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I am sure you remember me with the JP appeal bond issue. Their attorney sent this email to mine talking about an " unopposed motion to increase bond amount" This is my response. Can you please tell me if it looks accurate and in your opinion would back him off of leaving the bond amount as is. The video link I provided is a TX House Business and industry committee meeting destroying the Texas Apartment Association Attorney that the rental concessions they are claiming are nothing but an illegal penalty. The word document doesn't seem to be working so here it is.
xxxx, Thank you for the information and possible case law you cite as precedent. After conferring with my client as well as some colleagues we believe we also have found some different statutes as well some possible precedent rebutting your argument for the attorney fees. After further research it seems that the Courts are split on the inclusion of attorney’s fees to be calculated in the amount of the appeal bond. Here is one of the authorities for your review.Shook v. Walden, 304 S.W.3d 910 (Tex. App.–Austin 2010. I think a very important point included in this outcome is the fact that attorney fees were not calculated in the bond amount. Another conclusion from this case was that the amount of the bond was reduced initially due to Texas Civil Practice and Remedies Code 52.006(a).
I realize you may have seen different cases reaching the opposite conclusion. I think that the most important proceeding going on now is a writ of mandamus proceeding in the Texas Supreme Court, In re Nalle Plastics Family Limited Partnership, No. 11-0903. While Appellate Courts are split on the decision, this is the first Supreme Court case on the issue. It looks like it was argued and post submission briefs filed but no ruling yet. Who knows when the ruling may come but there we feel there is a strong chance the ruling on the attorney fees with your motion will not succeed.
We will also remind the court that it was you that filed suit on my client, not the other way around. Another point we will raise is that the attorney fees are actually contingent on you prevailing in the trial de novo. It will also be made very clear that this is a breach of contract case, not an eviction proceeding. Your client is not currently incurring any damage in the form of lost rent. These forms of appeal bonds are already addressed in Texas Property Code §24.0053. In addition, the court will be reminded that if you would have lost in JP court, your cost would have been significantly less than ours to appeal to county court and to have the case tried in an actual court of record with an actual attorney as a judge to rule on the issues. I think we can both agree that you had one heck of a home court advantage in JP Court #6.
In addition, while reviewing the transcript of the trial for the Inability to Pay appeal of the initial JP appeal bond amount at the county court level with other colleagues, we have come upon some different statutes superseding the Texas Rules of Appellate Procedure that were so heavily relied upon by you during that hearing. We believe that these statutes are much more applicable to this case. Although Texas Rules of Civil Procedure 571 defines the amount of the bond, we believe that particular statute is over ruled by these statutes:
§52.005. CONFLICT WITH TEXAS RULES OF APPELLATE PROCEDURE. (a) To the extent that this chapter conflicts with the Texas Rules of Appellate Procedure, this chapter controls. (b) Notwithstanding Section 22.004, Government Code, the supreme court may not adopt rules in conflict with this chapter. (c) The Texas Rules of Appellate Procedure apply to any proceeding, cause of action, or claim to which Section 52.002 does not apply. § 52.006. AMOUNT OF SECURITY FOR MONEY JUDGMENT. (a) Subject to Subsection (b), when a judgment is for money, the amount of security must equal the sum of: (1) the amount of compensatory damages awarded in the judgment; (2) interest for the estimated duration of the appeal; and (3) costs awarded in the judgment. (b) Notwithstanding any other law or rule of court, when a judgment is for money, the amount of security must not exceed the lesser of: (1) 50 percent of the judgment debtor's net worth; or (2) $25 million. (c) On a showing by the judgment debtor that the judgment debtor is likely to suffer substantial economic harm if required to post security in an amount required under Subsection (a) or (b), the trial court shall lower the amount of the security to an amount that will not cause the judgment debtor substantial economic harm. (d) An appellate court may review the amount of security as allowed under Rule 24, Texas Rules of Appellate Procedure, except that when a judgment is for money, the appellate court may not modify the amount of security to exceed the amount allowed under this section. (e) Nothing in this section prevents a trial court from enjoining the judgment debtor from dissipating or transferring assets to avoid satisfaction of the judgment, but the trial court may not make any order that interferes with the judgment debtor's use, transfer, conveyance, or dissipation of assets in the normal course of business. As for the initial argument at trial regarding the Texas Rules of Appellate Procedure being inapplicable to justice court cases, I believe that 52.005(a) is addressing specifically that. As you can see it clearly states that even the Supreme Court can not adopt rules that conflict with this chapter. We believe that § 52.006 is important for several different reasons. First 52.006(a) addresses the fact that the Justice of the Peace appealed judgment is obviously a judgment for money. §52.006(b) We feel that this is a very important argument to your Appellate Rules not applying to JP decisions in the challenge of the initial Inability to Pay filing. JP Courts are obviously governed by the TXRCP. Black’s legal dictionary defines notwithstanding as “literally meaning irrespective of. “
Also if you refer to Texas Rules Of Civil Procedure rule 523 “ All rules governing the district and county courts shall also govern the justice courts, insofar as they
can be applied, except where otherwise specifically provided by law or these rules.” This is clearly a rule of court in JP court or even county court on appeal that the § 52.005 over rules.
