Simmons v. Hollyview Apartments
(Tex.App.- Houston [1st Dist.] Sep. 24, 2009)(eviction appeal, TRCP, Tex. R. Civ. P. 749b., attorney's
fees in eviction case)
AFFIRM TC JUDGMENT: Opinion by Justice Terry Jennings
Before Justices Jennings, Higley and Sharp
01-08-00231-CV Gregory Simmons v. Hollyview Apartments
Appeal from County Civil Court at Law No 2 of Harris County
Trial Court Judge: Hon. Jacqueline Lucci Smith
Appellant, Gregory Simmons, challenges the county court's entry of judgment in favor of appellee,
Hollyview Apartments, in Hollyview's forcible entry and detainer suit against Simmons. In two issues,
Simmons contends that the county court erred in granting Hollyview a writ of possession rather than a
writ of restitution at a hearing prior to the bench trial and that the county court's award of attorney's fees
to Hollyview was unreasonable.
Factual and Procedural Background
Simmons leased an apartment from Hollyview. In its petition, Hollyview brought a forcible entry and
detainer action against Simmons in justice court, alleging that in late 2007, Simmons failed to pay his
monthly rent of $405, thereby defaulting on the parties' lease agreement. See Tex. Prop. Code Ann. §
24.004 (Vernon 2000) (providing that justice court in precinct in which real property is located has
jurisdiction in eviction suits, which include forcible entry and detainer suits). The justice court entered a
default judgment against Simmons, ordered that Hollyview recover possession of the apartment,
awarded Hollyview delinquent rent in the amount of $990, and set a writ of possession to issue on
December 27, 2007. See Tex. R. Civ. P. 748 (stating that court shall give prevailing plaintiff "possession
of the premises, costs, and damages" and shall award "writ of possession"). The justice court further
stated in its judgment that if Simmons appealed the justice court's judgment of eviction by filing a
pauper's affidavit, Simmons was required to pay into the registry of the court his monthly rent in the
amount of $405 for each month that his appeal was pending. See Tex. R. Civ. P. 749b (setting forth
tenant's obligations to pay rent into registry of court in order to stay in possession of premises during
pendency of appeal in "a nonpayment of rent forcible detainer case"). Simmons appealed the justice
court's judgment to the county court by filing a pauper's affidavit, and Simmons deposited into the
registry of the court one month's rental payment. See Tex. R. Civ. P. 749 (providing that party may
appeal judgment of justice court in forcible entry and detainer suit to county court); Tex. R. Civ. P. 749a
(setting forth pauper's affidavit requirements and procedures); Tex. R. Civ. P. 749b.
On February 28, 2008, the county court, upon Hollyview's sworn notice of default, found that Simmons
had failed to continue to pay rent under the terms of the lease agreement into the court's registry as
required by Texas Rule of Civil Procedure 749b and, thus, it further found that Hollyview was entitled to
immediate possession of the apartment. Tex. R. Civ. P. 749b. On March 11, 2008, the Harris County
Constable executed a writ of possession, removing Simmons and his belongings from the apartment. On
March 17, 2008, the county court conducted a bench trial, after which it entered a final judgment and
awarded possession of the apartment to Hollyview, ordered that Hollyview was entitled to a writ of
possession, awarded Hollyview past due rents of $981.13, and awarded Hollyview attorney's fees in the
amount of $2,000.
Writ of Restitution
In his first issue, Simmons argues that the county court erred in granting Hollyview a writ of possession
rather than a writ of restitution at a hearing prior to the bench trial because, at the time, Hollyiew was
entitled only to a writ of restitution.
Texas Rule of Civil Procedure 749b provides, in relevant part,
In a nonpayment of rent forcible detainer case a tenant/appellant who has appealed by filing a pauper's
affidavit under these rules shall be entitled to stay in possession of the premises during the pendency of
the appeal, by complying with the following procedure:
(1) Within five days of the date that the tenant/appellant files his pauper's affidavit, he must pay into the
justice court registry one rental period's rent under the terms of the rental agreement.
(2) During the appeal process as rent becomes due under the rental agreement, the tenant/appellant
shall pay the rent into the county court registry within five days of the due date under the terms of the
(3) If the tenant/appellant fails to pay the rent into the court registry within the time limits prescribed by
these rules, the appellee may file a notice of default in county court. Upon sworn motion by the appellee
and a showing of default to the judge, the court shall issue a writ of restitution.
. . . .
Tex. R. Civ. P. 749b.
Simmons does not directly challenge the county court's February 28, 2008 finding, which was based
upon Hollyview's sworn notice, that he was in default of his obligation to pay his monthly rentals into the
registry of the court. Rather, Simmons complains that Hollyview was not "entitled to a final judgment
awarding it possession" at this point in the proceeding and prior to the bench trial. See Kennedy v.
