Linda S. Nowlin v. Lori Keaton
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Opinion
ACCEPTED 03-14-00608-CV 3711086 THIRD COURT OF APPEALS AUSTIN, TEXAS 1/9/2015 11:35:00 AM JEFFREY D. KYLE CLERK NO. 03-14-00608-CV
IN THE FILED IN 3rd COURT OF APPEALS COURT OF APPEALS FOR THE AUSTIN, TEXAS THIRD SUPREME JUDICIAL DISTRICT 1/9/2015 11:35:00 AM AT AUSTIN, TEXAS JEFFREY D. KYLE Clerk
LINDA NOWLIN, APPELLANT
V.
LORI KEATON, APPELLEE
APPEAL OF CAUSE C-1-CV-14-006938 FROM THE COUNTY COURT AT LAW #1 OF TRAVIS COUNTY, TEXAS
APPELLANT’S BRIEF
DAVID NOWLIN ATTORNEY FOR APPELLANT
7301 RR 620 North, Ste. 155, 319 Austin, Texas 78726-4537 Telephone: (512) 468-4882 Email: DavidNowlin@me.com
NO ORAL ARGUMENT REQUESTED IDENTIFICATION OF THE PARTIES AND COUNSEL Appellant certifies that the following is a complete list of the parties, attor- neys, and all other interested persons regarding this matter:
1. The Appellant in this case is: Linda Nowlin Nowlin Properties 7301 RR 620 North, Ste. 155, 319 Austin, Texas 78726-4537
2. Appellant was represented David Nowlin at trial and on appeal by: Nowlin Properties 7301 RR 620 North, Ste. 155, 319 Austin, Texas 78726-4537
4. The Appellee in this case is: Lori Keaton The Giving Tree Learning Center 15102 Cavalier Canyon Drive Lakeway, Texas 78734
5. Appellee was represented Robby Abarca at trial and on appeal by: Attorney at Law P.O. Box 152547 Austin, Texas 78715
ii NOTATION AS TO THE FORM OF CITATION Citation in this brief will be as follows:
(a) Citation to the Reporter’s Record (R) will be to volume and page number, e.g., “2R12” refers to page 12 of the second volume of the Reporter’s Rec- ord and “SR12” refers to the same page of the supplemental volume. (b) Citation to the single-volume Clerk’s Record (CR) will be to page number only, e.g., “CR15” refers to page 15 of the Clerk’s Record. (c) Citation to the Plaintiff’s and Defendant’s Exhibits (PX and DX respective- ly) will be to exhibit and page number, e.g., “2PX1” refers to page 1 of Plaintiff’s Exhibit #2. All exhibits in evidence are located, in the third vol- ume of the Reporter’s Record.
iii TABLE OF CONTENTS Title Page....................................................................................................................i
Identification of the Parties and Counsel..................................................................ii
Notation as to the Form of Citation..........................................................................iii
Table of Contents.....................................................................................................iv
Index of Authorities..................................................................................................vi
Statement of the Case.............................................................................................viii
Points of Error..........................................................................................................ix
Statement of Facts.....................................................................................................1
Summary of Argument..............................................................................................7
Argument.................................................................................................................10
I. The Trial Court Erred in Refusing to Submit to the Jury Appellant’s Questions Regarding Past Due Rent or to Enter Judgment that Appellee Owed Appellant Rent, Attorney Fees and Costs of Court........10
A. Appellant Was Entitled to Past Due Rent in the Amount of $4,200.00 for July and August of 2014 as a Matter of Law...............11
B. Appellant’s Challenge to the Jury Charge and the Questions Posed for the Jury’s Consideration was Properly Preserved.........................14
C. Appellant Was Entitled to a Jury Determination on the Issue of Past Due Rent......................................................................................17
D. Appellant Was Entitled to a Judgment in Her Favor for Her Reasonable Attorney Fees and Costs of Court....................................18
iv II. The Trial Court Erred When it Refused to Submit to the Jury Appellant’s Questions Relating to Appellee’s Late Payment of Rent or to Enter Judgment that Appellee Breached the Lease by Failing to Pay Rent On Time...........................................................................................21
A. The Issues Presented herein, Including the Issue of Appellant’s Right to Possession of the Property, Are Not Moot............................21
B. Appellant Was Entitled to Judgment as a Matter of Law that Appellee Breached the Lease by Failing to Pay Rent for July of 2014 On or Before July 1, 2014..........................................................27
C. The Jury Verdict on the Issue of Late Payment of Rent was Unsupported by the Evidence.............................................................34
III. The Trial Court Erred When it Refused to Submit to the Jury Appellant’s Questions Relating to Appellee’s Refusal of Access or to Enter Judgment that Appellee Breached the Lease by Refusing Access for Maintenance and Repair.....................................................................37
A. Appellant Was Entitled to Judgment as a Matter of Law that Appellee Breached the Lease by Refusing Peaceful Entry to Perform Maintenance and Repair.......................................................37
B. The Jury Verdict on the Issue of Refusal of Peaceful Entry to Perform Maintenance and Repair was Unsupported by the Evidence..............................................................................................42
IV. The Trial Court Erred When the Presiding Judge Demonstrated Bias Against and Hostility and Animosity Toward Appellant and Her Claims at Trial..........................................................................................44
Prayer.......................................................................................................................48
Certificate of Service...............................................................................................49
Certificate of Compliance........................................................................................49
Appendix.................................................................................................................50
v INDEX OF AUTHORITIES
Cases Texas Supreme Court Amoco Production Co. v. Alexander, 622 S.W.2d 563 (Tex. 1981)...................................................................................10
Barr v. Resolution Trust Corp., 837 S.W.2d 627 (Tex. 1992)...................................................................................23
Coker v. Coker, 650 S.W.2d 391 (Tex. 1983).............................................................................32, 40 Dow Chemical Co. v. Francis, 46 S.W.3d 237 (Tex. 2001).....................................................................................11 In Re Daredia, 317 S.W.3d 247 (Tex. 2010)...................................................................................24 Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex.
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ACCEPTED 03-14-00608-CV 3711086 THIRD COURT OF APPEALS AUSTIN, TEXAS 1/9/2015 11:35:00 AM JEFFREY D. KYLE CLERK NO. 03-14-00608-CV
IN THE FILED IN 3rd COURT OF APPEALS COURT OF APPEALS FOR THE AUSTIN, TEXAS THIRD SUPREME JUDICIAL DISTRICT 1/9/2015 11:35:00 AM AT AUSTIN, TEXAS JEFFREY D. KYLE Clerk
LINDA NOWLIN, APPELLANT
V.
LORI KEATON, APPELLEE
APPEAL OF CAUSE C-1-CV-14-006938 FROM THE COUNTY COURT AT LAW #1 OF TRAVIS COUNTY, TEXAS
APPELLANT’S BRIEF
DAVID NOWLIN ATTORNEY FOR APPELLANT
7301 RR 620 North, Ste. 155, 319 Austin, Texas 78726-4537 Telephone: (512) 468-4882 Email: DavidNowlin@me.com
NO ORAL ARGUMENT REQUESTED IDENTIFICATION OF THE PARTIES AND COUNSEL Appellant certifies that the following is a complete list of the parties, attor- neys, and all other interested persons regarding this matter:
1. The Appellant in this case is: Linda Nowlin Nowlin Properties 7301 RR 620 North, Ste. 155, 319 Austin, Texas 78726-4537
2. Appellant was represented David Nowlin at trial and on appeal by: Nowlin Properties 7301 RR 620 North, Ste. 155, 319 Austin, Texas 78726-4537
4. The Appellee in this case is: Lori Keaton The Giving Tree Learning Center 15102 Cavalier Canyon Drive Lakeway, Texas 78734
5. Appellee was represented Robby Abarca at trial and on appeal by: Attorney at Law P.O. Box 152547 Austin, Texas 78715
ii NOTATION AS TO THE FORM OF CITATION Citation in this brief will be as follows:
(a) Citation to the Reporter’s Record (R) will be to volume and page number, e.g., “2R12” refers to page 12 of the second volume of the Reporter’s Rec- ord and “SR12” refers to the same page of the supplemental volume. (b) Citation to the single-volume Clerk’s Record (CR) will be to page number only, e.g., “CR15” refers to page 15 of the Clerk’s Record. (c) Citation to the Plaintiff’s and Defendant’s Exhibits (PX and DX respective- ly) will be to exhibit and page number, e.g., “2PX1” refers to page 1 of Plaintiff’s Exhibit #2. All exhibits in evidence are located, in the third vol- ume of the Reporter’s Record.
iii TABLE OF CONTENTS Title Page....................................................................................................................i
Identification of the Parties and Counsel..................................................................ii
Notation as to the Form of Citation..........................................................................iii
Table of Contents.....................................................................................................iv
Index of Authorities..................................................................................................vi
Statement of the Case.............................................................................................viii
Points of Error..........................................................................................................ix
Statement of Facts.....................................................................................................1
Summary of Argument..............................................................................................7
Argument.................................................................................................................10
I. The Trial Court Erred in Refusing to Submit to the Jury Appellant’s Questions Regarding Past Due Rent or to Enter Judgment that Appellee Owed Appellant Rent, Attorney Fees and Costs of Court........10
A. Appellant Was Entitled to Past Due Rent in the Amount of $4,200.00 for July and August of 2014 as a Matter of Law...............11
B. Appellant’s Challenge to the Jury Charge and the Questions Posed for the Jury’s Consideration was Properly Preserved.........................14
C. Appellant Was Entitled to a Jury Determination on the Issue of Past Due Rent......................................................................................17
D. Appellant Was Entitled to a Judgment in Her Favor for Her Reasonable Attorney Fees and Costs of Court....................................18
iv II. The Trial Court Erred When it Refused to Submit to the Jury Appellant’s Questions Relating to Appellee’s Late Payment of Rent or to Enter Judgment that Appellee Breached the Lease by Failing to Pay Rent On Time...........................................................................................21
A. The Issues Presented herein, Including the Issue of Appellant’s Right to Possession of the Property, Are Not Moot............................21
B. Appellant Was Entitled to Judgment as a Matter of Law that Appellee Breached the Lease by Failing to Pay Rent for July of 2014 On or Before July 1, 2014..........................................................27
C. The Jury Verdict on the Issue of Late Payment of Rent was Unsupported by the Evidence.............................................................34
III. The Trial Court Erred When it Refused to Submit to the Jury Appellant’s Questions Relating to Appellee’s Refusal of Access or to Enter Judgment that Appellee Breached the Lease by Refusing Access for Maintenance and Repair.....................................................................37
A. Appellant Was Entitled to Judgment as a Matter of Law that Appellee Breached the Lease by Refusing Peaceful Entry to Perform Maintenance and Repair.......................................................37
B. The Jury Verdict on the Issue of Refusal of Peaceful Entry to Perform Maintenance and Repair was Unsupported by the Evidence..............................................................................................42
IV. The Trial Court Erred When the Presiding Judge Demonstrated Bias Against and Hostility and Animosity Toward Appellant and Her Claims at Trial..........................................................................................44
Prayer.......................................................................................................................48
Certificate of Service...............................................................................................49
Certificate of Compliance........................................................................................49
Appendix.................................................................................................................50
v INDEX OF AUTHORITIES
Cases Texas Supreme Court Amoco Production Co. v. Alexander, 622 S.W.2d 563 (Tex. 1981)...................................................................................10
Barr v. Resolution Trust Corp., 837 S.W.2d 627 (Tex. 1992)...................................................................................23
Coker v. Coker, 650 S.W.2d 391 (Tex. 1983).............................................................................32, 40 Dow Chemical Co. v. Francis, 46 S.W.3d 237 (Tex. 2001).....................................................................................11 In Re Daredia, 317 S.W.3d 247 (Tex. 2010)...................................................................................24 Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001).....................................................................................24 Marshall v. Housing Auth. City San Antonio, 198 S.W.3d 782 (Tex. 2006)...........................................................21, 22, 24, 25, 27
National Collegiate Athletic Ass'n v. Jones, 1 S.W.3d 83 (Tex. 1999).........................................................................................22
Prudential Ins. v. Financial Review Servs., 29 S.W.3d 74 (Tex. 2000).......................................................................................10
State Dept. Highways v. Payne, 838 S.W.2d 235 (Tex. 1992)...................................................................................14
Tiller v. McLure, 121 S.W.3d 709 (Tex. 2003)...................................................................................10 Williams v. Lara, 52 S.W.3d 171 (Tex. 2001).....................................................................................22
vi Texas Courts of Appeals Rice v. Pinney, 51 S.W.3d 705 (Tex.App.—Dallas 2001, no pet.)......................................10, 23, 26
Shaw v. Greater Houston Transp. Co., 791 S.W.2d 204 (Tex.App.Corpus.Christi,1990, no pet.).......................................44 Straus v. Kirby Court Corp., 909 S.W.2d 105 (Tex.App.—Houston (14 Dist.) 1995, writ denied).........13, 28, 30 Williams v. Bank of New York Mellon, 315 S.W.3d 925 (Tex. App.—Dallas 2010, no pet.)...............................................21
Unpublished Opinions McElroy v. Teague Housing Authority, No. 10-10-00009-CV (Tex.App.—Waco 2012, no pet.).........................................26 Pecan Valley Golf Apartments v. Moreland, No. 04-10-00421-CV (Tex.App.—San Antonio 2011)...............................13, 30, 31
Statutes TEX. PROP. CODE ANN. § 24.002 (Vernon 2009).....................................................10
TEX. PROP. CODE ANN. § 24.0051 (Vernon 2009).............................................11, 22 TEX. PROP. CODE ANN. § 24.006 (Vernon 2009)...............................................18, 22
TEX. PROP. CODE ANN. § 24.008 (Vernon 2009).....................................................21
Rules TEX.R.APP.PROC. 43.2(c)........................................................................................11
TEX.R.APP.PROC. 43.3.............................................................................................11
TEX.R.CIV.PROC. 273..............................................................................................14 TEX.R.CIV.PROC. 276..............................................................................................15
TEX.R.CIV.PROC. 301..............................................................................................10
vii TEX.R.CIV.PROC. 510.11.........................................................................................11
TEX.R.CIV.PROC. 746 (repealed).............................................................................21
STATEMENT OF THE CASE Appellant filed her suit for forcible detainer (herein referred to alternately as
“eviction”) in Travis County Justice Court #2 on June 6, 2014. 2R71, CR30. In
her petition, Appellant pled damages for “all rents … according to the lease dated
5/1/14”. CR30. Additionally, she indicated that attorney fees and court costs were
sought in unspecified amounts. Id. On July 2, 2014, judgment was rendered in fa-
vor of Appellee. CR11. On or about July 23, 2014, Appellant appealed from that
judgment to the Travis County Court at Law #1. CR5.
On August 25, 2014, this cause came to be heard in County Court at Law #1,
for trial by jury, which returned a verdict in Appellee’s favor. CR144-CR147. On
August 28, 2014, Appellant moved the County Court to render judgment notwith-
standing the jury’s verdict, to grant a new trial and to issue written rulings on her
proposed jury questions. CR153-CR175. On September 17, 2014, the court de-
nied all post-judgment motions and rendered judgment in favor of Appellee that
Appellant take nothing, noting specifically that Appellant was not entitled to col-
lect the rent in arrears for July and August of 2014. SR5, SR10-SR12, CR176.
Appellant filed her notice of appeal on September 22, 2014, and this appeal
ensued. CR177.
viii POINTS OF ERROR I. The Trial Court Erred in Refusing to Submit to the Jury Appellant’s Questions Regarding Past Due Rent or to Enter Judgment that Appellee Owed Appellant Rent, Attorney Fees and Costs of Court.
A. Appellant Was Entitled to Past Due Rent in the Amount of $4,200.00 for July and August of 2014 as a Matter of Law.
B. Appellant’s Challenge to the Jury Charge and the Questions Posed for the Jury’s Consideration was Properly Preserved. C. Appellant Was Entitled to a Jury Determination on the Issue of Past Due Rent.
D. Appellant Was Entitled to a Judgment in Her Favor for Her Reasonable Attorney Fees and Costs of Court. II. The Trial Court Erred When it Refused to Submit to the Jury Appellant’s Questions Relating to Appellee’s Late Payment of Rent or to Enter Judgment that Appellee Breached the Lease by Failing to Pay Rent On Time.
A. The Issues Presented herein, Including the Issue of Appellant’s Right to Possession of the Property, Are Not Moot. B. Appellant Was Entitled to Judgment as a Matter of Law that Appellee Breached the Lease by Failing to Pay Rent for July of 2014 On or Before July 1, 2014.
C. The Jury Verdict on the Issue of Late Payment of Rent was Unsupported by the Evidence. III. The Trial Court Erred When it Refused to Submit to the Jury Appellant’s Questions Relating to Appellee’s Refusal of Access or to Enter Judgment that Appellee Breached the Lease by Refusing Access for Maintenance and Repair.
