ACCEPTED 05-15-00080-CV FIFTH COURT OF APPEALS DALLAS, TEXAS 3/30/2015 4:10:32 PM LISA MATZ CLERK
NO. 05-15-00080-CV
IN THE COURT OF APPEALS FILED IN FOR THE FIFTH DISTRICT OF TEXAS 5th COURT OF APPEALS DALLAS, TEXAS 3/30/2015 4:10:32 PM JOHN H. WHITFIELD, LISA MATZ AND TAMMY WHITFIELD, Clerk
Appellants, v.
FIG TREE APARTMENTS,
Appellees.
MOTION TO DISMISS APPEAL
Claire Elizabeth Carroll State Bar No. 24092224 MUNSCH HARDT KOPF & HARR PC 500 N. Akard Street, Ste. 3800 Dallas, Texas 75201-6659 Tel: (214) 855-7500 Fax: (214) 855-7584 ccarroll@munsch.com ATTORNEY FOR APPELLEE, FIG TREE APARTMENTS
MOTION TO DISMISS APPEAL Page 1 of 3 MHDocs 6037890_2 11077.16 MOTION TO DISMISS APPEAL
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS FOR THE FIFTH
JUDICIAL DISTRICT OF TEXAS:
Appellee Fig Tree Apartments files this Motion to Dismiss the Appeal, and would respectfully
show the Court the following:
1. Appellants are John H. Whitfield and Tammy Whitfield. Appellee is Fig Tree
Apartments.
2. The trial court entered its Amended Final Judgment on January 15, 2015. On January 21,
2015, Plaintiff Tammy Whitfield filed a Notice of Appeal.
3. On January 21, 2015, the parties reached a settlement agreement. The terms of this
agreement were entered into the record orally at a hearing that same day. The Reporter’s
Record for that hearing is attached hereto as Exhibit 1.
4. Pursuant to the settlement agreement, on January 23, 2015, the trial court: (1) vacated the
January 15, 2015 Judgment, a true and correct copy of which is attached as Exhibit 2; and
(2) entered a new judgment, a true and correct copy of which is attached as Exhibit 3.
Accordingly, this appeal is moot.
5. Pursuant to the settlement, Appellee Fig Tree Apartments seeks a dismissal of this appeal
with prejudice.
MOTION TO DISMISS APPEAL Page 2 of 3 MHDocs 6037890_2 11077.16 WHEREFORE, PREMISES CONSIDERED, Appellee Fig Tree Apartments respectfully
requests that the Court dismiss this appeal with prejudice, and for such other and further relief as
to which it may be justly entitled.
Dated: March 30, 2015
Respectfully Submitted,
MUNSCH HARDT KOPF & HARR, PC.
Claire Elizabeth Carroll State Bar No. 24092224 E-mail: ccarroll@munsch.com 500 N. Akard Street, Ste. 3800 Dallas, Texas 75201-6659 Tel: (214) 855-7500 Fax: (214) 855-7584 ATTORNEY FOR PLAINTIFF
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has been sent via certified mail, return receipt requested, on this 30th day of March, 2015, to the following:
John H. Whitfield Tammy Whitfield 2110 Mosier Avenue 2110 Mosier Avenue Apartment 115B Apartment 115B Dallas, Texas 75205 Dallas, Texas 75205
____________________________________ Claire Elizabeth Carroll
MOTION TO DISMISS APPEAL Page 3 of 3 MHDocs 6037890_2 11077.16 EXHIBIT 1 1
1 REPORTER'S RECORD
2 VOLUME 1 OF 1
3 TRIAL COURT CAUSE NO. 14-06144-C
4 FIG TREE APARTMENTS, ( IN THE COUNTY COURT ( 5 Plaintiff, ( ( 6 VS ( AT LAW NO. 3 ( 7 JOHN H. WHITFIELD and ALL ( OTHER OCCUPANTS, TAMMY L. ( 8 WHITFIELD, ( ( 9 Defendants. ( DALLAS COUNTY, TEXAS
