Magnolia Finlay & Andrew Finlay v. Elizabeth Blanton ( 2015 )


Menu:
  •                                                                       ACCEPTED
    01-14-00764-CV
    FIRST COURT OF APPEALS
    HOUSTON, TEXAS
    5/25/2015 6:34:48 PM
    CHRISTOPHER PRINE
    CLERK
    CASE NO. 01-14-00764-CV
    FILED IN
    IN THE FIRST COURT OF APPEALS
    1st COURT OF APPEALS
    HARRIS COUNTY, TEXAS        HOUSTON, TEXAS
    5/26/2015 8:00:00 AM
    CHRISTOPHER A. PRINE
    Clerk
    MAGNOLIA FINLAY, ANDREW FINLAY
    Appellants
    v.
    ELIZABETH BLANTON
    Appellee
    On Appeal from the County Civil Court at Law No. 1
    Harris County, Texas
    Trial Court Cause No. 1047130
    APPELLANT'S REPLY BRIEF
    MAGNOLIA FINLAY & ANDREW
    FINLAY
    7542 OAKWOOD CANYON DRIVE
    Cypress, TX 77433
    Telephone: (832) 900-1555
    Appellants
    IDENTITY OF PARTIES AND COUNSEL
    APPELLANTS
    Pro Se:
    MAGNOLIA FINLAY & ANDREW FINLAY
    7542 Oakwood Canyon Dr.
    Cypress, Texas 77433
    APPELLEE
    ELIZABETH BLANTON
    Appellate Counsel:
    FRANK O. CARROLL III
    TBA No. 24082785
    MIA B. LORICK
    TBA No. 24091415
    Roberts Markel Weinberg Butler Hailey PC
    2800 Post Oak Blvd., 57th Floor
    Houston, Texas 77056
    Trial Counsel:
    Dustin C. Fessler
    TBA No. 24080893
    Roberts Markel Weinberg Butler Hailey PC
    2800 Post Oak Blvd., 57th Floor
    Houston, Texas 77056
    ii
    ABBREVIATIONS AND RECORD REFERENCES
    Abbreviations:
    1.   Appellant Magnolia Finlay will be referred to as “Ms. Finlay”,
    “Finlays” or “Appellants”.
    2.   Appellant Andrew Finlay will be referred to as “Mr. Finlay”,
    “Finlays” or “Appellants”.
    3.   Appellee Elizabeth Blanton will be referred to as “Ms.
    Blanton”, “Blanton”, or “Appellee.
    Record References
    1.   The Clerk’s Record will be referred to as “[Volume] CR
    [Page(s)]”.
    2.   The Reporter’s Record will be referred to as “[Volume] RR
    [Page(s)][Line]”.
    3.   Appellant’s Exhibits (Excluded or missing) will be referred to
    as Ex. [Numeral][Page].
    4.   Appendixes will be referred to as App. [Numeral][Page].
    iii
    TABLE OF CONTENTS
    INDEX OF AUTHORITIES ................................................................. v!
    STATEMENT OF THE CASE ............................................................. 1!
    REPLY TO ISSUES PRESENTED FOR REVIEW........................... 1!
    STATEMENT OF FACTS .................................................................... 2!
    ARGUMENT & AUTHORITIES ........................................................ 4!
    PRAYER ............................................................................................... 12!
    iv
    INDEX OF AUTHORITIES
    Cases!
    Pulley!v.!Milberger,!198!S.W.3d!418!(Tex.!App.—Dallas!
    2006,!pet.!denied)!...........................................................................................!4,!5!
    Texas!Emp.!Ins.!Ass’n!v.!Elder,!282!S.W.2d!371!(Tex.!
    1955)!......................................................................................................................!10!
    United!States!v.!Ismoila,!100!F.3d!380!(5th!Cir.!1997)!.............................!7!
    Statutes
    TEX PE. CODE ANN. § 32.21 (West 2013) ......................................... 10
    TEX PE. CODE ANN. § 37.02 (West 2013) ......................................... 10
    TEX PR. CODE ANN. § 92.052 (West 2013) ......................................... 9
    TEX PR. CODE ANN. § 92.056 (West 2013) ....................................... 10
    TEX PR. CODE ANN. § 92.103 (West 2013) ......................................... 9
    TEX PR. CODE ANN. § 92.109 (West 2013) ......................................... 9
    TEX PR. CODE ANN. § 92.153 (West 2013) ....................................... 10
    Rules
    Texas Rule of Civil Procedure 270 .......................................................... 9!
    v
    STATEMENT OF THE CASE
    On March 24, 2014, retired judge Sharolyn Wood at The Justice
    Court, Precinct 5, Place 2, Harris County, granted default judgment in
    favor of the Appellants (Plaintiffs/Tenants), in the amount of $4,700, on
    this case citing violation of Texas Property Code § 92.109. Appellee,
    Elizabeth Blanton (Defendant/Landlord) appealed to Civil County Court
    at Law No. 1, of Harris County. The Honorable Debra Ibarra Mayfield
    Judge presiding at that court signed a Take Nothing judgment on August
    12, 2014. Appellants, Finlays (Plaintiffs/Tenants), timely filed a notice
    of appeal.
