In The Court Of Appeals For The Fifth District of Texas Dallas County, Texas

No. 05-10-01023-CV In The Court Of Appeals For The Fifth District of Texas Dallas County, Texas GREG CUNNIGHAM, Appellant, v. BOBBY ANGLIN, Appellee. APPEAL FROM THE JUDGMENT OF COUNTY COURT AT LAW NO. OF DALLAS, COUNTY, TEXAS BRIEF FOR APPELLEE FRANK D. CHANDLER MICHAEL F. LINZ Attorneys For Appellant January 14, 2011 LINZ & CHANDLER, P.C. 400 Katy Building 701 Commerce Street Dallas, Texas 75202-4599 214/748-1948

LIST OF PARTIES AND COUNSEL Appellant: Mr. Greg Cunningham 13601 Preston Road, Suite 1050E Dallas, Texas 75240 Appellant's Counsel: Mr. Timothy W. Sorenson State Bar No. 18848400 18484 Preston Road, Suite 102, PMB 116 Dallas, Texas 75252 Appellee: Mr. Bobby Anglin 6717 Talmadge Dallas, Texas 75230 Appellee s Counsel: Mr. Frank D. Chandler State Bar No. 04092500 400 Katy Building 701 Commerce Street Dallas, Texas 75202 Justice of the Peace Court Honorable Gerry Cooper Justice3 of the Peace Precinct 2, Place 1 of Dallas County, Texas Trial Court: Honorable Mark Greenberg County Court at Law No.5 Sitting for Honorable King Fifer County Court at Law No.2 Dallas County, Texas Court Hearing Motion for New Trial Honorable King Fifer County Court At Law No. 2 Dallas County, Texas i

REQUEST FOR ORAL ARGUMENT Appellee does not believe that oral arguments by the parties will be an aid to the Court in resolving the issues presented by Appellant herein, however should the Court grant Appellant s request for oral argument, Appellee requests that it be allowed oral argument to respond. ii

TABLE OF CONTENTS LIST OF PARTIES AND COUNSEL... i REQUEST FOR ORAL ARGUMENT... ii TABLE OF CONTENTS... iii TABLE OF CITATIONS... iv STATEMENT OF THE ISSUES... 1 STATEMENT OF THE CASE... 2 1. Course of Proceedings and Disposition in Court Below... 2 2. Statement of Facts... 4 SUMMARY OF THE ARGUMENT... 6 ARGUMENT... 7 ISSUE NO. 1 RESTATED: THE COUNTY COURT, IN A DE NOVO APPEAL OF A FORCIBLE ENTRY AND DETAINER ACTION, GAVE THE APPELLANT ADEQUATE NOTICE OF TRIAL AS REQUIRED BY THE TEXAS RULES OF CIVIL PROCEDURE.... 7 ISSUE NO. 2 RESTATED: APPELLEE WAS NOT REQUIRED TO GIVE APPELLANT, AS A MONTH TO MONTH TENTANT IN DEFAULT, NOTICE OF TERMINATION OF THE PARTIES LEASE AGREEMENT AND GAVE PROPER NOTICE OF A RENT INCREASE..... 13 CONCLUSION... 18 CERTIFICATE OF SERVICE... 19 iii

TABLE OF CITATIONS CASES Page BASF Fina Petrochemicals Ltd v. H.B Zachry Co. 168 S.W.3d 867 (Tex. App Hou [1 st Dist.] 2004, pet. denied)... 11 Carlson s Hill County Beverage v. Westinghouse Road Joint Venture 957 S.W.2d 951 (Tex. App. Austin 1997, no pet.)... 8 Carroll v. Bank of New York, 2005 Tex. App. Lexis 875, (Tex. App, Waco 2005)... 10 Cattin v. Highpoint Village Apartments 26 S.W.3d 737 (Tex. App. Ft. Worth, 2000)... 11 Corpier v. Lawson, 356 S.W.2d 361 (Tex. App. - Waco, 1962, no writ hist.)... 13 Haginas v. Malbis Memorial Foundation 163 Tex. 274, 354 S.W. 2d 368 (1962)... 10 Haltom City State Bank v. King Music Company, 474 S.W.2d 9, 11 (Tex. App. - Fort Worth, 1971, writ ref., n.r.e.)... 13 Howeth v. Anderson, 25 Tex. 557 (1860)... 14 Hunger v. Toubin Bros., Inc., 164 S.W.2d 765 (Tex. App Austin 1942, err dism d.)... 13 In Re: Metro Roi, Inc., 203 S.W.3d 406 (Tex. App. El Paso, 2006)... 11 Jones v. Winter, 215 S.W.2d 654 (Tex. App. - Amarillo, 1948)... 13 Juarez v. Ridgecrest Terrace Apartments, 199 Tex. App. LEXIS 8785 (Tex. App. Dallas 1999)... 7 McGlothlin v. Kliebert, 672 S.W.2d 231, 27 Tex. Sup. Ct. J. 469 (Tex. 1984)... 10 iv