11 -----------------------------------
12 RULE 11 AGREEMENT
13 -----------------------------------
21 On the 21st day of January, 2015, the following
22 proceedings came on to be heard in the above-entitled and
23 numbered cause before the Honorable Sally L. Montgomery,
24 Judge presiding, held in Dallas, Dallas County, Texas:
25 Proceedings reported by machine shorthand.
Janet E. Wright Official Court Reporter - County Court At Law No. 3 214/653-7831 2
1 A P P E A R A N C E S
2 GREGORY C. NOSCHESE 3 SBOT NO. 00797164 Munsch Hardt Kopf & Harr, P.C. 4 500 N Akard St 3800 Lincoln Plz 5 Dallas, TX 75201 214/855-7589 6 ATTORNEY FOR PLAINTIFF
Janet E. Wright Official Court Reporter - County Court At Law No. 3 214/653-7831 3
1 INDEX
2 JANUARY 21, 2015
3 Page Vol.
4 Announcements. . . . . . . . . . . . . . 4 1
5 Proceedings. . . . . . . . . . . . . . . 4 1
6 Adjournment. . . . . . . . . . . . . . . . .
7 Court Reporter's Certificate . . . . . . . . 207
8 2
23 P R O C E E D I N G S
24 THE COURT: Back on the record on 14-6144-C.
25 Starting with you, state your name for the
Janet E. Wright Official Court Reporter - County Court At Law No. 3 214/653-7831 4
1 record.
2 MR. NOSCHESE: Greg Noschese N-o-s-c-h-e-s-e.
3 THE COURT: You're an attorney?
4 MS. CAROL: Yes, ma'am.
5 THE COURT: State your name.
6 MS. CAROL: Claire Carol.
7 THE COURT: Okay. I'm going to swear you both
8 in.
9 (The witnesses were sworn.)
10 THE COURT: Okay. And so it's Tammy and John
11 Whitfield.
12 MR. WHITFIELD: Yes, ma'am.
13 MS. WHITFIELD: Correct.
14 THE COURT: My understanding is you have an
15 agreement in this case.
16 There was a judgment signed January 9. It was
17 amended January 15th, and I think -- let me see if I can
18 state this, and if y'all agree. The agreement is that
19 Fig Tree Apartments will forgo their monetary judgment
20 against the Whitfields and that the Whitfields -- and let
21 you stay until January 30.
22 MR. NOSCHESE: Correct, Your Honor.
23 THE COURT: Which is a Friday. I assume
24 midnight?
25 MR. NOSCHESE: Yes, ma'am. Yes, Your Honor.
Janet E. Wright Official Court Reporter - County Court At Law No. 3 214/653-7831 5
1 11:59.
2 THE COURT: What happened to the 31st?
3 MR. NOSCHESE: It was always the 30th.
4 THE COURT: Okay. January 30th. And that the
5 Whitfields will drop any discrimination charges against
6 them or complaints against Fig Tree Apartments. It will
7 be mutual. And what I could do -- I've been thinking
8 ever since y'all have been here -- I could vacate my
9 judgments. And then if they're not out by midnight
10 Friday night, I will sign another judgment.
11 MR. NOSCHESE: Actually, Your Honor, if the
12 Court could enter a new order today.
13 THE COURT: I can do that. That would get us to
14 the 31st.
15 MR. NOSCHESE: That carries to that Monday.
16 THE COURT: But, see, I won't know is the
17 problem.
18 MR. NOSCHESE: If the Court could enter an
19 order --
20 THE COURT: I could sign a judgment dated --
21 MR. NOSCHESE: The 23rd.
22 THE COURT: -- the 23rd.
23 MR. NOSCHESE: Correct.
24 THE COURT: So that'll give me jurisdiction
25 through February 2nd. So I would need to hear from y'all
Janet E. Wright Official Court Reporter - County Court At Law No. 3 214/653-7831 6
1 February 2. If you're out, I will vacate that judgment,
2 and we'll just dismiss it, and that'll be the end of it.
3 Except in the meantime we'll have a Rule 11 where you all
4 agreed to drop all complaints against them of any kind.
5 Will that work?
6 MR. WHITFIELD: Yes, ma'am.
7 MR. NOSCHESE: The only thing that we had agreed
8 on with Mrs. Whitfield was the 570 that's in the registry
9 of the court would go to the landlord.
10 MS. WHITFIELD: What are your thoughts on that?
11 MR. WHITFIELD: Well, I paid 570 for 202. We
12 was trying to get it back so we could find a place to go.
