Lease Law | Eviction and Other Landlord-Tenant Disputes

LEASE LAW TERMINOLOGY: commercial lease | residential lease dispute | terms of lease agreement | amendments
| renewal | breach of contract | breaching lease | lessor | lessee | tenants | landlords | lock out | eviction | forcible entry
and detainer | right to possession | writ of possession | notice of termination | tenant at suffrage | holdover tenant | title
to property | compliance | estoppel | mitigation of damages | rescission | DTPA | notice | misrepresentaton |
nondisclosure | default | noncompliance | non-payment of rent | failure to pay |

Recent Lease Law Opinions from the Houston Courts of Appeals

Cook v. Missionary Village Apartments (Tex.App.- Houston [ 1st Dist.] Dec. 19, 2008)(Nuchia)
(eviction appeal, federally subsidized housing)
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Nuchia
Before Justices Nuchia, Alcala and Hanks
01-07-00279-CV Damini Cook v. Missionary Village Apartments
Appeal from County Civil Court at Law No 1 of Harris County
Trial Court Judge: Hon. Jack Cagle

Gellien v. Federal Home Loan Mortgage Corp (Tex.App.- Houston [1st Dist.] Oct. 23, 2008)(Radack)
(foreclosure, eviction, forcible entry and detainer, FE&D, order of possession appeal)
DISMISS APPEAL: Opinion by Chief Justice Radack
Before Chief Justice Radack, Justices Nuchia and Higley
01-07-00075-CV Joseph and Adrienne Gallien v. Federal Home Loan Mortgage Corporation
Appeal from County Civil Court at Law No 2 of Harris County
Trial Court Judge: Hon. Gary Michael Block

Hines v. JPMorgan Chase Bank NA (Tex.App.- Houston [14th Dist.] Oct. 9, 2008)(per curiam)
(appeal from commercial eviction possession order not authorized, DWOJ)
DISMISSED: Per Curiam
Before Justices Brock Yates, Seymore and Boyce
14-08-00707-CV Bernice H. Hines, d/b/a Krestmont Kiddie College v. JPMorgan Chase Bank, N.A.,,
Et Al.
Appeal from County Civil Court at Law No 4 of Harris County
Trial Court Judge: Roberta Anne Lloyd

Luccia v. Ross (Tex.App.- Houston [1st Dist.] Sep. 4, 2008)(Alcala)
(lease law, real estate sale purchase option for property, specific performance)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Alcala
Before Justices Taft, Keyes and Alcala
01-07-00080-CV Paul Luccia, Individually and d/b/a Cabot & Rowe v. Kathryn L. Ross
Appeal from 80th District Court of Harris County
Trial Court Judge: Hon. Kent C. Sullivan

Salymeh v. Plaza Centro, LLC (Tex. App.- Houston [1st Dist.] Aug. 26, 2008)(Seymore)
(lease law, landlord-tenant, forcible detainer, right of possession, lost rents not proven)
AFFIRMED: Opinion by Justice Seymore
Before Justices Fowler, Seymore and Guzman
14-06-01101-CV Mohammad Salymeh d/b/a Muebleria Y Bazar Tierrablanca v. Plaza Centro,
LLCAppeal from County Civil Court at Law No 2 of Harris County
Trial Court Judge: Judge Gary Michael Block

Randall's Food and Drugs, LP v. Patton (Tex.App.- Houston [1st Dist.] Aug 21,2008)(Radack)
(lease law commercial, sublease, duty to mitigate damages, anticipatory repudiation)
AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack
Before Chief Justice Radack, Justices Keyes and Higley
01-06-00821-CV Randall's Food and Drugs, L.P. v. Bill Patton d/b/a Linux Professional Group
Appeal from Civil County Court at Law No 4 of Harris County
Trial Court Judge: Hon. Roberta A. Lloyd

O'Kane v. Coleman (Tex.App.- Houston [14th Dist.] July 1, 2008)(Fowler)(lease law, Theft Liability Act
claim, amendment of pleadings prior to hearing, tortious interference, defense of privilege, denial of
motion for continuance, admissions exclusion of summary judgment evidence)
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Fowler
Before Justices Fowler, Frost and Seymore
14-06-00657-CV Jon Richard O'Kane v. Jeff Coleman, Individually and Enterprise Rent-A-Car
Company of Texas, Inc.
Appeal from 10th District Court of Galveston County
Trial Court Judge: David Edward Garner

Ebrahim v. Middlebury Properties, II (Tex.App.- Houston [1st Dist.] Mar. 6, 2008)(Nuchia) (lease law,
property code, mobile home park, Fair Housing Act, preservation of error, TC record)
AFFIRM TC JUDGMENT: Opinion by Justice Nuchia
01-06-01175-CV Lisha Ebrahim v. Middlebury Properties, II, L.P.
Appeal from 55th District Court of Harris County
Trial Court Judge: Hon. Jeffrey Brown

Lovall v. Yen (Tex.App.- Houston [14th Dist.] Feb. 12, 2008)(lease law, eviction, lease, unpaid rent,
bond, supersedeas, registry of the court)
DISMISSED: Opinion by Chief Justice Hedges
14-07-00770-CV Lizzie Lovall v. Judy Yen
Appeal from County Civil Court at Law No 3 of Harris County (Judge Hon. Lynn Bradshaw-Hull)

Was commercial lease ambiguous?
Narsi v. Weingarten Realty Investors (Tex.App.- Houston [1st Dist.] Nov. 29, 2007)(Hanks)
(commercial breach of lease, mitigation defense, attorney's fees)
AFFIRM TC JUDGMENT: Opinion by Justice Hanks
01-06-00690-CV Amirali M. Narsi v. Weingarten Realty Investors
Appeal from 189th District Court of Harris County (Hon. William R. Burke, Jr.)

