Linda S. Nowlin v. Lori Keaton

Case Information

NO. 03-14-00608-CV

IN THE COURT OF APPEALS FOR THE THIRD SUPREME JUDICIAL DISTRICT AT AUSTIN, TEXAS

FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS $3/2/2015$ 4:41:03 PM JEFFREY D. KYLE Clerk

LINDA NOWLIN, APPELLANT

V.

LORI KEATON, APPELLEE

APPEAL OF CAUSE C-1-CV-14-006938 FROM THE COUNTY COURT AT LAW #1 OF TRAVIS COUNTY, TEXAS

APPELLANT'S REPLY BRIEF

DAVID NOWLIN ATTORNEY FOR APPELLANT 7301 RR 620 North, Ste. 155, 319 Austin, Texas 78726-4537 Telephone: (512) 468-4882 Email: DavidNowlin@me.com

NO ORAL ARGUMENT REQUESTED

IDENTIFICATION OF THE PARTIES AND COUNSEL

Appellant certifies that the following is a complete list of the parties, attorneys, and all other interested persons regarding this matter:

1. The Appellant in this case is: Linda Nowlin Nowlin Properties 7301 RR 620 North, Ste. 155, 319 Austin, Texas 78726-4537
2. Appellant was represented at trial and on appeal by: David Nowlin Nowlin Properties 7301 RR 620 North, Ste. 155, 319 Austin, Texas 78726-4537
3. The Appellee in this case is: Lori Keaton The Giving Tree Learning Center 15102 Cavalier Canyon Drive Lakeway, Texas 78734
4. Appellee was represented at trial and on appeal by:

Robby Abarca Attorney at Law P.O. Box 152547

Austin, Texas 78715

NOTATION AS TO THE FORM OF CITATION

Citation in this brief will be as follows: (a) Citation to the Reporter's Record (R) will be to volume and page number, e.g., "2R12" refers to page 12 of the second volume of the Reporter's Record and "SR12" refers to the same page of the supplemental volume. (b) Citation to the single-volume Clerk's Record (CR) will be to page number only, e.g., "CR15" refers to page 15 of the Clerk's Record. (c) Citation to the Plaintiff's and Defendant's Exhibits (PX and DX respectively) will be to exhibit and page number, e.g., "2PX1" refers to page 1 of Plaintiff's Exhibit #2. All exhibits in evidence are located, in the third volume of the Reporter's Record. (d) Citation to the Appellant's and Appellee's Briefs (PB and DB respectively) will be to page number only, e.g., "PB1" refers to page 1 of Appellant's Brief and "DB1" refers to page 1 of Appellee's Brief.

TABLE OF CONTENTS

Title Page. ..... i Identification of the Parties and Counsel. ..... ii Notation as to the Form of Citation. ..... iii Table of Contents. ..... iv Index of Authorities. ..... v Statement of the Case. ..... vi Points of Error. ..... vii Statement of Facts. ..... 1 Summary of Argument. ..... 1 Argument. ..... 4 I. Appellee Misrepresents the Record and the Holding in E.J. Rohrt When She States That a Landlord May Not Recover Future Rents When She, Rather Than a Tenant, Terminates a Lease. ..... 4 II. Appellee Also Misrepresents Applicable Law When She Argues that Appellant Waived Her Right to Receive Delinquent Rent from Appellee for Time Spent in Possession of the Property. ..... 8 Prayer. ..... 11 Certificate of Service. ..... 12 Certificate of Compliance. ..... 12 Appendix. ..... 13

INDEX OF AUTHORITIES

Cases

Texas Supreme Court

Dearborn Stove Co. v. Caples, 236 S.W.2d 486 (Tex. 1951) ..... 6 E.J. Rohrt et al, v. Kelley Manufacturing Company, 349 S.W.2d 95 (Tex. 1961) ..... $4,5,6$ Sanderson v. Sanderson, 109 S.W.2d 744 (Tex. 1937) ..... 8 Texas Courts of Appeals Walling v. Christie Hobby, Inc., 54 S.W.2d 186 (Tex.Civ.App.-Galveston 1932, N.W.H.). ..... $4,5,6$ Sargent v. Highlite Broadcasting Co., 466 S.W.2d 866 (Tex.Civ.App.—Austin 1971, no writ). ..... 8,9 Rules Tex.R.Civ.Proc. 740 ..... 6

STATEMENT OF THE CASE

Appellant filed her suit for forcible detainer (herein referred to alternately as "eviction") in Travis County Justice Court #2 on June 6, 2014. 2R71, CR30. In her petition, Appellant pled damages for "all rents ... according to the lease dated 5/1/14". CR30. Additionally, she indicated that attorney fees and court costs were sought in unspecified amounts. Id. On July 2, 2014, judgment was rendered in favor of Appellee. CR11. On or about July 23, 2014, Appellant appealed from that judgment to the Travis County Court at Law #1. CR5.

On August 25, 2014, this cause came to be heard in County Court at Law #1, for trial by jury, which returned a verdict in Appellee's favor. CR144-CR147. On August 28, 2014, Appellant moved the County Court to render judgment notwithstanding the jury's verdict, to grant a new trial and to issue written rulings on her proposed jury questions. CR153-CR175. On September 17, 2014, the court denied all post-judgment motions and rendered judgment in favor of Appellee that Appellant take nothing, noting specifically that Appellant was not entitled to collect the rent in arrears for July and August of 2014. SR5, SR10-SR12, CR176.

