Linda S. Nowlin v. Lori Keaton ( 2015 )

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
Will. 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
day of the month. Id.
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.
/s/ David Nowlin__________________
State Bar No. 24049196
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.
/s/ David Nowlin__________________
State Bar No. 24049196
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: . ^
questions mai ai>- «n-~..—, —
when
.x.
wnen you, o»>
you are all
ail together
mc «» i«5vw«« in the juryj room.
- j-
Member myprevious ins—: do"""
or by any other means. Do not do any mdependen invest gat on aoo informatio„
research^ not lookup any words"'"""""^JL- with the outer
reason.
^y notes youhave taken are for**™*>"£SZ?££%<""
jury room and consult them dunng deliberatesbu'f "f*°™^ r^h „fyou should rely on
feUow jurors during your deliberations. Your notes ^™*n£ ^* fJ, that another juror
nobody can read what you wrote.
Here are the instructions for answering the questions:
,. Do no. let bias, prejudice, or sympathy ptayanj_£_*_*££,aw that is in these
courtroom. . . f Ynu are the sole judges of the credibility
?$££££?** aword in away that is different from Us ordmary meaning, use the
meaning Igive you, which will be aP"f"" ^y that anyy4question or answer is
5. All the questions and answers are important. No one should say
not important.
IIIIIIllllllllll
000897604
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.. - or
6. Answer "yes nr »nn"
no to
to all Questions unless you
all questionsuni y are told otherwise.
requiresA"yes answer
an answer othermust
thanbe
based on apreponderance ofthe evidence. }Nhe^J"Q^e evidence. The term
"yes" or "no," your
"preponderance oftheanswer must bemeans
evidence" basedtheongreater
aPJJ'"jS^dence presented
™8^*££ eviden V ^ in this
cLIfyou do not find that aP^™^/^ ofwitnesses or by
^iden^ou mustfind thatthe fact ™""ons andthenJUstanswer
me"^
will win. Do not discuss or consider the effect your answers will have.
you answer another question my way. ,wi«nn Qf atleast 5 ofthe 6 jurors. The
less than 5jurors, even ifit would be amajority.
AS. have said before, ifyou do no, follow these"^J"his ,Qwould for
misconduct, and 1might have to order anew tnal and sttrittas P_«"^« «
immediately.
u,• u ^ u «ninirrT FV1DENCE" or by "CIRCUMSTANTIAL
Question 1:
elatingrepairer refurbishing costs, or doing preventive maintenance?
Answer "Yes" or "No".
Answer:
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peraniinal(nottoexceed SK'perdavper nal) from tliedatetheamma!
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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.
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w (& c*o*<*S deviceJj.lc_adk>iijoi^e^ciujxteno!jJi^
KEYS, FURNITURE AND AEF1DAVIT OF MOVE-OUT. 1 ou wi ln.-k 01 a keyed deadbolt lock ononcvei>JLy^oi_Ke>'edJock\s) will.be
provided ( dwelling key(s),_ ^mailbox kcy(s),and rekeved,iftei theprionesidentmo\esoi!I:Therekeyint; will bedoneeither
hpiou^yimniovein oi within 7 days alter you movein, as requited by
otheraccessdevices for .Anv resident,
Ailyresident.occupant, st-uinv JJ_^x»iiiii1Jn ijisLdlor rekev security devices as reciuued_bvjju;
orspousewho.accordiiigtoaremainingresident'saffidavil.hasiieniianenlly l'i-0pertvCodc\youhavelbeii^)ttodosoanddeducUbe_jk'as>|nablecos_t
moved out or is under court order to not enter (he dwelling, is (at our Lroiryout nextrentpayuiciilujidj^-vt"^
option) nolongerentitled looccupancy.keys.or other access devices. Your
dwelling willbe[ciieck one}: • furnished or0 unfurnished WhatYuuAreNowRequestinR-Siibject tosiuneliir:tations,underTexas
lawyonmayatanvtimeaskusto: (iJinstall onekeyed deadbolt lock on
an exterior dooi d itdot^nothavt one:(2) [ns',a,.ias(.curit\,baronaslid;ny;
RENT AND CHARGES. You will pay t.SU, 00 per month for glass door ifitdoes not have one; and (3) change orrekey locks oi latches
reJit.inadvaoceandwithoutdeniandat Qi»JT\f K <. Q.CLQX' {2tff* Wemustcompivwuhthoserequests, butvonmustpayforthem. Subject
VjJgJtS p/ilY^n PAWyfL, and payable toSkiwnei or tostatutoryrestrictionsnn whatsecurityde\ kos youmayrequest,vouare
now requestini; us to install or change al youi expense:
Prorated rent of $. l\/h is due for the remainder or icheck one}: ii!t~tt!lcdni,lUoi,iOipic*!i>!xno>ieiit f/'iV,
01st month ur02ndmonth,un Payment. Wewill pav furmissmj; security devices thataie required by
(year).Qllifuvi*:. yon iipint yourrentojini l'i!--hhi. Casliisunacceptui'Ie withoutcur to rekcy after tlie previous resident moved o_uXv_aDdJZLtc,pa>rg or
priorwritten permission. You must not withhold oroffset rent uulctsmtthorizcd replacements due tomisuse ordamageby-youorypm |amily,g&^ip_JujbJ
bystatute. Wemay,atouroption, requireatanytimethatyoupayallrent prgu.eiJ^Youmustpav immenlialelyallerthe workisilonennlessstatestxT.nte
and other sums in cash, certified or cashier's check, money order, or one
authorizes advance payment. xou aki mu^t pay !oiaddiiiona' or changed
sec'iinl v devices vou icc.icsl.m advance oi aMi-'u inl.al our option.
