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Reading is difficult. As a writer, I help the reader every way I can think of. As a reader, I work hard not to miss the big things in the middle of the road.

Sunday, November 10, 2013

Landlords Need Lawyers to Defend Eviction Appeals

New Caney Oaks Apartments evicts Ms. Kelly McClane. Texas eviction suits are heard in justice-of-the-peace courts. They are rare exceptions to the rule that corporations and such like must be represented in courts by lawyers. A landlord organized as a corporation or a limited liability company, etc. may just send an employee or other agent to JP court for an eviction, rather than hiring a lawyer.

The tenant loses by default, then appeals to a Montgomery County Court at Law. After a first setting in front of a visiting judge, the appellate case is reset to the next day. That day, the property manager appears, but neither the tenant nor any counsel for her. The appeal is dismissed because no one was present for the tenant. The tenant said later that she had called the County Court at Law that she would not be able to be present at that latter setting and that someone there said that she would get a notice of the date that the appeal was yet set again to. The tenant got a notice of yet another appearance date, about a month off. On that third setting, the property manager was there, but not McClane nor any lawyer for her. The judge defaulted the appeal in favor of the landlord.

McClane said that she was late because she couldn't find a parking space in or near Montgomery County's courthouse square and just drove around and around as the time ticked away (The courthouse public parking lots are the Baptist Church parking lot to the north northeast, the county parking garage to the west, and lots one and two blocks to the south. In and next to courthouse square are meticulously policed metered spaces.). With the aid of counsel, she files a motion for new trial, an amended motion, and, apparently, a second one-- the second with exhibits and an affidavit.  The county court at law overruled it and made a finding that the visiting judge at the first appellate proceeding did not have an order of appointment for that court, that that judge dismissed the appeal, and that a motion for new trial had been granted between the first and second appellate proceedings because of the lack of a judge's appointment in the first proceeding. As to the second one, the county court at law judge ruled that that the appellant had legitimately defaulted.

McClane appealed to the Court of Appeals at Beaumont. Justice David Gaultney, writing for a panel including Justices Charles Kreger and Hollis Horton, held that the eviction wasn't moot because McClane had put the adequacy of the notice to vacate in issue in her case and the lease had a holdover provision and she had not vacated the apartment. They held that the last county-court-at-law judgment was the final judgment in the case (which affects-- among other things-- court-of-appeals deadlines), because it was the first signed judgment. A first judgment was orally pronounced from the bench, but was never entered in writing. Lastly, they held that none of the exceptions that would allow New Caney Oaks to be represented by a non-lawyer in the county court at law would apply, and, therefore, the case had to be reversed and remanded.

Courts of appeals hate default judgments.

It is also good to find out what my old friend Richard Tomlinson-- a stalwart civil advocate for the poor-- is doing these days; he's apparently a senior counsel for Lone Star Legal Aid in Houston.

McClane v. New Caney Oaks Apartments, ___ S.W.3d ___, No. 09–13–00284 CV (October 31, 2013, Tex. App.--Beaumont,, no pet. h.)

2 comments:

  1. It is landlord who always gets into controversies very easily and needs to hire a good lawyer to get him out of the accusation. Nice article, Bob. Keep sharing the information.

    Regards,
    Kristo
    Personal Injury Attorney Tempa

    ReplyDelete
  2. Residents of other cities or counties in this state must also know how to deal with eviction problems.
    First of all, it is necessary to be familiar with your rights as a renter.
    The state government of California has passed several laws to safeguard tenants against illegal eviction.
    Even then, many landlords still continue to violate the civil liberties of their tenants.
    if you need more informacon check how to fight eviction

    ReplyDelete