Shopping center tenant's fraud claims fail - Summary judgment for defendants affirmed
Loewe v. Trammell Crow Co. (Tex.App.- Houston [14th Dist.] Nov. 15, 2007)(Edelman)(commercial
lease, DTPA, Real Estate Licensing Act, RELA, common law statutory fraud claim, hearsay objection
to web site printout sustained, summary judgment evidence stricken)
AFFIRMED: Opinion by Justice Edelman
14-06-00971-CV Jeanenne Loewe, Individually, and d/b/a The Elite Salon of 1960 v. Trammell Crow
Company and Trammell Crow Houston, Ltd.
Appeal from 334th District Court of Harris County (Hon. Sharon McCally)

Broussard v. Knox (Tex.App.- Houston [14th Dist.] Aug. 16, 2007)(Anderson) (commercial lease,
landlord-tenant, DTPA)
AFFIRMED: Opinion by Justice Anderson
14-06-00225-CV Joseph H. Broussard d/b/a The Billiard Emporium v. Myrtle A. Knox d/b/a Mainland
Plaza Shopping Center, Knox's Interest's, Et Al, Attorney James C. Daniels, James C. Daniels, PC., Et
Al--Appeal from 10th District Court of Galveston County (Hon. David Edward Garner)

7979 Airport Garage, LLC v. Dollar Rent a Car Systems (Tex.App.- Houston [14th Dist.] Apr. 27,
2007)(Guzman)(lease case, repairs, contractual attorneys fees, fee segregation, counterclaim)
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Guzman
14-05-00484-CV        7979 Airport Garage, LLC v. Dollar Rent a Car Systems, Inc.
Appeal from 80th District Court of Harris County (Judge Kent Sullivan)

Whitmire v. Greenridge Place Apartments (Tex.App.- Houston [1st Dist.] Oct. 4, 2007)(Bland)(forcible
detainer)
AFFIRM TC JUDGMENT: Opinion by Justice Bland
01-06-00963-CV Michael Whitmire v. Greenridge Place Apartments
Appeal from Co Civil Ct at Law No 4 of Harris County (Hon. Roberta A. Lloyd)

Armstrong v. Harris (Tex.App.- Houston [14th Dist.] Oct. 2, 2007)(Yates)(forcible detainer)
AFFIRMED: Opinion by Justice Brock Yates
14-06-00491-CV Robert Lee Armstrong, Jr. v. Eddie Mae Harris
Appeal from County Court at Law No 1 of Galveston County (Hon. Mary Nell Crapitto)

Page v. Hulse (Tex.App.- Houston [14th Dist.] Jul. 26, 2007)(Hedges)(breach of lease)
AFFIRMED: Opinion by Justice Brock Yates
14-06-00731-CV Temple B. Page v. Maureen Lorraine Hulse
Appeal from 125th District Court of Harris County (Judge John A. Coselli)

Hong Kong Development Inc. v. Kim Loan Nguyen (Tex.App.- Houston [1st Dist.] Jun. 7, 2007)(Taft)
[commercial real estate, lease, forcible entry and detainer]
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TC
FOR FURTHER PROCEEDINGS: Opinion by Justice Taft
01-04-00586-CV Hong Kong Development, Inc., Hai Du Duong, and Phuong Truong Tu v. Kim Loan
Nguyen d/b/a Alpha Baker
Appeal from Co Civil Ct at Law No 1 of Harris County (Hon. Jack Cagle)

Mojtahedi v. BHV Realty (Tex.App.- Houston [14th Dist.] Mar. 15, 2007)(Justice Frost) (lease law,
eviction)
This appeal arises out of a landlord/tenant dispute. When the tenant failed to pay rent, the landlord filed a forcible-
entry-and-detainer action and obtained a judgment and writ of possession. Upon execution of the writ of possession,
the locks at the leased premised were changed, and a constable seized the tenant's personal belongings, which
were removed and taken to a storage facility. The tenant later sued the landlord alleging wrongful eviction,
conversion, and intentional infliction of emotional distress. The trial court granted summary judgment in favor of the
landlord. We affirm.

================
LEASE LAW, EVICTION, FORCIBLE DETAINER CASE OPINIONS (OR EXCERPTS)

Mojtahedi v. BHV Realty (Tex.App.- Houston [14th Dist.] Mar. 15, 2007)(Justice Frost) (lease law, eviction)
This appeal arises out of a landlord/tenant dispute. When the tenant failed to pay rent, the landlord filed a forcible-
entry-and-detainer action and obtained a judgment and writ of possession. Upon execution of the writ of possession,
the locks at the leased premised were changed, and a constable seized the tenant's personal belongings, which
were removed and taken to a storage facility. The tenant later sued the landlord alleging wrongful eviction,
conversion, and intentional infliction of emotional distress. The trial court granted summary judgment in favor of the
landlord. We affirm.

Whitmire v. Greenridge Place Apartments (Tex.App.- Houston [1st Dist.] Oct. 4, 2007)(Bland)(forcible detainer)

M E M O R A N D U M O P I N I O N

Michael Whitmire appeals a judgment in favor of Greenridge Place Apartments (Greenridge) in this forcible entry and
detainer case, awarding Greenridge possession, $850 in unpaid rent, and $850 in attorney’s fees. Whitmire
contends that (1) Greenridge failed to present sufficient evidence that it personally served him, (2) the county court
erred in denying his motion for a directed verdict as to the existence of a valid lease and damages, (3) Greenridge
failed to present sufficient evidence to support the county court’s award of attorney’s fees, and (4) the county court
abused its discretion in setting the supersedeas bond and in modifying the bond after the expiration of the court’s
plenary power. We conclude that (1) Whitmire’s appearance waives any complaint regarding defects in service, (2)
the evidence is legally sufficient to support the both county court’s finding that a landlord-tenant relationship existed
between Greenridge and Whitmire and its award of damages to Greenridge for unpaid rent, (3) the evidence is legally
and factually sufficient to support the attorney’s fees award, and (4) under Texas Property Code 24.007, the county
court did not abuse its discretion in setting or modifying the supersedeas bond. We therefore affirm.

