Gregory Simmons v. Hollyview Apartments

• Court: Court of Appeals of Texas
• Decided: September 24, 2009
• Docket: 01-08-00231-CV
• Status: Published

Opinion

Opinion issued September 24, 2009

In The

Court of Appeals

For The

First District of Texas

NO. 01-08-00231-CV

__________

GREGORY SIMMONS, Appellant

V.

HOLLYVIEW APARTMENTS, Appellee

On Appeal from the County Civil Court at Law No. 2

Harris County, Texas

Trial Court Cause No. 911067

MEMORANDUM OPINION

Appellant, Gregory Simmons, challenges the county court's entry of judgment in favor of appellee, Hollyview Apartments, in Hollyview's forcible entry and detainer suit against Simmons. In two issues, Simmons contends that the county court erred in granting Hollyview a writ of possession rather than a writ of restitution at a hearing prior to the bench trial and that the county court's award of attorney's fees to Hollyview was unreasonable.

We affirm.

Factual and Procedural Background

Simmons leased an apartment from Hollyview. In its petition, Hollyview brought a forcible entry and detainer action against Simmons in justice court, alleging that in late 2007, Simmons failed to pay his monthly rent of $405, thereby defaulting on the parties' lease agreement. See Tex. Prop. Code Ann. § 24.004 (Vernon 2000) (providing that justice court in precinct in which real property is located has jurisdiction in eviction suits, which include forcible entry and detainer suits). The justice court entered a default judgment against Simmons, ordered that Hollyview recover possession of the apartment, awarded Hollyview delinquent rent in the amount of $990, and set a writ of possession to issue on December 27, 2007. See Tex. R. Civ. P. 748 (stating that court shall give prevailing plaintiff "possession of the premises, costs, and damages" and shall award "writ of possession"). The justice court further stated in its judgment that if Simmons appealed the justice court's judgment of eviction by filing a pauper's affidavit, Simmons was required to pay into the registry of the court his monthly rent in the amount of $405 for each month that his appeal was pending. See Tex. R. Civ. P. 749b (setting forth tenant's obligations to pay rent into registry of court in order to stay in possession of premises during pendency of appeal in "a nonpayment of rent forcible detainer case"). Simmons appealed the justice court's judgment to the county court by filing a pauper's affidavit, and Simmons deposited into the registry of the court one month's rental payment. See Tex. R. Civ. P. 749 (providing that party may appeal judgment of justice court in forcible entry and detainer suit to county court); Tex. R. Civ. P. 749a (setting forth pauper's affidavit requirements and procedures); Tex. R. Civ. P. 749b.

On February 28, 2008, the county court, upon Hollyview's sworn notice of default, found that Simmons had failed to continue to pay rent under the terms of the lease agreement into the court's registry as required by Texas Rule of Civil Procedure 749b and, thus, it further found that Hollyview was entitled to immediate possession of the apartment. Tex. R. Civ. P. 749b. On March 11, 2008, the Harris County Constable executed a writ of possession, removing Simmons and his belongings from the apartment. On March 17, 2008, the county court conducted a bench trial, after which it entered a final judgment and awarded possession of the apartment to Hollyview, ordered that Hollyview was entitled to a writ of possession, awarded Hollyview past due rents of $981.13, and awarded Hollyview attorney's fees in the amount of $2,000.

Writ of Restitution

In his first issue, Simmons argues that the county court erred in granting Hollyview a writ of possession rather than a writ of restitution at a hearing prior to the bench trial because, at the time, Hollyiew was entitled only to a writ of restitution.

Texas Rule of Civil Procedure 749b provides, in relevant part,

In a nonpayment of rent forcible detainer case a tenant/appellant who has appealed by filing a pauper's affidavit under these rules shall be entitled to stay in possession of the premises during the pendency of the appeal, by complying with the following procedure:

(1) Within five days of the date that the tenant/appellant files his pauper's affidavit, he must pay into the justice court registry one rental period's rent under the terms of the rental agreement.

(2) During the appeal process as rent becomes due under the rental agreement, the tenant/appellant shall pay the rent into the county court registry within five days of the due date under the terms of the rental agreement.

(3) If the tenant/appellant fails to pay the rent into the court registry within the time limits prescribed by these rules, the appellee may file a notice of default in county court. Upon sworn motion by the appellee and a showing of default to the judge, the court shall issue a writ of restitution.

. . . .

Tex. R. Civ. P. 749b.