Minor v. Adams, 694 S.W.2d 148 (Tex. App Houston [14 th Dist.] 1985)... 14 Pratt v. Dallas County, 531 S.W.2d 904 (Tex. App. Waco, 1975)... 13 Pruett Jewelers, Inc. v. J. Weingarten, Inc., 426 S.W.2d 902, (Tex. App. - Tyler, 1968, writ ref., n.r.e.)... 13 Racugno v. Hanovia Chemical & Mfg. Co., 110 S.W.2d 249 (Tex. App. Ft. Worth, 1937).... 14 Street Realty Co. v. Lackey, 11 S.W.2d 824 (Tex. App. Austin, 1928)... 14 Willeke v. Bailey et al., 144 Tex. 157, 189 S.W.2d 477 (Tex. 1945)... 13 RULES AND STATUTES Code Construction Act, 311.002 et. seq. Texas Government Code... 11 Code Construction Act 311.026(a) Texas Government Code... 11 Code Construction Act 311.026(b) Texas Government Code... 11 Sections 24.001 et. seq., Texas Property Code... 10 Section 91.001, Texas Property Code... 14, 17 Rule 215, Texas Rules of Civil Procedure... 12 Rule 245, Texas Rules of Civil Procedure... 9, 12 Rule 738, et. seq, Texas Rules of Civil Procedure... 7 Rule 751, Texas Rules of Civil Procedure... 8, 11 Rule 753, Texas Rules of Civil Procedure... 8, 12 v

STATEMENT OF THE ISSUES ISSUE NO. 1 THE COUNTY COURT, IN A DE NOVO APPEAL OF A FORCIBLE ENTRY AND DETAINER ACTION, GAVE THE APPELLANT ADEQUATE NOTICE OF TRIAL AS REQUIRED BY THE TEXAS RULES OF CIVIL PROCEDURE. ISSUE NO. 2 APPELLEE WAS NOT REQUIRED TO GIVE APPELLANT, AS A MONTH TO MONTH TENTANT IN DEFAULT, NOTICE OF TERMINATION OF THE PARTIES LEASE AGREEMENT AND GAVE PROPER NOTICE OF A RENT INCREASE. 1

STATEMENT OF THE CASE 1. Course of Proceedings and Disposition in Court Below. On March 22, 2010, Appellee filed a Complaint for Forcible Detainer against Appellant in the Justice of the Peace Court, Precinct 2, Place 1 of Dallas County, Texas. (Clerk s Record 000007). On April 1, 2010 the Justice of the Peace Court, Precinct 2, Place 1 of Dallas County, Texas entered a default judgment awarding Appellee damages for unpaid rent. (Clerks Record 000008). On April 5, 2010, Plaintiff filed its de novo Appeal to the County Court at Law No. 2 of Dallas, County, Texas (Clerks Record 000008). On April 14, 2010, the appeal from the J.P. Court to the Trial Court was perfected and the transcripts of the J.P. proceedings were filed with the Dallas County District Court. (Reporters Record Vol. 3 Exhibit 1) On April 19, 2010 the Trial Court gave the parties Notice of Trial (Reporters Record Vol. 3, Exhibit 2). 2