A. Appellant Was Entitled to Judgment as a Matter of Law that Appellee Breached the Lease by Refusing Peaceful Entry to Perform Maintenance and Repair.
ix B. The Jury Verdict on the Issue of Refusal of Peaceful Entry to Perform Maintenance and Repair was Unsupported by the Evidence.
IV. The Trial Court Erred When the Presiding Judge Demonstrated Bias Against and Hostility and Animosity Toward Appellant and Her Claims at Trial.
x STATEMENT OF FACTS
1. The Lease
On April 12, 2014, Linda Nowlin (hereinafter named “Appellant”) and
Lori Keaton (hereinafter named “Appellee”) created a Residential Lease Con-
tract (hereinafter named “the Lease”) for the rental of residential real property
located at 3907 Eck Lane, Austin, Texas 78734. 1PX1, 2R27. The Lease be-
came effective on May 6, 2014. 1 It grants to Appellee the right to possess and
occupy the subject property only so long as she pays rent for its use and she
abides by certain enumerated and specific rules and prohibitions. 1PX1.
In Section 6, “Rent and Charges,” the Lease provides that rent for the
property will be “$2100” per month, “in advance and without demand.” 1PX1.
In that same section, the Lease provides that, in the absence of other arrange-
ments that were not made by the parties, “…[Appellee] must pay [her] rent on or
before the 1st day of each month (due date) with no grace period[,]” and that
“[Appellee] must not withhold or offset rent unless authorized by statute.” Id,
2R32. In that same section, the Lease provides that, “If [Appellee does] not pay
rent on time, [she will] be in default and all remedies under state law and this
Lease Contract will be authorized.” 1PX1. In that same section, the Lease pro- 1 It was scheduled when written to become effective on May 1, 2014. 1PX1. Appellee was already in residence at the subject property under a prior lease executed with the previous owner. 2R44. Appellant purchased the property from that owner and the transaction did close until May 6, 2014, causing the effective date of the Lease to be delayed until May 6, 2014. 2R27.
1 vides that certain late charges may be assessed if rent is paid late after the third
day of the month. Id.
In Section 20, “Prohibited Conduct,” the Lease provides that Appellee
“may not engage in the following activities[,]” including, “disturbing or threat-
ening the rights, comfort, … or convenience of others (including [Appellant and
her] agents and employees)[.]” 1PX2.
In Section 28, “When We May Enter,” the Lease provides that Appellant
and certain agents “may peacefully enter the dwelling at reasonable times” for
certain purposes including, “making repairs or replacements; estimating repair
or refurbishment costs; … [and] doing preventative maintenance[.]” 1PX4.
In Section 32, “Default by Tenant,” the Lease provides that Appellee will
“be in default if: (1) [she does not] pay rent … on time; [or Appellee] or any
guest or occupant violates this Lease Contract [or Appellant’s] rules[.]” Id. In
that same section, the Lease provides that, if Appellee defaults, Appellant “may
end [her] right of occupancy by giving [her] a 24-hour written notice to vacate.”
Id. Finally, in that same section, the Lease provides that in the event that default
on the Lease leads to litigation, the “prevailing party may recover reasonable at-
torney’s fees and other litigation costs from the non-prevailing parties,” and that
Appellant “may recover attorneys’ fees in connection with enforcing [her] rights
under this Lease Contract.” Id.
2 2. Initial Friction
Prior to the effective date of the Lease and incident to the closing of the
transaction for the sale of the property, a professional inspection of the structure
was performed and an inspection report was created. 2R42. The inspection re-
port recommended a multitude of repairs to the house, including repairs relating
to structural and electrical defects, heating and air conditioning, plumbing and
septic systems and other safety issues. 2R42-2R43. The previous owner was an
“absentee landlord” who lived out of state and seldom performed maintenance
on the property and failed to keep it in good repair. 2R44-2R45. Incident to or
soon after the sale, Appellant was timely informed of the condition of the house
and the need for repairs and maintenance. 2R42.
After a short initial period of compliance (less than two weeks in length),
Appellee began to resist Appellant’s attempts to enter and repair the property.
2R48-2R49, 2R128-2R129. During that initial period, Appellant entered the
property to perform repairs a total of four times on or about May 7, 12, 14 and
16 of 2014. 2R115-2R118. Each of these visits was made at a reasonable time,
during normal business hours on weekdays. Id, 2R47. Appellant sought and re-
ceived Appellee’s consent to entry on each occasion, prior to visiting the proper-
ty, giving at least twenty-four hours’ notice. 2R47.
3 On May 19, 2014, Appellee hand delivered to Appellant a letter, in which
she complained that “the frequency of [Appellant’s] visits and intrusions [was]
becoming excessive[.]” 9P1, 2R48-2R49. In that letter she informed Appellant
that she had attempted to research the legality of Appellant’s requests for entry
and that she had formed the legal opinion that Appellant was permitted under
applicable law to enter to perform only those repairs that address issues having
to do with “the integrity of the property” or issues compromising her “safety and
security”. Id. She further stated therein that requests for entry for other reasons
“intrude[d] on [her] right to privacy and [her] right to peace and quiet.” Id.
3. Resistance
On May 27, 2014, after giving advance notice and receiving consent to
enter and make repairs, Appellant visited the house again with a contractor in
order to clean air conditioner coils at Appellee’s request and to perform other
repairs to the property. 2R59-2R61. Appellee answered the door in an indecent
state, wearing no clothing at all and exposing herself to Appellant and her agent
contractor. 2R62. Appellee made this exhibition with the purpose and intent to
embarrass Appellant, to disturb her comfort and to frustrate and to offer re-
sistance to her attempts to make repairs on that day and in the future. 2R62-
2R63, 2R130-2R134.
4 On June 4, 2014, Appellant posted her first notice to vacate for breach of
the Lease, alleging that Appellee was in default as a result of her resisting and
attempting to thwart and frustrate Appellant’s attempts to repair the property and
her intentionally disturbing the comfort and convenience of Appellant and her
agent. 2R87-2R88. At that time, in accordance with Appellant’s requests that
repairs be postponed, Appellant made only two requests to enter the residence
between the date the notice was posted and the trial on the merits in County
Court at Law #1. 2R63-2R65, 2R125.
The second such request was made on July 28, 2014, by email. 19PX1.
In that email, Appellant gave Appellee advance notice that contractors were
scheduled to visit the property the following day, July 29, 2014, to perform pre-
ventative termite treatment. Id. Appellee responded by expressly refusing Ap-
pellant and her agents entry, stating “I will not accommodate your demand to
enter the house tomorrow whatsoever,” and demanding that Appellant cease
contacting her again for reasons other than two listed purposes, neither of which
was related to the performance of maintenance, the making of repairs or any of
the many other legitimate reasons Appellant was entitled to contact her under
the terms of the Lease. Id, 2R66. Following this refusal, Appellant canceled the
termite treatment and all other planned repairs and maintenance. 2R67.
5 4. Delinquent Rent
Appellee was first required to make payment of rent to Appellant on June
1, 2014, in the amount of $2,100.00 for the month of June and $80.00 for the
month of May, totaling $2,180.00. 2R27-2R29. Appellee made no payment on
June 1, 2014, or on June 2, 2014. 2R33. Appellant transmitted to Appellee a
late payment notice on June 3, 2014,2 reiterating that under the Lease rent was
due on the first of the month, informing her that her rent for June was delinquent
and warning her that failure to pay rent on or before the due date would consti-
tute default under the terms of the Lease. 2R34, 16PX1. Appellee made her
payment of June’s rent on June 3, 2014. 2R34.
Appellee was next scheduled to make payment of rent to Appellant on Ju-
ly 1, 2014, in the amount of $2,100.00 for the month of July. 2R38-2R39. Ap-
pellee made no payment and no attempt to make payment on July 1, 2014, or Ju-
ly 2, 2014. 2R39, 2R105. On July 2, 2014, Appellant requested of her banking
institution that her deposit account be made inaccessible to Appellee, effectively
refusing to accept late payment of rent. 2R41. On that same day, Appellant
posted a second notice to vacate for non-payment of rent. 2R39.
2 Testimony is unclear on the date of the late notice, but the notice itself is dated June 3, 2014. See 2R34, 2R86; 16PX1.
6 Appellee never paid rent again after June 3, 2014, and was in arrears in
the amount of $4,200.00, for the months of July and August of 2014, at the time
of the trial on the merits in County Court at Law #1. 2R76.
SUMMARY OF ARGUMENT Though the evidence was clear that Appellee owes to Appellant a debt of
$4,200.00 for past due, unpaid rent for the months of July and August of 2014,
the trial court erred by refusing to submit to the jury Appellant’s proposed jury
questions relating to the rent arrearage, by entering a take nothing judgment
based upon the jury’s verdict that was unsupported by the evidence and by re-
fusing to enter judgment as a matter of law that the debt was due and owing.
Because Appellee was entitled to a judgment in her favor regarding the debt, she
was also entitled to a judgment as a matter of law for her reasonable attorney
fees incurred in enforcing her rights under the Lease and for her costs of court.
Appellant’s challenge to the questions submitted to the jury in the jury
charge was properly preserved because Appellant timely submitted her proposed
questions to the court prior to the reading of the charge to the jury and multiple
times requested a ruling on her proposed questions, and the trial court erred by
failing to endorse her written questions with the presiding judge’s rejection of
7 those questions and his signature as required by the Texas Rules of Civil Proce-
dure.
Though the evidence was clear that Appellee breached the terms of the
Lease by failing to pay rent due on July 1, 2014, on or before July 1, 2014, the
trial court erred by refusing to submit to the jury Appellant’s proposed jury
questions relating to the delinquency of July’s rent, by entering a take nothing
judgment based upon the jury’s verdict that was unsupported by the evidence
and by refusing to enter judgment as a matter of law that the Lease was
breached. The issue of Appellant’s right to immediate possession at the time of
trial is not moot, though Appellee has vacated the property, because a live con-
troversy exists between the parties regarding Appellant’s right to recover from
Appellee her reasonable attorney fees incurred in seeking possession, which
controversy cannot be resolved unless the issue of Appellant’s right to posses-
sion is resolved.
Though the evidence was clear that Appellee breached the terms of the
Lease by failing to provide to Appellant access to the property for the purposes
of performing preventative maintenance and making repairs, the trial court erred
by refusing to submit to the jury Appellant’s proposed jury questions relating to
Appellee’s denial of peaceful entry for those purposes, by entering a take noth-
ing judgment based upon the jury’s verdict that was unsupported by the evi-
8 dence and by refusing to enter judgment as a matter of law that the Lease was
breached.
The presiding judge of the trial court, consistently throughout the trial,
demonstrated bias against Appellant, her claims and her attorney; showed ani-
mosity and hostility toward the same, both in and out of the presence of the jury;
and, by doing so, poisoned the well, invited the jury to substitute his judgment
for its own and deprived Appellant of a fair trial.
9 ARGUMENT
I. THE TRIAL COURT ERRED IN REFUSING TO SUBMIT TO THE JURY APPELLANT’S QUESTIONS REGARDING PAST DUE RENT OR TO ENTER JUDGMENT THAT APPELLEE OWED APPELLANT RENT, ATTORNEY FEES AND COSTS OF COURT.
The appropriate action to determine the right of possession of real proper-
ty is a suit for forcible detainer. TEX. PROP. CODE ANN. § 24.002, Rice v. Pin-
ney, 51 S.W.3d 705, 709 (Tex.App.—Dallas 2001, no pet.). A person commits a
forcible detainer if she refuses to surrender possession of real property on de-
mand while willfully and without force holding over after the termination of her
right of possession. TEX. PROP. CODE ANN. § 24.002(a)(1).
In relationships between lessors and lessees, the terms of the lease are
contractual obligations and determine the rights and duties of the parties thereto,
including the right of possession. Amoco Production Co. v. Alexander, 622
S.W.2d 563, 571 (Tex. 1981). The Lease grants to Appellee the right to possess
and occupy the subject property only so long as she pays rent for its use and she
abides by certain enumerated and specific rules and prohibitions. 1PX1, 1PX4.
A trial court may enter judgment notwithstanding the verdict of a jury if a
directed verdict would have been proper or if the jury makes findings that have
no support in the evidence. TEX.R.CIV.PROC. 301, Tiller v. McLure, 121 S.W.3d
709, 713 (Tex. 2003). The court may direct a verdict if no probative evidence
raises a genuine issue of fact for jury consideration. Prudential Ins. v. Financial
10 Review Servs., 29 S.W.3d 74, 77 (Tex. 2000). When a trial court’s judgment on
a matter of law is in error, the Court on appeal should reverse the judgment and
render the judgment that the trial court should have rendered. TEX.R.APP.PROC.
43.2(c).
Rendition is appropriate when reversing the judgment of the trial court
unless a remand is necessary for further proceedings or the interests of justice
require that a new trial be held. TEX.R.APP.PROC. 43.3. A jury verdict may be
set aside and a new trial ordered where the evidence supporting the verdict was
so weak, or where the verdict was so against the great weight and preponderance
of the evidence that it is clearly wrong and unjust. Dow Chemical Co. v. Fran-
cis, 46 S.W.3d 237, 242 (Tex. 2001).
A. Appellant Was Entitled to Past Due Rent in the Amount of $4,200.00 for July and August of 2014 as a Matter of Law
A landlord may recover unpaid rent in an eviction action. TEX. PROP.
CODE ANN. § 24.0051(b). The appellant in an eviction action is permitted to
plead, prove and recover damages incurred during the pendency of an appeal to
county court, including loss of rents during the pendency of the appeal, attorney
fees and court costs. TEX.R.CIV.PROC. 510.11.
In Section 6, “Rent and Charges,” the Lease provides that rent for the
property will be “$2100” per month. 1PX1. Appellant asserted in her petition
11 that Appellee owed her unpaid rent for time spent in possession beginning in Ju-
ly of 2014, and she presented evidence at trial that the total amount of unpaid
rent was $4,200.00 and that it was due and owing prior to the date of trial.
2R30, 2R76. Appellant testified and Appellee admitted that Appellee was in
possession of the property from the effective date of the Lease, May 6, 2014,
through the date of trial, August 25, 2014. 2R26-2R27, 2R98. Appellee also
indicated to the court, after trial, that she did not relinquish possession until Sep-
tember 5, 2014. SR9. Appellant testified and Appellee did not dispute that
when Appellee failed to pay rent on time for the month of July of 2014, Appel-
lant placed a hold on her deposit account preventing Appellee from tendering
late rent by that method. 2R41.
It appears to be Appellee’s position and the position of the trial court that
she cannot be held liable for failing to pay rent in July because the hold was
placed on the account only one day after the rent was due and payment was,
therefore, impossible. 2R89, SR5. This is not actually the case. It is true that
the Lease specifies that payment is to be made by specific means, deposit into
Appellant’s deposit account, but it is not true that it was impossible to make
payment by other means, such as mailing Appellee a check or money order, or
tendering payment by other negotiable instrument, or even cash. It was also
possible for Appellee to preserve her argument that rent was timely tendered by
12 paying the disputed sums into the registry of the court during the pendency of
the appeal to County Court #1. Finally, failing even that, she should have ten-
dered the past due rents to Appellant in court in the presence of the presiding
judge at trial or during one of the pretrial conferences. That she did not even at-
tempt to do any of these things precludes her from arguing on appeal that it was
impossible for her to pay the rents due under the Lease.
However, even if the Court is convinced that it was impossible for her to
pay rent to Appellant when she attempted to do so, Appellant’s refusing to ac-
cept it late during the pendency of the eviction action does not constitute waiver
or forgiveness of the debt and should not be construed as such. The waiver of a
right must be made by a clear, intentional relinquishment of that right and must
be clearly proven. Straus v. Kirby Court Corp., 909 S.W.2d 105, 108, 109
(Tex.App.—Houston (14 Dist.) 1995, writ denied). Nothing in the Lease obli-
gates Appellant to accept rent three days late, or even one day late. 1PX1-1PX6,
2R41. Accepting a late payment of rent is often argued to constitute waiver of
the issue of the breach of that term of the Lease on that occasion and is some-
times argued to be waiver of the right to receive timely payment at all on future
occasions. See Pecan Valley Golf Apartments v. Moreland, No 04-10-00421-
CV (Tex.App.—San Antonio 2011) (not designated for publication), Straus, at
107.
13 Appellant’s refusal to accept late rent when it was tendered on July 3,
2014, was not intended to be a waiver of her right to receive rent for that month
but was merely the safest avenue available to her to preserve her right under the
Lease to end Appellee’s right of occupancy for failing to pay rent on or before
the due date, as required by the Lease. Therefore, because Appellant testified
that Appellee owes her a debt of $4,200.00 and Appellee failed to dispute the
evidence of this debt, no genuine issue of fact existed for submission to the jury
and Appellant was entitled to a judgment in her favor on the issue of rent dam-
ages as a matter of law.