Appellant filed her notice of appeal on September 22, 2014, and this appeal ensued. CR177.

ISSUES PRESENTED

I. Appellee Misrepresents the Record and the Holding in E.J. Rohrt When She States That a Landlord May Not Recover Future Rents When She, Rather Than a Tenant, Terminates a Lease. II. Appellee Also Misrepresents Applicable Law When She Argues that Appellant Waived Her Right to Receive Delinquent Rent from Appellee for Time Spent in Possession of the Property.

STATEMENT OF FACTS

On April 12, 2014, Linda Nowlin (hereinafter named "Appellant") and Lori Keaton (hereinafter named "Appellee") created a Residential Lease Contract (hereinafter named "the Lease") for the rental of residential real property located at 3907 Eck Lane, Austin, Texas 78734. 1PX1, 2R27. The Lease grants to Appellee the right to possess and occupy the subject property only so long as she pays rent for its use and she abides by certain enumerated and specific rules and prohibitions. 1PX1.

In Section 32, "Default by Resident," the Lease provides that "[a]ll monthly rent for the rest of the Lease Contract term or renewal period will be accelerated automatically without notice or demand (before or after acceleration) and will be immediately due and delinquent if, without [Appellant's] written consent[,]" Appellee leaves the property prior to the end of the lease term without paying rent for the entire term, or if Appellee is "judicially evicted or move[s] out when [Appellant] demand[s] because [Appellee has] defaulted." 1PX4.

On June 4, 2014, Appellant posted her first notice to vacate for breach of the Lease, alleging that Appellee was in default as a result of her resisting and attempting to thwart and frustrate Appellant's attempts to repair the property and her intentionally disturbing the comfort and convenience of Appellant and her

agent. 2R87-2R88. The Notice to Vacate stated that "[y]our [Appellant's] residency is terminated effective immediately[,]" and that "you are liable for all rent due under the full term of your contract, damages to the premises, legal fees and any other charges due under the terms of your agreement." CR32. Nowhere did it state that any changes were made to the Lease by the issuance of the Notice to Vacate or that the Lease was terminated. Id.

Appellee was required to make payments of rent to Appellant on the first of each month in the amount of $\$2,100.00$ . 1PX1. She last paid rent on June 3, 2014, for the month of June of 2014, and made no further payment, though she stayed in possession of the property until September 5, 2014. See SR9, and see 2R76. On July 2, 2014, Appellant requested of her banking institution that her deposit account be made inaccessible to Appellee, effectively refusing to accept late payment of rent. 2R41.

In her testimony at trial, Appellee stated that Appellant "told me [Appellee] that she would never accept rent from me and that she would get an eviction against me." 2R108.

SUMMARY OF ARGUMENT

No general rule of law exists that states that a landlord may not recover future rents if she terminates a lease, or that a tenant and landlord cannot enter into a lease giving the landlord the power to do so, and the case Appellee cites

for this proposition does not recognize such a rule. Rather, it says that the language of the lease controls whether or not the landlord should be permitted to recover future rents after retaking possession as a result of a tenant default and it ruled that the language of the particular lease under review in that case did not preserve that particular landlord's right to do so.

Appellee's arguments regarding future rents are irrelevant as Appellant has not sought future rents in this matter, but rather only those rents due for time Appellee spent in actual possession of the property in July and August of 2014.

Appellant did not terminate the Lease by the issuance of her Notice to Vacate on June 4, 2014, and no language therein can be construed as releasing Appellee from any of her obligations thereunder. Rather, the language of the Notice to Vacate has the opposite effect of reminding Appellee of those obligations.

Appellee's argument that there exists a maxim of contract law that holds that when a party to a contract prevents by wrongful act the performance of an obligation of another party to the contract, that obligation should be deemed fulfilled, and that this maxim supports a conclusion that a landlord who refuses late payment of rent waives the right to receive rent is meritless. The cases Appellee cites in support of this proposition have no bearing on landlord and tenant disputes or the obligations of tenants to pay rent for possession of property.

ARGUMENT

I. APPELLEE MISREPRESENTS THE RECORD AND THE HOLDING IN E.J. ROHRT WHEN SHE STATES THAT A LANDLORD MAY NOT RECOVER FUTURE RENTS WHEN SHE, RATHER THAN A TENANT, TERMINATES A LEASE

In her "Argument 4" in Appellee's Brief, Appellee argues, implicitly, that Appellant is not entitled to recover the rents sought in this matter because she terminated the lease. DB, at 6. Appellee states that a "landlord may not recover future rents stipulated in a lease when the landlord, and not the tenant, terminates a lease[,]" and cites, in support of this proposition, E.J. Rohrt et al, v. Kelley Manufacturing Company, 349 S.W.2d 95 (Tex. 1961). Id. No such holding or general statement of law can be found in that case. Rohrt, generally.

