Opinion
No. 05-10-01023-CV
Opinion Filed August 12, 2011.
On Appeal from the County Court at Law No. 2, Dallas County, Texas, Trial Court Cause No. CC-10-02454-B.
Before Justices BRIDGES, LANG-MIERS, and MURPHY.
MEMORANDUM OPINION
Greg Cunningham appeals from the judgment rendered in a forcible-detainer action awarding possession, damages, and attorney's fees to the commercial landlord Bobby H. Anglin. In three of Cunningham's four issues, he contends the trial court allowed him insufficient time to prepare for trial. In his fourth issue, Cunningham challenges the damage award, which he contends ignores the express terms of the lease. We sustain the fourth issue and reverse and remand the case for a new trial on damages. The judgment otherwise is affirmed.
Background
Cunningham's commercial lease expired in February 2004. He then became a month-to-month holdover tenant pursuant to the lease terms, paying $1,800 per month rental. In September 2009, Anglin sent a letter to Cunningham informing him that his lease would be updated and his rent would be "adjusted slightly." The parties engaged in negotiations for a new written lease, but no agreement was reached. During this time, a dispute arose over whether Cunningham had paid Anglin for rent due in November 2009; Cunningham maintained he paid the rent, but Anglin claimed the check received was for separate rental property and was applied to rental due on that property. The parties did not resolve their dispute and, on November 24, 2009, Anglin invoiced Cunningham showing past-due rent for November 2009 at $1,800. The invoice included rent due December 1, 2009 in the amount of $2,200 based on a "1-year lease," for a total due of $4,000. At the bottom of the invoice was the following notice:
Reminder: We have not received your signed lease determining your contract period. Therefore, we will begin collecting rent, based on a 1-year lease, beginning December 1, 2009. Please note that a partial payment cannot be accepted.
Cunningham did not pay the $1,800 claimed for November, but paid $2,200 in rent under protest for December and again in January. In February, Cunningham tendered only $1,000, which was refused as a partial payment.
After refusing the $1,000 payment in February, Anglin sent Cunningham a letter dated February 9, 2010, in which he claimed the November and February payments were due and the balance owing was $4,200. The letter contained the following notice:
YOU ARE NOT COMPLYING WITH THE TERMS OF THE AGREEMENT FOR THE PROPERTY NOTED ABOVE. UNLESS YOU TAKE THE ACTION SPECIFIED IN THIS NOTICE BY MARCH 11, 2010 THE OWNER HAS THE RIGHT TO TAKE POSSESSION OF YOUR RENTAL PROPERTY.
Cunningham did not make the requested payment. On March 12, 2010, Anglin delivered two letters: one notified Cunningham the lease was terminated; the second letter was a "NOTICE TO VACATE FOR NONPAYMENT OF RENT AND DEMAND FOR POSSESSION," giving Cunningham until midnight, March 18, 2010 to vacate the premises. The second notice warned of legal action if Cunningham failed to vacate.
On March 22, 2010, Anglin filed a forcible-detainer action against Cunningham in the justice court. On April 1, the justice of the peace rendered judgment for Anglin and against Cunningham for possession of the premises, unpaid rent, interest, and costs. Cunningham filed his de novo appeal with the county court on April 5, and the justice court's transcript was complete on April 9. Thereafter, on April 19, the county court notified the parties of a May 13 trial date.
During the pendency of the forcible-detainer action, Cunningham sued Anglin in county court seeking $85,000 in damages for alleged conversion of the contents of the rental property. After his appeal of the justice court judgment was docketed and set for trial, Cunningham filed a motion to consolidate the two actions. He also filed an unverified motion for continuance of the justice court appeal, which was heard and denied by the trial court on May 13, the day of trial.
At trial, possession of the premises was no longer an issue. Anglin presented his case, which included exhibits and two witnesses that were cross-examined by Cunningham. The trial court rendered judgment against Cunningham for $7,730 in unpaid rent, which included rent at the increased rate of $2,200 per month, plus late fees, $1,750 in attorney's fees, and court costs. Cunningham filed a motion for new trial, which he amended once, arguing only a violation of his due-process rights because he was not allowed forty-five days to prepare for trial under rule 245. See Tex. R. Civ. P. 245. After the trial court denied the motion, Cunningham appealed.