For precedent we refer to McIntyre v. Ramirez,109 S.W.3d 741, 748 (Tex.2003); We are "not to second-guess the policy choices that inform our statutes or to weigh the effectiveness of their results; rather, our task is to interpret those statutes in a manner that effectuates the Legislature's intent." Also from McIntyre v. Ramirez “ In construing statutes, this Court starts with the plain language of the statute. “There are several more cases of precedent that we can cite but I believe we can both agree that it is well established that courts interpret statutes literally and will take into account what the legislative body was trying to accomplish with this statute. Please let me know if you need more precedent. Also I can send you the videos of the legislative meetings where they discuss putting in this statute specifically to guard against violating due process rights and guaranteeing the right to appeal. Justice of the Peace court has a $10,000 limit meaning that there is the possibility of having a $20,000 Appeal bond requirement before going to an actual court of record. That is definitely enough of a sum that it would impede most people from pursuing an appeal, thus violating the due process rights intended to be protected by this statute. This statute does not seem ambiguous, but if you plead that it is we will also rely on the following statute.
§ 311.023. STATUTE CONSTRUCTION AIDS. In construing a statute, whether or not the statute is considered ambiguous on its face, a court may consider among other matters the: (1) object sought to be attained; (2) circumstances under which the statute was enacted; (3) legislative history; (4) common law or former statutory provisions, including laws on the same or similar subjects; (5) consequences of a particular construction; (6) administrative construction of the statute; and (7) title (caption), preamble, and emergency provision. As we both know from the evidence presented at the hearing regarding my client’s financial situation we believe that your argument for an increase in the bond amount would definitely violate §52.006 (c). A bond amount that is set at approximately $8,000 would constitute an amount of money in excess of what my client makes after taxes in 3 months. That would obviously cause a substantial economic harm to my client, especially due to with the fact that he has a newborn daughter and a fiancé to provide for.
In conclusion, I would like to remind you and your client of a demand letter sent to you last year about possible counter claims to your suit. I plan to file them soon. Under Texas Rules of Civil Procedure §42.003 my client would like to again make an offer of settlement. To minimize the burden and delays of more litigation my client is again offering to settle for the amount of the alleged damages of approximately $302 including the 2 days of rent, alleged carpet damage, and final water bill that was never sent without the rental concession charges we are pleading as a illegal penalty clause. Of course we would deduct the $273 in filing fees at county court from the alleged charges minus the rental concessions. In agreement with this we agree to release and hold harmless your client for any counter claims we have the ability to pursue in this case as well as any attorney fees that were already incurred in this matter. I am sure that you are concerned about your compensatory attorney fees from the first trial. We obviously plan to argue these would not have been necessary if you would have given my client an opportunity to pay without immediately assessing the rental concessions, immediately increasing an approximately $300 bill to almost $1,200. This would avoid the possibility of setting precedent in the rental concession matter as a penalty as well. If you client has a counter offer for settlement, please let us know what they feel would be an acceptable compromise to avoid the burdens of further litigation. One thing we have recently noticed is that the xxx case in Waco has been set for submissions on briefs at The Court of Appeals and your oral argument has been denied. If you lose that case, won’t that be three (including two jury) trials that have now found you guilty of fraud with only the Supreme Court to go to for appeals? From what I have read of the case briefs, it appears the xxx’s have argued the same situation we are alleging in regards XXXXX XXXXX of the affirmative defenses such as fraud and estoppel. I have also included a link to a Committee meeting video from the Texas House Business and Industry Committee that I think you will find interesting. The discussion on rental concession clauses begins at approx. 2 hours and 58 minutes into the video. http://www.house.state.tx.us/video-audio/committee-broadcasts/committee-archives/player/?session=81&committee=040&ram=90317a04t As far as a date for trial, my client is suggesting the days of the 17th and 18th of October if your client is unwilling to settle this matter. We feel this will provide enough time to get all discovery requests and information and pre trial motions taken care of. Please let me know your thoughts and what you would like to do from here. xxxxxx
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Thanks for your as usual great responses. Have an awesome night.
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