    REPLY TO ISSUES PRESENTED FOR REVIEW
    1.   The trial court erred in entering a take nothing judgment.
    2.   The trial court erred in excluding inadmissible evidence and
    testimony.
    3.   Appellants raised the issues of untimely repairs. Forgery, and
    errors in the lease are new to Appellants, not seen in the trial court;
    therefore, these issues are proper on appeal.
    1
    STATEMENT OF FACTS
    Because Appellee lives primarily in California, Appellants
    requested an effective method of payment, such as personal deposit at
    bank branch, or online deposit. (RR 6-20). Appellee provided a checking
    account with USAA, a bank that has no presence in Houston. Appellants
    would not be able to pay directly at the branch, and when online, they
    would have to pay transfer fees. (Ex. C). They could not open an
    account with that bank either; it is for military members only.
    Appellants timely paid their rent into the USAA account at the
    beginning of the lease by transfer; however, they incurred transfer fees.
    (Ex. C). They repeatedly requested Appellee to provide the right bank
    with presence in Houston, as they requested even before signing the
    lease, but were ignored. (RR 6-30). In order to avoid transfer fees,
    Appellants decided to use the secondary method of payment in the lease:
    Appellee’s physical address. (CR 11). Appellants scheduled the next two
    payments through their bank Bill Pay, to be received one week early by
    check to Appellee’s physical address. (Ex. C).
    Appellee wrongly used this to start claiming her 20-Day
    2
    vacation, as late fees for the check being uncashed, until her return,
    plus 2-day weekend.
    Rent Payment Schedule and Good Standing — In spite of all the
    difficulties Appellants endured with the method of payment, and
    distress, they managed to pay the rent early or on time.1 (Appellants Ex.
    C).
    RENT PAYMENT SCHEDULE
    2012           EARLY           ON TIME           LATE          METHOD              FEE
    March                                 27-Mar                        Money Order        Move-In
    April                 27-Mar                                        Money Order
    May                                    1-May                           Transfer           $3
    June                  25-May                                            Check
    July                  27-Jun                                            Check
    August                                 1-Aug                        Direct Deposit
    September                              1-Sep                        Direct Deposit
    October               27-Sep                                            Check
    November              30-Oct                                           Transfer
    December              30-Nov                                           Transfer
    2013
    January               31-Dec                                           Transfer
    February                                               12-Feb       Direct Deposit       $100
    March                 28-Feb                                           Transfer
    April                                  1-Apr                        Direct Deposit
    May                   30-Apr                                           Transfer
    June                                   1-Jun                           Transfer
    1
    Exhibit C “Proof of Payment”, and E “Proof by Bank” are not part of the Clerkʼs or Reporterʼs
    Record, and are being submitted to prevent a fraud from being perpetrated upon this Court and
    further, pursuant to Judge Ibarraʼs improper thwarting of Appellantsʼ ability to introduce
    evidence in an offer of proof, and the trial judgeʼs overall conduct in attempting to limit
    Appellantsʼ ability to introduce evidence and therefore, Appellantsʼ pray that this Court consider
    the sworn evidence.
    3
    ARGUMENT & AUTHORITIES
    I.    STANDARD OF REVIEW
    Appellee did not submit evidence to support good faith, except for
    a short oral statement.     (1 RR 58-59). The contrary overwhelming
    evidence is cited and proven throughout the entire Finlay’s brief.
    APPELLEE CITES UNPARALLELED CASE LAW
    Appellee cites Pulley v. Milberger, 
    198 S.W.3d 418
    , 426 (Tex.
    App.—Dallas 2006, pet. denied). This case law is totally unparalleled:
    quite the opposite. Appellee’s Brief at 16.
    The Pulleys were late in their rent payments thirteen times, but
    Milberger did not charge them any late fees as allowed by the lease.
    (Id. at 423).
    — Appellants paid early or on time. (Appellants Ex. C).