monthlycheck ratherthanmultiplechecks. Ifyoudon't payallrenton or
Special Provisions and "What If" Clauses
SPECIAL PROVISIONS. The followingor attached special provisions UNLAWFUL EARLY MOVL-OLT; KULriTtNG CILICE.
and anyaddendaor written rules furnished to you at or beforesigning ^lui'II be liable to us foi a reletting c'i.ii j;e ol y, j ^ $*) (no
will become a part of this Lease Contract and will supersede any to exceed 8"^.. of the highest iiumlMv ;enl during the I.ease
conflicting provisions of this printed Lease Contract form. Contract 'leim )TI vou:
Huneven pr^v\ j-es^rf -&• v' ytreJry r^ (] ) fail to move m, oi fail to e.ive
requned in paragraphs 23 <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«prtloiuirrepresentati\eaiHllotheapp
(3) lakes upmore thanonepnrking space, itthedwelling complex has Youalso must furnish us with the law-enlitrcemenlagency's incident repott
more than one living unit number upon request.
(4) belongs toaresident oroccupant whohassurrendered orabandoned CONDITION OFTHEPREMISES AND ALTERATIONS. Yiui accept tly
the dwelling dwelling, fixtures, and furniture asis,except for conditions material'",
(5) blocks another vehicle from exiting affecting; thehealthorsafety otordinary persons. Wedisclaim norinspeclionsticker,andwegive you
atleast 10daysnotice thatthevehicle willbetowed ifnotremoved. Youmust usecustomarydiligence- in maintaining thedwellingand not
damagingorlittering theoutside areas. Unless authorised bystatulenrbv
22. RELEASCOFRESIDENT. Unlessyou'reentilledtoterminatethisLease us in writing,you must not perform any repairs, painting, wallpapering,
Contract under paragraphs10,16,23.3 Uir37,ynuwon tbereleased from carpeting, electrical changes, orotherwise alter ourproperty. Noholcscr
thisLease Contract foranyreason—inrludingbutnotlimited lovoluntary stickersarcallowedinsideornutside thodwelling.We'llpennitaieasonable
orinvoluntary school withdrawal ortransfer, voluntary orinvoluntary job number of small nail holes for hanging pictures on sheetrock walls and
transfer, marriage, separation, divorce, reconciliation, lossofco-residents, grooves ofwood-paneled walls, unlessour rulesstateotherwise.No wattr
loss ofemployment, badhealth, death, orproperty purchase. You may also furniture,extraphoneor television outlets, alatmsystems, or lock change -,
have the right under Texaslaw to terminatethe LeaseContract in certain additions,or rekeyirg it- permitted unless allowed by statute or we've
situations involvingfamily violence orsexualassault. consented inwriting.You mayinstallasatellitedishoi antennaprovided
DeathcifSole Resident. Ifyou arethe soleresident and die during ihe vousignoursalellitedishorantenna ieasoaddendum which complies with
Lea^CtMitractlenn,the Lea^Conti-actmaybe terniinated without penalty reasonable restrictions allowed by federal law. You agree not to alter,
byanaitlhiw-edrepresentative, ofyourestatewithatleast30days written damage, or remove our property, including alaim systems, detection
notice. Yourestatewilllieliableforpaymentof rent until the latterof: (1) devices, furniture, telephone and televisionwiring, screens, locks,arid
the termination date, or (2) until all possessions in the apartment are securitydevices. Whenvoumovein,we'llsupply lightbulbsforfixtures
removed. Your estate willalso be liable for all charges and damages to the wefurnish,includingextenor fixtures operatedfrominsidethedwelling;
apartmentuntilit isvacated, and any removal and storagecosls. afterthat, you'll replacethemat yourexpensewithbulbso! thesame type