On April 26, 2010, Appellant filed a Motion to Consolidate the appeal with a pending action in County Court at Law No. 3 of Dallas County, Texas (Clerk s Record 000009). On May 4, 2010, Appellant filed an unverified Motion for Continuance. (Clerk s Record 000011-12). On May 13, 2010, the case was called to Trial before Judge Mark Greenberg, County Court at Law No 5 of Dallas County, Texas sitting for County Court No. 2, Dallas County, Texas. (Reporters Record Vol. 1, Page 1). At the time of trial the trial court denied the Appellant s Motion for Continuance and took the Appellant s Motion to Consolidate under advisement pending briefing by counsel and continued forward to trial. (Reporters Record Vol. 1, pg. 10, line 12 through pg. 12, line 13.) On May 19, 2010, the Judge Greenburg entered a Final Judgment awarding Appellee unpaid rents and attorney s fees against Appellant, (CR p.000013). On June 15, 2010, Appellant filed its Motion for New Trial and/or For Reconsideration with Authorities (Appellants Brief, Ex. C). On July 9, 2010, Appellant filed its Amended Motion for New Trial and/or for Reconsideration with Authorities (Appellant s Brief, Ex C). 3

On July 29, 2010 a hearing on Appellant s Amended Motion for New Trial was held before Judge T. King Fifer in County Court At Law No. 2. (Reporter s Record Vol. 3). At the conclusion of that hearing Judge Fifer denied the Appellant s Motion for New Trial. (Reporter s Record Vol. 3, pg. 14, Lines 8-9). On August 16, 2010 a Notice of Appeal was filed by Appellant. (Clerk s Record 000003). On August 20, 2010 an Order denying Appellants Amended Motion for New Trial was entered (Clerk s Record 000016). 2. Statement of Facts. Appellee generally has no objection to the recitation of facts set forth in the Appellant s Brief except for the following points: On September 10, 2009, Appellee gave Appellant and other tenants notice of his intent to raise the tenant s rents and obtain new commercial leases from each tenant including Appellant. (Reporters Record Vol. 2, Ex. 2; See also, pg. 17, line 3 17). On or about October 8, 2009, Appellee again gave Appellant, both orally and in writing, notice of Appellee s, intent to raise the rent on the leasehold beginning December 1, 2009. Appellee provided Appellant with the amount of 4

the increase and a new lease agreement which the Appellant did not execute. (Reporters Record Vol. 2, Ex 3 and Ex. 4; See also pg. 17, line 21 through pg. 19, line 24). On or about November 24, 2009, Appellee gave Appellant notice of the rental increase beginning December 1, 2007 and notice default for the Appellant s failure to pay rent due November 2009. (Reporter s Record, Vol. 2, Ex. 7). On or about December 1, 2009, Appellant paid the increased rent but failed to pay the amount due for November 2009. (Reporter s Record, Vol. 2, pg 25, lines 11-14). On or about December 28, 2009, Appellee gave notice to Appellant of his delinquency in paying the November 2009 rental and of the amount due for January 2009 (Reporter s Record Vol. 2, Ex 9). On or about January 1, 2009, Appellant paid the increased rent but again failed to pay the amount due for November 2009. (Reporter s Record, Vol. 2, pg 25, lines 11-14). On January 18, 2010, Appellee again attempted to negotiate a new lease with Appellant at the terms previously set out. (Reporter s Record Vol. 2, Ex. 11). On or about February 9, 2010, Appellee again gave notice to Appellant of his delinquency in paying the November 2009 and his delinquency in paying the February 2010 rental (Reporter s Record Vol. 2, Ex 12). 5

On February 9, 2010, Appellee also gave Appellant notice of his failure to comply with the terms of the parties agreement (Reporter s Record Vol. 2, Ex 13). On February 22, 2010, Appellee gave Appellant notice of the past due rent and rent due in March 2010. (Reporter s Record, Vol. 2, Ex. 14). On or about March 12, 2010, Appellee gave Appellant notice to vacate the premises. (Reporter s Record, Vol. 2, Ex. 15). SUMMARY OF ARGUMENT There was no error in this case. The Justice of the Peace Court complied with all the requirements of Rule 751 of the Texas Rules of Civil Procedure and forwarded to the County Court the transcript of the proceedings below. Appellants failed to raise any objection at trial that the County Court did not have the entire transcript. Upon receipt of the J.P. transcript, the County Court gave Appellant, through his counsel of record, notice of a Trial Setting which set Trial 23 days from the date of the Notice. That trial setting was more than 8 days after the receipt of the J.P. transcript as required by Rule 753 of Texas Rule of Civil Procedure. Appellant was well aware that the case had been transferred to the County Court at law because of his filing of a Motion to Consolidate and a Motion for Continuance. Appellant never requested discovery nor made a written jury demand as required by Rule 216 of the Texas Rules of Civil Procedure. 6

