IN THE
FIRST COURT OF APPEALS
OCT 28 20,5
NO. 01-15-00663-CV
DEVON WILMINGTON, Appellant
V.
BAY AREA UTILITIES, LLC, Appellee
On Appeal from the County Court at Law 3
Harris County, Texas
Trial Court Cause No. 1057183
APPELLANT'S REPLY BRIEF
Respectfully submitted,
By: /s/Devon Wilmington
Devon Wilmington
P.O. Box 19547
Sugafland, Texas 77496-9547
Tel. (832) 754-6152
Email: devonwilmington@yahoo.com
Pro Se Appellant
TABLE OF CONTENTS
I. Identity of Parties and Counsel 3
II. Index of Authorities. 4
III. Introduction. 5
IV. Arguments 5
1. The County Court correctly granted the Final Judgment on July 27,
2015 as Bay Area had the superior right to possession of the Real
Property ..5
2. The issue of possession of the Real Property at this time is moot 6
3. The Trial Court had jurisdiction .7
4. The monetary judgment against Albert Reff was not appealed and is
therefore a final judgment and Wilmington has not contested the
monetary judgment 9
IV. Prayer 10
XI. Certificate of Service 11
01-15-00663-CV, Appellant's Reply Brief(Wilmington) Page | 2
I. Identity ofParties and Counsel
The following is a list of all parties and all counsel in this matter:
A. Appellant is Devon Wilmington, defendant in the trial court.
Pro Se Appellant is:
Devon Wilmington
P.O. Box 19547
Sugarland, Texas 77496-9547
P. 832-754-6152;
devonwilmington@yahoo.com
B. Appellee is BAY AREA UTILITIES, LLC, plaintiff in the trial court.The
attorney representing Appellee is:
Timothy J. Henderson
State Bar Number 09432500
6300 West Loop South, Suite 280
Bellaire, Texas 77401-2905
P. 713.667.7878 F. 713.668.5697
timj henderson@msn.com
CO-COUNSEL:
Joseph P. Montalbano
State Bar No. 14279700
2525 Bay Area Blvd., Suite 310
Houston, Texas 77058
P. 281.488.1656 F. 281.488.5884
01-15-00663-CV, Appellant's Reply Brief (Wilmington) Page | 3
II. Index ofAuthorities
Statutes
TEX. PROP.CODE ANN § 24.005(b)....... ......9
Texas Rules of Civil Procedures for Justice Courts Rule 510.3(c) 9
TRAP RULE 9.4 ..10
Cases
Adedipe v. Guardian Transfer & Storage, Inc., No. 14-10-00752-CV, 2011
Tex. App. LEXIS 71 .......8
Aguilar v. Weber, 72 S.W.3d 729 (Tex. App. - Waco 2002, pet. dism'd
w.o.j.) 7
Dillingham v. Putnam, 109 Tex. 1, 14 S.W. 303 (Tex. 1890) ..7
Elwell v. Countrywide Home Loans, Inc., 267 S.W.3d 566, 568-69 (Tex.
App.-Dallas 2008, pet. Dism'd w.o.j.) 5
Gulledge v. White, 73 Tex. 498, 11 S.W. 527 (1889) 7
Kennedy v. Andover Place Apartments, 203 S.W.3d 495, 497 (Tex. App.~
Houston [14th Dist] 2006, no pet.) 7
Mekeel v. U.S. Bank National Assn., 355 S.W.3d 349, 357 (Tex. App. - El
Paso 2010, pet. dism'd) 6
Schlichting v. Lehman Brothers Bank FSB, 346 S.W.3d 196, 198 (Tex. App.
-Dallas 2011, pet. dism'd) ..6
Texas Best Mortgage, Inc. v. Nieves, No. 04-03-00097-CV, 2003 Tex. App.
LEXIS 9402, at 7-8(Tex. App. - San Antonio Nov. 5, 2003, no pet.)(mem.