and wattage.Your improvements to the dwelling (whether or not we
23. MILITARY PERSONNEL CLAUSE. You may have the right under consent) become ours unless we agree otherwise in writing.
Texas law to terminate the Lease Contract in certain situations involving
militarydeploymentor transfer.YoumayterminatetheLeaseContract We are committed lo the principles of lair housing. In accordance wilh
if you enlist or are drafted or commissioned in the U.S. Armed borces. fairhousing laws,wewillmakereasonableaccommodatioi islooui rule>,
Youalso may terminate the LeaseContract if: policies, praefcicesor services,and /or willallowreasonable modifica::ons
(1) youare(i)amember oftheU.S ArmedForces orreserves onactive under such laws togive persons with disabilitiesaccesstoand useoflb ^
duty or (ii)a memberof the NationalGuard called to activeduty dwelling. We may require you to sign an addendum regarding the
formorethan30days in responsetoa nationalemergencydeclared approv.nl and impleir.ent.it ionofsuchaccommodations ormud:heation-;,
as well as rest out tion obligations, il any.
by the President; mid
(2) you sioi\(>vernowLiigse\yage,iincontnil'.!bterL:nning\\,aur,
housingdoesn't constitutea permanentchange-of-station order. After electrical shorts, cnine in progress, or fair housing accommodatior. or
yoLinnoveout. we'llreturnyonrsecutitydeposit,lesslawfuldeductions. modification) Our written notes on vour oral request do not constitute a
Forthe purposesofthisLeaseContract,orders describedin (2)abovewill written request from vou.
only release the resident who qualifies under (1) and (2) above and
receives the orders during the Lease Contract term and such residen t's Our complying with or responding toar.yoial request regarding seci;riiy
or non-security matters doesn't waive the strict requirement forwritten
spouse or legaldependents living in the resident's household, Aco
resident who is not your spouse oi dependent cannot terminate under notices under this Lease Contract. You must promptly not ily us in writing
of.water leaks;mold;electricalproblems,maltunctioninglights;broken 11,
this military clause. Unless you state otherwise in paragraph 10,you
represent whensigning thisLease Contractthat:(1) youdonotalready missingUvrksorlatche.sand otherconditionsthatposea hazard top: opertv,
have deployment or change-of-station orders; (2)you will not be retiring health,o; safety. We mavchangeor install utilitvlinesorequipment seiving
from the military during the LeaseContract term;and (3)the term ofyour thedw-elliiigifthewoikisdc*nei'eap<)nablvwithoutsubstantial!yLncreasiiig
enlistment or obligation will not end before the LeaseContract termends. vour utilitv costs. We m.iv turn off equipment and interrupt utilities ,is
Liquidated damages foi making a false iepresenlation of theabove will needed loavoid proport\ damage or lo perform work. Ifutilitiesinalfunc-tio:-,
be the amount of unpaid rent for the remainder of the lease term when or are damaged bv fire, water, or similar cause, you must norl.y us
immediately. Aircondition ingproblems arenormally notemergencies. It
and ifyou moveout, less renls fromothers receivedin mitigation under
paragraph 32 Youmust immediately notify us ifyou arecalled to active nirconditioningorotherequipmentmailum. lions,voumustnotifyusassoon
duty or receive deployment or permanent change-of-station orders. as possible on a business day We'llact with customary diligence to make
repaireandt^econnections,taldjigmtoconsidiM\itio!iwhencasualr\'insur,uiJt'
24. RESIDENTSAFETY AND LOSS. You and aUoccupanlsand guests must proceeds are received. Kentwill not abate m whole or in part
exercisedue care for your own and others'safely and security, especially If wo believe that fire or catastrophic damage is substantial, or thai
in the use of smoke alannsandotherdetection devices, door and window
pertormanceofneededrepairsposesadangertoyon,wemaytermina'.tti is
locks,and othersafety orsecurity devices. Youagree to make every effort Lease Contract bv giving you at least? days written notice We may also
to follow the Security Guidelines on page?. Window screens are not Jor removepersonal propertv ifilcauses a health or safely hazard. Ifthe Lease
security or keeping people from falling out. Con tract isso termina ted, we'll refund prorated rent and all deposits '.ess
Alarms and Detection Devices. We'll furnish smoke alarms or other lawful deductions.
detection devices required by statute, and we'll test them and provide Repairs and Service Calls. We will pay for lepaiis ot conditions that
workingbatteries when vou firsttake possession.Afterthat,you must pay materiallyaffectthe healthor satetyot an oniinarv resident (i.e dangerous
forand replacebalteitesas needed, unless the law provides otherwise. We or hazardous conditions). Otherwise, vou'J lx*responsible tor the first
may replacedead or missing batteries at your expense, without prior notice 5-— \3 *~ of anv iepa ivo r se ivice call.
to you. Youmust immediately report alarm or detector maIfunctions to us.