Rohrt is a case about a tenancy under a lease with operative wording that is entirely different from the wording of the lease in this matter. Id. In that lease it was stated that, in the event of a default by the lessee and at the lessor's discretion, the lease might be considered forfeited and that it "shall cease and come to an end as if that were the day originally fixed herein for the expiration of the term hereof[.]"] Id, at 96. The Court acknowledged that the general rule in cases of default by tenants is that the landlord may sue for damages (future rents, most often in cases of breach by abandonment) or to cancel the contract (possession, in cases where the renter is still in the property) but not both. See id, at 98 (quoting Walling v. Christie Hobby, Inc., 1932, Tex.Civ.App.—

Galveston 1932, N.W.H.). It also acknowledged, however, that this general rule does not supersede the terms of a lease that states expressly that a landlord's retaking possession after a tenant default does not obviate the tenant's obligation to pay future rents for the remainder of the term of the lease. Id (quoting Walling).

The Court found, in Rohrt, that the language of the specific lease under review indicated that the lease itself should terminate at the landlord's discretion upon the tenant's default and that the remainder of the language of that lease ^[1] was insufficient to preserve the landlord's right to future rent thereafter. Id, at 98-99. By contrast, the Lease in this matter states clearly that rent "for the rest of the Lease Contract term ... will be accelerated ... and will be immediately due" if the tenant is judicially evicted or if she "move[s] out when we demand because [she has] defaulted." 1PX4.

In other words, rather than stating that the lease will terminate at the landlord's discretion upon the tenant's default, this Lease states expressly that, when a tenant defaults, the landlord may retake possession and that the remaining rent due on the contract will be accelerated and due immediately. Id. The only applicable holding in Rohrt, the case Appellee herself cites in support of her proposition that Appellant is not entitled to accelerated future rents, is that the gen-

eral rule of law in this area does not supersede the contract and that the language of the Lease, therefore, controls.

It should be noted, however, that Appellee's opinion regarding whether or not Appellant is entitled to future rents is irrelevant. Appellant has not sought future rents in this matter and has requested only those rents due to her for time Appellee spent in actual possession of the property. ^[2] Neither in Rohrt nor in any of the cases upon which it relies was delinquent rent for time in possession an issue. ^[3] Rohrt, generally.

Appellee's Argument 4 also relies on her statement that "appellant terminated the lease in her Notice to Vacate dated June 4th, 2014." However, nowhere in that document is it stated that the lease is terminated. CR32, generally. As Appellee appears to acknowledge in her direct quote in this section, the No- tice to Vacate states that, "[y]our residency is terminated effective immediately."

CR32 (emphasis added). It also states, explicitly and clearly, that Appellee re-

mains "liable for all rent due under the full term of [her] contract," reminding her of her obligations, discussed above, under the terms of the Lease. Id.

Residency, or possession, is only one component of the Lease, having to do with the privity of estate under this contract for the use of property. Its termination is not equivalent to the termination of the Lease as a whole, which contains myriad other components having to do with the privity of contract thereunder.

Additionally, it should be noted, in brief, that the trial court disposed of the issue of whether or not the lease had been terminated when it issued its Final Judgment denying Appellant the relief she sought in this suit for forcible detainer. CR176. It was Appellant's contention that she was entitled to retake possession because of Appellee's default, but it was Appellee who prevailed at trial, retaining her right to occupy the property (subject, of course, to this appeal). Id. Unless Appellee now intends to argue that the trial court recognized some right of occupancy that was unconnected to the Lease (such as a transfer of title, for example), it cannot be rationally disputed that the trial court acknowledged implicitly, but necessarily, that the lease was still in force on August 25, 2014, long after Appellee now contends it was terminated by the Notice to Vacate. Id.

Appellee's failure to present to the Court, in a forthright manner, all of the relevant information regarding the contents of the Notice to Vacate, Final Judg-

ment and Lease, and her making an argument that relies upon the omission of the language of those documents highlighted herein, together constitute a deliberate misrepresentation of the record. In similar manner, Appellee's citing Rohrt in support of the general statement that a landlord may not recover future rents when she terminates a lease, without qualification or explanation, constitutes a deliberate misrepresentation of the holding in that case.

II. APPELLEE ALSO MISREPRESENTS APPLICABLE LAW WHEN SHE ARGUES THAT APPELLANT WAIVED HER RIGHT TO RECEIVE DELINQUENT RENT FROM APPELLEE FOR TIME SPENT IN POSSESSION OF THE PROPERTY

In her "Argument 2" in Appellee's Brief, Appellee argues that her obligation to pay rent was fulfilled (presumably forever), though she paid no rent, when Appellant refused to accept rent from her in July and August of 2014, or when Appellant stated that she would no longer accept late rent ^[4] . DB, at 5. Appellee cites two cases in support of what she terms a "universal maxim" that when a party to a contract prevents performance of an obligation by another party to the contract, the obligation should be considered fulfilled. Id (citing Sanderson v. Sanderson, 109 S.W.2d 744 (Tex. 1937) and Sargent v. Highlite Broadcasting Co., 466 S.W.2d 866 (Tex.Civ.App.—Austin 1971, no writ)). Neither of

the cited cases is applicable to landlord and tenant disputes or has anything to do with the obligation of a tenant to pay rent for time spent in possession of rental property. ^[5]

Conversely, both cases involve fact scenarios in which one party to a contract prevented the performance of another by wrongful act, apparently calculated deliberately to cause the other to breach the contract involuntarily, and, thereby, to remove the first party's obligation to perform. In this case, it is Appellant's contention that Appellee breached the Lease by failing to pay rent on time and before any refusal to accept it. No reasoned argument has been or can be made that Appellee's refusing to accept late rent, to the extent that she did, was calculated to do anything other than preserve her argument that Appellee had already breached the Lease by failing to pay it on time. Additionally, no reasoned argument can be made that either of the cases Appellee cites supports her apparent contention that a tenant should be allowed to remain in possession of rental property rent-free when a landlord declines to accept late rent.