13 That's why -- because they called -- someone called.
14 THE COURT: But you only paid 570 over four
15 months. So they really are definitely entitled to that
16 money.
17 You really should. You just need to find
18 another place, but you will have a clean bill of health.
19 You will not have anything hanging over your head. And
20 you've only paid $570 for four months to stay there.
21 MR. WHITFIELD: I understand that, Your Honor,
22 but what I'm saying is the reason why I couldn't pay is
23 because of what happened.
24 THE COURT: That's up to y'all. You can discuss
25 that.
Janet E. Wright Official Court Reporter - County Court At Law No. 3 214/653-7831 7
1 MR. WHITFIELD: So if we can get our money back.
2 Somebody called my parole officer about my rent and
3 everything, trying to get me sent back to prison and
4 everything.
5 THE COURT: I'm going to let y'all go chat for
6 another minute and tell me what you want to do. I guess
7 the issue is over the 570.
8 I don't want to get involved in this. Y'all
9 talk.
10 MS. WHITFIELD: May I ask you a question?
11 THE COURT: No, I'm going to wait.
12 (Pause)
13 THE COURT: And?
14 MR. NOSCHESE: Your Honor, I couldn't figure out
15 exactly what they wanted. They continue to want the 570
16 in the registry. And, given all of the other sacrifices
17 the client's already made, we're just not willing to do
18 that.
19 THE COURT: Okay. Well, you don't have to.
20 Here's the thing, guys. If you don't reach an
21 agreement -- you weren't here for the discussion
22 earlier.
23 MR. WHITFIELD: No, ma'am.
24 THE COURT: But here's the thing. They are
25 entitled to get a writ of possession today. So they're
Janet E. Wright Official Court Reporter - County Court At Law No. 3 214/653-7831 8
1 going to get it, like, tomorrow or the day after if you
2 don't reach an agreement. This gives you another week.
3 MR. WHITFIELD: So just give us one week.
4 THE COURT: Yeah. There was a judgment against
5 you on the 9th in the first place. So basically what I'm
6 going to let them do is have that judgment back on the
7 9th or we can just leave the one we've got right now.
8 They can still get their writ.
9 MR. WHITFIELD: Okay. Well --
10 THE COURT: If they don't want to give it to
11 you, they don't have to. And you will be out, and you
12 will not have a clean bill, and you will have a judgment
13 against you. So you can still go ahead and pursue your
14 actions against them, but I would rather have a clean
15 bill of health and have an extra week to try to scrape
16 together some more money.
17 MR. WHITFIELD: I feel like if I have one week,
18 ma'am, I'm pretty sure I could talk to my dad and my
19 grandmother because I feel like the reason why I couldn't
20 work, ma'am, is because of Eddie Payne. He got me locked
21 up, and he lied. I could prove everything.
22 So I would rather take my chance and fight. We
23 was humiliated. He paid somebody --
24 THE COURT: Here's the thing. You're still
25 going to have an eviction judgment against you. It's
Janet E. Wright Official Court Reporter - County Court At Law No. 3 214/653-7831 9
1 going to affect your ability to rent from now on. I
2 frankly would rather walk away and not take my chances
3 with a clean bill of health and pray for forgiveness.
4 It's up to you. But it's your decision.
5 MS. WHITFIELD: May I ask something at this
6 point, though? If Mr. Payne or any parties make any
7 retaliatory statements from this point forward --
8 THE COURT: You can get him.
9 MS. WHITFIELD: So we're clear with that. We
10 can still go from this day forward.
11 THE COURT: Yes.
12 MR. WHITFIELD: Okay, ma'am.
13 THE COURT: I don't know how they're going to
14 retaliate because you'll have an agreement to move out.
15 MS. WHITFIELD: Mr. Payne is --
16 THE COURT: I don't know how you -- I don't
17 think you're going to be able to get somebody to go and
18 find you innocent as in the Innocent Project. I think
19 you're stuck with whatever has occurred. So I don't
20 think your retaliation lawsuit -- you'll have a hard time
21 winning it. At least they haven't hurt your rental
22 record.
23 MS. WHITFIELD: I'm looking at that aspect.
24 THE COURT: It's very important.
25 MS. WHITFIELD: Right. Also, I wanted
Janet E. Wright Official Court Reporter - County Court At Law No. 3 214/653-7831 10
1 clarification, if I may. He said that if we're not out
2 by midnight, January 30 or 31.