Appellant s has raised only two basic grounds for his appeal. First, that the County Court failed to give Appellant 45 days notice of the trial date, which as set forth in more detail below, was not required by the applicable Texas Rules of Civil Procedure. Second that the Appellee is not entitled to recover additional rents from Appellant because it failed to terminate the parties lease agreement prior to raising the rent, however again as set forth in more detail below, no such notice was required by the applicable provisions of the Texas Property Code and case law. ARGUMENT ISSUE NO. 1 THE COUNTY COURT, IN A DE NOVO APPEAL OF A FORCIBLE ENTRY AND DETAINER ACTION, GAVE THE APPELLANT ADEQUATE NOTICE OF TRIAL AS REQUIRED BY THE TEXAS RULES OF CIVIL PROCEDURE. The action for forcible entry and detainer was specially created by the legislature to provide a speedy, simple and inexpensive means for resolving the question of who is entitled to immediate possession of property. The proceedings and the appeals thereof are specifically governed by Rules 738 to 755 of Part VII of the Texas Rules of Civil Procedure entitled Rules Relating to Special Proceedings. See, Tex. R. Civ. P., Part VII: Rules Relating to Special Proceedings, 7

Sec. 3, Forcible Entry and Detainer. See also, Juarez v. Ridgecrest Terrace Apartments, 199 Tex. App. LEXIS 8785 (Tex. App. Dallas 1999); Carlson s Hill County Beverage v. Westinghouse Road Joint Venture, 957 S.W.2d 951, 953 (Tex. App. Austin 1997, no pet.) Rule 751 of the Texas Rules of Civil Procedure states: Rule 751 Transcript: When an appeal has been perfected, the justice shall stay all further proceedings on the judgment, and immediately make out a transcript of all the entries made on his docket of the proceedings had in the case; and he shall immediately file the same, together with the original papers and any money in the court registry, including sums tendered pursuant to Rule 749b(1), with the clerk of the county court of the county in which the trial was had, or other court having jurisdiction of such appeal. The clerk shall docket the cause, and the trial shall be de novo. The clerk shall immediately notify both appellant and the adverse party of the date of receipt of the transcript and the docket number of the cause. Such notice shall advise the defendant of the necessity for filing a written answer in the county court when the defendant has pleaded orally in the justice court. The trial, as well as all hearings and motions, shall be entitled to precedence in the county court. (Emphasis Added) Further Rule 753 of the Texas Rules of Civil Procedure states: Rule 753 Judgment by Default 8

Said cause 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. If the defendant has filed a written answer in the justice court, the same shall be taken to constitute his appearance and answer in the county court, and such answer may be amended as in other cases. If the defendant made no answer in writing in the justice court, and if he fails to file a written answer within eight full days after the transcript is filed in the county court, the allegations of the complaint may be taken as admitted and judgment by default may be entered accordingly. (Emphasis added) Rule 245 of the Texas Rules of Civil Procedure appears in Part II. Rules of Practice in District And County Courts Section 11, Trial of Causes; A. Appearance and Procedure and states Rule 245 Assignment of Cases for Trial The court may set contested cases on written request of any party, or on the court's own motion, with reasonable notice of not less than forty-five days to the parties of a first setting for trial, or by agreement of the parties; provided, however, that when a case previously has been set for trial, the Court may reset said contested case to a later date on any reasonable notice to the parties or by agreement of the parties. Non-contested cases may be tried or disposed of at any time whether set or not, and may be set at any time for any other time. A request for trial setting constitutes a representation that the requesting party reasonably and in good faith expects to be ready for trial by the date requested, but no additional representation concerning the completion of 9