B. Appellant’s Challenge to the Jury Charge and the Questions Posed for the Jury’s Consideration was Properly Preserved.
The standard for determining whether or not error in the jury charge is
preserved for appellate review is “whether the party made the trial court aware
of the complaint, timely and plainly, and obtained a ruling.” State Dept. High-
ways v. Payne, 838 S.W.2d 235, 241 (Tex. 1992). Appellant was entitled to an
opportunity to present to the trial court questions for the jury’s consideration and
to request that those questions be included in the jury charge. TEX.R.CIV.PROC.
273. Appellant was entitled to a ruling on any such questions so presented,
which ruling was required to be made by the presiding judge’s written endorse-
ment of refusal and signature on the document containing the requests.
14 TEX.R.CIV.PROC. 276. A document so endorsed “shall constitute a bill of ex-
ceptions, and it shall be conclusively presumed that the party asking the same
presented it at the proper time, excepted to its refusal or modification, and that
all the requirements of law have been observed, and such procedure shall entitle
the party requesting the same to have the action of the trial judge thereon re-
viewed without preparing a formal bill of exceptions.” Id.
On August 25, 2014, immediately prior to trial on the merits, the parties
convened at the court to discuss proposed questions for the jury’s considera-
tion.3 The court made an oral ruling rejecting all of Appellant’s postposed ques-
tions and substituting its own to be included in the jury charge. 4 After the
charge was prepared and submitted to the parties, Appellant and counsel reason-
ably believed that the court had already ruled on her proposed questions and re-
jected them, and, therefore, did not make a second identical submission of a
document that was already in the record. SR8.
After trial, Appellant, in her Plaintiff’s Motion for Ruling on Plaintiff’s
Proposed Jury Questions requested written rulings on the questions submitted.
3 Appellant, through her attorney, reminded the court that proposed questions were submitted by Appellant at the pre-trial conference immediately prior to trial. SR8. Neither the court nor Appellee challenged the statement. Id. The proposed questions were included in the Clerk’s Record. CR141. 4 The court reporter was not present at the conference, but the court’s rejection of Appellant’s proposed questions and substitution of alternate questions can be necessarily inferred from the fact that Appellant’s questions were not included in the charge, but others were. CR145- CR146.
15 CR151. The court denied the motion and refused to issue individual rulings.
SR12. However, neither the court nor Appellee contradicted in any way that
Appellant had timely submitted her proposed questions prior to the reading of
the charge to the jury.
The court erred when the presiding judge failed to endorse Appellant’s
proposed questions and to sign the document on which they were requested.
The court was requested to correct that error by issuing the written rulings to
which Appellant was entitled after the trial and it refused to do so. But for the
court’s initial error in declining to issue written rulings as required by the Texas
Rules of Civil Procedure, the document would constitute an adequate bill of ex-
ception. Appellant was not in a position to know that the court had failed to
make its required written endorsements until after trial and when the court was
asked to correct the error in the record, it refused.
Therefore, Appellant has satisfied the requirements for preserving error in
the jury charge by multiple times timely and plainly making the trial court aware
of her complaints and obtaining the only ruling the court was willing to give on
the issue in response to her repeated requests.
16 C. Appellant Was Entitled to a Jury Determination on the Issue of Past Due Rent.
Jury Question Number Two was submitted to the jury following the close
of all evidence, asking, in relevant part, “Did [Appellee] fail to comply with the
lease by failing to pay her rent in a timely manner?” CR146. It did not ask, and
no question presented to the jury for consideration in the Jury Charge asked
whether or not Appellee owed to Appellant delinquent rent, separate and apart
from the question of whether or not Appellee breached the Lease by failing to
make timely payment of rent. The jury could not have given an answer in the
space provided that was intended to convey a finding that while Appellee did
not fail to pay her rent in a timely manner, she did owe a rent arrearage for time
spent in possession of the property. CR146.
Appellant was entitled to a determination on this issue and, seeking such a
determination, submitted jury questions #8, #8A and #8B for inclusion in the Ju-
ry Charge, the answers to which would have made clear the jury’s verdict on the
issue of rent arrearage, separate and apart from the issue of breach of the Lease
by late payment of rent.5 Therefore, the court erred in rejecting Appellant’s
5 Specifically, Appellant proposed that the jury be asked if Appellee was “in arrears on rent for July and August, 2014[,]” if Appellee was “liable to [Appellant] for $2,100.00 in rent for the month of July of 2014[,]” and if Appellee was “liable to [Appellant] for $2,100.00 in rent for the month of August of 2014[.]” CR142.
17 questions and failing to include in the Jury Charge any question capable of re-
solving the issue of rent arrearage.
However, even if the question, as presented, was adequate to allow the ju-
ry to render a verdict on the issue of rent arrearage, the jury gave an answer
thereto that was wholly unsupported by the evidence submitted for its considera-
tion. Because Appellant testified that Appellee owes her a debt of $4,200.00,
and Appellee failed to dispute the evidence of this debt, the evidence of the debt
was overwhelmingly in favor of Appellant and the jury rendered a verdict that
was contrary to the great weight and preponderance of all relevant evidence on
the issue of whether or not Appellee owed rent in the amount of $4,200.00, cu-
mulatively, for the months of July and August of 2014. Because the jury ren-
dered a verdict on the issue of rent arrearage that is contrary to the great weight
and preponderance of all relevant evidence and because the trial court issued a
take nothing judgment based upon that verdict, the court erred, the error is re-
versible and Appellant is entitled to a new trial.
D. Appellant Was Entitled to a Judgment in Her Favor for Her Reasonable Attorney Fees and Costs of Court.
A landlord is entitled to recover attorney fees in a suit for forcible detain-
er, “[i]f a written lease entitles the landlord to recover attorney's fees[.]” TEX.
PROP. CODE ANN. § 24.006(b). Additionally, “[t]he prevailing party [in such a
18 suit] is entitled to recover all costs of court.” TEX. PROP. CODE ANN. §
24.006(d).
In Section 32. “Default by Resident,” the Lease provides that in the event
of Appellee’s default on the Lease, Appellant “may recover attorneys’ fees in
connection with enforcing [her] rights under this Lease Contract.” 1PX4.
Jury Question Number Three was submitted to the jury following the
close of all evidence, asking, “What is a reasonable fee for the necessary ser-
vices of [Appellant]’s attorney for preparation and trial in this case, stated in
dollars and cents?” CR146. Though the jury rendered a verdict in Appellee’s
favor on the two questions relating to breaches of the Lease, it answered Ques-
tion Three with a dollar amount of “$2300.00[.]” Id. This answer is wholly un-
supported by the evidence submitted for the jury’s consideration.
Appellant testified to paying “over $4,000.00” to trial counsel and “about
a thousand” to another attorney and to receiving free legal work from a third.
2R76. Trial counsel testified to having been paid $4,600.00 on the matter.
2R93.6 No evidence was presented by Appellee and nothing exists in the record
to support a finding that the fees paid to Appellant’s attorneys were in any way
unreasonable. Also, that no evidence exists in the record regarding the amount
6 It is a necessary implication of this testimony that the number cited does not cover all the work performed on the case, as work was being done at that time and after it on the record. Additionally, this sum does not include work on post-judgment motions and appeal.
19 Appellant expended in court costs is due to court’s stopping her attorney, on its
own objection, from eliciting that evidence at trial. 2R75.
Because judgment should have been rendered as a matter of law in Appel-
lant’s favor on the issue of rent arrearage7 and on the issue of possession,8 she is
entitled as a matter of law to her reasonable attorney fees and costs of court, in-
cluding pre- and post-judgment interest. But even if a jury determination is re-
quired regarding what amount of fees is reasonable, the evidence of Appellant’s
reasonable attorney fees was overwhelmingly in favor of Appellant and the jury
rendered a verdict that was contrary to the great weight and preponderance of all
relevant evidence on the issue. Because the jury rendered a verdict on the issue
of Appellant’s reasonable attorney fees that is contrary to the great weight and
preponderance of all relevant evidence and because the trial court issued a take
nothing judgment based upon that verdict, the court erred, the error is reversible
and Appellant is entitled to a new trial.
Additionally, Appellant’s attorneys have continued to work on this matter
since trial and have incurred additional fees that could not have been included in
the evidence presented to the jury. Therefore, even if the Court renders judg-
ment in favor of Appellant on the issue of rent arrearage or on either of the is-
sues relating to her right to possession of the property without the need for new
7 See supra, §§I(A)-I(C). 8 See infra, §§II-III.
20 trial on those issues, Appellant is entitled to a new trial on fees alone to deter-
mine the total amount of reasonable attorney fees incurred in connection with
enforcing her rights under the Lease.
II. THE TRIAL COURT ERRED WHEN IT REFUSED TO SUBMIT TO THE JURY APPELLANT’S QUESTIONS RELATING TO APPELLEE’S LATE PAYMENT OF RENT OR TO ENTER JUDGMENT THAT APPELLEE BREACHED THE LEASE BY FAILING TO PAY RENT ON TIME.
A. The Issues Presented Herein, Including the Issue of Appellant’s Right to Possession of the Property, Are Not Moot. A forcible detainer action is intended to be a speedy, simple and inexpen-
sive means to obtain immediate possession of property. Marshall v. Housing
Auth. City San Antonio, 198 S.W.3d 782, 787 (Tex. 2006), TEX. PROP. CODE
ANN. § Ch. 24, Pt V (generally). It is not intended to be a final determination of
whether or not an eviction is wrongful. Marshall, at 787, (citing TEX. PROP.
CODE ANN. § 24.008). The only issue to be determined relating to the right of
litigants to the property in question is the issue of immediate possession. Wil-
liams v. Bank of New York Mellon, 315 S.W.3d 925, 926 (Tex. App.—Dallas
2010, no pet.), see also, TEX.R.CIV.PROC. 746 (repealed). 9
9 Rule 746 was repealed in 2013, but Williams and similar cases make similar statements re- lating to immediate possession’s being the sole issue in forcible detainer actions and it is not sufficiently clear that the language in question is no longer good law that it could be left un- addressed.
21 An appellate court is prohibited from deciding moot controversies. Na-
tional Collegiate Athletic Ass'n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999). A live
controversy between the parties must exist at every stage of the proceedings, in-
cluding the appeal, or the case is moot. Williams v. Lara, 52 S.W.3d 171, 184
(Tex. 2001). A tenant’s appeal of an adverse judgment on the issue of posses-
sion becomes moot when the tenant gives up possession if the term of the lease
has expired and the tenant, therefore, retains no “potentially meritorious claim of
right to current, actual possession of the [property].” Marshall, at 787. When
the issue of possession is moot on appeal, the appellate court should vacate the
trial court’s judgment on that issue. Marshall, at 785.
However, though Texas Rule of Civil Procedure 746 stated, when it was
in force, that possession is the sole issue in a forcible detainer action, the Proper-
ty Code makes clear that other issues, not relating to the litigants’ rights to the
property, may be joined, including whether or not the tenant owes unpaid rent
and attorney fees. TEX. PROP. CODE ANN. §§ 24.0051, 24.006. A landlord may
recover unpaid rent in an eviction action “regardless of whether the tenant va-
cated the premises after the date the landlord filed the sworn statement and be-
fore the date the court renders judgment.” TEX. PROP. CODE ANN. § 24.0051(b).
Therefore, when the Rule and courts interpreting the Rule have stated that pos-
session is the only issue to be decided in a forcible detainer action, they must
22 mean that it is the only issue relating to the parties’ rights to the property, and
not that the other allowable ancillary issues may not be decided. See Rice, at
709-713 (discussing Rule 746’s mandate that the only issue in a forcible detainer
action is possession as a provision designed in specific opposition to the notion
that title may be tried in such an action).
Such issues and claims that are pled and submitted for consideration and
properly under the jurisdiction of the trial court, and then finally decided by the
judgment of that court, are barred from reconsideration. See Barr v. Resolution
Trust Corp., 837 S.W.2d 627, 628-629 (Tex. 1992). Therefore, though a forci-
ble detainer action does not in itself bar a separate or subsequent action for at-
torney fees or rent, the trial court’s take nothing judgment in this case bars Ap-
pellant from filing a subsequent action to seek the damages pled and disposed of
by the trial court.
Even if this matter was ever subject to confusion or interpretation in the
instant case, it was specifically addressed by the trial court at the hearing on
post-judgment motions. Appellant argued that the court should issue a judgment
that stated that the jury had issued no verdict concerning whether or not Appel-
lee owed Appellant unpaid rent, and did so argue specifically to preserve her
right to bring a separate and subsequent action for that rent. SR5-SR9. The pre-
siding judge stated from the bench that, “We asked the jury if she had failed to
23 pay her rent, and the jury said no.” SR5. Though it was demonstrated that such
a question was never asked of the jury, the trial court still declined to limit the
judgment to the questions the jury actually considered and, instead, issued a Fi-
nal Judgment that Appellant take nothing. SR5-SR9, CR145-CR146, CR176.
Additionally, the court’s take nothing judgment stated specifically that
“[t]his judgment finally disposes of all claims and parties and is appealable.”
CR176. The Texas Supreme Court has indicated that this exact language, when
included in a judgment, leaves “no doubt about the court’s intention” to render a
final judgment on all such claims. Lehmann v. Har-Con Corp., 39 S.W.3d 191,
206 (Tex. 2001), In Re Daredia, 317 S.W.3d 247, 248 (Tex. 2010). As such, the
judgment finally disposed of all of the claims before it, including Appellant’s
right to unpaid rent and attorney fees incurred in connection with enforcing her
rights under the Lease. See Id.
Though the Supreme Court, in Marshall, ruled that the issue of possession
was moot in a similar situation, its ruling on that issue is not applicable to the
instant case. The reasoning in Marshall is based upon a situation in which the
landlord prevailed at trial and the tenant appealed the judgment granting posses-
sion to the landlord, essentially, apparently, seeking to be let back in to the unit
in question after vacating it and after the expiration of the lease term. Marshall,
at 785-786. This is not the situation before the Court in this matter.
24 Though Appellee has vacated the property, the term of the lease has not
expired and it was the tenant, and not the landlord, who was successful at trial.
Additionally, Appellant’s right to recover attorney fees incurred thus far in liti-
gating this matter is contingent upon a correct determination on the issue of pos-
session. 10 Appellant is not a tenant apparently hoping to retake possession of a
vacated unit after the expiration of the lease, but rather a landlord seeking a de-
termination that an undisputed debt of rent is owed to her and that she was enti-
tled to possession at the time that she sought it and, consequently, that she is en-
titled to her attorney fees incurred in the seeking, as the Lease the Property Code
agree is her right.
Also, the Court held in Marshall that even if an appellant gives up posses-
sion of the premises after the trial court signs a judgment of possession, the ap-
peal may not be moot so long as (1) the appellant timely and clearly expresses
her intent to appeal and (2) the appellate relief requested is “not futile; that is, so
long as she held and asserted a potentially meritorious claim of right to current,
actual possession of the [premises].” Marshall, at 787. In the instant case, Ap-
pellant timely and clearly expressed her intent to appeal the trial court’s judg-
ment and the appellate relief requested is not futile, since Appellant does still
10 It is not clear that a judgment in Appellant’s favor on the issue of rent arrearage would enti- tle Appellant to all of the attorney fees incurred in pursuing enforcement of her right to pos- session before Appellee ceased paying rent.
25 hold and assert a potentially meritorious claim of right to current and actual pos-
session of the property.
Therefore, none of the issues before the Court is moot, and the Court has
proper jurisdiction to decide all issues including the issue of possession, as a live
controversy exists regarding attorney fees that can only be resolved if the issue
of possession is resolved.
However, even if the Court is convinced that the issue of possession is
moot, it may still consider ancillary issues independent of possession. McElroy
v. Teague Housing Authority, No. 10-10-00009-CV (Tex.App.—Waco 2012, no
pet.) (not designated for publication) (citing Rice, at 707). 11 Therefore, the
Court has proper jurisdiction to decide, at the least, the ancillary issues of Ap-
pellee’s debt to Appellant of unpaid rent for the months of July and August of
2014 and Appellant’s right to attorney fees and court costs.
However, even if the Court is convinced that it lacks jurisdiction to decide
any of the substantive issues contained in this appeal, it should still vacate the
trial court’s judgment on all issues, and thereby allow Appellant to reassert her
claims in a separate, subsequent action for rent, court costs and attorney fees,
11 McElroy is an unpublished memorandum opinion without the force of law and is included in support of this proposition solely for its phrasing in framing the issue at hand. Id, (stating “Although the issue of possession is moot, we may still review issues independent of posses- sion.”).
26 and any other damages still outstanding (including those that could not be joined
to the initial forcible detainer action). See Marshall, at 785.
