Thomas v. Olympus/Nelson Property Management

148 S.W.3d 395, 2004 Tex. App. LEXIS 4770, 2004 WL 1171708
CourtCourt of Appeals of Texas
DecidedMay 27, 2004
Docket14-02-01212-CV
StatusPublished
Cited by12 cases

This text of 148 S.W.3d 395 (Thomas v. Olympus/Nelson Property Management) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thomas v. Olympus/Nelson Property Management, 148 S.W.3d 395, 2004 Tex. App. LEXIS 4770, 2004 WL 1171708 (Tex. Ct. App. 2004).

Opinion

OPINION

KEM THOMPSON FROST, Justice.

At issue in this case is the meaning of “home address” under Texas Rule of Civil Procedure 742a, governing service of citation by delivery to premises. For service to be appropriate under this rule, the plaintiff must list in the complaint “all home and work addresses of the defendant which are known to the [plaintiff].” We must decide whether service is proper under this rule if the plaintiff knows the defendant is being treated at an out-of-town hospital yet does not list this hospital as an address in its complaint. Concluding that service under Rule 742a is not proper in these circumstances, we reverse the trial court’s directed verdict as to appellant’s wrongful-eviction claim. Finding no other reversible error, we affirm the remainder of the trial court’s judgment.

I. Factual and Procedural Background

At the time of the events made the basis of this suit, plaintiff/appellant Roosevelt C. Thomas had lived in the same apartment in Houston, Texas, for more than twenty years. He leased it from an owner who had appointed defendant/appellee Olympus/Nelson Property Management a/k/a Weyrich Real Estate, Inc. (hereinafter “Weyrich”) to manage the apartment complex and, among other things, collect rents due from tenants.

*397 Thomas, a United States Marine Corps veteran from World War II, has been treated over the years for posttraumatic stress disorder dating from his military service. A document admitted in evidence at trial shows that in February of 2000, Thomas was reported as missing and that, on February 23, 2000, police officers broke down the door to Thomas’s apartment in an attempt to locate him. The president of Weyrich testified that, upon opening Thomas’s apartment, the police officers observed that the apartment was full of old papers and trash. In Weyrich’s judgment, the condition of the apartment constituted a health-and-safety hazard that allegedly violated a provision in the lease requiring Thomas to keep his apartment clean and sanitary and to use reasonable diligence in the care of his apartment. Therefore, Weyrich decided to evict Thomas from his apartment based on this alleged nonmone-tary default under the lease.

Thomas testified at trial that in January of 2000, he left his Houston apartment and checked into the Veterans Affairs Hospital (“VA Hospital”) in Waco, Texas, for treatment for posttraumatic stress disorder. Thomas stated that he returned briefly to his Houston apartment in February of 2000, to find that it had been broken into and that, after his return to the VA Hospital, Thomas wrote a letter to Weyrich. In this letter, Thomas identified himself and his apartment unit, and stated the following, among other things:

I am now a patient in the Veterans Hospital, Waco[,] Texas. I hope that my stay hear [sic] will be brief. I have be [sic] here for about three 3 weeks.
The purpose for this letter is to inform you that I returned last week Saturday to find that my apartment had be [sic] broken into, and burgarized. [sic]
The door was broken into and some of my property was stolen and gone through.

Thomas testified that he sent this letter on or about February 29, 2000, along with a rental payment to Weyrich at a Houston post office box-the address to which Thomas was instructed to mail all of his correspondence. The president of Weyrich testified that this was Weyrich’s post office box under Bank One’s control and that the tenants of Thomas’s apartment complex were instructed to mail their rent payments to this address. Weyrich admitted at trial that Bank One received the above-quoted letter from Thomas on March 6, 2000. The envelope containing this letter bore a Waco postmark, although Thomas put his Houston apartment as the return address on the envelope.

Thomas testified that, when he left his Houston apartment to be hospitalized in Waco in January of 2000, the apartment was clean and livable and it did not look the way that it did in the photographs admitted in evidence at trial. Thomas testified to his belief that, after he left for the VA Hospital, but before the police officers entered his apartment on February 23, 2000, someone gained entry to his apartment and “trashed” it.

On or about March 8, 2000, two days after Bank One received Thomas’s February 29th letter, Weyrich posted a “notice to vacate” on the door to Thomas’s Houston apartment and sent a copy of the notice by certified mail to Thomas at the address of the Houston apartment. Thomas testified that, at that time, he was in the VA Hospital in Waco and, consequently, did not receive this notice. Less than a week after posting the notice to vacate, Weyrich filed a sworn complaint for forcible detainer in a justice court in Harris County. Regarding service of process, this complaint stated:

*398 Defendant resides in said Justice Precinct, 7, HARRIS County, Texas, and may be served with process at the Leased Premises ... which is: [address of Thomas’s Houston apartment] or at Defendant’s work address [blank line] or at such other place as the Defendant may be found. Plaintiff knows of no other home or work address of the Defendant in HARRIS County, Texas. Service is requested on defendants [sic] by personal service at home or work or by alternate service under Rule 742 or Rule 742a.

On March 21, 2000, a constable filed an affidavit with the justice court stating that he had made three unsuccessful attempts to serve Thomas personally at the apartment address. On March 22, 2000, the presiding judge of the justice court signed an order stating that all the requirements for alternative service under Rule 742a had been met and authorizing alternate service under this rule. The next day, a constable served the citation and complaint under Rule 742a. On April 4, 2000, the justice court signed a default judgment against Thomas, who was still undergoing inpatient treatment at the VA Hospital in Waco. Thomas testified that he did not appear because he did not receive service or notice of the proceedings. On April 11, 2000, the justice court signed a writ of possession, entitling Weyrich to possession of Thomas’s Houston apartment and commanding Thomas to leave the premises immediately.

At trial, Thomas testified that on April 13, 2000, after the deadline for appealing the default judgment had expired, an employee of Weyrich called him at the VA Hospital in Waco and told him that he had been sued and that he had been evicted from his Houston apartment. Thomas stated that he asked this employee if he could have thirty days to return to Houston to remove his property from the apartment and that the employee replied that she would give him two days to do so. Thomas testified that this was the first time he heard anything about being evicted. Thomas decided that he would return to Houston to try to retrieve his property. The next day, Thomas was discharged from the VA Hospital in Waco. He arrived in Houston by bus on April 15, 2000, and immediately went to his apartment but he could not get in because the locks had been changed. Thomas testified that, at some point, his furniture, belongings, and automobile were placed in storage and that he could not obtain these items from the storage company because he did not have the money to pay for the storage costs.

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148 S.W.3d 395, 2004 Tex. App. LEXIS 4770, 2004 WL 1171708, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-v-olympusnelson-property-management-texapp-2004.