Background

Greenridge is a residential apartment complex in west Houston. Greenridge leased an apartment to Whitmire from
July 1, 2005 until March 31, 2006. On March 28, 2006, Whitmire and Greenridge renewed the lease for the term of
April 1, 2006 until January 31, 2007. According to both leases, Whitmire was obligated to pay rent of $850 on the first
day of each month.

Whitmire failed to pay rent for April 2006, so Greenridge notified Whitmire that he must vacate his apartment. When
Whitmire failed to comply, Greenridge filed a forcible entry and detainer action in a Harris County Justice of the Peace
Court and obtained a default judgment. See Tex. Prop. Code Ann. § 24.004 (Vernon 2000) (“A justice court in the
precinct in which the real property is located has jurisdiction in eviction suits. Eviction suits include forcible entry and
detainer and forcible detainer suits.”). Whitmire appealed, seeking a trial de novo in County Civil Court at Law No. 4.
See Tex. R. Civ. P. 574b, 749. After a bench trial, the county court entered a judgment in favor of Greenridge. The
court awarded Greenridge possession of the leased premises, $850 in damages for back rent, and $850 in attorney’
s fees. The court also set Whitmire’s supersedeas bond at $10,000.   Whitmire has remained in possession of the
apartment during the pendency of these proceedings.

Legal and Factual Sufficiency
* * *
B. Forcible Entry and Detainer

“An action for forcible detainer is intended to be a speedy, simple, and inexpensive means to obtain immediate
possession of property.” Marshall v. Hous. Auth. of City of San Antonio, 198 S.W.3d 782, 787 (Tex. 2006). “A person
commits a forcible entry and detainer if the person enters the real property of another without legal authority or by
force and refuses to surrender possession on demand.” Tex. Prop. Code Ann. § 24.001(a) (Vernon 2000).

A person who refuses to surrender possession of real property on demand commits a forcible detainer if the person:

(1) is a tenant or a subtenant wilfully and without force holding over after the termination of the tenant’s right of
possession;

(2) is a tenant at will or by sufferance, including an occupant at the time of foreclosure of a lien superior to the tenant’s
lease; or

(3) is a tenant of a person who acquired possession by forcible entry.

Tex. Prop. Code Ann. § 24.002(a) (Vernon 2000). The only issue decided in a forcible detainer action is which party
has the right to immediate possession of the property. Tex. R. Civ. P. 746; Dass, Inc. v. Smith, 206 S.W.3d 197, 200
(Tex. App.—Dallas 2006, no pet.); Rice v. Pinney, 51 S.W.3d 705, 709 (Tex. App.—Dallas 2001, no pet.). A forcible
detainer action is dependent on proof of a landlord-tenant relationship. Rice, 51 S.W.3d at 712; Haith v. Drake, 596 S.
W.2d 194, 196 (Tex. Civ. App.—Houston [1st Dist.] 1980, writ ref’d n.r.e.). “To prevail in a forcible detainer action, a
plaintiff is not required to prove title, but is only required to show sufficient evidence of ownership to demonstrate a
superior right to immediate possession.” Rice, 51 S.W.3d at 709; Goggins v. Leo, 849 S.W.2d 373, 377 (Tex. App.—
Houston [14th Dist.] 1993, no writ).

A suit for rent may be joined with an action for forcible detainer, as long as the claim for rent falls within the justice
court’s jurisdiction. Tex. R. Civ. P. 738. Additionally, in a trial de novo on appeal to the county court, “the appellant or
appellee shall be permitted to plead, prove and recover his damages, if any, suffered for withholding or defending
possession of the premises during the pendency of the appeal,” although only the party prevailing in the county court
may recover these damages. Tex. R. Civ. P. 752; Hong Kong Dev., Inc. v. Nguyen, 229 S.W.3d 415, 434 (Tex. App.—
Houston [1st Dist.] 2007, no pet. h.). “Such damages include, but are not limited to, loss of rents during the appeal’s
pendency and reasonable attorney’s fees in the justice and county courts . . . .” Id.; see also Tex. R. Civ. P. 752.

C. Personal Service

In his first issue, Whitmire contends that Greenridge failed to present sufficient evidence that it personally served him
a citation to appear. Greenridge responds that Whitmire waived any defect in service by appealing the default
judgment of the justice court in the county court.

“[P]erfection of an appeal to county court from a justice court for trial de novo vacates and annuls the judgment of the
justice court.” Villalon v. Bank One, 176 S.W.3d 66, 69–70 (Tex. App.—Houston [1st Dist.] 2004, pet. denied); see also
Tex. R. Civ. P. 574b; In re Garza, 990 S.W.2d 372, 374 (Tex. App.—Corpus Christi 1999, orig. proceeding); Richard v.
Taylor, 886 S.W.2d 848, 851 (Tex. App.—Beaumont 1994, writ denied). Additionally, a defendant waives any defect in
service by filing an answer. See Tex. R. Civ. P. 121 (“An answer shall constitute an appearance of the defendant so
as to dispense with the necessity for the issuance or service of citation upon him.”); Burrow v. Arce, 997 S.W.2d 229,
246 (Tex. 1999) (“The filing of an answer dispenses with the necessity of service of citation.”); Dawson-Austin v.
Austin, 968 S.W.2d 319, 322 (Tex. 1998); In re $475,001.16, 96 S.W.3d 625, 628–29 (Tex. App.—Houston [1st Dist.]
2002, no pet.).

Here, Whitmire appealed the default judgment of the justice court and answered Greenridge’s petition in the county
court. Whitmire’s appeal and answer to Greenridge’s petition constitutes an appearance, and he therefore waived
any complaint regarding defects in service of process. See Tex. R. Civ. P. 121; Burrow, 997 S.W.2d at 246; Dawson-
Austin, 968 S.W.2d at 322; In re $475,001.16, 96 S.W.3d at 628–29.