B. Appellant Was Entitled to Judgment as a Matter of Law that Appellee Breached the Lease by Failing to Pay Rent for July of 2014 On or Before July 1, 2014.
In Section 6, “Rent and Charges,” the Lease provides that rent for the
property will be “$2100” per month, “in advance and without demand.” 1PX1.
In that same section, the Lease provides that, in the absence of other arrange-
ments that were not made by the parties, “[Appellee] must pay [her] rent on or
before the 1st day of each month (due date) with no grace period[,]” and that
“[Appellee] must not withhold or offset rent unless authorized by statute.” Id,
2R32. In that same section, the Lease provides that, “If [Appellee does] not pay
rent on time, [she will] be in default and all remedies under state law and this
Lease Contract will be authorized.” 1PX1. Also in that section, the Lease pro-
vides that certain late charges may be assessed if rent is paid late after the third
In Section 32, “Default by Tenant,” the Lease provides that Appellee will
“be in default if: (1) [she does not] pay rent … on time; [or Appellee] or any
guest or occupant violates this Lease Contract [or Appellant’s] rules[.]” Id. In
that same section, the Lease provides that, if Appellee defaults, Appellant “may
27 end [her] right of occupancy by giving [her] a 24-hour written notice to vacate.”
Id.
A lease is not altered or repudiated by a landlord’s occasionally accepting
late payment of rent. Straus, at 108. A landlord’s “past indulgence” of a ten-
ant’s payment of rent a few days late does not, in itself, waive the landlord’s
right to receive rent on time under a lease. Id, at 109. “Waiver is an intentional
relinquishment of a known right.” Id (emphasis in original). 12
Appellant testified and Appellee admitted that rent for the month of June
was due on June 1, 2014, in the amount of $2,100.00, but was not tendered until
June 3, 2014. 2R39, 2R105. Appellant testified and Appellee admitted that, in
the late notice, Appellant reminded Appellee that, under the Lease Agreement,
her rent was due on the first of the month, every month, with no grace period.
2R34, 2R143-2R144. Appellant testified and Appellee admitted that rent was
next due on July 1, 2014, in the amount of $2,100.00, but was not received on
12 Much of the language in Straus refers, specifically, to whether or not the facts being con- sidered constituted a waiver of a non-waiver clause in the lease at issue. It is Appellant’s po- sition that the language is, nevertheless, broadly applicable to the waiver of any contractual right, but for the sake of clarity it should be noted that the Lease contains, in Section 32, “De- fault by Tenant,” under the subheading “Eviction,” a non-waiver clause that is virtually iden- tical to the clause referenced in Straus. See Straus, at 107. The Lease provides, “After giving notice to vacate or filing an eviction suit, we may still accept rent or other sums due; the filing or acceptance doesn’t waive or diminish our right of eviction, or any other contractual or stat- utory right. Accepting money at any time doesn’t waive our right to damages; past or future rent or other sums; or to continue with eviction proceedings.” 1PX4.
28 that day. 2R39, 2R105. Indeed, Appellee testified that her intention was to
withhold rent during the pendency of the first eviction action.13
Her position now appears to be that it was her honest belief that rent was
due on the third of the month. 14 Her testimony, though, belies that argument and
makes clear that her decision to withhold rent in July was a calculated litigation
strategy. Indeed, even if it was her honest belief that rent was due on the third,
such a belief was not reasonable. The language of the Lease is clear that the due
date was the first of the month. 1PX1. Additionally, even if she was mistaken,
her mistake was corrected. She was sent and she did receive and read a warning
stating clearly, again, that rent was due on the first of the month. Ignorance and
misunderstandings of law can be no excuse for failing to carry out one’s obliga-
tions, but even if they were, Appellee was not penalized for her first failure. Her
ignorance was indulged, her mistake forgiven, and she was given a clear warn-
ing and reminded of the consequences of failing to comply with the terms of the
Lease in the future. Only when she ignored that warning was she issued a notice
to vacate for late payment of rent. 16PX1.
13 Appellee stated, “And since we had a trial on July 2nd, there was no way I was going to pay her rent before the trial because in the event I got evicted, there would be no guarantee I would get my money back.” 2R105. 14 Appellee stated repeatedly at trial and argued through her counsel that rent was properly due on the third of the month, though the Lease states clearly that the due date is the first. 2R105, 2R176-2R177, 1PX1.
29 Under the Lease, Appellant was not obligated to accept late rent. 1PX1-
1PX6, 2R41. That Appellant did accept late payment of rent in June does not
alter the Lease Agreement or diminish Appellee’s responsibility to pay rent on
time in each subsequent month. See Straus, at 109. Though Appellee never
made a clear waiver argument, it should be noted with clarity that acceptance of
late rent does not constitute waiver of the right to receive rent on time. See Id.
Appellee testified that she routinely paid rent to the prior owner on the third,15
but any arrangement she may have made with him can have no bearing on the
subsequent contract she executed with Appellant. Nor can it support an argu-
ment that Appellant waived her right or is estopped by her own actions from en-
forcing it. Under the current contract, rent was accepted late only once and a
late notice was promptly issued reminding Appellee of her duty to pay on time
in the future. But, again, waiver does not actually appear to be her argument.
More likely she intends to argue that because the Lease contemplates that
rent may be paid late, late payment does not constitute default. Appellee can in
fact find some support in the law for this position. See Pecan, (generally). In
Pecan, the Court interpreted a lease with language that is very similar to the lan-
guage of the Lease in this case, though not identical, and it ruled that because
the lease contemplated that rent might be paid after the due date, such a late
15 2R105.
30 payment did not violate the lease. Id. However, Pecan is an unpublished mem-
orandum opinion without the force of law and its underlying facts differ from
the instant case in multiple, important ways.
First, though the landlord in that case presented evidence that the rent was
not paid prior to the issuance of the notice to vacate, that evidence was disputed
and the trial court issued findings of fact specifically noting its determination
that the rent was tendered prior to the posting of the notice. Id. Second, the lan-
guage of the lease in Pecan provided that if the tenant failed to “pay all rent on
or before the 3rd day of the month and we haven’t given notice to vacate before
that date, you’ll pay an initial late charge…” 16 and the Court of Appeals and tri-
al court both relied specifically on the emphasized language (which is not pre-
sent in the Lease in this case) when making the determination that the lease con-
templated payment on or by the third of the month before a notice to vacate is
posted. Finally, the court made no mention of any provision in the lease in Pe-
can that stated that failure to pay rent on or by the due date would constitute de-
fault on the lease. See Id.
By contrast, in the instant case, rent for the month of July has still not
been paid and rent for the month of August was never even tendered; the notice
to vacate for late payment of rent was issued promptly on July 2, 2014, before
16 Id (emphasis added).
31 Appellee made any attempt to pay her July rent; and the Lease states with speci-
ficity that a failure to pay rent by the due date constitutes default.
A contract should not be interpreted in such a manner as to make one or
more of its terms superfluous or meaningless and this Lease should not be con-
strued in such a manner that this term is rendered meaningless. Coker v. Coker,
650 S.W.2d 391, 393 (Tex. 1983). If payment that is late is not late because the
Lease anticipates that payment may sometimes be accepted late, then the term
that states clearly that late payment constitutes default is meaningless. Indeed,
by that logic, the Lease could not be breached by late payment of rent even up to
the eighteenth day of the month. 17 The implications of such a ruling would be
severe. All landlords operating under this extremely common language could
expect delays of sixty percent of the month, every month, on all of their leased
units. This would, in turn, impact their ability to pay on time any mortgage
payments due to their mortgage holders and it is certainly not what was intended
by the use of these terms, given their plain meaning.
Only one interpretation of the Lease gives meaning to all of the terms cit-
ed above: that the Lease provides that Appellant is entitled to assess late fees if
Appellee pays rent late after the third day of the month but doing so does not al-
17 The Lease states that late charges may be assessed for payments made after “the 3rd day of the month” and that “[d]aily late charges will not exceed 15 days for any single month’s rent.” 1PX1.
32 ter the due date. That Appellant may accept late payment of rent does not mean
that Appellant must accept late payment of rent. 1PX1, 2R37-2R38. Nor is Ap-
pellant required under the Lease to terminate Appellee’s right of occupancy for
any violation or default. The Lease makes clear what acts or omissions consti-
tute default and gives Appellant the right to retake possession, but it does not
presume to decide for Appellant whether or not a specific breach or default is
worth suing over. It prohibits the late payment of rent and prescribes two reme-
dies, eviction for default and assessment of late fees, which are most reasonably
interpreted as mutually exclusive options from which the landlord may make the
choice that is most appropriate in the individual case.18
The language could be clearer, but it is clear enough. It has a plain mean-
ing. It means that:
1. rent is due by the first and must be paid on the first and 2. if it is not paid on the first then Appellant is in default and 3. Appellee may end her right of occupancy, but 4. if she declines to do so, a late fee may be assessed to any accepted payment of rent made after the third day of the month.
In conclusion: under the terms of the Lease, Appellee was required to pay
rent for the month of June on or before June 1, 2014, and for the month of July
on or before July 1, 2014. When Appellee failed to pay rent on time in June,
18 Indeed, it is not entirely clear that the options are in fact mutually exclusive and that the landlord could not both accept late payment of rent and initiate eviction proceedings, but this question is, thankfully, not before the Court in this matter.
33 Appellant accepted it late but reiterated that future rent was due on the first of
the month with no grace period. When Appellee again failed to pay rent on time
in July, she was in default. When Appellee defaulted, Appellant was entitled to
end her right of occupancy. Appellee admitted or failed to dispute the evidence
of the facts making up the elements of this breach. Her only dispute was related
solely to her misunderstanding of the Lease (the construction of which is a mat-
ter of law to be decided by the Court), and not to the actual facts making up the
elements of the breach. Therefore, no genuine issue of fact existed for submis-
sion to the jury and Appellant was entitled to a judgment in her favor on the is-
sue of late payment of rent as a matter of law.
C. The Jury Verdict on the Issue of Late Payment of Rent was Unsupported by the Evidence.
Jury Question Number Two was submitted to the jury following the close
of all evidence, asking, “Did [Appellee] fail to comply with the lease by failing
to pay her rent in a timely manner? (A) Failure to comply must be material. The
circumstances to consider in determining whether a failure to comply is material
include: 1. The extent to which the injured party will be deprived of the benefit
which she reasonably expected; 2. The extent to which the injured party can be
adequately compensated for the part of that benefit of which she will be de-
prived; 3. The extent to which the party failing to perform or to offer to perform
34 will suffer forfeiture; 4. The likelihood that the party failing to perform or to of-
fer to perform will cure her failure, taking into account the circumstances in-
cluding any reasonable assurances; 5. The extent to which the behavior of the
party failing to perform or to offer to perform comports with standards of good
faith and fair dealing.” CR146.
The determination the jury was asked to make would have been more
clearly understandable if made in response to the jury questions #2, #3 and #3A
submitted by Appellant prior to trial.19 Answers to these more specific ques-
tions of fact would have made plain the jury’s interpretation of the evidence and
would have provided a superior foundation for a judgment for or against Appel-
lant on the question of law that was actually before the court of whether or not
Appellee failed to make timely payment of rent.
Additionally, the question submitted by the court asked the jury to rule on
the materiality of a breach of the Lease by failing to pay rent by the due date.
CR146. A ruling on materiality was not necessary as the parties agreed that a
breach by failing to pay rent on time would be material and grounds for eviction
when they entered into a contract that stated expressly and with specificity that
“[i]f [Appellee does] not pay rent on time, [she will] be in default and all reme- 19 Specifically, Appellant proposed that the jury be asked if Appellee was “required to pay rent in the amount of $2,100.00 to [Appellant] on or before the first of the month, each month, with no grace period[,]” if Appellee did “make the payment scheduled for July 1, 2014, on or before July 1, 2014[,]” and if Appellee did “make the payment scheduled for August 1, 2014, on or before August 1, 2014[.]” CR141.
35 dies under state law and this Lease Contract will be authorized.” 1PX1. The
court’s including instruction on the issue of materiality could only have served
to confuse the jury and to reduce confidence in its answer.
Therefore, the court erred in rejecting Appellant’s questions and substitut-
ing its own inferior question to the jury in the charge and Appellant is entitled to
a new trial on the issue.
However, even if the question, as presented, was adequate to address the
issue before the court, the jury gave an answer thereto that is wholly unsupport-
ed by the evidence submitted for its consideration. Appellant testified that Ap-
pellee was required to pay rent on or before the first of the month. The Lease
clearly provides that rent is due by that day with no grace period. Appellee ad-
mitted that she did not pay rent for the month of July of 2014 and did not at-
tempt to pay it until July 3, 2014. Her only dispute was related solely to her
misunderstanding of the Lease, (the construction of which is a matter of law to
be decided by the Court), and not to the actual facts making up the elements of
the breach.
Therefore, the evidence of the facts making up the elements of this breach
of the Lease Agreement was overwhelmingly in favor of Appellant and the jury
rendered a verdict that was contrary to the great weight and preponderance of all
relevant evidence on the issue whether or not Appellee defaulted on the Lease
36 Agreement by failing to pay rent on time for the month of July of 2014. Be-
cause the jury rendered a verdict on the issue of late payment of rent that is con-
trary to the great weight and preponderance of all relevant evidence and because
the court issued a take nothing judgment based upon that verdict, the court erred,
the error is reversible and Appellant is entitled to a new trial.
III. THE TRIAL COURT ERRED WHEN IT REFUSED TO SUBMIT TO THE JURY APPELLANT’S QUESTIONS RELATING TO APPELLEE’S REFUSAL OF ACCESS OR TO ENTER JUDGMENT THAT APPELLEE BREACHED THE LEASE BY REFUSING ACCESS FOR MAINTENANCE AND REPAIR.
A. Appellant Was Entitled to Judgment as a Matter of Law that Appellee Breached the Lease by Refusing Peaceful Entry to Perform Maintenance and Repair. In Section 20, “Prohibited Conduct,” the Lease provides that Appellee
“may not engage in the following activities[,]” including, “disturbing or threat-
ening the rights, comfort, … or convenience of others (including [Appellant and
her] agents and employees)[.]” 1PX2. In Section 28, “When We May Enter,”
the Lease provides that Appellant and certain agents “may peacefully enter the
dwelling at reasonable times” for certain purposes including, “making repairs or
replacements; estimating repair or refurbishment costs; … [and] doing preventa-
tive maintenance[.]” 1PX4. In Section 32, “Default by Tenant,” the Lease pro-
vides that Appellee will “be in default if: (1) [she does not] pay rent … on time;
[or Appellee] or any guest or occupant violates this Lease Contract [or Appel-
37 lant’s] rules[.]” Id. In that same section, the Lease provides that, if Appellee
defaults, Appellant “may end [her] right of occupancy by giving [her] a 24-hour
written notice to vacate.” Id.
Appellant testified and Appellee did not dispute that at the time of the
purchase of the property and execution of the Lease, the property was in need of
numerous repairs, many of which related to the safety and security of the occu-
pants and the integrity of the structure itself. 2R42-2R43. Appellant also testi-
fied that she requested entry only at reasonable times and for the legitimate pur-
poses of planning for and making these necessary repairs, as she was expressly
entitled to do under the terms of the Lease, and no evidence exists in the record
of any attempt to enter at an unreasonable time or for any illegitimate purpose.
See 2R47, 2R115-2R118.
Nevertheless, Appellee quickly took the position that Appellant’s doing so
was disagreeable and she began to resist. 2R128. Though some dispute and
perhaps confusion exists in the testimony regarding when exactly and how many
times Appellant requested access to the house to perform maintenance and re-
pairs, by Appellee’s own admission, it was not more than four times during the
period before she started resisting Appellant’s requests. 2R115-2R118, 2R128.
It was Appellee who first took on an adversarial tone when she transmitted to
Appellant a letter that termed Appellant’s requests “excessive,” which letter also
38 contained a thinly veiled threat of legal action to prevent her from exercising
rights expressly granted to her under the Lease. 9PX1. This began a campaign
of what Appellee herself termed “passive-aggressive resistance” that would con-
tinue and become progressively more antagonistic for the remainder of her ten-
ancy. 2R133.
Very shortly thereafter, Appellee took the extraordinary step of exposing
herself in an indecent state to Appellant and her contractor when they attempted
to enter the property to perform repairs. 2R62. Appellee admitted that her do-
ing so was not mere flighty caprice, but rather a calculated tactic intended to re-
sist passively and to frustrate Appellant’s attempts at peaceful entry. 2R133.
Though Appellant had a right under the Lease to continue her efforts to
repair the property and though no evidence was presented other than Appellee’s
own opinion that the frequency of the visits was unreasonable or unduly burden-
some, Appellant dramatically reduced the frequency of her requests in accord-
ance with Appellee’s wishes. 2R63-2R65, 2R125. No requests were made in
June and only two requests were made in July. Id. Nevertheless, in response to
the second of these, Appellee transmitted to Appellant an email, wherein she ex-
pressly refused Appellant access to the residence and demanded that Appellant
cease contacting her regarding future requests for access. 9PX1, 2R66; see
2R106.