Appellee's argument constitutes, essentially, an argument that Appellant waived her right to receive rent, though it is not stated as a waiver argument in those express terms. As such, and because Appellant's position regarding waiver is stated in Appellant's Brief, ^[6] it is not necessary to respond herein to any other portion of Appellee's argument or to ask the Court to spend its time reviewing a reiteration.

Similarly, it is unnecessary to respond to the remainder and main thrust of Appellee's argument, that the entire matter is moot, as Appellant's position on the mootness of the matter is stated in also Appellant's Brief. ^[7]

PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellant respectfully requests that the Court reverse the judgment of the trial court and render judgment in Appellant's favor for Appellee's unpaid rent for the months of July and August of 2014, Appellant's reasonable pre-trial attorney fees, costs of court and pre- and post-judgment interest, and that the Court remand this matter to the trial court for a new trial on the issue of trial and post-judgment attorney fees; or, in the alternative, reverse the trial court's judgment and remand this matter to the trial court for a new trial on all issues; or, in the alternative, vacate the trial court's judgment on all issues.

Respectfully submitted, DAVID NOWLIN /s/ David Nowlin State Bar No. 24049196 7301 RR 620 North, Ste. 155, 319 Austin, Texas 78726-4537 Telephone: (512) 468-4882 Email: DavidNowlin@me.com

ATTORNEY FOR APPELLANT

CERTIFICATE OF COMPLIANCE

I certify that this brief was prepared using Microsoft Word and that, according to that program's word counting function, the document (excluding the caption, identification of the parties and counsel, table of contents, index of authorities, statement of the case, points of error, certificate of compliance, certificate of service and appendix) contains 2,826 words. The body text is in 14 point, Times New Roman font and the footnotes are in 12 point, Times New Roman font. /s/ David Nowlin State Bar No. 24049196

CERTIFICATE OF SERVICE

I certify that on March 2, 2014, a true and correct copy of Appellant's Reply Brief was served by electronic service on Robby Abarca, the attorney of record for Appellee Lori Keaton, at his email address of record, RPAbarca@AbarcaLawFirm.com. /s/ David Nowlin State Bar No. 24049196

APPENDIX

The following pages constitute the Appendix to Appellant's Reply Brief, and contain: (A) The Final Judgment of the Trial Court, (B) The Jury Charge and Verdict, and (C) The Text of the Rules and Statutory Authority and the Lease Upon Which Appellant's Argument is Based, including: (1) Texas Rule of Civil Procedure 740, and (2) The Lease.

No. C-1-CV-14-006938 Linda Nowlin, Plaintiff, v.

Lori Keaton, Defendant

IN THE COUNTY COURT

OF TRAVIS COUNTY, TEXAS § § § COUNTY COURT NO. 2

FINAL JUDGMENT

On August 25, 2014, this case was called for trial. Plaintiff, Linda Nowlin, represented by counsel announced ready for trial. Defendant, Lori Keaton, represented by counsel announced ready for trial. After a jury was impaneled and sworn, it heard evidence and arguments of counsel. In response to the jury charge, the jury made findings that the Court received, filed, and entered of record. The questions submitted to the jury and the jury's findings are attached as Exhibit A and ineorporated by reference.

All matters in controversy, legal and factual, were submitted to the Court for its determination. The Court heard the evidence and arguments of counsel and announced its decision for Defendant.

• The Court orally-RENDERED judgment for DEFENDANT on August 25, -2014. This written judgment memorializes that rendition.

• Accordingly, the Court orders that plaintiff take nothing and that defendant recover court costs from plaintiff.

• This judgment finally disposes of all claims and all parties, and is notappealable, because this Court lost subject matter jurisdiction of this controversy on September 5, 2014 when Defendant relinquished possession of the premises at 3907 Eck Lane for cause, as Defendant succumbly defended herself against the wrongful eviction suit brought by plaintiff in Justice Court, Travis County, Texas, Precinct 2 and again won on appeal in Travis County, Court at Law 1.

SIGNED on 2nd 17,2014

CAUSE NO. C-1-CV-14-006938

CHARGE OF THE COURT

MEMBERS OF THE JURY:

After the closing arguments, you will go to the jury room to decide the case, answer the questions that are attached, and reach a verdict. You may discuss the case with other jurors only when you are all together in the jury room.

Remember my previous instructions: Do not discuss the case with anyone else, either in person or by any other means. Do not do any independent investigation about the case or conduct any research. Do not look up any words in dictionaries or on the Internet. Do not post information about the case on the Internet. Do not share any special knowledge or experiences with the other jurors. Do not use your phone or any other electronic device during your deliberations for any reason.

Any notes you have taken are for your own personal use. You may take your notes back into the jury room and consult them during deliberations, but do not show or read your notes to your fellow jurors during your deliberations. Your notes are not evidence. Each of you should rely on your independent recollection of the evidence and not be influenced by the fact that another juror has or has not taken notes. You must leave your notes with the bailiff when you are not deliberating. The bailiff will make sure your notes are kept in a safe, secure location and not disclosed to anyone. After you complete your deliberations, the bailiff will collect your notes. When you are released from jury duty, the bailiff will promptly destroy your notes so that nobody can read what you wrote.

