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William B. Esq.
William B. Esq., Attorney
Category: Legal
Satisfied Customers: 2960
Experience:  Civil litigation attorney for individuals and businesses.
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I am currently involved in a breach of residential lease case

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I am currently involved in a breach of residential lease case that involves what I am pretty confident is an illegal penalty clause. They have charged me liquidated damages of almost $900 on $300 worth of actual damages. I lost in JP court where they have sued over 800 people in the last 5 years and won every case with the same JP, who in the state of Texas does not have to be a lawyer.

To appeal the case, I was required to post an appeal bond in the amount of double the amount of the judgement, which was $1,189 meaning almost $2,400. That was back in February. I tried to file the bond with an inability to pay and again the judge rejected the inability to pay and made me come up with the $2,400. I a pretty sure she is in cahoots with them due to the way my trial went and several other trials of other tenants I have talked to. In the state of Texas JP hearing are not courts of record. It is so bad that when I asked for a Findings of Fact and Conclusions of law to help with the appeal, I was sent a one sentence reply. "This is not a court of record" So basically she had to give no explanation for how she came to the determination that I owed these people $1,189 and $2,750 in attorney fees at an interest rate of 18%. When we submitted the request, we were sanctioned $600 for even asking her how she came to that determination. She told us that she has handled 1000s of eviction cases. I wasn't even evicted!!

I came up with the appeal bond amount of almost $2,400 at great personal sacrifice to both myself and my family. Now they are trying to get the case tossed from County court for lack of jurisdiction on appeal because they are saying that the attorney fee's are supposed to be included in the amount and the appeal bond should have been almost $8,000! I know they are doing that because they do not ever want this case that they have filed suit on 100s of people to ever make it to a court of record with a actual judge.

I am responding to the motion and trying to get the bond amount decreased based on several legal arguments, can you please let me know if they are correct?

One the appeal bond amount was set excessively high based on Texas Civil practices and remedy code 52.006 because the amount is more than 50% of my net worth which is negative according to GAAP and the amount has caused substantial economic harm to my family. They said that that section did not apply and that it is based on TX Rules of Civil Procedure 571. I have several cases as precedent that I can cite were the rule 52.006 was established for exactly this reason of not limiting appeals to only people that could pay the amount of the bond.

The second argument is that the supreme court recently ruled on a writ of mandamus deciding that attorney's fees are not to be included in the amount of the bond. see re in nalle plastics.

The third argument is that this would violate my due process right to appeal. It has been stated several times that the right to appeal is guaranteed and that courts need to safeguard it.

Can you please tell me if these arguments are correct based on the information I have provided and any other thoughts that you may have in regard to this dilemma. Thanks.
Submitted: 1 year ago.
Category: Legal
Expert:  William B. Esq. replied 1 year ago.

William B. Esq. :

Dear Customer, it appears that you have provided sound legal argument to support your position. In drafting an appellate brief, or appellate motion, it is important to keep the facts and law focused on the issues at hand (appeal of your specific case, and focus on the issues in your case, not the lower court judge). By keeping a focused argument with strong facts and law, you will be able to keep your argument clear and avoid having the other party pick your brief apart based on non-consequential issues (making a big deal out of things that really don't impact the merits of your case).


There is not much that can be done about the judiciary structure in the course of your appeal, but if you have strong facts and law, it is possible to change the outcome of your case.

Expert:  William B. Esq. replied 1 year ago.
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Customer: replied 1 year ago.

I planned in now way shape or form to disparage the jp judge because she is what I feel, at the least incompetent and at the most working with them. I planned on pointing out that the jp court is not a court of record and that if I am forced to come up with this amount, that means that the jp courts in Texas can take away up to $10,000 worth of someone's property with no official record as to why. I planned on bringing this up in a general sense for overall Texas due process rights/concerns that are guaranteed from the both US and Texas constitution. I also want to make sure that is in there because "god forbid" I lose this motion to dismiss and need to take this to the Court of appeals, I want this memorialized in the proceeding.


 


Does that seem to make sense and do you think worded in that manner it will be convincing?

Expert:  William B. Esq. replied 1 year ago.
I can't tell you how to draft your legal argument. It is hard to take on the current form of the Texas Judiciary (it does not mean that it is impossible, or that it should not be done - if your experience is such that they are acting improperly and inappropriately, perhaps it is simply time they reevaluate).

I can tell you that it will be more difficult to address two separate issues (1) the facts and law of your case, and (2) the facts and law regarding the constitutionality of the JP courts in the same brief.

If you are planning on taking this on, I would strongly suggest addressing them as separate issues (keep the court issue respectful - you can show the objective problems and issues with the judge's rulings writings, or statements, but judges generally frown on personal attacks on judges, but from reading your writing I am probably being overcautious in my response, but it is worth stressing). This is my personal style, yours may be different, and perhaps more effective, but from my experience an objective tact helps frame the issues as legal ones as opposed to emotional ones.
Customer: replied 1 year ago.

One more quick question.