39 Appellee, through her attorney in his closing statement at trial, appeared
to intend to argue that no refusal took place. 20 On the contrary, the email trans-
mission in question constitutes a clear refusal of access, not just for the day in
question, but for the future as well. Appellee stated in her letter, “I will not ac-
commodate your demand to enter the house tomorrow whatsoever,” and de-
manded that Appellant cease contacting her. 9PX1, 2R66. Whatever may have
been her intent in drafting the letter, the language she used has a clear, plain
meaning of refusal.
However, even if Appellee’s language does not constitute a definite re-
fusal of access, the distinction is immaterial as her admitted resistance is suffi-
cient to violate the Lease. The Lease grants Appellant the right of peaceful en-
try to perform maintenance and repairs. 1PX4. It serves no one’s interests to
require a landlord to force her way into a tenant’s home even if she has the right
under the Lease to do so. That Appellant accepted Appellee’s refusal, canceled
further plans for repairs and chose to pursue her rights in court was in the inter-
ests of Appellant’s safety and the preservation of peace and order.
When interpreting a contract, the Court should give effect to all the terms
thereof and should not interpret any term in such a manner as to make it super-
fluous or meaningless. Coker, at 393. The term “peaceful” must mean some-
20 Appellee’s attorney argued, “You've heard [Appellant’s attorney] use the word resistance. Resist. Resisting. You never heard him use the word refuse.” 2R176.
40 thing and in this context its plain meaning is to ensure that the landlord is able to
exercise her right to enter to perform repairs without undue resistance from the
tenant. This is not some throw-away term or afterthought to be ignored or inter-
preted into meaninglessness. To a landlord like Appellant, who owns few prop-
erties and manages them herself, this term is among the most important in the
Lease. See 2R73. This is the term that protects her right to remove from the
property a tenant who is actively trying to make her miserable. Id.
Appellee does not own the house. Her right to occupy it is contractual
and contingent upon her upholding her end of the bargain by abiding by the
rules of occupancy enumerated in the contract. Under the terms of that contract,
she had a duty to provide Appellant peaceful entry to perform maintenance and
to make repairs and she had no right to resist Appellant’s efforts to do so, pas-
sively, aggressively or otherwise. She had no right under the Lease to determine
what repairs and maintenance were necessary or desirable, or the pace at which
repairs would be performed, or the frequency with which access would be re-
quired to perform them. She had no right to demand that Appellant cease con-
tacting her to request access.
When she transmitted to Appellant by electronic mail a refusal to provide
access to the residence to perform maintenance and a demand that Appellant
cease making future requests for access to perform maintenance and repairs, she
41 was in default. When she resisted Appellant’s requests for access to the resi-
dence and deliberately took action with the express intent of frustrating Appel-
lant’s attempts to perform repairs and maintenance and of making Appellant and
her agent uncomfortable, she disturbed the comfort and convenience of Appel-
lant and her agent and she was in default. When Appellee defaulted, Appellant
was entitled to end her right of occupancy. Appellee admitted or failed to dis-
pute the evidence of the facts making up the elements of this breach. Therefore,
no genuine issue of fact existed for submission to the jury and Appellant was en-
titled to a judgment in her favor on the issue of refusal to provide peaceful entry
for maintenance and repair as a matter of law.
B. The Jury Verdict on the Issue of Refusal of Peaceful Entry to Perform Maintenance and Repair was Unsupported by the Evidence. Jury Question Number One was submitted to the jury following the close
of all evidence, asking, “Did [Appellee] unreasonably refuse to allow [Appel-
lant] or her repairers, servicers, contractors, or representatives to enter the house
peacefully for the purpose of making repairs, estimating repair or refurbishing
costs, or doing preventative maintenance?” CR145.
The determination the jury was asked to make would have been more
clearly understandable if made in response to the jury questions #4, #4A and #5
42 submitted by Appellant prior to trial.21 Answers to these more specific ques-
tions of fact would have made plain the jury’s interpretation of the evidence and
would have provided a superior foundation for a judgment for or against Appel-
lant on the question of law that was actually before the court of whether or not
Appellee violated the Lease.
Therefore, the court erred in rejecting these questions and substituting its
own inferior question to the jury in the charge and Appellant is entitled to a new
trial on the issue.
However, even if the question, as presented, was adequate to address the
issue before the court, the jury gave an answer thereto that is wholly unsupport-
ed by the evidence submitted for its consideration. Appellant testified that Ap-
pellee obstinately resisted her efforts to repair the property by methods steadily
increasing in strength and frequency over the course of the tenancy. Appellee
admitted that this was a calculated campaign of “passive-aggressive resistance”.
And Appellant testified and Appellee admitted that Appellee sent to Appellant
an express refusal of present and future access to the residence for Appellant’s
maintenance and repair purposes.
21 Specifically, Appellant proposed that the jury be asked if she was “entitled to enter the resi- dence at reasonable times for purposes including the making of repairs and the performance of maintenance[,]” if Appellee was “required to provide [her] access to the residence for those purposes[,]” and if she sent Appellant “an email stating her refusal to allow Plaintiff to enter the residence to make repairs and perform maintenance[.]” CR141.
43 Because the evidence of the facts making up the elements of this breach
of the Lease Agreement was overwhelmingly in favor of Appellant the jury ren-
dered a verdict that was contrary to the great weight and preponderance of all
relevant evidence on the issue of whether or not Appellant defaulted on the
Lease Agreement by failing to provide peaceful entry to the residence for
maintenance and repair. Because the jury rendered a verdict on the issue of re-
fusal to provide peaceful entry for maintenance and repair that is contrary to the
great weight and preponderance of all relevant evidence and because the court
issued a take nothing judgment based upon that verdict, the court erred, the error
is reversible and Appellant is entitled to a new trial.
IV. THE TRIAL COURT ERRED WHEN THE PRESIDING JUDGE DEMONSTRATED BIAS AGAINST AND HOSTILITY AND ANIMOSITY TOWARD APPELLANT AND HER CLAIMS AT TRIAL. All of the jury’s answers to the questions submitted to it for consideration
were wholly unsupported by the evidence presented at trial. See supra, §§ I(D),
II(C), III(B). These answers are, perhaps, easier to understand in light of the
conduct, comments and apparent opinions of the presiding judge.
When a presiding judge at trial demonstrates bias and prejudice against
one party or in favor of the other, or animosity toward the party’s counsel, the
party is entitled to a new trial. Shaw v. Greater Houston Transp. Co., 791
44 S.W.2d 204, 211 (Tex.App.Corpus.Christi,1990, no pet.). This remains true
even if many of the incidents complained of occurred outside the presence of the
jury. Id. While the presiding judge in the instant case had little patience for the
litigants and attorneys on both sides, throughout the trial he made his hostility
for Appellant, her claims and her position abundantly clear, in the presence of
the jury.
1. The presiding judge interfered with the presentation of evidence by refus- ing to allow witnesses to read from admitted documents in order to high- light the relevant portions thereof for the jury’s benefit. 2R36, 2R38. 2. The presiding judge interrupted testimony to give his own personal recol- lections and understandings about matters similar to those being testified to, and directly challenged Appellant’s credibility. 2R66. 3. The presiding judge commented on the evidence and derided Appellant’s decision to cancel scheduled repairs after being refused access to the property, stating, “It appears you’re looking for trouble where there isn’t any.” 2R68. 4. The presiding judge interpreted an answer given by Appellant during cross-examination using phrasing that could only have been intended to cast doubt upon her memory, when in fact it was not appellant’s memory that was faulty, but Appellee’s attorney’s. 22 5. The presiding judge actively assisted Appellee’s attorney in cross- examining Appellant by asking a hostile follow-up question after Appel- lant gave a specific answer to Appellee’s attorney’s question. 23 22 Appellee, through her counsel, stated that Appellant had testified that difficulties with Ap- pellee had begun “almost immediately.” Nowhere in the record did Appellant make such a statement. In fact, her attorney made a similar statement in opening argument, but Appellant never gave that testimony. 2R20. The tenor of the presiding judge’s question, “You don’t remember?” and correction of her testimony, “Okay. That’s the answer. No.” could have no purpose other than to undermine Appellant’s credibility. 2R79-2R80. 23 Appellant was asked when problems began with Appellee and she responded that on a par- ticular date was “the first time she asked me to come at a different time.” The presiding judge asked, pointedly, if asking her to come at a different time was a “problem,” effectively feed- ing that question to Appellee’s attorney, who then reiterated it. The follow-up question could have no purpose other than to make Appellant’s answer to the original question appear to be unreasonable and, as such, is perfectly fair game during cross-examination by an adversarial
45 6. The presiding judge interrupted testimony, again to assist Appellee’s counsel in cross-examining Appellant, asked Appellant hostile, mislead- ing questions and supplanted her precise and accurate responses with in- accurate responses that misinterpreted the evidence in the record. 24 7. The presiding judge interrupted testimony to comment on the weight of evidence during cross-examination of Appellee and to call Appellant’s counsel’s line of questioning “a waste of time.” 2R134. 8. After Appellee failed twice to give an answer that was responsive to Ap- pellant’s attorney’s question and, on the third attempt, opined that “I think we’re beating a dead horse but yes[,]” the presiding judge interjected, “Boy, do I too. But I don’t have an objection so I have to let it go on. I just get so sick.” 2R154.
These indications that the presiding judge had unequivocally chosen a
side are not subtle, but rather they are direct reflections, visible to the jury, of the
presiding judge’s opinions of the weight of the evidence adduced and the claims
Appellant has made against Appellee. Further, it is not necessary to guess at
those opinions. Out of the presence of the jury, the presiding judge stated them
clearly.
1. After Appellee, through her counsel, closed her case in chief without of- fering any evidence, the presiding judge questioned the decision to leave the evidence as it then stood in a tone that caused her immediately to change her mind and give testimony. 2R94-2R95.
opposing party. Such a question from the bench illustrates to the jury that the judge has be- come an advocate, hostile to the witness. 2R80. 24 Appellant was asked by opposing counsel when she made her deposit account unavailable to Appellee for payment of rent and she responded with a certain date. The presiding judge then asked her, with a leading question, if it was not, therefore, impossible for Appellee to pay her. Appellant responded, accurately, that Appellee was prevented from making payment by the method specified in the contract, but that payment was not ‘impossible’ and the judge stated, “The only way you’ve given her to pay rent is by depositing it directly into your bank account[,]” which statement can only have been intended to convey that the court had con- cluded that Appellee could not have paid by other means, such as by paying disputed sums into the registry of the court, though other such means were in fact available to her. 2R88- 2R89.
46 2. The presiding judge stated that no evidence had been given “that rent wasn’t paid on time[,]” though this was unequivocally untrue as Appellant had testified at length about that very issue. 2R96. 3. The presiding judge then stated clearly his position on the merits of Ap- pellant’s case, stating, “I've never seen a landlord who refused to receive rent on the 2nd or the 3rd just like the contract says.” Id. 4. In conceding, grudgingly, that the issue should be submitted to the jury for consideration, the presiding judge stated sarcastically, regarding Ap- pellant’s position, “That’s as lovely as everything else about this case.” 2R97. 5. At the hearing on post-judgment motions, the presiding judge said, re- garding Appellant’s legal position relating to late payment of rent, “Your position is ridiculous.” SR6.
When a jury has been impaneled as the finder of fact, but the presiding
judge has clearly chosen a side, even if in error, the jury is invited to substitute
the judge’s decision for its own and to render the judge’s own subjective opinion
as its verdict. Because the presiding judge abandoned impartiality and clearly
telegraphed to the jury his opinion of the evidence and the merits of Appellant’s
claims, the well was poisoned and Appellant is entitled to a new trial.
47 PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant respectfully re-
quests that the Court reverse the judgment of the trial court and render judgment
in Appellant’s favor for Appellee’s unpaid rent for the months of July and Au-
gust of 2014, Appellant’s reasonable pre-trial attorney fees, costs of court and
pre- and post-judgment interest, and that the Court remand this matter to the trial
court for a new trial on the issue of trial and post-judgment attorney fees; or, in
the alternative, reverse the trial court’s judgment and remand this matter to the
trial court for a new trial on all issues; or, in the alternative, vacate the trial
court’s judgment on all issues.
Respectfully submitted,
DAVID NOWLIN
/s/ David Nowlin__________________ State Bar No. 24049196
7301 RR 620 North, Ste. 155, 319 Austin, Texas 78726-4537 Telephone: (512) 468-4882 Email: DavidNowlin@me.com
ATTORNEY FOR APPELLANT
48 CERTIFICATE OF COMPLIANCE
I certify that this brief was prepared using Microsoft Word and that, ac- cording to that program’s word counting function, the document (excluding the caption, identification of the parties and counsel, table of contents, index of au- thorities, statement of the case, points of error, certificate of compliance, certifi- cate of service and appendix) contains 10,912 words. The body text is in 14 point, Times New Roman font and the footnotes are in 12 point, Times New Roman font.
CERTIFICATE OF SERVICE
I certify that on December 26, 2014, a true and correct copy of Appel- lant’s Brief was served by mail on Robby Abarca, the attorney of record for Ap- pellee Lori Keaton, at P.O. Box 152547, Austin, TX 78715.
49 APPENDIX
The following pages constitute the Appendix to Appellant’s Brief, and contain:
(A) The Final Judgment of the Trial Court,
(B) The Jury Charge and Verdict, and
(C) The Text of the Rules and Statutory Authority and the Lease Upon Which Appellant’s Argument is Based, including:
(1) Texas Property Code § 24.002,
(2) Texas Property Code § 24.0051,
(3) Texas Property Code § 24.006,
(4) Texas Property Code § 24.008,
(5) Texas Rule of Appellate Procedure 43.2,
(6) Texas Rule of Appellate Procedure 43.3,
(7) Texas Rule of Civil Procedure 273,
(8) Texas Rule of Civil Procedure 276,
(9) Texas Rule of Civil Procedure 301,
(10) Texas Rule of Civil Procedure 510.11, and
(11) The Lease.
50 No. C-l-CV-14-006938 ^ Linda Nowlin, § IN THE COUNTY COURT # % Plaintiff, § § v. § OF TRAVIS COUNTY, % § Lori Keaton, § <$ Defendant § COUNTY COURT NO. 2
FINAL JUDGMENT On August 25, 2014, this case was called for trial. Plaintiff, Linda Nowlin, represented by counsel announced ready for trial. Defendant, Lori Keaton, represented by counsel announced ready for trial. After a jury was impaneled and sworn, it heard evidence and arguments of counsel. In response to the jury charge, the jury made findings that the Court received, filed, and entered of record. The- questions oubmittod to the jury and die jury'a findings are attachod qo Exhibit KupX-^r incorporated by reference—»
All matters in controversy, legal and factual, were submitted to the Court for its determination. The Court heard the evidence and arguments of counsel and announced its decision for Defendant.
The Court orally RENDERED judgment for DEFENDANT on August 2014. This written judgment memorializes that rendition.
1. Accordingly, the Court orders that plaintiff take nothing and that defendant recover court costs from plaintiff. 2. This judgment finally disposes of all claims and all parties, and is net- appealable.-kxausi this Court lost subject matter jurisdiction of this-~ ^-controveray on Scptcmbei 5, 2014 when Defendant lUiuquijhod • prmrrnfiinn nf thr prnmhn nt 1nH7 Til I lint1 Pir mrr x Pr-friiilm!— GucceGofully defended lieiself against the wrongful eviction suit—• - biought by plaintiff in Justice Court, Travi3 County, Texas, Precinct 2 and again won on appeal in Travis County, Court at Law 1.•
SIGNED on V/7 •»#.•
000904003 \Ko CAUSE NO. C-l-CV-14-006938 8 IN THE COUNTY COURT UNDA NOWLIN J § AT LAW NUMBER 1 ^ §8 TRAVIS COUNTY, TEXAS '•:j '• LORIKEATON 8 j rmD^rrw THE COURT
MEMBERS OF MEMBERS OF THE 1Mb JURY: Juk.i: . ^
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immediately. u,• u ^ u «ninirrT FV1DENCE" or by "CIRCUMSTANTIAL
Question 1:
elatingrepairer refurbishing costs, or doing preventive maintenance? Answer "Yes" or "No".