3 THE COURT: 30.
4 MS. WHITFIELD: Then a motion goes forward for
5 what again?
6 THE COURT: Then the judgment will stay in
7 place. I'm signing a new date on it so they can come in
8 on Monday and dismiss it. You can, too. Tell them
9 you've moved. And I'm going to vacate this judgment. It
10 will just be a dismissal. That's why I'm going to sign a
11 new one so I still have jurisdiction, and you can move
12 out.
13 MS. WHITFIELD: Okay. But we do have to be out
14 by midnight, January 30, no ifs, ands, or butts, or that
15 judgment stands?
16 THE COURT: Right.
17 MRS. WHITFIELD: So that's what? Nine days?
18 MR. WHITFIELD: Five days.
19 THE COURT: Yeah, but you've had since the 9th
20 of January.
21 MS. WHITFIELD: Right. I understand. I'm just
22 thinking out loud.
23 THE COURT: Normally it's five days. And if you
24 hadn't put the money in the registry like you did --
25 MS. WHITFIELD: It would have already taken
Janet E. Wright Official Court Reporter - County Court At Law No. 3 214/653-7831 11
1 place.
2 THE COURT: Right. So the 570 bought you a
3 month, really.
4 MS. WHITFIELD: So I guess what I'm saying is if
5 any parties thereof make any comments, slanders --
6 THE COURT: Just between you guys. It's, So
7 what?
8 MS. WHITFIELD: From going forward, we can do
9 that.
10 THE COURT: Only if it's made to a third party.
11 Y'all should keep it clean between you all. It's not a
12 big deal. It's just words.
13 Didn't your grandparents or parents say, Sticks
14 and stones can break my bones, but words can never hurt
15 me?
16 MS. WHITFIELD: But if anything comes about --
17 THE COURT: It's not going to affect you getting
18 a new home.
19 Now, you talk to your clients and tell them they
20 have a clean bill of health, so they can move.
21 MR. NOSCHESE: I will. And likewise, Your
22 Honor, we ask the Court tell the Whitfield's --
23 THE COURT: They're giving up all claims.
24 Besides, your tearing the place down. How can they hurt
25 you? It's incinerated.
Janet E. Wright Official Court Reporter - County Court At Law No. 3 214/653-7831 12
1 MR. NOSCHESE: Actually --
2 THE COURT: Y'all are going to be out of
3 business for a while. So how can they damage you? Put
4 you out of business? No, you're out of business.
5 They're just trying to drop it and move on.
6 Hang on a minute.
7 (Pause)
8 THE COURT: Here's what we're doing. I'm going
9 to vacate my January 15th judgment. I'm going to sign
10 another judgment that you all are going to agree to,
11 which is the January 9 judgment. And the only difference
12 is between the two, if you recall, it's a supersedeas
13 bond because you're going to give up your right to appeal
14 on this one.
15 And my understanding is there's an agreement
16 among you all -- and tell me if this is true or not --
17 that the Whitfields will vacate this property by
18 midnight, January 30, and the apartment will therefore
19 have possession January 31st. And in return they will
20 not only extend this added possession time for you, but
21 they will drop the money judgment against you that's
22 going to be reflected in this January 23rd judgment I'm
23 drafting up, which I'm not signing today. I'm not going
24 to sign it until January 23rd so that I still have
25 jurisdiction February 2. So if y'all move out, this will
Janet E. Wright Official Court Reporter - County Court At Law No. 3 214/653-7831 13
1 be vacated, and there will be just an order to dismiss
2 against you.
3 MS. WHITFIELD: Okay.
4 THE COURT: And this will let you move. It will
5 clean up your rental record. They get the $570 in the
6 registry, which they're definitely due. And in return my
7 understanding is the Whitfields will drop all complaints
8 and claims against Fig Tree Apartments for conduct that's
9 occurred between the parties in the past.
10 MS. WHITFIELD: Correct.
11 THE COURT: Correct.
12 MS. WHITFIELD: Correct.
13 THE COURT: Mr. Whitfield.
14 MR. WHITFIELD: Yes, ma'am.
15 MR. NOSCHESE: That is correct, Your Honor. If
16 I could have clarification to add the HUD cause number.
17 THE COURT: Sure, I'll let you do that. And
18 what we're doing right now is a Rule 11. It's like a
19 contract. It's on the record, so it's the same thing as
20 if you wrote it down. So go ahead.