OP-) • ••• • 1%
Valdez v. Gonzalez Equities, Ltd., No. 04-12-00466-CV, Defendants ,8
Ward v. Malone, 115 S.W.3d 267, 271 (Tex. App. - Corpus Christi 2003, no
pet 8
IMJBBWSl
01-15-00663-CV, Appellant's Reply Brief (Wilmington) Page | 4
I. INTRODUCTION
By this Reply Brief, no attempt is made to set forth a response to each of
Appellee's contentions, most of which are fully covered by the opening
brief. Only those points requiring additional comment will be raised to assist
this court in resolving the pertinent issues.
II. ARGUMENT
ISSUE 1: The County Court correctly granted the Final Judgment on July 27,
2015 as Bay Area had the superior right to possession of the Real Property.
Appellant disputes issue 1:
Trial Court erred in rendering judgment in forcible detainer action. BAY AREA
UTILITIES had no legal claim to bring a matter of Forcible Detainer Action. In
order to prevail on its forcible detainer action, [the plaintiff has to] to prove (1) it
owned the property by virtue of a foreclosure sale deed, (2) Defendant became a
tenant at sufferance when the property was sold under the deed of trust, (3)
Plaintiff gave Defendant notice to vacate the premises, and (4) Defendant refused
to vacate the premises. See Elwell v. Countrywide Home Loans, Inc., 267 S.W.3d
566, 568-69 (Tex. App.-Dallas 2008, pet. dism'd w.o.j.).
BAY AREA UTILITIES has no prima facie evidence that it owned
the property 12951 Iris Garden Lane by virtue of a Substitute Trustee Deed.
Therefore they could not demand possession because they were not entitled to
01-15-00663-CV, Appellant's Reply Brief (Wilmington) Page | 5
possession of property. Devon Wilmington continues to have superior right to
possession of property.
ISSUE 2: The issue of possession of the Real Property at this time is moot.
Appellant disputes issue 2.
BAY AREA UTILITIES who was not the buyer at the foreclosure sale has failed
in its attempt to offer sufficiency of evidence of good cause, and therefore a
genuine justiciable controversy exists between parties.
In order to prove right to possession, it is sufficient if the buyer at the foreclosure
properly proves up (1) the deed of trust, (2) the substitute trustee's deed, and (3)
the notice to vacate. Mekeel v. U.S. Bank National Assn., 355 S.W.3d 349, 357
(Tex. App. - El Paso 2010, pet. dism'd); Schlichting v. Lehman Brothers Bank
FSB, 346 S.W.3d 196, 198 (Tex. App. - Dallas 2011, pet. dism'd);
Bay Area Utilities has only exercised its right under judgment to obtain writ of
possession. There is no evidence presented as to whether there has been actual
execution of the Writ of Possession. Devon Wilmington continues to assert her
rights of actual possession of property. Devon Wilmington has contended that
BAY AREA UTILITIES has not stated a claim for which relief can be granted and
that superior possession still rests with her. Devon has been, and continues to
stand in defense of possession to subject property. If the evicted party claiming
possession has a potentially meritorious claim to possess the residential premises,
01-15-00663-CV, Appellant's Reply Brief(Wilmington) Page | 6
however, displacement by eviction does not render the appeal moot. Kennedy v.
Andover Place Apartments, 203 S.W.3d 495, 497 (Tex. App.-Houston [14th Dist.]
2006, no pet.)
Devon Wilmington exercised her right to appeal to further claim right to
possession of her property. Devon Wilmington has a right to appeal without
Posting Supersedeas Bond. The Texas Supreme Court held over 120 years ago that
conditioning a party's right to appeal upon posting a supersedeas bond violates the
due course of law provision of the Texas Constitution. See Dillingham v. Putnam,
109 Tex. 1, 14 S.W. 303 (Tex. 1890).
ISSUE 3: The Trial Court had jurisdiction.
Appellant disputes Issue 3.