Highland Hills Apartments, 905 S.W.2d 325, 327 (Tex. App.--Dallas 1995, no writ) (holding that rule
749b did not authorize county court to enter final default judgment on merits). However, Simmons
misunderstands the procedural nature of the February 28, 2008 order and the posture of the case at
the time that the county court entered the order. The record before us makes clear that the county
court did not enter its final judgment until after its bench trial on March 17, 2008. The county court's
February 28, 2008 order, in which the county court found that Hollyview was entitled to possession of
the apartment based upon Simmons's default, was not a final judgment, and the order granting
Hollyview possession of the apartment is expressly contemplated by rule 749b. See Tex. R. Civ. P. 749b
(providing that tenant "shall be entitled to stay in possession of the premises during the pendency of the
appeal" only by complying with procedures set forth); see also Kennedy, 905 S.W.2d at 327 ("If the
appellant defaults in his timely payment of rent into the registry of the court [under rule 749b(3)], he is
no longer 'entitled to stay in possession of the premises during the appeal.'"). Although rule 749b(3)
speaks of a "writ of restitution" rather than a "writ of possession," a county court is authorized to return
possession of the premises through a writ of restitution when a tenant defaults under the requirements
of rule 749b(3). Tex. R. Civ. P. 749b; Kennedy, 905 S.W.2d at 327 ("Upon the appellee filing notice and
showing the appellant's default in his timely payment of rent into the registry of the court, the county
court returns possession of the premises to the appellee by issuing a writ of restitution."). (1)
Accordingly, we hold that the county court did not err in awarding Hollyview possession of the apartment
in its February 28, 2008 order.
We overrule Simmons's first issue.
In his second issue, Simmons argues that the county court's award of $2,000 in attorney's fees to
Hollyview was unreasonable because Hollyview's attorney testified that his rate was $150 per hour, "he
only had 3 hours of court time," and attorney's "fees are generally a percentage of the award not a
Texas Property Code section 24.006 provides that, in an eviction suit, if the landlord provides the tenant
the notice required under that section "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." Tex. Prop.
Code Ann. § 24.006 (Vernon 2000); see also Tex. R. Civ. P. 752 (stating that recoverable damages
may include attorneys's fees in justice and county courts). In determining a reasonable amount of
attorney's fee to award, a factfinder should consider (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 on
results obtained or uncertainty of collection before the legal services have been rendered. Arthur
Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997) (citing Tex. Disciplinary R.
Prof'l Conduct 1.04).
At the March 17, 2008 trial, consistent with the factors set forth above, Hollyview's attorney testified,
among other things, that his billing rate was $150 per hour, he specialized in forcible entry and detainer
suits, his billing rate was lower than those in his firm who also specialized in this type of work, he had
drafted numerous documents in the case, he had attended numerous hearings in the justice and county
courts, he had reviewed documents, he had spent time in contact with the court and his client, he had
expended seventeen hours total on the case, and his fees totaled $2,550. Hollyview's attorney also
requested appellate attorney's fees as well as court costs, and he provided the county court with an
estimate of the appellate fees he anticipated accruing. Simmons cross-examined Hollyview's attorney on
the attorney's fees. The county court, based upon this evidence, awarded Hollyview $2,000 in attorney's
fees and did not provide a separate award for appellate fees. We hold that the county court's award of
attorney's fees to Hollyview was reasonable and was supported by the evidence detailed above and that
the county court did not abuse its discretion in awarding Hollyview these fees. See Whitmire v.
Greenridge Place Apartments, No. 01-06-00963-CV, 2007 WL 2894167, at *4-5 (Tex. App.--Houston
[1st Dist.] Oct. 4, 2007, pet. dism'd) (reviewing, and affirming, attorney's fees awarded in forcible entry
and detainer suit).
We overrule Simmons's second issue.
We affirm the judgment of the county court.
Panel consists of Justices Jennings, Higley, and Sharp.
1. The Dallas Court of Appeals has noted that, in 1988, Texas Rule of Civil Procedure 748 was
amended to refer to a "writ of possession" rather than a "writ of restitution" and that, after these
amendments, only rule 749b(3) continued to refer to a "writ of restitution." See Kennedy v. Highland Hills
Apartments, 905 S.W.2d 325, 327 n.2 (Tex. App.--Dallas 1995, no writ). The court questioned
"[w]hether the supreme court intentionally left the term 'writ of restitution' in rule 749b or intended, but
failed, to change writ of restitution to writ of possession as in rule 748 . . . ." See id. Regardless of
whether the supreme court intended to make this modification in terminology to rule 749b, rule 749b
expressly contemplates that a tenant may stay in possession of the premises only by complying with the
procedures set forth therein. Tex. R. Civ. P. 749b.