pretrial proceedings or of current readiness for trial shall be required in order to obtain a trial setting in a contested case. As noted by Appellant, Rule 245 deals generally with Notice of trial settings in District and County Court cases in Texas. However, nowhere does Rule 245 conflict with or abrogate the requirements found in Texas Rules of Civil Procedure, Part VII: Rules Relating to Special Proceedings, Sec. 3., Forcible Entry and Detainer. In Carroll v. Bank of New York, 2005 Tex. App. Lexis 875, (Tex. App, Waco 2005), a case which issues are the same as the Appellant s issues at bar, appellant argued that the Court s notice of trial in a de novo appeal of a forcible entry and detainer action was inadequate because it was sent fewer than 45 days before the hearing, as required by Rule 245 of the Texas Rules of Civil Procedure. The 10 th District Court stated that the appellant s reliance on Rule 245 was misplaced. The court found that forcible detainer actions were special proceedings governed by particular statutes and rules found in the Texas Property Code Sections 24.001 through 24.011 and Texas Rules of Civil Procedure, Rules 738 through 755. See, Haginas v. Malbis Memorial Foundation, 163 Tex. 274, 354 S.W. 2d 368, 371 (1962). The court further found that since the notice of trial was sent pursuant to Rule 753 of the Texas Rules of Civil Procedure more than eight days before the trial that there was no error. The Court stated that: 10

A forcible detainer action is intended to be a summary, speedy, and inexpensive remedy for resolving the question of who is entitled to immediate possession of the premises. See, McGlothlin v. Kliebert, 672 S.W.2d 231, 232, 27 Tex. Sup. Ct. J. 469 (Tex. 1984). Consistent with that purpose, Rule 753 provides that the appeal 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. In Cattin v. Highpoint Village Apartments, 26 S.W.3d 737, 739 (Tex. App. Ft. Worth, 2000), appellant argued there, as here, that Rule 245 rather than Rule 753 should be applied to contested de novo appeals of forcible entry and detainer actions. The Court of Appeals rejected this argument noting that The plain language of Rule 753 governs the time for trial in forcible detainer appeals. Applying Rule 245 as Appellants suggest would ignore the specific rules governing forcible detainer actions and the plain language of rule 753 and would undermine the purpose behind those rules. (emphasis added). Further the Code Construction Act, 311.002 et. seq. of the Texas Government Code specifically provides for the construction of the Texas Rules of Civil Procedure. See, In Re: Metro Roi, Inc., 203 S.W.3d 406, 409 (Tex. App. El Paso, 2006); BASF Fina Petrochemicals Ltd v. H.B Zachry Co., 168 S.W.3d 867, 871 (Tex. App Houston [1 st Dist.] 2004, pet. denied). Section 311.026(a) of the Code Construction Act provides that if a general provision conflicts with a special 11

or local provision, the provisions shall be construed, if possible, so that effect is given to both. Section 311.026(b) states that if the conflict between the general provision and the special or local provision is irreconcilable, the special or local provision prevails. In the case at bar, Appellant complains that he did not receive 45 days notice as required by Rule 245 but fails to acknowledge that this is a de novo appeal of a forcible detainer action and therefore falls solely within the purview of Rule 753. Since Rule 245 and Rule 753 are irreconcilable then it is clear that the special provisions of Rule 753 must prevail. Since Appellant admits that he received 23 days notice of the Trial Setting in this matter he had adequate notice. Appellant further seems to object in this Court because the County Court denied the Appellant his right to a jury trial. What the Appellant fails to note in his argument is that Appellant did not file a written request for a jury nor pay a jury fee as required by Rule 216 of the Texas Rules of Civil Procedure. Nor can Appellant provide any evidence of such a written request or attempted payment of a jury fee. As the facts stand, this argument is untenable. Appellant further objects to this Court that he did not have time to conduct adequate discovery, however, the Appellant presents no evidence that he requested and was denied discovery from Appellee anytime prior to the date of trial. Again, Appellant s sole 12