D.

1. Landlord-Tenant Relationship

Whitmire first contends that the evidence is legally insufficient to support the county court’s finding that a landlord-
tenant relationship existed between Whitmire and Greenridge because Greenridge did not admit the April 2006 lease
into evidence before resting its case. We consider, however, all of the evidence offered at trial to determine whether
the evidence is legally sufficient. See Natural Gas Clearinghouse v. Midgard Energy Co., 113 S.W.3d 400, 411–12
(Tex. App.—Amarillo 2003, pet. denied).

Greenridge admitted the April 2006 lease into evidence during its rebuttal case. Whitmire and a representative of
Greenridge signed the lease. The lease required Whitmire to make a rental payment of $850 on April 1, 2006. The
evidence is therefore legally sufficient to support the county court’s finding that a landlord-tenant relationship existed
between Greenridge and Whitmire. See City of Keller, 168 S.W.3d at 827; see also Tex. Prop. Code Ann. § 24.002(a)
(1).

2. Damages for Unpaid Rent

Whitmire also contends that the evidence is legally insufficient to support the county court’s award of $850 in
damages to Greenridge for unpaid rent. At trial, Greenridge admitted the April 2006 lease, which required Whitmire to
make a rent payment of $850 on April 1, 2006. Christy Wagner, a representative of Greenridge, testified that Whitmire
failed to pay rent for April 2006. Whitmire testified that he did not tender the April 1, 2006 rent payment until April 24.
In accordance with the lease, Greenridge rejected the payment and demanded that Whitmire vacate his apartment.
We hold that the evidence presented would enable a reasonable and fair-minded trial judge to find that Whitmire
owed Greenridge $850 in rent for April 2006. See City of Keller, 168 S.W.3d at 827. The evidence is therefore legally
sufficient to support the county court’s award of $850 in damages to Greenridge for unpaid rent. See id.

E. Attorney’s Fees

In his third issue, Whitmire contends that the evidence is legally and factually insufficient to support the county court’s
award of $850 in attorney’s fees to Greenridge.   See Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex. 1998); Stewart Title
Guar. Co. v. Sterling, 822 S.W.2d 1, 12 (Tex. 1991).

Texas Property Code section 24.006 authorizes a landlord who prevails in a forcible detainer action to recover
reasonable attorney’s fees from the tenant. Tex. Prop. Code Ann. § 24.006(b) (Vernon 2000) (“If the landlord provides
the tenant notice under Subsection (a) or if a written lease entitles the landlord to recover attorney’s fees, a prevailing
landlord is entitled to recover reasonable attorney’s fees from the tenant.”);[1] see also Tex. R. Civ. P. 752. We review
an award of attorney’s fees under an abuse of discretion standard. See Bocquet, 972 S.W.2d at 21. A trial court
abuses its discretion in awarding attorney’s fees if it acts arbitrarily, unreasonably, or without regard to guiding legal
principles, or if its decision is not supported by legally or factually sufficient evidence. Id.; Charette v. Fitzgerald, 213 S.
W.3d 505, 512 (Tex. App.—Houston [14th Dist.] 2006, no pet.); see also Volume Millwork, Inc. v. W. Houston Airport
Corp., 218 S.W.3d 722, 735 (Tex. App.—Houston [1st Dist.] 2006, pet. denied) (“The reasonableness of an attorney’s
fee award generally presents a question of fact.”).

An award of attorney’s fees must be supported by evidence that the fees were both reasonable and necessary. See
Bocquet, 972 S.W.2d at 21; Sterling, 822 S.W.2d at 10. Factors a trial court considers in determining the
reasonableness of attorney’s fees include: (1) the time and labor required, the novelty and difficulty of the questions
involved, and the skill required to perform the legal service properly; (2) the likelihood that the acceptance of the
particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for
similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client
or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience,
reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent
upon results obtained or uncertainty of collection before the legal services have been rendered. See Hoover Slovacek
LLP v. Walton, 206 S.W.3d 557, 561 n.7 (Tex. 2006); Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818
(Tex. 1997).

Greenridge’s attorney, Magnus Rayos, testified that he has been practicing law since 2005 and is familiar with
reasonable and necessary attorney’s fees pertaining to forcible detainer actions in Harris County, Texas. Rayos
testified that in this case, attorney’s fees of $850 were reasonable and necessary based upon his work in preparing
testimony and attending trial. Rayos’s testimony was undisputed, and Whitmire declined to cross-examine Rayos.
See Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 882 (Tex. 1990); Lofton v. Texas Brine Corp., 777 S.W.
2d 384, 386 (Tex. 1989). We hold that the evidence Greenridge presented on attorney’s fees would enable
reasonable and fair-minded people to find that attorney’s fees of $850 were reasonable and necessary. See City of
Keller, 168 S.W.3d at 827. We also hold that the evidence supporting the county court’s award of attorney’s fees was
not so weak as to make the court’s finding clearly wrong and manifestly unjust. See Cain, 709 S.W.2d at 176.
Greenridge therefore presented legally and factually sufficient evidence to support the county court’s award of attorney’
s fees. See City of Keller, 168 S.W.3d at 827; Cain, 709 S.W.2d at 176; see also Ragsdale, 801 S.W.2d at 882
(holding that evidence was sufficient to support trial court’s award of attorney’s fees); Volume Millwork, Inc., 218 S.W.
3d at 735–36 (same).