Answer: W
I whetherafailure to^^^^^wlll be depriVedofthe benefit wluch she 2 STSX"wh^the injured party canbe adequately compensated for the part of 3£^»^^ 4.mt^^^ comports with standards of good faith and fair dealing. Answer: Nv aBBSS^ areasonable fee for the necessaryservicesofLinda Nowiin, attorney for preparation and trial in this case, stated in dollars and cents? Answer: — Presiding Juror: ,. When you go into the juryroom to answer the options, the firs, thing you w,l, need ,0 do is choose a presiding juror. 2. The presiding juror has these duties: deliberations; fo.low *e-^*^sti0„sor comments t0 the bailiffwho will give them to the judge; d write down the answers you agreeon; e' get the signatures for the verdict certificate; and f.' notify the bailiff that you have reached averdict. Do you understand the duties ofthe presiding juror? Ifyou do not, please tell me now. Instructions for Signing the Verdict Certificate: frh 1. You may answer the questions on avote of5JurorsJhe^ j^n^^i^y answer in the charge. This means you may not have one group of 5jurors agree and adifferent group of 5jurors agree on another answer verdict, of;«« Ynu mavend ud with all 6 of you agreeing on m CAUSE NO. C-l-CV-14-006938 § IN THE COUNTY COURT LINDA NOWLIN § § AT LAW NUMBER 1 § § TRAVIS COUNTY, TEXAS LORI KEATON Verdict Certificate Check one: _____ Our verdict is unanimous. All 6of us have agreed to each and every answer. The presiding juror has signed the certificate for all 6ofus. ire"of Presiding Juror Printed Name ofPresiding Juror our verdict is not unanimous. Five ofus have agreed to each and every answer and have signed thecertificate below. SIGNATURE NAME PRINTED T? Texas Property Code § 24.002 FORCIBLE DETAINER. (a) A person who refuses to surrender possession of real property on demand commits a forcible detainer if the person: (1) is a tenant or a subtenant wilfully and without force holding over after the termination of the tenant's right of possession; (2) is a tenant at will or by sufferance, including an occupant at the time of foreclosure of a lien superior to the tenant's lease; or (3) is a tenant of a person who acquired possession by forcible entry. (b) The demand for possession must be made in writing by a person entitled to possession of the property and must comply with the requirements for notice to vacate under Section 24.005. Texas Property Code § 24.0051 PROCEDURES APPLICABLE IN SUIT TO EVICT AND RECOVER UN- PAID RENT. (a) In a suit filed in justice court in which the landlord files a sworn statement seeking judgment against a tenant for possession of the premises and un- paid rent, personal service on the tenant or service on the tenant under Rule 742a, Texas Rules of Civil Procedure, is procedurally sufficient to support a default judgment for possession of the premises and unpaid rent. (b) A landlord may recover unpaid rent under this section regardless of whether the tenant vacated the premises after the date the landlord filed the sworn statement and before the date the court renders judgment. (c) In a suit to recover possession of the premises, whether or not unpaid rent is claimed, the citation required by Rule 739, Texas Rules of Civil Proce- dure, must include the following notice to the defendant: 51 FAILURE TO APPEAR FOR TRIAL MAY RESULT IN A DEFAULT JUDGMENT BEING ENTERED AGAINST YOU. (d) In a suit described by Subsection (c), the citation required by Rule 739, Texas Rules of Civil Procedure, must include the following notice to the defendant on the first page of the citation in English and Spanish and in conspicuous bold print: SUIT TO EVICT THIS SUIT TO EVICT INVOLVES IMMEDIATE DEADLINES. A TENANT WHO IS SERVING ON ACTIVE MILITARY DUTY MAY HAVE SPECIAL RIGHTS OR RELIEF RELATED TO THIS SUIT UNDER FEDERAL LAW, INCLUDING THE SERVICEMEMBERS CIVIL RELIEF ACT (50 U.S.C. APP. SECTION 501 ET SEQ.), OR STATE LAW, INCLUDING SECTION 92.017, TEXAS PROPERTY CODE. CALL THE STATE BAR OF TEXAS TOLL-FREE AT 1-877- 9TEXBAR IF YOU NEED HELP LOCATING AN ATTORNEY. IF YOU CANNOT AFFORD TO HIRE AN ATTORNEY, YOU MAY BE ELIGIBLE FOR FREE OR LOW-COST LEGAL ASSISTANCE. Texas Property Code § 24.006 ATTORNEY'S FEES AND COSTS OF SUIT. (a) Except as provided by Subsection (b), to be eligible to recover attorney's fees in an eviction suit, a landlord must give a tenant who is unlawfully retaining possession of the landlord's premises a written demand to vacate the premises. The demand must state that if the tenant does not vacate the premises before the 11th day after the date of receipt of the notice and if the landlord files suit, the landlord may recover attorney's fees. The de- mand must be sent by registered mail or by certified mail, return receipt requested, at least 10 days before the date the suit is filed. 52 (b) If the landlord provides the tenant notice under Subsection (a) or if a writ- ten lease entitles the landlord to recover attorney's fees, a prevailing land- lord is entitled to recover reasonable attorney's fees from the tenant. (c) If the landlord provides the tenant notice under Subsection (a) or if a writ- ten lease entitles the landlord or the tenant to recover attorney's fees, the prevailing tenant is entitled to recover reasonable attorney's fees from the landlord. A prevailing tenant is not required to give notice in order to re- cover attorney's fees under this subsection. (d) The prevailing party is entitled to recover all costs of court. EFFECT ON OTHER ACTIONS. An eviction suit does not bar a suit for trespass, damages, waste, rent, or mesne profits. Texas Rule of Appellate Procedure 43.2 Types of Judgment The court of appeals may: (a) affirm the trial court's judgment in whole or in part; (b) modify the trial court's judgment and affirm it as modified; (c) reverse the trial court's judgment in whole or in part and render the judg- ment that the trial court should have rendered; (d) reverse the trial court's judgment and remand the case for further proceed- ings; (e) vacate the trial court's judgment and dismiss the case; or (f) dismiss the appeal. 53 Texas Rule of Appellate Procedure 43.3 Rendition Appropriate Unless Remand Necessary When reversing a trial court's judgment, the court must render the judgment that the trial court should have rendered, except when: (a) a remand is necessary for further proceedings; or (b) the interests of justice require a remand for another trial. Texas Rule of Civil Procedure 273 Jury Submissions Either party may present to the court and request written questions, definitions, and instructions to be given to the jury; and the court may give them or a part thereof, or may refuse to give them, as may be proper. Such requests shall be prepared and presented to the court and submitted to opposing counsel for exam- ination and objection within a reasonable time after the charge is given to the parties or their attorneys for examination. A request by either party for any ques- tions, definitions, or instructions shall be made separate and apart from such par- ty's objections to the court's charge. Texas Rule of Civil Procedure 276 Refusal or Modification When an instruction, question, or definition is requested and the provisions of the law have been complied with and the trial judge refuses the same, the judge shall endorse thereon "Refused," and sign the same officially. If the trial judge modifies the same the judge shall endorse thereon "Modified as follows: (stating in what particular the judge has modified the same) and given, and exception al- lowed" and sign the same officially. Such refused or modified instruction, ques- tion, or definition, when so endorsed shall constitute a bill of exceptions, and it shall be conclusively presumed that the party asking the same presented it at the proper time, excepted to its refusal or modification, and that all the requirements of law have been observed, and such procedure shall entitle the party requesting 54 the same to have the action of the trial judge thereon reviewed without preparing a formal bill of exceptions. Texas Rule of Civil Procedure 301 Judgments The judgment of the court shall conform to the pleadings, the nature of the case proved and the verdict, if any, and shall be so framed as to give the party all the relief to which he may be entitled either in law or equity. Provided, that upon motion and reasonable notice the court may render judgment non obstante vere- dicto if a directed verdict would have been proper, and provided further that the court may, upon like motion and notice, disregard any jury finding on a question that has no support in the evidence. Only one final judgment shall be rendered in any cause except where it is otherwise specially provided by law. Judgment may, in a proper case, be given for or against one or more of several plaintiffs, and for or against one or more of several defendants or intervenors. Texas Rule of Civil Procedure 510 Damages on Appeal An eviction case appealed to county court will be subject to trial at any time af- ter the expiration of 8 days after the date the transcript is filed in the county court. If the defendant has filed a written answer in the justice court, it must be taken to constitute his appearance and answer in the county court and may be amended as in other cases. If the defendant made no answer in writing in the jus- tice court and fails to file a written answer within 8 days after the transcript is filed in the county court, the allegations of the complaint may be taken as admit- ted and judgment by default may be entered accordingly. 55 mc Cunlracl is only validif filled out before Ja/tiM. TEXAS APARTMENT ASSOCIATION [AT Residential Lease Contract -fl Lease Contract:_ 7/it's ,l limiting nwifraxf.^fiy/ x.irt/iAji/ he/assigning. Contract is filled out) len this Lease Con Moving In- General Information J* before the -? _ davot lliemonth, '4(11011 "° (S3 ,, pav aV»initial , late charge 1. PARTIES. ThisLeaseConttactisbetween mi.lheiC5ideiiti.s)f/isM/l jH-ojiic- ofs__£t2 pliisaxiailvTalcchorgxuJrS^6r^V. perdav after s/pirinx- theUosc Conlnjct): | _ .late until paiilin lull. Daily lalediargi'1'WiH not (Weed lSdaystor 'Uri K^TrT^. arysmglemonliAient We will not impose laleclwrerg until atleasl the third day ol the month. You'l!aIsop,iyaxhaij,eolV^-~ foretell andiis,Hie owner: returnedxheckor rejeettd electronic payment, plusinitial anddailylate L-Vf\A(X. ts^ntjli^, Jiargesuiltil we rei eileaojeplable payment. Daily late-charge-, will not exceed 15d,iysioi anysingle month's rent. IIX oudon'tpayrentontime You've agreed torent the following dwelling Icheck one]:J:3moiise. f. you'llbeinilefaul: and.ill remediesunder.tale lawand thisleaseContrac a duplex unit, or O oilier unit, and any grounds, garage or will bentithorizrd.il'you vtolalelheanim.il lestrictiniisijfpiiragrapll r impuivemenlskxntedal^J^Ctll *—C^Tt ^^ or other animal rules, vou'll pay an initial •barge ot % ' Vj?L per irn-tuMii'ss) animal(iu>tt<.u'\ct-t'J if100i«-ianimal)aiidadrtilvxrh.iii;eol^ ID. peraniinal(nottoexceed SK'perdavper nal) from tliedatetheamma! ^r-U-sVi^L lahil. wasbioufihtintovinirilwellin^unHlil istinaliy removed We'll alsoh ±S&&£ dwelUiiR,vou'llholiaNefora!H_SsLtCA. eino!loexi.ced$50oer viobtioii)4^1ustbeatUialoresiiiiiaU'L^Kt(>ftheutilitiesusedwiLLletlieu'.ilitv should have been connected in your name If \ ou are in an area open :n Nooneelsemayoccupy thedwelling. Persons notlistedabovemustnot compel ition, you mavchouse orchange vourretaileleclricproviderat anv lime Ifyuiumalify.YOurpioxiderwillbellM-samea^o nle^syou choose stay illthe dwelling for more than *~i consecutive days xx-ilhout our adifh-rentpio\ider.II'vouchcH->seorchangevourpriov ider, von must j;ive priorwritten consent, andnomore thantwice llial many daysinanyone ter fees, includLne an v month. Ifthe prawnsspoec isn't ftlldl in. tuv flai/s permonth is the limit. us written nolice.>ou .tKislpayallapplicable pi fees to change service back into our name a:1c LEASECONTRACT TERM. The initial term of the Lease Contract c-rJt'iikiw begins on the_ property. You iireldtcck-oiwi. O requiied d i buvamid maintain i i- liability i (yftir^andencisalmidnightthe "3^ _dayof_ -A-f- iit_ (•.//(fC/ilTlrlJl/nilfjl'.'f^OI' ^JH \fyycar). This Lease Contract will automatically renew month-lo- [jj^not it-qoired to buv ii-nlev's i Mhtv mstu month unless either party gives atleast 3D da>'s whlten noliceof 1} neither fcehecked.insurance itnot reifi- edit iti?*tilt>ti\ iglifiCLOWt'tcnd-.-.i. tei-nimabonoruitenttomove(>utasvetiuiredbyparagraph37.f/t/(e>rjniibtT Ifnot required, we ur$? you to^cf uoio mi'->:ir.vuv for hw* due io theft, tire. iVi'fei dui'tiiye, pipe leak* oihl -. er :*intt!tii •< Huneven pr^v\ j-es^rf -&• v' ytreJry r^ (] ) fail to move m, oi fail to e.ive requned in paragraphs 23 < 12) move out wit'nout paying rent • the entire Leasi Contract term or renewal perio O) mo (xut at nur demand lu'x ol vo default; or atM-3 ID ,11 e judicial;' evii-led B Youh Initials; . ^A- J _, Initials or Our RtHitstNTAiivr.: ff'/e.'is mulct 35 Nola Release. Ilicrclelliiigchargc isnola I.easoConiractcancellalion ive may return redeen-.eo pioperty at tile place ot storage the or htiviitil I'ee II is .. liquidated amount coloring only part ol our management,.ihee, orthe dwclliiigtal ouroption!. \VV may tequire damages. II..,. is. ou. (line, rllort. anil expense in'linduig and pavmenl hi rash, rione. unlet. „,- ,-ortilic,! check processing a ivpl.uviiK-i.l. I!„"„• ,l,iiiijS„ jr.- mi, ertain and dillicult Inasccrlaiti -p.mi, nl.irlythoserelating to make ready, mionientcnce. Disposition ur Sale. I xcepl lor animals and property removed paperwork, adieilising,showing thedwelling, utilities tor showing, after the death nt a sole tcsiclent, we may- throw away or give toa checking prospects, nxerhead, marketing xosts, and locator-seix-ice charitable organization all items of personal properly that are: <1) lees. You .111 roe thai Hie reletting charge is a rea.sonahie intimate of lelt in the dwelling after surrender or abandonment: or (2| left such damages andthai the charge isduewhether ornotourreletting outside more than 1 hour afler a writ ol possession is executed attempts smcecd II no amount is stipulated, yon must pav our lollowing a judicial eviction Animals remoxed after surrende' aetual reletting xosts so l.tr as (hex ,-,m be delermined. Thereletting abandonment. ,„ eviction may be kenneled ur turned over to local .hargi- does not release you horn continued lialiilnv tor limue ..-• .minorities or humane s.k.dies. Propel Ivnottin own away or given past-due i-inf charges lor .leaning, repairing, lep.unhng. or lo charity may be disposed of only hi sal,., which must be held no iinrelui-ni-,1 keys; or nther sums due. .sooner than IPdays alter written notice ol dale. time, and place of sale issent by ho!!-, regular mail and certified mail (return receipt 12. DAMACES AND KEIMIlUlxSEMENT. You must promptly pav requested) to your last known address The notice must itemize the or reitiibitrsc us lor loss,damage,consequentiul.lumages.goxerc.ment amounts you owe and the name, acldicss.and phime number of Ihe lines or charges, oioust ol repairs or.service in thedwelling due to- a person lo contact about the sale, the amount owed,and youi right violation i,t the I ease Contract or rules, improper use. negligence; to redeemthe properly Sale may be publicor private, is subjectto other ..induct hv vou or lour inx itces. guests in imupants; oi anv anythud-party ownership or lieu claims, musl betoIhe highest cast-, othercause n.il dii,. to,mi- negligence or fault Vmi xvillindemnify and hi.tiler, and may Iv III hulk, in bat, lies, or Hem-by-ilcm Proceeds holxl us liuiiniosslroi.i all liability arising Irnm thexolliluet ol you, exceeding sums owe.! must be mailed to you at your last known youi invilee.s. gnosis, or oivup.inls. or our repiesentativcs who address within ID nays after sale. perlorin at your request servi,-.s tiol contemplated in this Leave 14. TAILING TOPAV FIRST MONTH'S KEN I II you don't pay the (onfr.ut Unless thc_ria!n.aite or wastewater stnppagc_is_d.rie to lirslmonth'srent whenor before theIeaseContrailbegins, ailtuttire piirjiegligeiue, we'rejiol..liablejor — anil you must pay tor — renl will beautoinalii,illy a,celei.lied without nolice and immediately repairs, ri'pl.iceuients_ailll..ilflir|age_to Hie following it occurring one We also may end youi ligh- ol occupancy and recover din-ing (,H' Lease Contract lerm_{>r renewal periotl; (1)damage damages, Inlinerent, reletting charges, attorney's tc-es. court costs, In doors, witidmvs, or screens; (21iljirn,lgefrom windows or doors and oilier lawlul charges. Our rights, remedies, and duties under left openj_3iifl (IJLdjmtjigejTmiiwaslexvater stoppages caused by paragraphs 11 and .12 apply to acceleialion under this pelagraph. improperobjects in lines e\dusiyely.serving your dwelling. We may requite pavnient al anv time, including advance payment ot 15. RENT INCREASES AM) LEASE CONTRACT CHANCES. No repairs for which you're liable. Delay in demanding sums you owe tent increases or I ease Lonlract changes are allowed before the initial is not a iv.iii-ei. I-case Contract term en.ts. except lorchanges allowed by anvspecial provisions in paragraph 111. hi a written addendum or amendment 13. CONTUACTUAL LIEN AND PROPERTY I.LTT IN DWELLING. signed by you and us. or in reasonable . h.uigcs ol our rules allowexl AlLpioperly injhe dwellijig is (unless exempt undx-r Section under paragraph In, If. al least ' .lays bc:'o:e Ihe advance nolice f»-UM2_pHhe Texas Property Code! subject to a contractual lien deadlinereterrixi loin paragraphI ivegivevol!u nllen notice ofrent Lil.secim^ payment (if delLnqueDlrenLJe-sceriLas pmhibilljsl.bj; iiu