Npithpr ynn nor othprsmny disable alarms or detectors. Ituou danitlpc or Yard Maintenance, Unless weexpi essly assume the responsibility be;oA,
disable tilesmoke alarm oi icmoivakitlay without replacing itwith mvoi-kiny you must pav tor yard maintenance and yird po^tcontrol.
battery, youmaybeliable tousunder Section 92.2611 oftheProperty Codefor "(l)Whowill keep the lawn mowed .md edged, and maintain all p..inis.
$WU plusonemonth's rent, actual dniiuivt'S.aml attorney'sfees.Youaiso will trees, shrubs, etc.7 fponu or O Us ,
be liable to us and others if you fail to report malfunctions, or any loss, (2)Who will water the lawn and other vegetation.1 WYou oi G Us
da mage, or finesresultingfrnm fire,«moke.or water. Upon,request, we will (3)VVliowillkwpfhelavvn,flowenb^ds,sidevvaiks,piirches,anddrivew.n^
[irovide.asr^iiiretibylaw.asmokealamicapabieofalerhngapei^jnwith free of tiash and debris? a You or ~S I's
a hearing-impairment disability. (4) Who is obligated to fertilize lawn and plants?
• You D Us or GJ'Neither
Loss. We're not liable loany ivsident.guest.or occupant for personal injury
You must promptly report infestations oi living vegetation tons. Yu:
ordamage or lossof personal property or business or personal income from mav not modify the existing landscape, change any plants, oi plant ,i
anycauseincludingbutnot limitedto fire,smoke,ram,flood,waterleaks, garden without our prior written approval
hail, ice. snow, lightning, wind, explosions, interruption of utilities, pipe
leaks, theft,negligent or intentional actsol residents, orcupanls, or guests, Interior Pest Control and Trash Receptacles. Unless paragraph lOs.^ys
or vandalism unless otherwise required bv law. We have no duty to otherwise, we'll arrange and pav tor extermination services for uJpeMs
remove anv ice,sleet, or snow bul may remove any amount with or without within the dwelling, as needed in our reasonable judgment.
not ice.Unless we instruct otherwise, you must—for 24hoursa day during ll)Who will hut iallv pay for outside trasla receptacles for your um"'
freezing weather—(1) keep the dwelling heated to at least o0 degrees; OYou DUs D City Utility oi J?K)ther
(2) keep cabinet and closet doors open,.mil (3) drip hot and cold water (2)It we pay for trash receptacles initially, who must repair o; replncc
faucets You'll be liable for damage toour and others'property if damage them if they're brokenormissing1 *1 You or H Us M/1/^
iscaused by broken water pipes due to your violating these requirements.