Analysis Sufficiency of Trial Notice
Cunningham's first three issues are tied to the sufficiency of time he had to prepare for trial. In his first issue, he contends his verified answer to the forcible-detainer action and the transcript of all entries in the justice court's docket were not brought forward to the county court on appeal as required by rule 751. See Tex. R. Civ. P. 751. That failure, he argues, resulted in the county court misapplying the speediness of rule 753 to his appeal of the justice court judgment. See Tex. R. Civ. P. 753. He asserts rule 753 applies only to defaults and he was not in default. Relatedly, Cunningham asserts in his third issue that rule 245 applies and he was denied his right to a forty-five day trial notice under that rule. See Tex. R. Civ. P. 245. He claims a due-process challenge in his second issue based on the sufficiency of his trial-preparation time. We address these issues together. A forcible-detainer action is governed by discrete rules found in the property code and rules of civil procedure. See Tex. Prop. Code §§ 24.001, 24.005-.054 (West Supp. 2010), 24.002-.004, 24.006-.011 (West 2000); Tex. R. Civ. P. 738-55; see also Cattin v. Highpoint Village Apartments, 26 S.W.3d 737, 738 (Tex. App.-Fort Worth 2000, pet. dism'd w.o.j.). Such actions are intended to be summary, speedy, and inexpensive remedies for resolving disputes over who is entitled to immediate possession of the premises. See McGlothlin v. Kliebert, 672 S.W.2d 231, 232 (Tex. 1984). Accordingly, rule 753 provides that de novo appeals in the county court "shall be subject to trial at any time after the expiration of eight full days after the date the transcript is filed in the county court." Tex. R. Civ. P. 753. The language of the rule does not limit the eight-day trial notice to defaults as suggested by Cunningham. Conversely, "trial" may occur any time after the expiration of eight full days. Id. The remainder of the rule provides that if no answer was filed in the justice court and no answer is filed within eight full days after the transcript is filed in the county court, the allegations of the complaint are admitted and "judgment by default may be entered." Id. Thus, no "trial" would be necessary for a default judgment unless the allegations were not sufficient to support a judgment.
Cunningham also contends rule 245, which requires a forty-five-day trial notice, applies to his appeal of the forcible-detainer judgment. His assertion is contrary to the express language of rule 753 and that argument has been disapproved. See Cattin, 26 S.W.3d at 739 (rule 753 governs timelines for trial in forcible-detainer appeals, not rule 245); see also Carroll v. Bank of N.Y., No. 10-03-00319-CV, 2005 WL 241224, at *2 (Tex. App.-Waco Feb. 2, 2005, no pet.) (mem. op.) (same). Here, notice of the trial date was given April 19 for a May 13 trial date, which was well within the eight-day requirement of rule 753. Regardless of what the record showed as to Cunningham's answer in the justice court, the trial court treated the parties' forcible-detainer dispute as contested and conducted a trial, not a default proceeding. We overrule Cunningham's first and third issues.
In his related second issue, Cunningham argues he was not provided sufficient time to prepare for trial in violation of his due-process rights. Cunningham cites several cases for the proposition that calling a case to trial on less than forty-five days' notice denies fundamental due process of law. Those cases do not involve de novo trials of forcible-detainer appeals subject to discrete rules allowing for speedier trials. Nor has Cunningham cited any authority for the proposition that the proper application of rule 753 violates an individual's right to due process. Instead, Cunningham argues the county court's application of rule 753 "prevented [him] from filing a jury request and from conducting any discovery" because thirty days traditionally are required for both.
Due process requires, at a minimum, that a person be afforded reasonable notice and a hearing before being deprived of a constitutionally protected interest. See Univ. of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 930 (Tex. 1995) (citing Mathews v. Eldridge, 424 U.S. 313, 333 (1976)). Cunningham does not argue that he did not receive notice of the hearing. He received notice, attended his trial, cross-examined Anglin's witnesses, and argued the merits of the dispute. He sought in his motion for continuance heard the day of trial to have his separate action for conversion consolidated, and he expressed concern at the hearing about the possible preclusive effect if the forcible-detainer action proceeded to trial first.
The allegations in Cunningham's conversion action in which he sought $85,000 exceeded the jurisdiction of the county court in the forcible-detainer appeal. Consolidation would have been inappropriate, as admitted by Cunningham in his amended motion for new trial. See Crumpton v. Stevens, 936 S.W.2d 473, 476 (Tex. App.-Fort Worth 1996, no writ) (appellate jurisdiction of county court confined to jurisdictional limits of justice court); see also Tex. Gov't Code Ann. § 27.031(a)(1) (West Supp. 2010) (jurisdictional limit of "not more than" $10,000).