Here are the instructions for answering the questions:

1. Do not let bias, prejudice, or sympathy play any part in your decision.
2. Base your answers only on the evidence admitted in court and on the law that is in these instructions and questions. Do not consider or discuss any evidence that was not admitted in the courtroom.
3. You are to make up your own minds about the facts. You are the sole judges of the credibility of the witnesses and the weight to give their testimony. But on matters of law, you must follow all of my instructions.
4. If my instructions use a word in a way that is different from its ordinary meaning, use the meaning I give you, which will be a proper legal definition.
5. All the questions and answers are important. No one should say that any question or answer is not important.

1. Answer "yes" or "no" to all questions unless you are told otherwise. A "yes" answer must be based on a preponderance of the evidence. Whenever a question requires an answer other than "yes" or "no," your answer must be based on a preponderance of the evidence. The term "preponderance of the evidence" means the greater weight of credible evidence presented in this case. If you do not find that a preponderance of the evidence supports a "yes" answer, then answer "no." A preponderance of the evidence is not measured by the number of witnesses or by the number of documents admitted in evidence. For a fact to be proved by a preponderance of the evidence, you must find that the fact is more likely true than not true.
2. Do not decide who you think should win before you answer the questions and then just answer the questions to match your decision. Answer each question carefully without considering who will win. Do not discuss or consider the effect your answers will have.
3. Do not answer questions by drawing straws or by any method of chance.
4. Some questions might ask you for a dollar amount. Do not agree in advance to decide on a dollar amount by adding up each juror's amount and then figuring the average.
5. Do not trade your answers. For example, do not say, "I will answer this question your way if you answer another question my way."
6. The answers to the questions must be based on the decision of at least 5 of the 6 jurors. The same 5 jurors must agree on every answer. Do not agree to be bound by a vote of anything less than 5 jurors, even if it would be a majority.

As I have said before, if you do not follow these instructions, you will be guilty of juror misconduct, and I might have to order a new trial and start this process over again. This would waste your time and the parties' money, and would require the taxpayers of this county to pay for another trial. If a juror breaks any of these rules, tell that person to stop and report it to me immediately.

A fact may be established by "DIRECT EVIDENCE" or by "CIRCUMSTANTIAL EVIDENCE" or both. A fact is established by direct evidence when proved by documentary evidence or by witnesses who saw the act done or heard the words spoken. A fact is established by circumstantial evidence when it may be fairly and reasonably inferred from other facts proved.

Question 1:

Did Lori Keaton unreasonably refuse to allow Linda Nowlin or her repairers, servicers, contractors, or representatives to enter the house peacefully for the purpose of making repairs, estimating repair or refurbishing costs, or doing preventive maintenance?

Answer "Yes" or "No".

Answer: $$ No.

Question 2:

Did Lori Keaton fail to comply with the lease by failing to pay her rent in a timely manner?

A failure to comply must be material. The circumstances to consider in determining whether a failure to comply is material include:

1. The extent to which the injured party will be deprived of the benefit which she reasonably expected;
2. The extent to which the injured party can be adequately compensated for the part of that benefit of which she will be deprived;
3. The extent to which the party failing to perform or to offer to perform will suffer forfeiture;
4. The likelihood that the party failing to perform or to offer to perform will cure her failure, taking into account the circumstances including any reasonable assurances;
5. The extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing.

Answer: $$ No.

QUESTION 3:

What is a reasonable fee for the necessary services of Linda Nowlin's attorney for preparation and trial in this case, stated in dollars and cents?

Answer: $$ *2300. ^[22]

Presiding Juror:

1. When you go into the jury room to answer the questions, the first thing you will need to do is choose a presiding juror.
2. The presiding juror has these duties: a. have the complete charge read aloud if it will be helpful to your deliberations; b. preside over your deliberations, meaning manage the discussions, and see that you follow these instructions; c. give written questions or comments to the bailiff who will give them to the judge; d. write down the answers you agree on; e. get the signatures for the verdict certificate; and f. notify the bailiff that you have reached a verdict.

Do you understand the duties of the presiding juror? If you do not, please tell me now. Instructions for Signing the Verdict Certificate:

1. You may answer the questions on a vote of 5 jurors. The same 5 jurors must agree on every answer in the charge. This means you may not have one group of 5 jurors agree on one answer and a different group of 5 jurors agree on another answer.
2. If 5 jurors agree on every answer, those 5 jurors sign the verdict. If all 6 of you agree on every answer, you are unanimous and only the presiding juror signs the verdict.
3. All jurors should deliberate on every question. You may end up with all 6 of you agreeing on some answers, while only 5 of you agree on other answers. But when you sign the verdict, only those 5 who agree on every answer will sign the verdict. Do you understand these instructions? If you do not, please tell me now.

CAUSE NO. C-1-CV-14-006938

Verdict Certificate

Check one: $✓$ Our verdict is unanimous. All 6 of us have agreed to each and every answer. The presiding juror has signed the certificate for all 6 of us.

Sreffecy Prantler

Printed Name of Presiding Juror $$ Our verdict is not unanimous. Five of us have agreed to each and every answer and have signed the certificate below.