    The Pulleys caused extensive damage to the property, leaving it in
    deplorable condition: foundation, lawn, carpet, urine, etc. (Id. at 424).
    4
    — Appellants found the house dirty, stained and dirty carpet, damaged
    lawn. Appellants left the house in impeccable move out condition,
    including lawn repair, for which they were not reimbursed. (1 RR 45
    L25, 46 L1).
    Milberger sent the Pulleys a letter describing the damage to the
    house, stating that it had exceeded the deposit; 4 days after the Pulleys
    surrendered the house, and invited them to review his findings. Pulleys
    ignored their landlord’s letter and calls. (Milberger at 424).
    — In Finlays’ case, Appellee ignored the Appellants’ letters and emails
    claiming their deposit, although Appellants prompted Appellee 4 times,
    one of them a certified official form depicting Texas Property Code §
    92.109, showing all the repercussions the Appellee would be subject to.
    Nevertheless, Appellee acted unmoved. (CR 95-98), (1 RR 15 L17-22),
    (2 RR 66, 67, 71), (Ex. J).
    Milberger lost 3 months of rent during the repairs. (Milberger at 424).
    — Appellee rented the house right after Appellants left. Appellee had no
    5
    issues renting, as Appellants left the house in great condition.
    This case is exactly the opposite of Appellants’ case: Milberger is a
    responsible landlord, the Pulleys are irresponsible tenants.
    II.   THE TRIAL COURT ERRED IN ENTERING A TAKE
    NOTHING JUDGMENT.
    Reply to Appellee's Response to Issue No. 1: Appellee’s Brief at 27.
    Appellee failed to meet her burden of proof and rebut Appellants’ claim
    of bad faith. Appellee did not submit any irrefutable or valid evidence
    to prove good faith. The opposite happened. Appellee legal actions
    against her previous tenant, Mr. Brian Williams Lumpkins, who had to
    leave before being evicted, and who was chased by her private
    investigator; and the harsh treatment against the Appellants throughout
    the entire lease, prove Appellee has no amateur lessor status.
    Simply because the Appellee believes she is entitled to retain a
    security deposit, it does not constitute sufficient rebuttal of bad faith
    created under the Texas Property Code. And it should not give reason
    for the Court to employ an unreasonably lesser burden of proof.
    6
    Appellee ignored all emails and letters from Appellants prompting
    her to return the deposit, although one of the certified letters depicted
    Texas Property Code § 92.109, clearly explaining the repercussions.
    Appellee seemed to believe rules only apply to tenants. (CR 95-98), (1
    RR 15 L17-22), (2 RR 66, 67, 71), (Ex. J).
    Where is the good faith in this kind of behavior?
    Appellee’s actions have not one iota of good faith.
    III. THE TRIAL COURT ERRED IN EXCLUDING ADMISIBLE
    EVIDENCE AND TESTIMONY.
    Reply to Appellee's Response to Issue No. 2: Appellee’s Brief at 20.
    In bank and credit card fraud case, while hearsay and double hearsay
    issues were presented by the introduction of bank computerized
    printouts reflecting reports of cardholder telephone calls and the
    statements of cardholders concerning lost, stolen or not received cards,
    the statements and printouts were admissible under residual hearsay
    exception   based    on   “equivalent    circumstantial   guarantees   of
    trustworthiness”, in United States v. Ismoila, 
    100 F.3d 380
    , 392 (5th Cir.
    1997). Although, Appellants did not mention a specific rule of exception
    7
    in trial, these are real facts that Appellee cannot rebut or deny. They
    were real transactions; the checks were dated as testified; the original
    receipts for direct deposits exist; the online transfers can be proven; the
    original letters from the bank exist, and can be authenticated, if
    necessary.
    Appellants were not allowed to object the objections to their
    Exhibits: they were interrupted or ignored. Appellants were willing to
    get online from an electronic device to retrieve bank statements, but
    Judge Ibarra seemed to be in a hurry, and they thought it was incorrect to
    push further.
    Judge Ibarra did not overrule any of Fessler’s objections, although,
    the Appellants’ evidence was extremely relevant, and the facts were
    clearly laid out.
    The court did abuse its discretion by not allowing Mr. Finlay to
    testify while Ms. Finlay was on the stand trying to remember the first
    time Appellee claimed late fees. Mr. Finlay was not in the Gallery of
    the Courtroom. As Pro Se Plaintiff, he is a primary witness. He was at
    the Plaintiff’s Table; hence, Mr. Finlay had the right to testify as witness,
    8
    or to make interventions at certain given circumstances. Nonetheless, it
    was not the only time Judge Ibarra ignored or interrupted Mr. Finlay,
    and when he was trying to object the objections to the Exhibits there was
    no exception. (1 RR 78, L17-18). Mr. Finlay made very few
    interventions, but it can be concluded that he was ignored or interrupted
    in most of them. Plaintiffs’ Brief.