evidence is that his counsel appeared on the trial date and claimed to not have had time to conduct discovery. (Reporter s Record, Vol. 2, pg 8 lines 14 15). ISSUE NO. 2 APPELLEE WAS NOT REQUIRED TO GIVE APPELLANT, AS A MONTH TO MONTH TENTANT IN DEFAULT, NOTICE OF TERMINATION OF THE PARTIES LEASE AGREEMENT AND GAVE PROPER NOTICE OF A RENT INCREASE. The Courts have long held that whether a tenancy is from month to month or from year to year is a question of law to be determined by the court from the facts. Jones v. Winter, 215 S.W.2d 654 (Tex. App. - Amarillo, 1948). Pruett Jewelers, Inc. v. J. Weingarten, Inc., 426 S.W.2d 902, 905 (Tex. App. - Tyler, 1968, writ ref., n.r.e.). However, this rule is not applicable where a tenant under a lease for one or more years holds over after the expiration of the term, the holding over, is as a matter of law considered an extension of the lease for one year, in absence of an express or implied agreement to the contrary. Hunger v. Toubin Bros., Inc., 164 S.W.2d 765, 766 (Tex. App Austin 1942, error dismissed n.r.e). Willeke v. Bailey et al., 144 Tex. 157, 189 S.W.2d 477 (Tex. 1945). The parties to a lease may expressly provide for holding over, and what the nature of the tenancy will be after the expiration of the term of the Lease, and such an agreement will govern, and a periodic tenancy will not arise. Corpier v. Lawson, 356 S.W.2d 361, 362 (Tex. App. - Waco, 1962, no writ hist.). Haltom City State Bank v. King Music 13

Company, 474 S.W.2d 9, 11 (Tex. App. - Fort Worth, 1971, writ ref., n.r.e.). Pratt v. Dallas County, 531 S.W.2d 904 (Tex. App. Waco, 1975). Under the common law holdover rule, a landlord may elect to treat a tenant holding over as either a trespasser or as a tenant holding under the terms of the original lease. Howeth v. Anderson, 25 Tex. 557, 572 (1860). It is well established that a month to month lease terminates every thirty days. Minor v. Adams, 694 S.W.2d 148, 151 (Tex. App Houston [14 th Dist.] 1985). See; Street Realty Co. v. Lackey, 11 S.W.2d 824 (Tex. App. Austin, 1928), Racugno v. Hanovia Chemical & Mfg. Co., 110 S.W.2d 249 (Tex. App. Ft. Worth, 1937). Section 91.001, Title 8, Chapter 91 of the Texas Property Code, which deals with termination of certain tenancies states in pertinent part; (a) A monthly tenancy or a tenancy from month to month may be terminated by the tenant or the landlord by giving notice of termination to the other (b) If a notice of termination is given under Subsection (a) and if the rentpaying period is at least one month, the tenancy terminates on whichever of the following days is the later; (1) the day given in the notice for termination; or (2) one month after the date on which the notice is given. 14

(e) Subsections (a), (b), (c), and (d) do not apply if: (1) (2) there is a breach of contract recognized by law. (emphasis added) Pursuant to the terms of the Lease Agreement between the parties herein (Reporters Record, Vol. 2, Ex. 1) section 2.04 of the lease states that if the Appellant/(Tenant) does not vacate the Demised Premises upon the expiration of the Lease Term or earlier termination of the Lease, Tenant s occupancy of the Demised Premises shall be a month to month tenancy subject to all 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. (emphasis added). Section 11.01(A) of the parties Lease Agreement entitled Default, states that the following event shall be an event of default under the Lease: A. Failure of Tenant to pay any installment of the Rent or other sum payable to the Landlord hereunder on the date that same is due and such failure shall continue for a period of ten (10) days. On or about September 10, 2009, Appellee gave Appellant and other tenants notice of his intent to raise the tenant s rents and obtain new commercial leases from each tenant including Appellant. (Reporters Record Vol. 2, Ex. 2; See also, pg. 17, line 3 17). On or about October 8, 2009, Appellee again gave Appellant 15