Appellant asserts that the trial court did not have jurisdiction, because no landlord-
tenant relationship was set forth in a contract for deed. A landlord-tenant
relationship is required to support a forcible detainer action. Gulledge v. White, 73
Tex. 498, 11 S.W. 527 (1889); See Aguilar v. Weber, 72 S.W.3d 729 (Tex. App. -
Waco 2002, pet. dism'd w.o.j.). Here the appellate court held that because no
landlord-tenant relationship was set forth in the contract for deed and the buyers
contested the default issue related to possession, title was at issue and the county
court erred by interpreting title under the contract in order to determine possession
in a forcible detainer lawsuit. The court reasoned that the eviction case involved a
01-15-00663-CV, Appellant's Reply Brief (Wilmington) Page | 7
right to possession dependent on the contract for deed and, therefore, the justice
court and county court lacked jurisdiction of the forcible detainer lawsuit. Id.;
accord, Ward v. Malone, 115 S.W.3d 267, 271 (Tex. App. - Corpus Christi 2003,
no pet.); Texas Best Mortgage, Inc. v. Nieves, No. 04-03-00097-CV, 2003 Tex.
App. LEXIS 9402, at 7-8 (Tex. App. - San Antonio Nov. 5, 2003, no pet.) (mem.
op.).
When a contract for deed is not introduced into evidence and the buyer alleges
fulfillment of the terms of an agreement, "the justice court lacks jurisdiction
because the suit necessarily involves a determination of title." Valdez v. Gonzalez
Equities, Ltd., No. 04-12-00466-CV, Defendants.
The county court at law lost its jurisdiction when it alleged damages in excess of
$59,053.79. When an appellee amended his suit and alleged damages in excess of
$10,000 in county court at law, the county court at law lost jurisdiction because the
justice court did not have jurisdiction. Adedipe v. Guardian Transfer & Storage,
Inc., No. 14-10-00752-CV, 2011 Tex. App. LEXIS 71.
01-15-00663-CV, Appellant's Reply Brief (Wilmington) Page | 8
ISSUE 4: The monetary judgment against Albert Reff was not appealed and is
therefore a final judgment and Wilmington has not contested the monetary
judgment.
Appellant disputes issue 4.
Albert Reff was not and is not a party to this forcible detainer suit due to the fact
he was not named in the petition neither served with citation. Albert Reff is not
named under a lease. Therefore no judgment can attach. I rebut the presumption
that Albert Reff owes a money judgment. According to Rule 510.3(c); when the
eviction is based on a written residential lease, the plaintiff must name as
defendants all tenants obligated under the lease residing at the premises whom
plaintiff seeks to evict. No judgment or writ of possession may issue or be
executed against a tenant obligated under the lease and residing at the premises
who is not named in the petition and served with citation.
BAY AREA UTILITIES was not the purchaser at foreclosure sale and therefore
not entitled to rents. According to TEX. PROP. CODE ANN. § 24.005(b)
(purchaser at foreclosure sale entitled to rent paid after giving notice to tenant of
foreclosure sale).
Devon Wilmington rebuts the presumption of any money judgment owed and has
contested the Final Judgment of the Trial Court in her opening brief, which is
01-15-00663-CV, Appellant's Reply Brief (Wilmington) Page | 9
inclusive of the Money Judgment.
X. Prayer
Appellant prays that this Court reverse the Trial Court's ruling without remand and
renders a take nothing judgment and grant Devon Wilmington any further equitable
relief it deems appropriate.
st ectfully. ted,
on Wilmington
By: _ Devon Wilmington, PRO SE
P.O. Box 19547;
Sugarland, TX 77496-9547;
P. 832.754.6152
CERTIFICATE OF COMPLIANCE - Pursuant to Tex. R. App. Pro. 9.4, I
hereby certify that this Appellant's Reply Brief contains 1,567 words. This is a
computer-generated document created in Microsoft Word, using 12 or 14-point
typeface for all text, except for footnotes which are in 12-point typeface. In making
this certificate of compliance, I am relying on the word count provided by the
software^used to preparethe^jument.
01-15-00663-CV, Appellant's Reply Brief (Wilmington) Page | 10
XL CERTIFICATE OF SERVICE
A copy of this Appellant's Reply Brief was served upon Timothy J.
Henderson, 6300 West Loop South Suite 280 Houston, TX 77401-2905 counsel
for Appellee and Joseph P. Montalbano 2525 Bay Area Blvd. Suite 310 Houston,
Texas 77058 secondary counsel for Appellee, via certified mail.
01-15-00663-CV, Appellant's Reply Brief (Wilmington) P a g e | 11
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