leases or I.easeContract changes effective ixhen the I case Contract Section 23llh.fx7.lti. Texas C'.overnmeiil Code, for owners supporter! term ,.r renewal rvriiid ends, this Lease Contract will automatically l.'y..LLX_CJ-edit alJciraliiinsL l-'or this purpose, "dwelling" excludes continue innnlh-to-iii..nth wilh the increased renl or 1ease Contract uulslde areas but includes inteiior livingareas and exterior patios, changes. Ihe neyv modilied Lease Coi'tracl will beg;:: on the date balconies, attached garages, o.ni.] storerooms lor your exclusive use. slated in the nolice ixvithoul necessity ol v,.ui signature) unlessyou Removal After We Exercisel.ien for Kenl. ILyour rentJs.ajjjjrifliienL g.ve us written iiioxe-.i-.it notire under paragraph 17. Ihe xv:i:;e-: move-nut nolice under paragraph .17 applies ,,niy to the end ol the our representative may peacefully enter the dwelling and remove current Lease Contra, t o: renexval period. •L".d/nr store alljiropgrly subject to licm Written notice of entry must he lelt allerivarils in Hie dwelling in .. conspicuous plaei—plus a list Id. DELAY Ol- OCCUPANCY. Ifoccupancy is or w.ll be delayed tor ot iL'ins reinnx ed Hiein.tiremuststalethe am.,untofdelinquentrent construe lion,repairs, clearing,ora preyionsresident's holding over, and the name, address, and phone number o! the person to contact we're not responsible tor Ihe delay. The I.ease ( onlract will remain ahoul the amountowed The notice most alsostate thai the properly in lorce subject lo: iDabalemenl of rent on a daily basis during will Iv promptly returned when Hie delinquentrent is fullypaid.All delay; ami (21 yntit nghl to terminate as set lo:Hibelow Termination property in Ihe .Ixxvlling is presumed to hi- yours unless proven notice must be in writing. Alter termination, you are entitled only otherwise to ivhind of deposit!:,) and any rent paid Rentabatement or I ease Removal After Surrender, Abandonment, or Eviction. We or law Conlractterminationdoes noIapply itdelayis lorcleaningor repairs ntlicersmay rcmoxr or storeall property remaining in the dw-elling that don't prevent ynu Iroin ,sx upving the dxxcilcig. or in nutside areas (including any vehicles vou or any occupant or Il there is a delay an.: we baxen't gwen notice of delay as set forth guesl oxvns or u-.es) il you are judicially evicted or if you surrender imiuediatelv below, yon may teiniinate up to the date w-iicn Ihe or abandon the dwelling (..V ,l.7'ui?i,.iis in /iinay?rt/,/j -!2j. dwelling is ready tor occupancy, hut not later Storage. We will slore propertv removed under a coiuraclual 11! If we give written nolice to any .if you when ...after the Lease lien. We may, bul have no duty lo, slore pioperly removed afler Conlracl begins—and Ihe notice states that occupancy has judicial exiction. sur.ender, or ahuiidiniment ol the dwelling. We're been delayed because ot . .instruction or a previous resident's not liable lo; casually loss, damage, or theft except to. property holding, and that thcdwclli x:l) In .ly on a specific remoxed under a ii.nti actual hen Vim must pay reasonable dale—you max. terminate Ihe I easeCunttacl wilhin .1 days of chargesI'orou rpacking,reinnx ing,storing,and sellingatiyptopcrtv. your leceiving the notice, hut not fater We have a lien on nil properly removed and stored alter surrender, ubamtuninenl, or )udictal eviction for all sums vou owe. will: oni' (2) Ifwegiie written"Olirelo anyof you beforetheellectixeLease Contruc! date and the notice stales thai , on~ttuciioii delay is exception-dm lien on propertv listed under Propertv Code Section expected andthatthedwelling will beready for youtooccupy ST ll.|2 is hniited lo .h.uges loi packing, ii-inoyiug. and storing on a specific date, you may terminate the LeaseC ontracl within Redemption. IIwe' i e sei/ed .lintsloied propertv under acontractu,!I 7 days afler any of you receives cxrillei: notice, bul not later. lien lor rent us uutlion/ed by the Property (ode. you may redeem Ihe readiness dali is considered '.he new eftechve Lease the properly by paving all delinquent rent due at the time ol seizure. Contract date 'or all purposes. Ibis new dale may not be Hut if notice ol sale Iset forlll as t.illoyvslis given before vou sock moved lo an ea-lier dale unless xxv and yon agree. redemption, yon may redeem. mix by paying the delinquent rent and 17. DISCLOSURE RIGHTS. II someone requests intorinalion on vou reasonable charges lot packing, lemming, and storing If we'ye or your rental history for law-enforcement,gex-erilinental.n: business removed .\iu\ sloied properly after surrender, abandonment, xii purposes, we may provide it At our tec|uest. any utility provider ludicialexiction,you may redeem only by paying all sums you owe, may lurnish us inform.ilion about pending oi ai tiial conni-crioils or including rent, laleihaiges, relelllng charges, storage, damages, ch disconnections ol utility serxi.e lo youi ilweliine While You're Living in the Dwelling 18. POLICIES OR RULES. You and al! gnosis and occupanls must porches; (21 the ondi.d o: liiiniture moxois.ird delivery persons; , .imply Witt: any xx nllen rules an.! policies including instructions for and l l| activitu in outside areas. cure oloiir propoily Our rules are , i.iisiclered part ol this contract We may make- leasonable , hanges to yyritten rules, etfectlv, Wvm.ix exclude from live properly guests.,: others who inoitijudgment, immediately upon then distribution to you. These changes must not have been violating the law. violatingIbis I ease l.ontrait or anv ol our .lunge any dollar .minimis on page I ol this Lease Conlracl Vou rules, or distuibing otl.ei persons, neighbois, visitors, or ownei must comply with any subdivision or deed restrictions that apply. represenlatixes. We mayalsoexclude lioiuany outsideareaa person who relusesto show photo idetitilication oi ictuses to identity llimsell IV. LIMITATIONS ON CONDUC'I Ihe dwelling and other areas or herself as a resident, occupant, or guestol a s|ieiilk resident reserved lor your private use must be kept clean hash must he- •lou will notify us withm II days it you or any occupants a:e disposed ol al least weekly in appropriate receptaclesin accordance c.invicred of any felony, or misdemeanor involving a controlled, yvith localordinal ices I'.issagewaysniayTx- used only forentiy oi exit. substance, violence toanother person ordestruction ofproperly You Any siviiuming pools, spas.sio.eos-.nis.andsiiiiilarareas must be used alsoagree lo notify us witlnn ISdays il you or anyon upants registe: withcareina,, orclulh e withour iilk-sandpostedsigns.Classcontanleis .;» a sex olleilcler ill any stale. Informing us ot criminal convictions are prohibited itior nc.M- pools Yon, youi occupants, or guests may- orsexotlenderiegistry dices, :„twaiyeany lighl,yve have against vou. not anywhere in Ihe dwelling or outside areas Use candles or kerosene lampsor heaters withoutour prim- xvrillen approxai, or 20. PROHIBITED CONDUCT. You andcur ixcupants or guests may solicit business or conliibutioos Conducling any kind of business notengagein llv following achy ities: criminal conduct; behaving ina (in.hiding child care .serxi.es) in your dwelling is prohibited— loud oi-obnoxiousmanner;dlslurbingor threatening Iherights.comtort, except thatany lawlulbusiness ennducied -at home''by computer, health, safety, or convenience of others [including our agents and mail, or telephone is peimissible il customers, clienls, patients or employees) inor nearthedwelling: disrupting ourbusiness operations, other business assniiaies donot come toy,,u. dwelling for business manufacturing, delivering, or possessing a , ntv.iolle.l substance or drugp.uapheriialia; engaging in or Ihrealcning violence possessing purposes. We may legulale (l)the use ol patios, bale-on:, s. and UlSllilMl.l. I.I 1 21111, 11 II Nl Ac , 1~' a weapon proliihivd by state law, cliscli.uving .: lirearm ic the 3>(o dweilmg;LMbptoyingorpossessingagun.V -olher weapon mornear Crime or Enu y. Dial 911 or immedialely cilt local medi.vi'. the dwelling ina way that may alarm oth. .ioriiig anything inclosets emergency, fire, 1Kepeisoiuieliucaseofaccide!it,hi'e,smoke,suspected having gas appliances; tampering with utilities or telecommunications; criminal activity, orotheremergency involving imminent harm. You should bringing hazardousmaterialsintothedwelling;using windows for entry diencontactoLiTiepresentauve.Youwon'ttreataiiyofourseciLritymeasuiesa^ orexit;heatingthedwellingwithagas-opera tedcookingstoveoroven•or anexpress orimplied wananty ofsecurity, orasaguarantee against crime or injuringourreputationby making bod faidiallegationsagainst ustoothers. ofreduced riskofcrime. Unless otherwise provided bylaw,we'renotliable to you orany guestsoroccupants for injury, damage, orloss topersonorproperb, 21. PARKING. Wem.iyregulatedieniuejTianner,(indpIaceofpai'kiiigaHcai-s, caused bycriminalconduct ofother persons, inclndingmeft,hui-glary,assa\:|t lim'Kmutorwdes,b)cycte,bc^ vandalism, orothercrimes. Even ifpreviously piu\ided, we're notobligated ormotorized bikes may notbeparked inside a dwelling oronsidewalks. tolxiniisiisecurity-perwr,nel/patrols,lighting/gatesorfeiKes,t»i\>thert(>nnsor We may have unauthorized orillegally parked vehicles towed orbooted seciuityiu\iessreqLuredbystaliite,We'rencHit«p Replacements REPLACEMENTS AND SUBLETTING. Replacing a resident, Procedures forReplacement, lfweapproveareplacementresident, then, subletting, orassignment isallowed 011/1/ when we consent in uniting. If at our option: (l)the replacement resident must sign this Lease departing orremaining residents find a replacement resident acceptable 1iinfract with orwithout anincrease inthetotalsecurity deposit; or(2) the tous before moving out and weexpressly consent to thereplacement, remaining and replacement residents must sign an entirely new Lease subletting, or assignment, then: Contract. Unless we agree otherwise inwriting, your security deposit will (1) a reletting charge 11'/// «iit be due; automatically transfer to the replacement resident as of the date we (2) a reasonable administrative (paperwork)fee mill be due, and a approve. The departing resident will no longer have aright looccupancy rekeying feewill be due if rekeying is requested or required; and or a security-deposit refund, but will remain liable for the remainder of (3) thedepartingandremainingresidentsiiiitfremainiiableforallLease flit- original Lease Contract term unless we agree otherwise in writing- Contractobligationsforthe restof the originalLeaseContractterm. even if a new Lease Contractis signed. Responsibilities of Owner and Resident 31. RESPONSIBILITIESOFOWNER. We'llaclwithcustomarydiligenceto: nolice to vacate or filing aneviction suit,wemaystillaccept rentor other (1) maintain fixtures, hot water, heating, and A/C equipment; sums due; the filing oracceptance doesn't waive ordiminish our right of (2) substantially comply with all applicable laws regarding safety, eviition.oranyothercontractualorstatutorv right. Accepting money atany sanitation, and fair housing; and (3) make all reasonable repairs, subject to paragraph 26 and your time doesn'twaive ourrighttodamages; pastorfuture rent.orothersums; or tocontinuewith evictionproceedings. obligation to pay fordamagesfor whichyou are liable Acceleration. Allmonthly renl for the rest of the LeaseContractterm or If we violate anv of Iheabove, yon maypossibly terminate this Iwc. Contract andexercise other remedies underTexas Property Code Section lenewal period will beacceleratedautomaticallywilhoutnoticeordemand 92.0.56 bv following this procedure (before orafler acceleration) and willbe immediately due and delinquent it. without ourwritten consent: (1) you move out, remove property in (a) all rentmustbecurrentand you must make awritten request for repair preparingtomoveout.orgiveoralorwrittennodcefbyyouoranyocciipant) or remedy of Ihe condition—after which we'll havea reasonable time for repair or remedy; ot;ntent tomove outbefore theLeaseContract term orrenewal period ends; .nut (2) you've notpaidallrentfor theentire Lease Contract term orrenewal (b) ifwefail todoso, you mustmakeasecond written requestfortherepair period. Suchconduct isconsideredadefaultforwhich weneed notgiveyou or remedy (to make sure that there has been no miscommunication notice. Remaining rent also will beaccelerated ifyou're judicially evicted between us)—after which we'll have areasonable time for the repair or moveout whenwedemandbecause you'vedefaulted. Acceleration is or remedy; and subjectto our mitigationobligationsbelow. (c) if the repair or remedystill hasn't been accomplished within that reasonable timeperiod,youmay immediately terminate this Lease Holdover. You oranyoccupant,invitee,orguestmust not holdoverbeyond Contract bygiving usafinal written notice. You alsnmayexerrispnther thedatecontained inyourmove-outnoticeorournotice tovacateforbeyond statutory remedies, including those under Texas Property Code adifferent move-out date agreed tobytheparties inwriting). Ifaholdover Section 92 llrV.1 occurs, then: (1) holdover rent isdue inadvance onadaily basis and may becomedelinquent without noticeor demand; (2)rent for the holdover Instead ofRiving thetwowritten requests referred toabove, youmay give period will beincreased by25% over thethen-existing rent, without notice; usonerequest bycertified mail, returnreceipt requested, orbyregistered 13) you'llbeliable tous(subject toourmitigation duties) forallrentforthe mail—after which we will havea reasonable limefor repairor remedy. miltermofthepreviously signedLeaseContractof anewresidentwhocan't "Reasonable time" takes into account thenature of theproblem and the .x-ciipy because oftheholdover; and (4) atouroption, wemay extend the reasonable availability of materials, labor, and utilities. Your rent must be I easeContractterm—for up toone monthfromthedate of noticeof Lease current at thetimeofanyrequest. We will refund security deposits and (onlract extension—by delivering written notice toyou oryour dwelling prorated rent as required by law. while you continue to hold over. 32. DEFAULT BYRESIDENT. You'll beindefaultif: (1 jyou don'tpay rent Other Remedies. We may report unpaid amounts tocredit agencies. If orother amounts thatyouoweontime; (2) youoranyguestoroccupant vou default andmove outearly, youwillpayusanyamounts stated tobe violatesthis I-easeContract,our rules, or fire,safety,health, or criminal reolaldiscountsor concessions agreedto in writing,in additiontoother laws, regardless ofwhether orwhere arrest orconviction occurs, (31 you sums due. Upon your default, we haveall other legal remedies, including abandon the dwelling; (4)you give incorrecl or false answers in a rental i-e.tse Contract termination andstatutory lockout underSection 92.0081, application; (5)you or any occupant is arrested, charged, detained, lexas Properly Code, except as lockouts and liens areprnhihil.it hy convicted, or given deferred adjudication or pretrial diversion for (i) a Seel ion 2306,6736. Texas Govemmi-nt Cod, for owners supported hy felony offense involving actual orpotential physical harmtoa person, or hnusingtaxcredilallnraiinns Aprevailing party mayrecover reasonable involving possession, manufacture, or delivery of a controlled substance, attorney'sfeesandallother litigation costs from the non-prevailing parties, marihuana, or drug paraphernalia as defined in ihe Texas Controlled excepta party may not recover attorney's fees and litigahoncosts in Substances Act, or (ii)any sex-related crime,includinga misdemeanor; connection witha party'sclaims seeking personal injury, sentimental, (6) any illegal drugs orparaphernalia arefound inyour dwelling; or(7) exemplary or punitive damages We may recover attorneys' fees in youoranyoccupant, inbadfaith, makesaninvalidhabitability complaint connection with enforcingour rights under this Lease Contract. You agree toan official oremployee ofa utility company or thegovernment. that latechargesare liquidated damagesand a reasonable estimateof Eviction, tfyoudefaidtoi linldnuer.uf mnytnd i/ollr right ofoccupilucyliy$10111$ su, hdamagesforourtime,tnconvenience.andoverheadassociated with you a24-hour written notice lovacate. Notice may beby: (11 regular mail. roNectinglate rent (butare not for attorney's fees and litigationcosts). All (2) certified mail, return receipt requested; (3) personal delivery to anv unpaid amounts you owe, including judgments, hear 18% interest per resident;(4)personaldelivery atthedweiling toanyoccupant over 16years year Irom duedate, compounded annually. You mustpayall collection- old; or(5) affixing thenotice totheinside ofthedwelling's main entry door. agency fees ifyou fail topay allsums duewithin 10 days after wemail Notice bymailonlywillbeconsidered delivered ontheearlierof:(1)actual you aletter demanding payment and stating that collection agency fees delivery, or(2) three days (nol counting Sundays orfederal holidays) after will beaddedif youdon't pay allsumsby that deadline. the notice isdeposited intheUS Postal Service with postage. Termination Mitigation of Damages, [fyou move out early, you'll be subject to ofyourpossession rights orsubsequent reletting doesn't release youfrom paragraph 11 and all other remedies We'll exercise customary diligence to liability for furure renl orother Lease Contract obligations After giving Kr.sintNTiAL LiAve Conikact © 2011, Texas Ar.inniNT Association, l~c. relet and minimize damages. We'll credit all subsequent rentthat we .