee’s agent, Lemi, sent a text to Appellant, (RR Vol.3, Plaintiff’s Exhibit 2), advising him that the church had finalized plans to begin a project in January of 2014, and the church would like him to move within the next three months (RR Vol.3 Plaintiff’s Exhibit 2).

Appellant refused to move and on January 6, 2014, Appellee served Appellant with a Notice of Landlord’s Intent Not to Renew, with the ending date of the lease as February 15, 2014 (RR Vol. 3, Plaintiff’s Exhibit 3).

4

On February 17, 2014, Appellant was served with a 3-day notice to vacate giving tenant until February 28, 2014 to vacate (RR Vol. 3, Plaintiff’s Exhibit 4).

Since March 10, 2014, Appellee has filed two forcible detainers, suffered through 3 jury trials and now is before this august body.

Appellant’s continual cry through the entire process has been that he never received proper notice to vacate, as the lease stated he would have 3 months written notice if the premises were sold. It appears not to matter to Appellant that the property was never sold.

In the last jury trial, Appellant extrapolates the 3-month notice to include “if the church wanted to build on the property.” This was never an issue except in Frank Seliger’s mind.

In the instant case the reason for eviction of the holdover tenant was clear:

 Tenant’s lease had expired, he was not entitled to a renewal and the landlord wanted him to leave.

 Tenant was a month-to-month tenant and the landlord wanted him to leave.

A tenant who continues to occupy the premises after expiration of a lease is a holdover tenant. Gym-N-I-Playgrounds, Inc. v. Snider, 220 S.W.3d 905, 908 (Tex. 2007); Coinmach Corp. v. Aspenwood Apartment Corp., 417 S.W.3d 909 (2013).

5

One in lawful possession of premises by permission of the owner or landlord and for no fixed term is a tenant at will. In Re Brunson, 498 B.R. 160 – Bankr. Court, WD Texas (2013).

A tenant at will is terminable at the will of either party upon fair notice. See ICM Mortgage v. Jacob, 902 S.W.2d 527, 530 (Tex.App.—El Paso 1994, writ denied).

Appellant never disputed the fact that he had proper notice, only the 3-month notice in the event the property was sold, a moot point.

CONCLUSION

The Ethiopian Evangelical Church owns the property which Frank Seliger refuses to vacate.

The Ethiopian Evangelical Church wants Frank Seliger off of the property.

Frank Seliger has had the benefit of legal and proper notice to leave, yet, Frank Seliger refuses to leave, and has no legal reason for continuing to occupy the Church’s property.

For over one year Frank Seliger has continued to maintain possession of the Church’s property through legal maneuvering. It is time it ended.

PRAYER

Appellee prays that this Court find that Appellant has no legal grounds to continue possession of Appellee’s property.

6

Appellee prays that this Court uphold the judgment from the Travis County Court at Law #1 and order the Writ of Possession to issue immediately.

Respectfully Submitted,

By: /s/ James Minerve

____________________________

James Minerve

State Bar No. 24008692

115 Saddle Blanket Trail

Buda, Texas 78610

(210) 336-5867

(888) 230-6397 (Fax)

jgminerve@aol.com

jgm@minervelaw.com

Attorney for Appellee

CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that a true and correct copy of Appellee’s Brief was sent by U. S. Postal Service on May 8, 2015 to:

Frank Seliger 2108 E. Yager Lane Austin, Texas 78754

/s/ James Minerve

______________________________

James Minerve

7

CERTIFICATE OF COMPLIANCE

I hereby certify that the document submitted herein was typed in Times New Roman 14 point and contains 1,266 words.

/s/ James Minerve

______________________________

James Minerve