SIGNATURE NAME PRINTED

1. $$ 2 . $$
2. $$
3. $$
4. $$

Texas Property Code § 24.002

COMPLAINANT MAY HAVE POSSESSION

The party aggrieved may, at the time of filing his complaint, or thereafter prior to final judgment in the justice court, execute and file a possession bond to be approved by the justice in such amount as the justice may fix as the probable amount of costs of suit and damages which may result to defendant in the event that the suit has been improperly instituted, and conditioned that the plaintiff will pay defendant all such costs and damages as shall be adjudged against plaintiff.

The defendant shall be notified by the justice court that plaintiff has filed a possession bond. Such notice shall be served in the same manner as service of citation and shall inform the defendant of all of the following rules and procedures: (a) Defendant may remain in possession if defendant executes and files a counterbond prior to the expiration of six days from the date defendant is served with notice of the filing of plaintiff's bond. Said counterbond shall be approved by the justice and shall be in such amount as the justice may fix as the probable amount of costs of suit and damages which may result to plaintiff in the event possession has been improperly withheld by defendant; (b) Defendant is entitled to demand and he shall be granted a trial to be held prior to the expiration of six days from the date defendant is served with notice of the filing of plaintiff's possession bond; (c) If defendant does not file a counterbond and if defendant does not demand that trial be held prior to the expiration of said six-day period, the constable of the precinct or the sheriff of the county where the property is situated, shall place the plaintiff in possession of the property promptly after the expiration of six days from the date defendant is served with notice of the filing of plaintiff's possession bond; and (d) If, in lieu of a counterbond, defendant demands trial within said six-day period, and if the justice of the peace rules after trial that plaintiff is entitled to possession of the property, the constable orsheriff shall place the plaintiff in possession of the property five days after such determination by the justice of the peace.

Not a Release. Iterchelting harge to total Lense Contracts aneclation or bnoun for it is a liquidated amount ievering only part of our damage. But is, our tunc, effect and erpence in finding and processing a replacment. These danages are uncertain and difficult to maintain - particularly those relating to underwhels, incertecnents, paperwork, adveriasing, showing the dwelling, utilities for shoning, checking prospects, overhead, marketing costs, and location service loss. You agree that the rekting charge is a reasonable estimate of such danages and that the charge is, for whether or not our reketing attempts to reveal. It no amount is stipulated, you must pay our actual reketing costs so far as they can be determined. The reketing charge does not release you from continued liability for future or past-due rent charges for cleaning, repairing, repanting, or nonclained leers, or other mons due. 12. DAMAGIN AND HYBRIDINMENT. You must promptly pay ane intinue to locken damage, consequential danages, government fines or charges, or cost of repairs or service in the dwelling, due to a violation of the Lease Contract or rules, improper use, negligence, other conduct by you or your insitues, guests or occupants, or any other cause of due-to-ine negligence or fault. You will audiennly and hold an harmless from all liability, arising from the conduct of you, your insitues, guests, or occupants, or our representatives who perform at your request were to test confouplated in this Lease Contract. Unless the damage or manicment ongeage is due to our negligence, we're not liable for - and you must pay forrepairs, replacements, and damage to the following if occurring during the Lease Contract term or renewal period: (1) damage to others, windows, or wixems; (2) damage from windows or doors left open; and (3) damage from manicment ongeages caused by improper objects in lines exclusively serving your dwelling. We may require payment of any rune, including adverse payment of repairs for which you're liable. Delay in demanding rums you owe is not a matter. 13. CONTRACTUAL LUN AND PROPERTY LEET IN DWELLING. All, property, in the dwelling is human exempt, under Section M2002 of the Texas Property, Under subject to a contractual lien to, secure payment of delinquent rent, iever, as prohibited by Section 280-8756, Texas Government Code, for oneness eurgoned by tax credit allocations. For this purpose, "dwelling" excludes outside areas but includes interest, living areas and exterior parties, belsmies, attached garages, and statements for your exclusive use. Removal After the Exercise Lone for Rent. If you rent is delinquent, our representatives may prescptely enter the dwelling and remove and/or store all property subject to lieg. We then notice, foriery must be left afterwards in the dwelling in a complexion place- place a list of items removed. The notice must state the amount of delinquent rent and the name, address, and phone number of the person to contact about the amount noted. The notice must also state that the property will be promptly returned when the delinquent rent is fully paid. All property in the dwelling is presented to be yours unless proven otherwise.

Removal After Survinder, Abandonment, or Exction. We or her officers may remove or store all property remaining in the dwelling or in outside areas (including any vehicles you or our servants) or guest room or room if you are judicially evicted or if you were after or abandon the dwelling (or detractions in paragraph 12).

Storage. We will store property removed under a contractual lien. We may, but have no duty to, store property removed after judicial eviction, surrender, or abandonment of the dwelling. We're not liable for casualty loss, damage, or theft except for property removed under a contractual lien. You must pay reasonable charges for our packing, removing, storing, and selling any property. We have a lien on all property removed and stored after surrender, abandonment, or judicial eviction for all users, you may, with one exception. Our lien on property listed under Property Code Section M102 is formed to charges for packing, removing, and storing.