Simmons does not directly challenge the county court's February 28, 2008 finding, which was based upon Hollyview's sworn notice, that he was in default of his obligation to pay his monthly rentals into the registry of the court. Rather, Simmons complains that Hollyview was not "entitled to a final judgment awarding it possession" at this point in the proceeding and prior to the bench trial. See Kennedy v. Highland Hills Apartments, 905 S.W.2d 325, 327 (Tex. App.--Dallas 1995, no writ) (holding that rule 749b did not authorize county court to enter final default judgment on merits). However, Simmons misunderstands the procedural nature of the February 28, 2008 order and the posture of the case at the time that the county court entered the order. The record before us makes clear that the county court did not enter its final judgment until after its bench trial on March 17, 2008. The county court's February 28, 2008 order, in which the county court found that Hollyview was entitled to possession of the apartment based upon Simmons's default, was not a final judgment, and the order granting Hollyview possession of the apartment is expressly contemplated by rule 749b. See Tex. R. Civ. P. 749b (providing that tenant "shall be entitled to stay in possession of the premises during the pendency of the appeal" only by complying with procedures set forth); see also Kennedy, 905 S.W.2d at 327 ("If the appellant defaults in his timely payment of rent into the registry of the court [under rule 749b(3)], he is no longer 'entitled to stay in possession of the premises during the appeal.'"). Although rule 749b(3) speaks of a "writ of restitution" rather than a "writ of possession," a county court is authorized to return possession of the premises through a writ of restitution when a tenant defaults under the requirements of rule 749b(3). Tex. R. Civ. P. 749b; Kennedy, 905 S.W.2d at 327 ("Upon the appellee filing notice and showing the appellant's default in his timely payment of rent into the registry of the court, the county court returns possession of the premises to the appellee by issuing a writ of restitution."). ⁽¹⁾ Accordingly, we hold that the county court did not err in awarding Hollyview possession of the apartment in its February 28, 2008 order.

We overrule Simmons's first issue.

Attorney's Fees

In his second issue, Simmons argues that the county court's award of $2,000 in attorney's fees to Hollyview was unreasonable because Hollyview's attorney testified that his rate was $150 per hour, "he only had 3 hours of court time," and attorney's "fees are generally a percentage of the award not a multiplier."

Texas Property Code section 24.006 provides that, in an eviction suit, if the landlord provides the tenant the notice required under that section "or if a written lease entitles the landlord to recover attorney's fees, a prevailing landlord is entitled to recover reasonable attorney's fees from the tenant." Tex. Prop. Code Ann. § 24.006 (Vernon 2000); see also Tex. R. Civ. P. 752 (stating that recoverable damages may include attorneys's fees in justice and county courts). In determining a reasonable amount of attorney's fee to award, a factfinder should consider (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the legal service properly; (2) the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered. Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997) (citing Tex. Disciplinary R. Prof'l Conduct 1.04).

At the March 17, 2008 trial, consistent with the factors set forth above, Hollyview's attorney testified, among other things, that his billing rate was $150 per hour, he specialized in forcible entry and detainer suits, his billing rate was lower than those in his firm who also specialized in this type of work, he had drafted numerous documents in the case, he had attended numerous hearings in the justice and county courts, he had reviewed documents, he had spent time in contact with the court and his client, he had expended seventeen hours total on the case, and his fees totaled $2,550. Hollyview's attorney also requested appellate attorney's fees as well as court costs, and he provided the county court with an estimate of the appellate fees he anticipated accruing. Simmons cross-examined Hollyview's attorney on the attorney's fees. The county court, based upon this evidence, awarded Hollyview $2,000 in attorney's fees and did not provide a separate award for appellate fees. We hold that the county court's award of attorney's fees to Hollyview was reasonable and was supported by the evidence detailed above and that the county court did not abuse its discretion in awarding Hollyview these fees. See Whitmire v. Greenridge Place Apartments, No. 01-06-00963-CV, 2007 WL 2894167, at *4-5 (Tex. App.--Houston [1st Dist.] Oct. 4, 2007, pet. dism'd) (reviewing, and affirming, attorney's fees awarded in forcible entry and detainer suit).

We overrule Simmons's second issue.

Conclusion

We affirm the judgment of the county court.

Terry Jennings

Justice

Panel consists of Justices Jennings, Higley, and Sharp.

1. The Dallas Court of Appeals has noted that, in 1988, Texas Rule of Civil Procedure 748 was amended to refer to a "writ of possession" rather than a "writ of restitution" and that, after these amendments, only rule 749b(3) continued to refer to a "writ of restitution." See Kennedy v. Highland Hills Apartments, 905 S.W.2d 325, 327 n.2 (Tex. App.--Dallas 1995, no writ). The court questioned "[w]hether the supreme court intentionally left the term 'writ of restitution' in rule 749b or intended, but failed, to change writ of restitution to writ of possession as in rule 748 . . . ." See id. Regardless of whether the supreme court intended to make this modification in terminology to rule 749b, rule 749b expressly contemplates that a tenant may stay in possession of the premises only by complying with the procedures set forth therein. Tex. R. Civ. P. 749b.