Cunningham also points to nothing in the record to show that he was denied discovery or a jury. He never requested a jury or paid a jury fee. He also never served or sought to shorten the time to serve discovery. Cf. Collins v. Cleme Manor Apartments, 37 S.W.3d 527, 532-33 (Tex. App.-Texarkana 2001, no pet.) (finding jury request made less than thirty days prior to trial date timely in forcible-detainer action; court abused discretion by denying continuance and a shortened time to answer discovery). On appeal, Cunningham does not complain about discovery he needed, does not identify how that discovery would have impacted the trial, and does not appeal the trial court's liability finding. Rather, his only substantive issue relates to the calculation of rental under the lease, as addressed below. Based on this record, we conclude Cunningham has failed to show a due-process violation. Accordingly, we overrule Cunningham's second issue.
Proper Calculation of Damages
In his final issue, Cunningham argues the damages awarded to Anglin by the county court exceed what could have been awarded under the lease. Specifically, Cunningham argues the damages awarded were based on a rental rate of $2,200 per month. He does not challenge the attorney's fees.
A tenant who continues to occupy the premises after expiration of a lease is a holdover tenant. Gym-N-I Playgrounds, Inc. v. Snider, 220 S.W.3d 905, 908 (Tex. 2007). We look at the lease itself to determine whether the terms of the lease continue in the event of a holdover tenancy. See Bockelman v. Marynick, 788 S.W.2d 569, 571-72 (Tex. 1990). The lease here expressly provided for holdover, which the parties followed from 2004 until their dispute in 2009. Section 2.04 of the lease provides:
Holding Over. Tenant shall vacate the Demised Premises upon the expiration of the Lease Term or earlier termination of this Lease. . . . If Tenant does not vacate the Demises Premises upon the expiration of the Lease Term or earlier termination of the Lease, Tenant's occupancy of the Demises Premises shall be a "month to month" tenancy, subject to all of the terms of this Lease applicable to a month to month tenancy, except that the Base Rent per month then in effect shall be the amount designated in Section 1.12.
Section 1.12 provides: " Holdover Rent: [See Section 2.04] $1800.00 per month in advance."
The trial court's calculation of $7,730 in damages included: $1,800 for November rent, $2,200 for February rent, $2,200 for March rent, and late charges of $10 per day for the November, February, and March rental payments, for a total of $1,530. The late charges were calculated through Anglin's March 12 termination of the lease.
Cunningham contests the rental charges to the extent they exceed $1,800 per month. He contends the lease unambiguously provided for holdover rent at $1,800 per month and did not allow for rent increases. He does not contest late charges of ten dollars per day or termination of the lease. Anglin responds that a month-to-month lease terminates every thirty days and a landlord may give notices of rent increases every thirty days.
Cunningham also claims the rental calculation did not credit the security deposit of $1,375. Cunningham did not offer any proof related to the deposit at the time of trial and has provided no legal argument on appeal. Even assuming the question were properly before us, resolution of Cunningham's deposit was not within the county court's jurisdiction, and the trial court did not err in refusing to apply an offset in its damage calculation. See Hanks v. Lake Towne Apartments, 812 S.W.2d 625, 627 (Tex. App.-Dallas 1991, writ denied).
Anglin sued Cunningham on the lease. He did not terminate the lease at the time he sought to increase the rent. Rather, he terminated the lease by letter dated March 12, 2010 based on Cunningham's failure to comply with "the terms of the agreement for the property." He sued Cunningham for breach of the lease agreement, claiming rental, late payments, and attorney's fees. The terms of the lease unambiguously provided for "holdover rent" of $1,800 per month to be paid on the first of each month. The terms of the lease agreement are controlling. See Bockelman, 788 S.W.2d at 571-72. Under the terms of that agreement, Anglin could not unilaterally change the rental rate; he also has pointed to nothing in the lease agreement that would allow him to do so. Accordingly, the trial court erred by awarding damages for rents due under the lease agreement at an increased rate. We sustain Cunningham's fourth issue.
Conclusion
For the reasons stated above, we reverse the trial court's judgment as to damages only and remand the case to the trial court for a new trial on damages. Otherwise, we affirm the judgment.