 


According to TX RCP 91a.3, it seems that they have only 60 days to bring the motion to dismiss after the first pleading containing the challenged cause of action is served on the movant.


 



This appeal was filed Feb. 22 and the plaintiff's request for initial disclosures were sent to us 4/24. Also they are alleging that they conferenced on the appeal bond increase 4/5 with my former attorney through their former attorney. These are all past 60 days ago. Am I reading the statute wrong and the time frame to for motions to dismiss is only applicable to frivolous lawsuits and am motion to dismiss can be brought at anytime before trial or am I correct in that they missed the deadline and their motion should be dismissed on that alone?

Expert:  William B. Esq. replied 1 year ago.
TRCP 91a only applies to a motion to dismiss a baseless action when it is first filed (you are already past that pleading phase, and are now in the appellate phase, this section would not apply).

There are other ways to make a motion to dismiss (failure to file a timely notice of appeal, your situation, failure to file a proper bond, etc.).

I am assuming that your current situation is that you are in one of two spots. (1) you are not yet ready to file your appellate briefs as the opposition has filed a motion to prevent the matter from going on appeal, by filing a motion to dismiss based on failure to post a bond; or (2) the Court is willing to hear both the motion to dismiss based on failure to post a bond, and hear the appeal at the same time.

It is my guess that you are in position (1) and that you must first beat the motion to dismiss based on the bond question. (Remember, you also have the option of paying the judgment in the lower court prior to appeal. It requires you paying money to the other side, but it costs less than it does to post the bond. You risk not getting your money back, but your effort to get to appeal will be guaranteed. I am not advocating either way, just bringing up the possibility if it is an issue on the finance side - it is a strategy and litigation finance issue, not anything to do with your legal position or arguments that you raise above).
Customer: replied 1 year ago.

You are right i am in position 1. so you are saying that i can just pay the other side the full amount of the 4k judgement and continue with the trial? I thought if I paid them the judgement that the case would be over. It says that to appeal to county court from jp court it must be double the amount of the jp judgement. I posted the initial bond amount of $2300 at the court. Can I pay them the judgement and continue with the trial or would it be over at that point?

Expert:  William B. Esq. replied 1 year ago.
The bond only acts as a replacement for payment of the judgment, it does not preclude an appeal.

In every jurisdiction I have seen, payment of the judgment does not preclude an appeal. Unless you have seen something particular to the JP court judgment, you can pay the judgment amount and continue with the appeal.

The idea is that while the court's judgment is valid and enforceable, you can still appeal the merits or procedure of the decision. I am going to be away from my computer for about an hour or so, but I will follow up after I have a chance to review the Texas statutes regarding appeal of these matters as I have no reason to believe otherwise for your situation. If you have seen a statute or rule that you believe is different, please send it to me as I would like to review it in particular (trying to research a negative can be difficult).
Expert:  William B. Esq. replied 1 year ago.
Dear Customer,

I have reviewed the Texas Rules of Civil Procedure (http://www.supreme.courts.state.tx.us/rules/trcp/rcp_all.pdf) and while the rule appears somewhat obscure on the point (it allows a reduction of bond as to "costs" paid by the appellant, but does not make a distinction between the judgment and the court costs for appeal), I believe that a bond is required.

You do not need to come up with the full amount if you are able to find at least two sureties (bond or surety companies - they charge a fee to act as sureties in these matters) to post the judgment bond for the appeal.

Also, you can file an "affidavit of inability" to post a bond under rule 572. This gives the specific issues and facts that you need to make to first the JP and then to the Judge if the JP denies your request. The points and arguments you identified earlier will be helpful, but start with the Affidavit. It will be late as your judgment was over 5 days ago so you will need to petition the court for discretion in the matter (it would be reasonable mistake, etc. in addition to your legal argument above).
Customer: replied 1 year ago.
Isn't that what was just determined by The writ of mandamus : re in Nelle plastics?

I can't find sureties because I am not in Texas and they are required to be in the state of Texas. I have called bonding but they all require the total amount of the bond to be sureties. 10% of bail if I commit a first degree felony but total amount for civil bond.

Can you look at that writ of mandamus: re in Belle plasticsand see if that defeats their argument?
Expert:  William B. Esq. replied 1 year ago.
Do you have the cite for Belle Plastics?
Customer: replied 1 year ago.

Sorry was typing on the phone before and it auto correct mispelled it.


 


http://caselaw.findlaw.com/tx-supreme-court/1631640.html

Expert:  William B. Esq. replied 1 year ago.
Dear Customer,

I cannot read the case any other way. The Court stated that attorney's fees incurred in prosecuting the case in chief are not compensatory damages and not included in calculating the amount of the bond.

(I have not "shepardized" the case or researched the issue beyond this, but the case you provided is clear and unambiguous).
William B. Esq., Attorney
Category: Legal
Satisfied Customers: 2960
Experience: Civil litigation attorney for individuals and businesses.
William B. Esq. and 13 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

Thanks so much for your help. You have been awesome. have a good night.

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