21 MR. NOSCHESE: HUD case number 06-15-0351-8.
22 And that would have to be dismissed on or before January
23 30th of 2015.
24 THE COURT: That Friday afternoon. Maybe you
25 need -- they should have your phone number, and somehow
Janet E. Wright Official Court Reporter - County Court At Law No. 3 214/653-7831 14
1 y'all need to get back and forth. You need to do
2 something in writing where he can have it by that
3 afternoon. Has to be during business hours and not at
4 4:59. You may want to do it the day before once you get
5 it straight where you're moving. It wouldn't hurt if you
6 could move a day or two earlier and dismiss it, the
7 sooner, the better.
8 MR. NOSCHESE: The only other thing, Your Honor,
9 I was seeking clarification on is it's release of all
10 claims against the Fig Tree Apartments, its employees,
11 agents, and property managers.
12 THE COURT: Correct?
13 MR. WHITFIELD: (Witness nods.)
14 THE COURT: Got to say something.
15 MR. WHITFIELD: Yeah.
16 THE COURT: Okay.
17 MS. WHITFIELD: And that's where my question
18 came. That's pursuant to anything that has happened to
19 this date, correct?
20 THE COURT: Yes, and it's called priorty claim,
21 prior to right this minute.
22 MS. WHITFIELD: Yes, ma'am. Yes, Your Honor.
23 THE COURT: We're just going to bury the
24 hatchet.
25 MS. WHITFIELD: So if anything were to take
Janet E. Wright Official Court Reporter - County Court At Law No. 3 214/653-7831 15
1 place after this date with those parties again, if they
2 did something again, would that also be --
3 THE COURT: Yeah, but let me tell you what. I
4 don't know how it's going to damage it. You're not going
5 to have a very good claim. How is he going to damage
6 you? You're going to move. You're going to have a
7 spotless record.
8 The only damage would be if the apartment gave
9 you all a bad reference, and they can not give you a bad
10 reference. That would be the only thing that would
11 create a damage.
12 MS. WHITFIELD: Or if they tried to do something
13 like they did with him before that started this whole
14 situation.
15 THE COURT: Well, sure, you know, but that would
16 be a whole new incident.
17 MS. WHITFIELD: Right. So we would be free on
18 that, correct?
19 THE COURT: Right.
20 You can't enter this until the 23rd.
21 MR. NOSCHESE: That is correct, Your Honor.
22 THE COURT: I'm going to give it to you. You'll
23 need to get it to my clerk. I'll forget. And he doesn't
24 need it before the 23rd.
25 MR. NOSCHESE: Okay.
Janet E. Wright Official Court Reporter - County Court At Law No. 3 214/653-7831 16
1 THE COURT: Okay. I'm sorry for the issues.
2 MR. NOSCHESE: Everybody's on their way to a new
3 and fresh start.
4 Your Honor, can we make it clear that they
5 agreed to all the terms that we've discussed?
6 THE COURT: I think they did. Why don't you say
7 yes again.
8 MS. WHITFIELD: Yes.
9 MR. WHITFIELD: Yes.
10 MR. NOSCHESE: Voluntary, nobody's forcing them
11 to do anything.
12 MS. WHITFIELD: Well, considering the
13 circumstances.
14 THE COURT: Tough choices.
15 MS. WHITFIELD: Yeah, tough choices. Right.
17 MR. WHITFIELD: Yes, ma'am.
18 THE COURT: Okay. Good luck.
19 MS. WHITFIELD: Thank you.
20 MR. NOSCHESE: Thank you, judge.
21 (End of proceedings)
Janet E. Wright Official Court Reporter - County Court At Law No. 3 214/653-7831 17
1 STATE OF TEXAS )
2 COUNTY OF DALLAS )
3 I, Janet E. Wright, Official Court Reporter in and
4 for the County Court of Dallas County, Texas, County
5 Court at Law
6 Number Three, State of Texas, do hereby certify that to
7 the best of my ability the above and foregoing contains a
8 true and correct transcription of all portions of
9 evidence and proceedings requested in writing to be
10 included in the Reporter's Record, in the above-styled
11 and -numbered cause, all of which occurred in open court
12 or in chambers and were reported by me.