Supersedeas Bond

In his fourth issue, Whitmire contends the county court abused its discretion in setting the supersedeas bond at
$10,000.[2]

A. Excessive Bond

Whitmire first contends that the $10,000 supersedeas bond is unreasonably high. Greenridge responds that the
amount of the supersedeas bond is proper because the Texas Property Code expressly permits a trial court to
consider the value of rent likely to accrue during the appeal of a forcible detainer case in setting the amount of a
supersedeas bond. See Tex. Prop. Code Ann. § 24.007 (Vernon 2000). We note that Whitmire has remained in
possession of the property since the judgment was signed on July 13, 2006.

We review the trial court’s rulings concerning the amount and type of bond required and the sufficiency of the sureties
under an abuse of discretion standard. See Tex. R. App. P. 24.4; Miller v. Kennedy & Minshew, Prof’l Corp., 80 S.W.3d
161, 165 (Tex. App.—Fort Worth 2002, no pet.). The test for whether a trial court abused its discretion is whether the
court acted arbitrarily or unreasonably in light of all the circumstances of the case. McDaniel v. Yarbrough, 898 S.W.
2d 251,

253 (Tex. 1995); Lewis v. W. Waste Indus., 950 S.W.2d 407, 410 (Tex. App.—Houston [1st Dist.] 1997, no writ).

Texas Property Code section 24.007 provides:

A judgment of a county court may not under any circumstances be stayed pending appeal unless, within 10 days of
the signing of the judgment, the appellant files a supersedeas bond in an amount set by the county court. In setting
the supersedeas bond the county court shall provide protection for the appellee to the same extent as in any other
appeal, taking into consideration the value of rents likely to accrue during appeal, damages which may occur as a
result of the stay during appeal, and other damages or amounts as the court may deem appropriate.

Tex. Prop. Code Ann. § 24.007. Texas Rule of Appellate Procedure 24.2 provides:

When the judgment is for the recovery of an interest in real or personal property, the trial court will determine the type
of security that the judgment debtor must post. The amount of that security must be at least:

(A) the value of the property interest’s rent or revenue, if the property interest is real; or

(B) the value of the property interest on the date when the court rendered judgment, if the property interest is personal.

Tex. R. App. P. 24.2(a)(2).

The record contains evidence that Whitmire intended to occupy the apartment during the appeal of this case and no
evidence that Whitmire has vacated the apartment. Both leases admitted at trial require Whitmire to pay rent of $850
per month for the apartment. The Texas Property Code and the Rules of Appellate Procedure both required the
county court to consider the value of rents likely to accrue during the appeal in setting the amount of the supersedeas
bond. See Tex. Prop. Code Ann. § 24.007; Tex. R. App. P. 24.2(a)(2). Whitmire did not seek to reduce the bond based
on his net worth, or produce evidence of his net worth in connection with seeking a reduction in the bond.
Accordingly, we find that the county court acted within its discretion in setting the supersedeas bond at $10,000.[3]
See McCartney v. Cal. Mortgage Serv., 951 S.W.2d 549, 550 (Tex. App.—El Paso 1997, no pet.) (holding that trial court
did not abuse its discretion in setting supersedeas bond at $19,000 considering value of rents accrued during
appeal).

B. County Court’s Registry

Whitmire also contends that the county court abused its discretion in setting the supersedeas bond at $10,000
because the court’s registry contained over $4000 cash paid by Whitmire in accordance with Texas Rule of Civil
Procedure 749b. See Tex. R. Civ. P. 749b. Greenridge responds that the trial count properly disregarded the cash in
its registry in setting the amount of the supersedeas bond because the cash in the registry was for past rents that
had already accrued by the time the court set the supersedeas bond.

In a forcible detainer case, either party may appeal the justice court’s judgment to the county court by filing an appeal
bond or a pauper’s affidavit. Tex. R. Civ. P. 749, 749a. In a nonpayment of rent forcible detainer case, a tenant who
has appealed by filing a pauper’s affidavit pursuant to Rule 749a is entitled to remain in possession of the premises
during the pendency of the appeal to the county court if the tenant follows the procedures set out in Rule 749b. Tex. R.
Civ. P. 749b. According to Rule 749b, the tenant must first pay one rental period’s rent into the justice court’s registry
within five days of filing the pauper’s affidavit. Tex. R. Civ. P. 749b(1). Second, during the appellate process, as the
rent becomes due under the rental agreement, the tenant must pay the rent into the county court’s registry within five
days of the date rent is due under the terms of the rental agreement. Tex. R. Civ. P. 749b(2). If the tenant fails to
timely pay the rent into the county court’s registry, the landlord may file a notice of default in the county court. Tex. R.
Civ. P. 749b(3). If the landlord shows that the tenant defaulted under the rule, the court must issue a writ of
restitution. Id.

The procedures set forth in Rule 749b are designed to protect a landlord during the pendency of a forcible detainer
appeal from the justice court to the county court. See Tex. R. Civ. P. 749, 749a, 749b; Kennedy v. Highland Hills
Apartments, 905 S.W.2d 325, 327 (Tex. App.—Dallas 1995, no writ); Triple T Inns of Tex., Inc. v. Roberts, 800 S.W.2d
681, 682–83 (Tex. App.—Amarillo 1990, writ denied). In contrast, Texas Property Code section 24.007 protects a
landlord during the pendency of a forcible detainer appeal from the county court to the court of appeals. See Tex.
Prop. Code Ann. § 24.007.

The county court, therefore, did not abuse its discretion in not deducting the cash paid by Whitmire into its registry in
setting the amount of the supersedeas bond because the cash in the registry was for past rents that had accrued at
the time the court set the supersedeas bond. See id.; Tex. R. Civ. P. 749, 749a, 749b.