Youi Initials: , Initials or Our Rltrescnt avivi Residential Lease Com kali ; Atartment AssnciAiioN, 1m J1
37
Trash receptacles must he kepi dosed. ,m„ | c-nmph will, loial
ordinances regarding trash disposal We may designate which hash lopla. etnent-.i ling lepairuriefurhishingcosts pertornungpesl
recepl.u les will he sloied on Ihe premises,111,1 where lliey'l]Iv conlrol; doing preventive maintenance, checking tor water leaks
changing filler,, icsiing or replacing .Icicchun or alarm devices 01
ANIMALS. Mouuiniiit-. tin. /ui/eie wmmiiai.. i.yuh*. InJ* ti-h. msIci.'s ,1 to, lipment, or appliances,
miiiliilmii\uii.elini.ts. unit i,i>ret.)in, .llloavj, c:v,i tciuyoiiinh'/. .nm.'lriciil lilies, e. ercising our c nntiactual
lien; leaving
ik-itm-llm;;, ponl,,* ;»,I/,n. M,™,,-,. ,., „,„,(,• „„',,.„ ,„•',,• ,,, „„//„,„•.,.,, ,„ ik-tKes, deliiene.g, installing, rc-connecting, orreplacing appliance,
ii'iilm^. [fweallow ananimal, vi111 mustsignaseparate animal.id.lend i;m luriiiture, equipment, or security devices, removing or rekeying
andpayananimal deposit. An animal deposit isconsidered a genera] unaulhnn^ls*airir)cfcvices;annovmgiinauthorizedv™dowcoverings;
security deposit. We willnitthori/ea support animal foi adisabled person stopping excessive noise; removing lieallh orsafety hazards (including
hut will nntrequire aniinima) deposit. VVomay reijllii cm written statement hazardous materials), oritems prohibiled underourrules; removing
Irnni a qualified professional verifying theneed torthesupport animal. peiishable foodstuffs ifyour electricity isdisconnected; removing
Yonmust not f.vd stray or wild animals or allow unauthorized animals unauthorized animals; disconnecting utilities involving bona fide
tohetied 10 anypinch, tree, orolher object onihe premises atany time. repairs, emergencies or construction; retrieving property owned or
Ifyouorany guesloi occupantviolatesanimalrestrictions(withor withoul leased by former residents; inspecting when immediate danger to
your knowledge), you'll tie suhje-rt to charges, damages,c\ iction, and personor property isreasonablysuspected;allowing personstoenter
other remedies provided in this I.ease Contract. Ifan animal has been in asyouautlrarizedinyourrentalapplicahon(ifyoudie,areincarcerated,
thedwelling at anvtimeduringyourterm ofoccupancy iv,ilhor without etc.); allowing entry bya law officer with asearch orarrest warrant!
ourconsent), we'll charge youforallcleaning and repair crisis, including or in hotpursuit; showing dwelling toprospective residents (after
defleaing, deodorizing, andshampooing. Initial and daily animal violation move-out orvacate notice hasbeen given); orshowing thedwelling
charges andanimal-removal charges areliquidated damagesfoiour time, togovernment representatives for thelimitedpurposeofdetermining
inconvenience, and overhead (except roi attorney's fees and litigahon housing and fire ordinance compliance, and tolenders, appraisers,
costs) in enforcing animal restrictions and rules We may remove an contractors, prospective buyers, or insurance agents.
unaiilhori/eclanimal by(I)leaving, inaconspiciiousplace in'lhe dwelling, MULTIPLE RESIDENTSOROCCUPANTS.Eachresidentisjointlyand
a 24-hour written notice otintent toremove theanimal, and12} following severally liable for all Lease Contract obligations. Ifyou orany guest or
Iheprocednresof paragraph 1H. Wemaykeepor kennel theannual01turn occupantviolatestheLeaseContractormles,allresidemsareconsideredto
itoverloa humane society or local authority. When keeping or kenneling have violated Ihe Lease Contract. Our requests and notices (including sale
an animal, we ivon'l Iv liablelor loss,harm, sickness. 01death of the animal notices) toany resident constitute notice toall residents and occupants.
unless duetoournegligence. We'll return llie animal tovou upon request ilit Notices andrequests fromanyresident oroccupant constitute notice from
hasnolalready been luriiedoverloahumane.society orlocalaulhurit\. Vou all residents. Your notice of LeaseContract termination may only be given
mustpaytortheanimars reasnnablecareand kenneling charges Weh.nr by residents. Ineviction suits, each resident isconsidered the agent ofall
no lien on the animal tor any pinpose other residents in thedwelling for service ofprocess. Any resident who
WHEN WE MAY ENTER. Ilvou 01 anvguest ororcupanl isp,™ m,then defaults under this Uase Contract will indemnify the non-defaulting
repairers.servicers.contraclor.s oiirrepreseni.itiee^, oroil-eroer^nyli, 1.1
residents and their guarantors
l"1"1"1""' I""I rlI'll' eoler Ihe dwoiUnggj reasonable limes l,,r>ll„, Security deposit refund check and anydeduction itemizations will beby: (check
purposes listed in12) Ivloiv II nobody isinthcclwclling-,!rvn~s'uc-ri pcr-jms ,'iuI: a one checkjointly payable to all residents and mailed to anv one
may enlei peacefullyand at reasonable limes In duplicate or master key resident wechoose, OR . \I j
(or by breaking .1w mdoic or ollic-r means when neccs-ai VIit 3one check payable and mailed to l-OO |sgi»J|:Tl-'~i
(1) written notireol Ihe entry is jett ill nnspicuous place ir.thedwelling . {specifynameofone resident).
immediately alter the entry; and Ifneither ischecked, then the refund will be made in one check jointly
(2) entry is for: responding to your request; making repai payable to nil residents.
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