13 I further certify that this Reporter's Record of
14 the proceedings truly and correctly reflects the
15 exhibits, if any, admitted by the respective parties.
16 I further certify that the total cost for the
17 preparation of this Reporter's Record is $85.00 and was
18 paid by Mr. Noschese.
19 WITNESS MY OFFICIAL HAND this the 25th day of
20 January, 2015.
21 /s/ Janet E. Wright _______________________________ 22 JANET E. WRIGHT, Texas CSR #1532 Expiration Date: 12-31-15 23 Official Court Reporter County Court-at-Law No. 3 24 600 Commerce Street, Suite 585 Dallas, Texas 75202 25 214/653-7831
Janet E. Wright Official Court Reporter - County Court At Law No. 3 214/653-7831 EXHIBIT 2 Cause No. cc- 14-6144-c
Fig Tree Apartments IN THE COUNTY COURT
Plaintiff
vs. AT LAW NO. 3
John H Whitfield eta! Defendant DALLAS COUNTY, TEXAS
f-~.i ;£r-.{0Yv-J/4'-I-a~~l J
ORDER 10 VACA T9JAMENDED FINAL q,b{1.14-4.. fvu-.. JUDGMEN~ . ar-~-w..l ~pr . Ja~t juj;_.·~/'-t"I_J t(
On th~1 ~th day ~f January, 2015, thi~ Court, s igne~~ Amended Final Judgment. The Court has reconsidered 1ts order;and finds tfli's order:.shoulo be vacated. ~-
·-t IT IS, TJ-IEREFO~E, OI~DERED, ADJUDGED AND DECREED by the Court that the;-;;_~:/":' 1 ...,Jl.t-tL rN- 0 .J Jj, 1/'l//S ~~:t ~ Amended Final~udgment ~ vacated. Lij V;s·;;s"' SO ORDERED this JA day of January, 20 15 JJ
CC - 14 - 06144-C COVA UROER - VACATE (OCA - REOPEN CASE) 741911
\II\ \lllllllllll\11\lll\1\l\111111111Ill EXHIBIT 3 CC- 14- 06144-C CfJ FINAL JUDGMENT 1429&3
CAUSE NO. CC-14-06144-C 1111 111111111111111111111111111111111111
FIG TREE APARTMENTS, § IN THE COUNTY COURT § Plaintiff § § VS. § DALLAS COUNTY, TEXAS § § JOHN H. WHITFIELD, TAMMY LYNN § WHITFIELD And All Other Occupants § § Defendants § COUNTY COURT NO.3
FINAL JUDGMENT
Came on for trial on the 23~"~-lof January, 2015, the above entitled and numbered cause.
Plaintiff and Defendants appeared . All issues of fact and law were tried to the Court. The Court,
after having received the evidence presented, testimony of the witnesses and argument of counsel
issues the following order.
The Court finds that Plaintiff is entitled to exclusive possession of that residence located
at 2110 Moser Ave., #115B, Dallas, Texas 75206, the "Property").
The Court further finds that Plaintiff is entitled to recover the following amounts:
a) court costs in the amount of $206.00~ and
b) damages in the amount of $2,280.00 in past due rent less the $570 in the
Registry of the Court for a total amount of $1710.00.
The Court finds that an appeal bond has been paid into the registry of the court in the
amount of $570.00, and the Court Orders that this appeal bond be paid to the Plaintiff upon
presentation of this Judgment.
IT lS ORDERED that Plaintiffs FIG TREE APARTMENTS shall have and recover
Judgment against Defendants JOHN H. WHITFIELD and TAMMY LYNN WHITFIELD the total amount of $1960.00 plus post-judgment interest in the amount of 5% per annum until
judgment is paid in full.
ORDERED that Plaintiff shall be entitled to possession of the Property rJn.~'t.."];c..t-.3? 'Zo/5 I' I , and the Clerk of this Court is so directed, to issue a Writ of Possession in
favor of Plaintiff to allow Plaintiff possession of the Property.
This judgment is a final judgment as to these parties. ,-J' SIGNED thisZ1 day of January, 2015,