•dually receive from replacement orsubsequent residents against your hah lity forpast-dueand future rentand othersums due Page 4or6 3 Geneia) Clauses MISCELLANEOUS. Neither ivc nor any ofour representatives have Utilities may beused only for normal household purposes andmust made any oral promises, representations, or agreements. This lease not be wasted. If your electricity is ever interrupted, you must use Contract is the entire agreement between you and us. Our representatives only battery-operated lighting (including management personnel, employees, and agents! have no authority to waive, amend, or terminate this Lease Contract or any part PAYMENTS. Payment of all sums is an independent covenant. ofit.unless in writing, and no authority lomake promises, representations, At our option and without notice, we may apply money received oragreements that impose security duties orother obligations onusorour (other than sale proceeds under paragraph 13 or utility payments representatives unless in writing. No action oromission by uswill be subject to government regulation) first to any of your unpaid considered a waiver of our rights or of any subsequent violation, obligations, then tocurrent rent—regardless ofnolalions onchecks default, or time or place of performance. Our not enforcing or or money orders and regardless ofwhen theobligations arose. All belatedly enforcing written-notice requirements, rental due date1;, sums otlier than rent are due upon our demand. Afterthe due date. acceleration, liens, or other rights isn't a waiver under any we i]o not have to accept the rent or any other payments. circumstances. Except whennotice or demandis- required by statute, you waive any notice and demand for performance from us if you TAA MEMBERSHIP- Werepiesentthat,al the timeofsigningthis default. Written notice to or from our managers constitutes notice to Lease Contract: ("I) we; (2) the management company that or from us. Any person giving a notice under this Lease Contract represents us; or |3)any locator service that procured you is a should retain acopy ofthe memo, letter, orfox that was given, aswell member in goodstanding ofboththeTexas Apartment Association as any fax transmittal verification. Fax or electronic signatures are and the affiliated local apartment association foi the area where binding. All notices must besigned Notices may notbegiven by email thedwelling islocated. Themember iseitheranowner/management or other electronic transmission. company niembei or an associate member doing business as a locator service {whose name and address must be disclosed on Exercising one remedy won't constitute anelection orwaiver ofother page 6). It not, the following applies ft) this Lease Contract is remedies. Insurance subrogation iswaived byallparties. AI! remedies voidable at your option and is unenforceable by us (except for are cumulative. No employee, agent, or management company is property damages); and(2) wemav notrecover past orfuture rent personally liable for any of our contractual, statutory, or other or other charges. The above remedies also apply if both of the obligations merely by virtue of acting on our behalf. This Lease following occur: (1) the Lease Contract is automatically renewed Contract binds subsequent owners. Neither an invalid clause nor on a rnonth-to-month basis two or more times after membership theomissionof initialson any page invalidatesthis LeaseContract. in TAA and the local association has lapsed; and (2) neither the Allnoticesand documents may be in Englishand, at our option, in ownernor the management companyis a member of TAA and the any language that you read or'speak All provisions regarding our local association at the time of the third automatic renewal. A non-liability and non-duty apply to our employees, agents, and signed affidavit from the local affiliated apartment association management companies. This Lease Contract is subordinate to which attests to non-membership when the Lease Contract or existing and future recorded mortgages, unless theowner's lender renewal wassigned will beconclusive evidenc^f non membership. chooses otherwise. All Lease Contract obligations must be Governmental entities may use T./w\ kmaaoif TAA agrees in performed in the county where the dwelling is located. writing. ,^5 -C" Wp may deactivate or not install keyless boltingdevices on your doors if: (1) youoran.qgupaat inthedwelling isover 55 ordisabled, and (2) the requirements nf Sectiun 92.153(e) ur ff>, TexasProRefly -' O t Code are satisfied Security Guidelines for Residents m SECURITY GUIDELINES. We care about your safety and that • Check the door viewer before a*\f$eiing fig door. Don t open of otheroccupants and guests. Nosecurity system isfailsafe. Even the door if you don't know tftt^erson cfr have any doubts. the best system can't prevent crime. Always act as if security Children who are old enough ft? £jjte airejnf themselves should systems don'texistsince theynre subject to malfunction, tampering;, never let anyone inside when home witiAmr an adult. and human error. We disclaim any express or implied warranties • Regularly checkvour securitydevices, smokealarms and other of security. Tfie best safety measures are the ones you perform as detection devices to make sure they are working proper!v. a matter of common sense and habit. Alarm and detection device batteries should be tested monthly and replaced at least twice a year. Informall other occupantsin yourdwelling,includingany children • Immediately report in writing (dated and signed) to us any you may have, about these guidelines. We recommend that all needed repairs of security devices, doors, windows., smoke residents and occupants use common sense and follow crime alarms and other detection devices, as well as any other prevention tips, such as those listed below: malfunctioning safety devices on the property, such a> broken • In case of emergency, call 911. Always report emergencies to access gates, burned out exterior lights, etc. authorities first and then contact the management. • If your doors or windows are not secure due lo a malfunction • Report anysuspicious activity to the police first,and then follow or break-in, stay with a friend or neighbor until the problem is up with a written notice to us. fixed. • Knowyour neighbors. Watchingout for each other is one of the • When you leave home, makesure someone knows where you're best defenses against crime going and when you plan to be back. • Always be aware of your surroundings and avoid areas that are • Lock your doors and leave a radio or TV playing softly while not well-traveled or well-lit. vou're gone. Closecurtains,blindsand windowshadesat night. • Keepyour keys handy at all times when walking to your car or • While gone tor an extended period, secure your home and use home. lamp timers. Also stop all deliveries (such as newspaper and mail) or have these items picked up daily by a tnend • Donotgoinsideifyouarrivehomeand findyourdooropen.Call the policefromanother locationand ask them to meet you before • Know at least two exit routes from your home, it possible. entering. • Don't give entry keys, codes or gate access cards to anyone. • Make sure door locks, window latches and sliding glass doors • Always lockthe doorson your cm,even whiledriving, lake the are properly secured at all times. keys and remove or hide any valuables. Park your vehicle in a • Use the keyless deadbolt in your dwelling when you are at home. well-lit area, • Don't put yournameoraddresson yourkeyringor hideextrakeys • Check the backseat before getting into youi car. Be careful in obvious places, likeundera flower pot.If you losea keyor have shipping at gas stations or automatic-tellermachinesat night concernsabout key safety,we will rekey your locksal your expense, or anytime when you suspect danger. in accordance with paragraph v of the Lease Contract. There are many other crime prevention tips readily available from police departments and others. When Moving Out I 57. MOVE-OUT NOTICE. Before moving out, vou must give our • Your move-out notice must be in writing. Oral move-out not.ee representative advance written move-out notice as provided below. will not be accepted and will not terminate your LeaseContract. Your move-out notice will not release you from liability for the full • Your move-out notice must not terminate the Lease Contr.ict term of the Lease Contract or renewal term You will still be liable for sooner than t'heend of the LeaseContract termor renewal period. the entire Lease Contract term if you move out early (paragraph 22) except under paragraphs tO, 16, 22, 23 or 31). YOUR MOVE-OUT • if we require you to give us more than 30 days written notice to NOTICE MUST COMPLY WITH EACH OF THE FOLLOWING: move out before the end ot the Lease Contract term, we will give vou a written reminder not less than 5 days nor more than ^0 days • We must receive advance written notice of you].-move-out date. before your deadline for giving us \ our written move-out notice Tiie advance notice must be at least the number of day; of notice If we fail to provide a reminder notke. 3Udays written not.ee to required in paragraph 3 or in special provisions—even if the move-out is required. Lease Contract has become a month-to-month lease. If a move- out notice is received on the first, it will suffice for move-out on YOUR NOTICE IS NOT ACCEPTABLE IV11 DOGS NOT COMPLY the last day of the month of intended move-out, provided that WITH ALL OF THE ABOVE. We recommend vou use our written all other requirements below are met. move-out form to ensure you provide the information needed. >ou must obtain from us written acknowledgment that we received your • The move-out date in your notice {check one}: O must be the last move-out notice. If we terminate the Lease Contract, we must give day of the month;or n may be the exactday designated in your notice. If neither b checked. Ihe second applies. Rcsideniiai Lf*se Conthact £> 2011, Trx\s Atarimenv AsmjUation, Inc. vou Ihe same advance noLice--unless you are in default. J2 P*GE 5 OF 6 3^ 38. MOVE-OUT PROCEDURES. The move-oi.l dale can't bechanged government lees oi ,,i es agamsl n- for violation (hy you, your unlessweand you bcilh agreein writing.You won't mrac out hetore nccupanK or guestsl ol local ordinances relating to alarms ami Hie Lease Contractterm or renewal period eods links all rent tor detection deuces, raise alarms, lending, or other matters; late- theentireLease Contract term orrenewal period ispaidin full Early pavmenIand returncil-check charges; achargemot loexceed J.I(10) for move-out may result in reletting charges and acceleration ot future •mi tune and inconvenience m our lawful removal of an annual or in rent under paragraphs 11 and 12. You're prohibited by law from anv vain! eviction proceeding against yon, plusattorney's tees, court applying any security deposit to rent. You won't stav beyond the costs, and iiling fees aocuailv paid: and tube: sums cine under tln> date you are supposed to move out. All residents, guests, and Lease Contract occupants must surrender or abandon the dwelling before the 30- dayperiod fordepositrefund liegins. You mustgiveus and theLI S. ~i ouTI be liable tous lor: (1, charges tor replacing all keys and Postal Service, in writing, each resident's forwarding address access devices listed in paragraph ri if you fan to return them on or hetore your actual move-out date, |2) accelerated rent ii 39. CLEANING. You must thoroughly clean the dwelling, including you have violated paragraph 32: and (•) a reletting lee it vol, doors, windows, furniture, bathrooms, kitchen appliances, patios. have violated paragraph II. balconies, garages, carports, and storage areas. You must "follow move-out cleaning instructions if they have beenprovided. If you 42. DEPOSIT RETURN, SURRENDER, AND ABANDONMENT. don't clean adequately, you'll be liable for reasonable cleaning Well mail you youi seruiitv deposit refund (less lawlul charges—including charges forcleaning carpers, draperies, furniture, deductions) and an itemized accounting of anv deductions no later walls, etc that aresoiled beyond normal wear(that is,wear orsoiling than 3(1 days after surrender or ab.indomvenl, unless statutes that occurs without negligence, carelessness, accident, or abuse). provide otherwise 40. MOVE-OUT INSPECTION. You should meel with ourrepresentative You have moiciulcrcl the dwelling when: I".: Ihe move-out dale fora move-out inspection. Our representative has no authority to liaspassedand noone is livingin thedwelling inour reasonable bind or limit us regarding deductions for repairs, damages, or judgment; or (2) dwelling keys and ace,.,; devices lis'ed in charges. Any statements or estimates bvusor our representative arc paragraph s have been turned in to us—whichever date occurs subject to our correction, modification, or disapproval hetore final lilst refunding or accounting ion have ntWhloiicd the dwelling when all of the following have 41. SECURITY DEPOSIT DEDUCTIONS AND OTHER CHARGES. occurred (I) everyone appeals lo have moved out in our reasonable You'll be liable for thefollowing charges, ifapplicable: unpaid rent: judgment; (21 clothes, lurniture, and persona] belongings have been unpaid utilities; unreimbursed service charges; repairs or damages substantially removed in our reasonable judgment, (3)'you've been caused by negligence, carelessness, accident, or abuse, including in delault for nonpayment of rent lor 5 consecutive days, or water, stickers, scratches, tears, bums, stains, or unapproved holes; gas,or electricservu e lor the dwelling notconnected:n our name has replacement cost of our property that was in or attached to the been terminated or transferred, and |4| you've not responded tor2 dwellingand is missing; replacingdead or missingalarm or detection days toournotice lelt on the inside ol the main entry door, staling device batteries at any time, utilities tor repairs or cleaning; trips to thai we consider the dwelling abandoned A dwelling is also let in company representatives to remove vour telephone,Internet,or "abandoned" It! days after Ihe death of a sole resident. television services or rental items(if vou so request or have moved out); trips toopen thedwelling when youor anvguest or occupant icier, abandonment, or judicial eviction ends ght of is missinga key;unreturned keys:missingor burned-out lighl bulbs, possession lorallpurposes and gives us theimmediate right to clean removing or rekeying una uthorized security devices oi alarm systems; up. make repairs in. and lelei Ihe dwelling; determine anv security agreed reletting charges; packing, removing, or storing property deposit deductions; and remove property lelt in the dwelling removed or stored under paragraph 13; removing or hootingillegally Surrender, abandonment, and judicial eviction altecl your rights parked vehicles; false security-alarm charges unless due to our to property letl in Ihe dwelling (paiagraph :?i, but do not afted negligence, animal-related charges under paragraphs 6 and 27; our mitigation obligations (paragraph 32). Signatures, Originals and Attachments ORIGINALS AND ATTACHMENTS. Tins I.easeContracthasbeeii execuledin multipleoriginals,each with originalsignatures—onefor You are legally bound by this document. you and one or more for us. Our rules and policies, if any, will be Please read it carefully. attached to the Lease Contractand givento you at signing. When an Inventoryand Condition formis completed,both you and we should Before submitting a rental application retain a copy. The items checked below are attached to and become or signing a Lease Conlracl, you may take a copy a part of tlu's LeaseContract and are binding even if not initialed or of these documents to review and/nr consult an attorney. signed: Additional provisions or changes may be made O Access Gate Addendum in the lease Contract if agreed lo in writing by all parlies. G Additional Special Provisions You are entitled lo receive an original of this Lease Contract CI Allocation Addendum for: O electricity d water !~l gas after it is Jully signed. Keep it in a safe place. • central system costs l"l trash/recycling O cable/satellite D storm water /drainage -•ices/government tee fl Animal Addendum G Asbestos Addendum (if asbestos is present) • Bed Hug Addendum * r*V.i„ 'alt* .^t^ned .,„.-..* n Early Termination Addendum n Enclosed Garage, Carport or Storage Unit Addendum uVmventnry & Condition norm Df.le signed H Intrusion Alarm Addendum D Lead Hazard Inhumation and Disclosure Addendum • Lease Contract Guaranty ( guaranties, if more than one) Date signed D Legal Description of Dwelling (optional, if rentaltermlongerthan one year) f~l Military SCKA Addendum D Mold Information and Prevention Addendum CI Move-Out Cleaning Instructions Oi^wforOwner's Representative tsjs;iint<* i D Notice of Intent to Move Out Form GTOwner's Rules or Policies • Parking Permit or Sucker (quantity: ) O Rent Concession Addendum Address and phone number of ouwr's reprt^t'ut,ttioe far notice purjroses O Renter's or Liability Insurance Addendum O Repair or Service Request Form O Satellite Dish or Antenna Addendum .513. =-3-01- !.!H3 . CI TCEQ Tenant Guide to Water Allocation (73 Utility Submetering Addendum for: rt electricity H water i"l gas tTOther ..Vuflfj;?lt^4)Vr01l_S '.^y. ' .«t*T\ a Other i J nliime, address and telephone number of locator service til applicable must be completed In verify TAA membership under paragraph 3J): Afler-liours plione number M/roni/s i-nH 911 for police, fire or medical emergencies.) Date form is filled out < m lop of pa.ee il RlSJDHNTIAL LLASrCONn ci IAAOltio.ilSl.itci *IOclolvr.2Ull.t,npvrigli(20ll,T,.v.isAp.irt:v t =J W
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Linda S. Nowlin v. Lori Keaton, Counsel Stack Legal Research, https://law.counselstack.com/opinion/linda-s-nowlin-v-lori-keaton-texapp-2015.