Redemption. If we've seized and stored property under a contractual lien for rent as authorized by the Property Code, you may redeem the property by paying all delinquent rent due at the time of

duelling, displaying or presenting a quick seller weapon/murrace the dwelling in a way that may alarm oils, ... using anything as closely having gas appliances, tempering with oil/pan or telecommunications; bringing hazardous materials into the dwelling; using windows for entry or exit; heating the dwelling with a gas-appriment (seeking stover) or on or injuring our reputetously making (and old) allegations against us (notfires). 21. PARADIG. We may regulate the gas, marron, and place of parking all, on, tracks, motorcycles, bicycles, barks, in/arm, and meniscus modules, bike articles or motorized bikes may not be parked inside a dwelling or on sidewalks. We may have unauthorized or illegally packed vehicles toward or treated according to state law at the owner or operator's expense at any time (i.e. (i) has a flat line or in o/bar or air impossible (2) is on jacks, blocks or bars when the missing (3) takes up more than one parking space, if the dwelling complex has more than one living unit (4) belongs to residents in occupation who have not cooked and land stored the dwelling (5) blocks another vehicle from writing (6) is in a fire lane or designated "no parking" area (7) is in a space marked for other residents(s) in dwellings) (8) is in any portion of a yard area (9) is on the grass, sidewalk, or patio, or (10) has occurred/leaves, against us or inspectivists/ear, and negro you at least 30 days notice that the vehicle will be toward that not saved. 22. RELAND OF RESIDENT. Unless you are initial to terminate the Lease Contract under paragraphe 10, 16, 23, 31 or 37 , you won't be released from the Lease Contract or any reason - including but not limited by voluntary or involuntary actions/withdrawal or transfer, voluntary or involuntary ad transfer, marriage, separation, divorce, reconciliation, listed on residents, fenestring/present, bad health, death, or property purchase. You may also have the right under Texas law to terminate the Lease Contract in certain situations involving family violence or sexual assault. Death of Sufe Resident. If you are the safe resident and the during the Lease Contracts, the Lease Contract can be terminated without penalty by an authorized representative of your estate with at least 30 days written notice. Your estate will be liable for payment of rent until the letter is: (1) the termination date, or (2) until all postmature in the apartment are removed. Your estate will also be liable for all charges and damages to the apartment until it is vacated, and any removal and storage costs. 23. MILITARY PERSONNEL CLAUSE. You may have the right under Texas law to terminate the Lease Contract in certain situations involving military daydayment or transfer. You may terminate the Lease Contract if you drink or are drafted or commissioned in the U.S. Armed Forces. You also may terminate the Lease Contract if (i) you are (1) a member of the U.S. Armed Forces or more (your active duty or (ii) a member of the National Guard called to active duty for more than 30 days at response to another emergency declared by the President, and (2) you (1) receive order for permanent change-of-station, (ii) receive orders to deploy with a military unit or as an individual to support of a military operation for 90 days or more, or (iii) are relieved or released from active duty. After a smdeliver to say your written termination notice, the Lease Contract will be terminated under this military clause 30 days after the date on which your next rental payment is due. You must furnish up a copy of your military order, such as permanent change-of-station orders, callup orders, or daydayment orders or letter. Military permission for have housing down from estate a permanent changed-station order. After your resourent, we'll return your security deposit, but lawful deductions. For the purpose of this Lease Contract, order described in (2) above will only release the resident who qualifies under (1) and (2) above and receive the orders during the Lease Contract terms and such resident's spouse or legal dependents living in the resident's household. A convenient whole sent your spouse or dependent cannot terminate under this military clause. Unless you state otherwise in paragraph 18, you represent when signing this Lease Contract that (1) should not already have daydayment or change-of-station orders, (2) you will not be rething from the military during the Lease Contract term, and (3) the term of your entitlement or obligation will not end before the Lease Contract terminals. Loosidotal dismayers for making a false representation of the above will be the amount of unpaid rent for the remainder of the lease term when and if you answered, less rent from others must add in migration under paragraph 32. You must immediately notify and you are called to active duty or receive daydayment or permanent change-of-station orders. 24. RESIDENT SAFITY AND LOSS. You and all occupants and government exercises due care for your own and others' safety and security, especially in the use of smoke alarms and other detection devices, dose and windowboke, and other safety or security devices. You agree to make every effort to follow the Security Guidelines on page 5. Window screens are not in security or keeping people from falling out. Alarms and Detection Devices. We'll furnish smoke alarms or other detection devices required by minute, and we'll test them and provide working batteries when you first take prevention. After that, you must pay for and replace batteries as needed, only to the law provide otherwise. We may replace land or mining batteries at your expense, without prior notice to you. You must immediately report the new detection methods, timeliness, Neither you nor others may, double alarms or detection. If you always or double the smoke alarms, remove dietary authors seeking at other working letters, you would fable to say under Section 32, 2011 of the Property Code for Efficiency, which yout actual answers, and change a day. You also will be liable to us and others if you fail to report malfunctions, or any loss, damage, or free-mothing loss due smoke, or water. Upon request, we will provide an required by law, a smoke alarm capable of deleting a person with a hearing impairment (husts). Loss. We're not liable to any resident, guest, or occupant for personal injury and damage toward personal property, or human or personal protection any cause (including but not limited to the smoke, rain, flood, water brake, ball, ice, snow, lightning, wind, expensions, consumption of utilities, pipe baks, theft, negligent or intentional active residents, occupants, or guests, or vendulous unless otherwise required by law. We have no duty to remove any six, alive, or snow but may remove any amount with or without notice. Unless we notice to the wive, you must-may be a change- addition, or relieving, is permitted unless allowed by minute or service consumed for writing. You may orally consider that you must invest the most harmful use of the law enforcement agency's accident upon number upon request. 25. CONDITION OF THE PERSONE-SIGNATURE TROMS. You may be dwelling, freilance, and furniture as in, except for conditions associated affecting the health or safety of ordinary persons. We disclaims all implied warranties. You (1) be given an inventory of Conditions to ensure to be too move-in. Within 48 hours after move in, you must sign and write on the term, all place to damage and return to us. 5 She was, you say, flying all be considered to be in a cause, unit, and guest working condition. You must use customary, obligatory or monitoring the dwelling, and not damaging or fencing the outside room. Unless authorise all by minute or us in writing, you must use portions are, square, painting, wall gaps, etc. carpeting, electrical changes, or otherwise after our property. We believe either open allowed, or outside the dwelling. We'll remain an outside number of small, well below the hanging, in front of a stethy, with a shapest growers or a steeved, with a shapest, as to us. You must be able to arrange, or remove any property, including, above systems, dehort devices, furniture, telephone and take-outs, writing, screens, tasks, and security devices. When you agree in, we'll apply a light/tight, for freilance onינ, we will make a new that is not made the dwelling. after that, you'll pay them at your expense with bad and the same type and waitages. Your impact consists in the dwelling, (whether or not we occur) become more, unless we agree otherwise in writing. We are committed to the principles of fair working. In accordance with but housing laws, we will make remunerable or commodities to our rales, policies, practices or services, and (or will allow remunerable production to take such laws to your partner with a full-time or not to work in a shedling. We may require you to sign an addendum regarding the approach and implementation of such a commodities or medical care, as well as restorance obligations, if any. 26. REQUESTS, REPAIRS, AND MALY/NCTIONS. We'll maintain the dwelling to guest order and pay for repair and maintenance, using it to the repair procedures set forth below. You must replace the conditioning filters monthly and keep the yard chain. Procedures for Repsits by Dr. (1) you or any of a current needs to send a notice or request-for example, for reports, and citations, and for researches, for example, for reports, and citations, surroundings, for reports, and citations, and for researchers, for example, for reports, and citations, surroundings, for reports, and citations, and for researchers, for example, for reports, and citations, surroundings, for reports, and citations, and for researchers, for example, for reports, and for researchers, for example, for reports, and researchers, for example, for reports, and for dentists, and for researchers, for example, for research researchers, for example, for researchers, for example, for research clients, and for researchers, for example, for research clients, and for researchers, for example, for research clients, and for researchers, for example, for research clients, and for researchers, for example, for research clients, and for researchers, for example, for research clients, and for researchers, for example, for research clients, and for researchers, for example, for research clients, and for researchers, for example, for research clients, and for researchers, for example, for research clients, and for researchers, for example, for research clients, and for researchers, for example, for research clients, and for researchers, for example, for research clients, and for researchers, for example, for research clients, and for researchers, for example, for research clients, and for researchers, for example, for research clients, and for researchers, for example, for research clients, and for researchers, for example, for research clients, and for researchers, for example, for research clients, and for researchers, for example, for research clients, and for researchers, for example, for research clients, and for researchers, for example, for research clients, and for researchers, for example, for research clients, and for researchers, for example, for research clients, and for researchers, for example, for research clients, and for researchers, for example, for research clients, and for researchers, for example, for research clients, and for researchers, for example, for research clients, and for researchers, for example, for research clients, and for researchers, for example, for research clients, and for researchers, for example, for research clients, and for researchers, for example, for research