notice, both in writing and orally, of Appellee s intent to raise the rent on the leasehold beginning December 1, 2009 and provided Appellant with the amount of the increase and a new lease agreement which the Appellant did not execute. (Reporters Record Vol. 2, Ex 3 and Ex. 4; See also pg. 17, line 21 through pg. 19, line 24). On or about November 24, 2009, Appellee again gave Appellant notice of the rental increase beginning December 1, 2007 and notice default for the Appellant s failure to pay rent due November 2009. (Reporter s Record, Vol. 2, Ex. 7). On or about December 1, 2009, Appellant paid the increased rent but failed to pay the amount due for November 2009. (Reporter s Record, Vol. 2, pg 25, lines 11-14). On or about December 28, 2009, Appellee again gave notice to Appellant of his delinquency in paying the November 2009 rental and of the amount due for January 2009 (Reporter s Record Vol. 2, Ex 9). On or about January 1, 2009, Appellant paid the increased rent but again failed to pay the amount due for November 2009. (Reporter s Record, Vol. 2, pg 25, lines 11-14). On January 18, 2010, Appellee again attempted to negotiate a new lease with Appellant at the terms previously set out. (Reporter s Record Vol. 2, Ex. 11). On or about February 9, 2010, Appellee again gave notice to Appellant of his delinquency in paying the November 2009 and his delinquency in paying the February 2010 rental (Reporter s Record Vol. 2, Ex 12). On February 9, 2010, Appellee also gave Appellant notice of his failure to comply with the terms of the 16

parties agreement (Reporter s Record Vol. 2, Ex 13). On February 22, 2010, Appellee gave Appellant notice of the past due rent and rent due in March 2010. (Reporter s Record, Vol. 2, Ex. 14). On or about March 12, 2010, Appellee gave Appellant notice to vacate the premises. (Reporter s Record, Vol. 2, Ex. 15). The Lease Agreement between the parties was for a period beginning March 1, 2001 and continuing through February 28, 2004, from that point on the Appellant by retaining possession of the premises was by agreement a month to month tenant pursuant to the terms of the parties Lease Agreement. As set forth above, Appellee gave Appellant notice of its breach in failing to pay the November 2009 rent when due on 5 separate occasions beginning November 24, 2009. Appellant s failure to pay the November rent and his continuing failure to pay the rent was a breach of the parties Lease Agreement and therefore under the provisions of 91.001(e) of the Texas Property Code the Appellee was not required to give Appellant notice of termination as is argued by Appellant. Further since a lease on a month to month basis terminates or is terminable every 30 days, then the corollary is also necessarily true that the parties enter into a new lease at the beginning of each thirty days. Therefore a Landlord may properly give a month to month Tenant a notice of an increase in rent which is effective thirty days after the date of the notice of increase. The Tenant then has 17

the option of accepting the new increase in rent or treating such increase as a termination of the parties lease agreement and vacating the property. Beginning in September 2009, more than 45 days prior to the increase in rent, and continuing through November 2009, Appellee gave Appellant both written and oral notice of his intent to raise the Appellant s rent beginning December 1, 2009. Appellant did not respond to these notices nor did he respond to a request for a new lease agreement, however, Appellant did continue to occupy the leased space and made the increased rental payments. Appellant now argues that the Appellee s is not entitled to recover for the unpaid increased rent solely because Appellee did not terminate the parties lease agreement even though Appellant was given adequate notice of the increase, was given adequate notice of his breach of the Lease Agreement which he never cured and was given an opportunity to object to any rent increase by vacating the premises, which he did not do. Given the facts presented to the Court the Appellant s argument is without merit. CONCLUSION In consideration of the foregoing, Appellee asks that the Court sustain the Judgment entered by the County Court on May 19, 2010 and that he be granted such other and further relief as the Court deems just. 18

Respectfully submitted, LINZ & CHANDLER, P.C. Attorneys for Appellee By: _/s/ Frank D. Chandler Frank D. Chandler State Bar No. 04092500 Michael F. Linz State Bar No. 12393800 CERTIFICATE OF SERVICE 400 Katy Building 701 Commerce Street Dallas, Texas 75202-4599 Phone 214/748-1948 I certify that on this day a true and correct copy of the foregoing Appellee s brief was served on the attorney identified below, counsel of record for Appellant, by certified mail, return receipt requested. Signed this 14th day of January 2011. Timothy W. Sorenson 18484 Preston Road Suite 102, PMB #116 Dallas, Texas 75252 _/s/ Frank D. Chandler Frank D. Chandler 19