Plenary Power

In his fifth issue, Whitmire contends that the county court erred in increasing the supersedeas bond to $15,000 after
the expiration of its plenary power. See Tex. R. Civ. P. 329b(c)–(g). Texas Rule of Appellate Procedure 24.3(a),
however, expressly provides that “[e]ven after the trial court’s plenary power expires, the trial court has continuing
jurisdiction to do the following: (1) order the amount and type of security and decide the sufficiency of sureties; and (2)
if circumstances change, modify the amount or type of security required to continue the suspension of a judgment’s
execution.” Tex. R. App. P. 24.3(a). Greenridge requested the trial court to increase the supersedeas bond to
$15,000 because the appellate process was taking longer than anticipated and Whitmire remained in possession of
the apartment. The county court therefore had the authority to modify the amount of the supersedeas bond after the
expiration of its plenary power. See id.; see also Miller, 80 S.W.3d at 164; Hamilton v. Hi-Plains Truck Brokers, Inc., 23
S.W.3d 442, 443 (Tex. App.—Amarillo 2000, no pet.).[4]

Conclusion

We hold that (1) Whitmire waived any complaint regarding defects in service, (2) the evidence is legally sufficient to
support both the county court’s finding that a landlord-tenant relationship existed between Greenridge and Whitmire
and its award of damages to Greenridge for unpaid rent, (3) the evidence is legally and factually sufficient to support
the award of attorney’s fees, and (4) the county court did not abuse its discretion in setting and modifying the
supersedeas bond. We therefore affirm the judgment of the trial court.

                           Jane Bland

                           Justice

Panel consists of Chief Justice Radack and Justices Alcala and Bland.

--------------------------------------------------------------------------------

[1] In this case, Greenridge provided Whitmire with the statutory notice prescribed in Texas Property Code section
24.006(a), and the lease contract provides for the recovery of attorney’s fees in the event of a breach. See Tex. Prop.
Code Ann. § 24.006(a)–(b) (Vernon 2000).

[2] The proper method to seek review of a trial court’s determination of the amount of a supersedeas bond is to file a
motion in the court of appeals under Texas Rule of Appellate Procedure 24.4(a). See Tex. R. App. P. 24.4(a); City of
Fort Worth v. Johnson, 71 S.W.3d 470, 471 (Tex. App.—Waco 2002, no pet.). We therefore construe Whitmire’s
appeal of the county court’s determination of the amount of the supersedeas bond as a Rule 24.4 motion. See
Johnson, 71 S.W.3d at 471 (“For the purposes of review . . . we consider Johnson’s notice of appeal and brief as a
motion under Rule 24.”); see also Tex. R. App. P. 38.9 (requiring briefing rules to be construed liberally); Tex. Mexican
Ry. Co. v. Bouchet, 963 S.W.2d 52, 54 (Tex. 1998) (“Courts should liberally construe briefing rules.”); Anderson v.
Gilbert, 897 S.W.2d 783, 784 (Tex. 1995) (“Courts are to construe rules on briefing liberally.”).

[3] A supersedeas bond is intended to indemnify the judgment creditor from losses caused by delay of appeal. Muniz
v. Vasquez, 797 S.W.2d 147, 150 (Tex. App.—Houston [14th Dist.] 1990, no writ); see also Tex. R. App. P. 24.1(e)
(“The trial court may make any order necessary to adequately protect the judgment creditor against loss or damage
that the appeal might cause.”). When, as here, the supersedeas bond covers items such as rentals, which accrue
while the case is on appeal, the damages cannot be determined in an appellate court. See Baxter v. Gates of
Normandie, No. 05-03-00245-CV, 2004 WL 303594, at *1 (Tex. App.—Dallas Feb. 18, 2004, no pet.) (mem. op.); State
v. Watts, 197 S.W.2d 197, 199 (Tex. Civ. App.—Austin 1946, writ ref’d). In such a case, access to the supersedeas
bond may be achieved by bringing a common-law action against the sureties as with any other contract. See Baxter,
2004 WL 303594, at *1; Muniz, 797 S.W.2d at 150.

[4] We note that the trial court signed its judgment on July 13, 2006. Therefore, roughly $11,900 in rents have accrued
since the date of the judgment.

================

Armstrong v. Harris (Tex.App.- Houston [14th Dist.] Oct. 2, 2007)(Yates)(forcible detainer)

M E M O R A N D U M   O P I N I O N

In a single issue, appellant Robert Lee Armstrong, Jr. challenges the legal and factual sufficiency of the evidence to
support the trial court=s finding in favor of appellee Eddie Mae Harris in her forcible detainer action. We affirm.

I. Factual and Procedural Background

On February 1, 2005, Harris and Armstrong executed a contract in which Armstrong agreed to purchase a residence
Harris owned in Hitchcock, Texas for $40,000 plus six percent annual interest. The contract and accompanying
financing addendum provided the following:

$                   Harris would owner-finance the sale pursuant to a promissory note that was "secured by vendor=s and
deed of trust liens."

$                   The note would be payable by Armstrong in 120 installments of $534 "beginning 01 February 2005 . . .
and continuing at monthly intervals thereafter for 10 years when the balance on the Note will be due and payable."

$                   The note would contain a five percent late fee provision for any installment not paid within ten days of the
"due date," which was not expressly defined.

$                   Upon the closing date, Aon or before February 1, 2015,@ Armstrong would pay the "Sales Price" and
Harris would "execute and deliver a general warranty deed conveying title to the Property to [Armstrong]."

$                   Pursuant to an "acceleration clause," if Armstrong Amisse[d]" two months of payments, Harris would
foreclose and all payments will be treated as A[r]ent."

$                   Armstrong must pay property taxes and Insurance.

$                   "Any possession by [Armstrong] prior to closing or by [Harris] after closing which is not authorized by a
written lease will establish a tenancy at sufferance relationship between the parties."

Neither party ever executed a promissory note pursuant to the sales contract.