    IV   APPELLANTS RAISED THE ISSUES OF UNTIMELY
    REPAIRS. FORGERY, AND ERRORS IN THE LEASE IN
    THE TRIAL COURT WERE ONLY DISCOVERED WHEN
    REVIEWING THE DOCUMENTS APPELLEE SUBMITTED
    TO THE TRIAL COURT; THEREFORE, THESE ISSUES
    ARE PROPER ON APPEAL.
    Reply to Appellee's Response to Issue No 3: Appellee’s Brief at 22.
    Exhibit B is “Repairs not Done”. (1 RR 8, L12-14), (2 RR 36-48).
    Admitted in trial. This was several times mentioned in the Brief.
    Exhibit B is completely dedicated to this issue.
    The forgery and errors in the lease agreement were only noticed
    when reviewing the documents Appellee submitted to the trial court.
    Appellants had not seen the forged document before. The forgery
    and the errors completely debunk all Appellee’s claims. It would be
    9
    imposing the law on a false basis. Errors in a written contract do not
    have an expiration date. They constitute Reversible Error.
    In Texas Emp. Ins. Ass’n v. Elder, 
    282 S.W.2d 371
    , 375–76 (Tex. 1955),
    the Texas Supreme Court opined that evidence may be entered at any
    time before the Court of Appeals disposes of the appeal of the trial court
    judgment, under Texas Rule of Civil Procedure 270.
    The overwhelming evidence is so great and so many violations,
    that Appellants can claim countless damages, by any of them, but
    making emphasis on the main violation: — TEX PR. CODE ANN. §
    92.109: LIABILITY OF LANDLORD. (West 2013).
    The other violations still apply:
    — TEX PR. CODE ANN. § 92.103: OBLIGATION TO REFUND
    (West 2013).
    — TEX PR. CODE ANN. § 92.052: LANDLORD'S DUTY TO
    REPAIR OR REMEDY (West 2013).
    — TEX PR. CODE ANN. § 92.056: LANDLORD LIABILITY AND
    TENANT REMEDIES; NOTICE AND TIME FOR REPAIR.
    (West 2013);
    10
    — TEX PE. CODE ANN. § 32.21: FORGERY (West 2013);
    — TEX PE. CODE ANN. § 37.02: PERJURY (West 2013);
    — TEX PR. CODE ANN. § 92.153: SECURITY DEVICES
    REQUIRED WITHOUT NECESSITY OF TENANT (West 2013).
    — Errors in the Lease Agreement.
    — Judicial Bias, as depicted in the Appellants Brief.
    11
    PRAYER
    For the foregoing reasons, Appellants pray that this Court reverse
    the trial court's judgment, and render judgment that the bond for
    $9,731.40, posted by the Appellee, be available to cover the accrued
    amount of $5,510.00, plus any incurred fees along the proceedings, as
    well as punitive/statutory damages, whichever prevails for the other
    violations.
    Respectfully submitted,
    By: _________________________________
    MAGNOLIA FINLAY, ANDREW FINLAY
    7542 Oakwood Canyon Dr.
    Cypress, TX 77433
    Telephone: (832) 900-1555
    APPELLANTS
    12
    CERTIFICATE OF COMPLIANCE
    Pursuant to Rule 9.4 i(3) of the Texas Rules of Appellate
    Procedure, I certify that the word count in this Appellant’s Reply Brief is
    2299 words.
    CERTIFICATE OF SERVICE
    By my signature below, I hereby certify that a true and correct
    copy of Appellant's Brief was forwarded on May 25, 2015 to the
    following:
    (Via eFile TX Courts System)
    FRANK O. CARROLL III
    TBA No. 24082785
    MIA B. LORICK
    TBA No. 24091415
    Roberts Markel Weinberg Butler Hailey PC
    2800 Post Oak Blvd., 57th Floor
    Houston, Texas 77056
    Tel: (713) 840-1666
    Fax: (713) 840-9404
    fcarroll@rmwbhlaw.com
    mlorick@rmwbhlaw.com
    ATTORNEYS FOR APPELLEE
    ELIZABETH BLANTON
    Electronic Service: dfessler@rmwbhlaw.com
    Certified Mail/RRR:
    USPS Regular Mail
    13