The primary disputes in this appeal include (1) whether the contract required payment due on the first of each month,
(2) whether time was of the essence of the contract, and (3) thus whether Armstrong "misse[d]" two monthly
payments under the acceleration clause by making them beyond the first of the month, thereby defaulting under the
contract and committing forcible detainer after refusing to surrender possession of the property. As payment for the
February 2005 installment, Harris testified that Armstrong tendered only $150 two to three weeks after February 1,
which she accepted.[1] As payment for the August 2005 installment, Armstrong tendered $200 on August 15,[2] $300
on August 23, and $34 on August 31. With the August 15 payment, Armstrong included a handwritten note addressed
to Harris describing the payment as "late." Harris accepted each of these payments. Armstrong then similarly failed
to make the September 2005 installment payment on September 1. Thereafter, on September 6, Harris=s daughter,
Shirley Louis, sent a letter to Armstrong informing him that she would now collect payments for Harris under the
agreement and stating that, as of September 1, Harris would charge a $50 late fee for all payments received after the
fifteenth of the month and $10 per day "until the note is caught up." Louis specified that payments "ha[d] to be in my
mail box on or before the 15th of each month."

Thereafter, at some point in early to middle October, Armstrong tendered payment to Louis for the October installment
but did not include any payment for the September 2005 installment or any late fees allegedly incurred pursuant to
Louis=s September 6 letter. On October 21, Louis sent Armstrong a "notice of acceleration" pursuant to the contract's
acceleration clause, in which Louis stated she was returning Armstrong's "partial payment" and that Armstrong had
"missed [the] September payment and [the] October payment Late fees [were] $50.00 plus $10.00 a day for 45 days
as of October 31, 2005." Louis further asserted that "Harris . . . will [only] accept from you . . . the balance of what is
owed on the house . . . due by November 1, 2005."

Although the record does not reveal the exact date, Armstrong thereafter attempted to make the September and
October payment. On October 31, Harris sent Armstrong a three-day notice to vacate the premises.[3] On November
6, 2005, Louis sent Armstrong a handwritten note returning his money orders and stating that he was "now 3 months
behind plus all late fees" and that Harris "is now asking that you vacate [the property]."

On November 29, Harris filed suit against Armstrong in justice court alleging that he committed forcible detainer by
"failing to pay house notes for the period beginning the 1st day of September, and running through [November 29]"
and specifying that Armstrong breached the real estate sales contract by "not paying as agreed-in default of
payment." Harris sought possession of the property, back rent for $2,136, "daily rentals that may accrue between the
time of filing [the] petition and [Armstrong] vacates the . . . premises," and $600 in late fees "thru November 2005 and
$10.00 thereafter." On December 6, Armstrong tendered the full payment for the September, October, and November
installments, which Harris characterized as "rent" payments pursuant to the sales contract's acceleration clause. The
justice court subsequently entered a default judgment against Armstrong on December 19 for his failure to appear.
Armstrong thereafter appealed to the County Court at Law No. 1 of Galveston County. Following a trial de novo,[4] the
county court found that Armstrong committed forcible detainer, granted Harris a writ of possession on the property,
and awarded her past due rent to the date of trial, attorney's fees of $1,600, and costs. The county court made the
following relevant findings of fact and conclusions of law:

$                   Armstrong failed to pay as required on August 1, September 1, October 1, and November 1 of 2005.

$                   Harris gave notice to vacate on October 31, 2005.

$                   All payments on the property after August 1, 2005 constituted rent payments.

$                   Armstrong did not pay taxes due for 2005 and did not furnish proof of insurance.

$                   All rent payments were due to Harris by April 11, 2006.

This appeal followed.

II. Standard of Review

In reviewing a trial court's findings of fact for legal and factual sufficiency, we apply the same standards that we apply
in reviewing jury findings. Ulmer v. Ulmer, 130 S.W.3d 294, 299 (Tex. App.-Houston [14th Dist.] 2004, no pet.). In a
legal sufficiency or no-evidence review, we determine whether the evidence would enable reasonable and
fair‑minded people to reach the finding under review. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).
In conducting this review, we credit favorable evidence if reasonable factfinders could and disregard contrary
evidence unless reasonable factfinders could not. See id. We must consider the evidence in the light most favorable
to the finding under review and indulge every reasonable inference that would support it. See id. at 822. We must,
and may only, sustain no-evidence points when either the record reveals a complete absence of evidence of a vital
fact, the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital
fact, the evidence offered to prove a vital fact is no more than a mere scintilla, or the evidence establishes conclusively
the opposite of the vital fact. Id. at 810. Evidence is no more than a scintilla when it is so weak as to do no more than
create a mere surmise or suspicion of its existence. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004).
The factfinder is the sole judge of the credibility of the witnesses and the weight to give their testimony. See City of
Keller, 168 S.W.3d at 819.

In a factual sufficiency review, we consider all the evidence supporting and contradicting the finding. Plas-Tex, Inc. v.
U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). We set aside the finding only if the finding is so contrary to the
overwhelming weight of the evidence as to be clearly wrong and unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.
1986).

III. Analysis

The thrust of Armstrong's legal and factual sufficiency complaint is that the evidence fails to support the trial court's
finding that he committed forcible detainer. A forcible detainer suit is an action to determine the right to immediate
possession of real property where there was no unlawful entry. See Rice v. Pinney, 51 S.W.3d 705, 709 (Tex. App.-
Dallas 2001, no pet.). The only issue in such an action is the right to actual possession of the property, and the
merits of title may not be adjudicated. See Tex. R. Civ. P. 746. "A person who refuses to surrender possession of
real property on demand commits a forcible detainer if the person . . . is a tenant or a subtenant wilfully and without
force holding over after the termination of the tenant's right of possession . . . ." Tex. Prop. Code Ann. ' 24.002(a)(1)
(Vernon 2000).[5] A notice to vacate constitutes a demand for possession in this context. See id. ' 24.005(h). Thus,
to prevail in a forcible detainer action, a plaintiff is not required to prove title but is only required to show sufficient
evidence of ownership to demonstrate a superior right to immediate possession. See Rice, 51 S.W.3d at 709;
Goggins v. Leo, 849 S.W.2d 373, 377 (Tex. App.-Houston [14th Dist.] 1993, no writ).

Specifically, Armstrong challenges the trial court's findings that he defaulted under the contract by failing to make
payments on August 1 through November 1, 2005 "as required," which gave rise to Harris's foreclosure and
acceleration of the contract pursuant to the acceleration clause and her subsequent action for forcible detainer upon
his failure to surrender possession of the property. Armstrong argues that the evidence is insufficient to establish
that he defaulted under the contract's acceleration clause by Amiss[ing]@ two installment payments because (1) the
contract did not have a specific due date for payments, and he attempted to make full payment for September and
October, (2) time was not expressly or impliedly made of the essence of the contract, and (3) Harris's attempt to
impose a due date on the fifteenth of the month via Louis's September 6 letter constituted an invalid unilateral
modification to the contract.

We disagree with Armstrong's assertions and conclude that there is legally and factually sufficient evidence to
support the trial court's findings. First, the evidence supports the court's express finding that payments were due on
the first of the month. The contract provision stating that the note would require payments of 120 installments of $534
"beginning 01 February 2005 . . . and continuing at monthly intervals thereafter for 10 years" contemplates a due date
on the first of the month. Moreover, Armstrong himself described his August 15 payment as "late" in his letter to
Harris.

Second, the evidence supports the court's implied finding that time was impliedly of the essence of the contract.
Ordinarily, time is not of the essence in contracts. See Kennedy Ship & Repair, L.P. v. Pham, 210 S.W.3d 11, 19 (Tex.
App.-Houston [14th Dist.] 2006, no pet.). Moreover, a date stated for performance does not mean time is of the
essence. Id. Instead, the contract must expressly make time of the essence or there must be something in the
nature or purpose of the contract and the circumstances surrounding it making it apparent that the parties intended
that time be of the essence. Id. Unless the contract expressly makes time of the essence, the issue is a question of
fact. Id. Although not conclusive, the first of the month due date in the contract constitutes some evidence that time
was of the essence. See Builders Sand, Inc. v. Turtur, 678 S.W.2d 115, 118 (Tex. App.-Houston [14th Dist.] 1984, no
writ) (holding that designation of a particular date for performance is some indication that time is of the essence).
Additionally, while there was evidence that Harris accepted some late payments, she testified that she told Armstrong
from the outset and repeatedly thereafter that she would not accept partial or late payments because she needed his
house payments to pay her own house note on time. As such, based upon all the evidence in the record, we find
sufficient evidence that the parties intended time to be of the essence.[6] See Pham, 210 S.W.3d at 19; see, e.g.,
Turtur, 678 S.W.2d at 118-19 (finding sufficient evidence that time was of essence of contract for sale of land where
contract provided that "closing will be within seven (7) days of this contract" and appellee testified that he told other
parties in transaction that it was important to close promptly in order to secure price offered and because appellee
was leaving for vacation and had many things to take care of before departure).

Because it is undisputed that Armstrong failed to make the September payment on the first of the month, and he
concedes he paid the October payments in the "middle" of October, the evidence establishes that Armstrong "misse
[d]" two monthly payments under the contract's acceleration clause, thereby triggering a foreclosure and acceleration
by Harris and entitling her to possession of the property. The evidence further establishes that, upon Harris's
demand for possession via the notices to vacate, Armstrong failed to surrender possession, which subject him to
liability for forcible detainer. Accordingly, under these circumstances, we conclude that the evidence would enable
reasonable and fair‑minded people to reach the trial court's findings regarding forcible detainer and that such
findings are not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.

We therefore overrule Armstrong=s sole issue and affirm the trial court's judgment.

/s/      Leslie B. Yates

Justice

Judgment rendered and Memorandum Opinion filed October 2, 2007.

Panel consists of Justices Yates, Seymore, and Edelman.*

*   Senior Justice Richard H. Edelman sitting by assignment.

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[1] However, the record contains correspondence from Harris to Armstrong noting that he paid the February
installment in full at some point.

[2] The record contains conflicting documentation as to whether Armstrong made the first August payment on August
15 or 18.

[3] Armstrong claims he sent the September and October payments to Louis after receiving the October 21 notice of
acceleration and before receiving the October 31 notice to vacate. However, nothing in the record supports this
assertion, and the record contains only two money orders purportedly for September and October payments that are
dated November 4, 2005.

[4] The record reveals that the county court originally entered a default judgment against Armstrong for his failure to
appear. However, he thereafter timely filed a motion for new trial, which the county court granted, and the case
proceeded to a non-jury trial de novo before the county court on April 11, 2006.

[5] Harris classifies Armstrong as a tenant at sufferance, rather than a holdover tenant, based upon his refusal to
surrender possession of the land. See ICM Mortgage Corp. v. Jacob, 902 S.W.2d 527, 530 (Tex. App.-El Paso 1994,
writ denied) (noting that a tenant at sufferance is one who wrongfully continues in possession of property after his
right to possession has ceased and does not assert a claim to superior title). Although the contract invokes tenancy
at sufferance language, the provision at issue "the acceleration clause" does not and speaks only in terms of "rent."
In any case, because whether Armstrong constituted a tenant at sufferance or a holdover tenant will not affect the
outcome of this appeal, we need not address this issue. See generally McLain v. Lamb, No. 07‑95‑0251‑CV, 1996
WL 721954, at *5 n.6 (Tex. App.-Amarillo Dec. 16, 1996, writ denied) (not designated for publication) (noting the
similarities between holdover tenants and tenants at sufferance and that the law of holdover tenants is instructive in
issues regarding tenants at sufferance).

[6] We acknowledge that a time of the essence provision may be waived. See Pham, 210 S.W.3d at 20. However,
Armstrong did not present this argument to the trial court or to this court. See Tex. R. App. P. 33.1(a).