Trada receptacles must be kept closed, and, though, with local entitamess regarding trash disposal. We may designate which toads receptacles will be stored on the premises and where they'll be. 27. ANIMALS. So animals including mannal, scrotal, lard, and, sedont, amphibians, sea lords, and nassivists, allows, and, respectively, anachronous fle duelling, peniles, petals, fishmoss, or antils and/or antils, as suiliered as antiling. This allows an animal, you must sign a separate animal additied on and pay an animal deposit. An animal deposit is considered a general security deposit. We will suffer for a auggest animal for a decided person but will not require an animal deposit. He may require a written statement from a qualified professional verifying the need for the support animal. You must not hold okay or sold animals or allow unaudited and animals to be tied to any posi't, free, or other object on the premises at any time. If youre not question us again's values, animal restrictions (author without your knowledge), you'll be subject to changes, changes, or other, and other remedies provided in this Lease Contract. If an animal has been in the dwelling, you time during your term of occupancy (with or without our consent), so. If change you be all cleaning and repair costs, including defining, devaluating, and disimpiating. Initial and daily animal's values, changes and animal-terms of changes are liquidated damages for our time, incinerationer, and overhand (except for altimer's loss and litigation costs) in enforcing animal restrictions and rules. We may remove an unanthroned animal by (1) leaving, in a simple room place in the dwelling, a 24 -hour written notice of intent to remove the animal, and (2) following the procedures of paragraph 28. We may keep it himself the animal in turn, if wey to a humane society or local authority. When keeping or reminding an animal, we won't be liable for loss, harm, sickness, or death of the animal unless they know to our negligence. We'll return the animal to our upper request if a human already been forced to return to our lower society; in local authority, You must pay for the animal's reasonable care and knowledge changes. We have no lien on the animal for any purpose. 28. WEIN WEMAY INTER. It was an open or no-grent support support, that reporters, asysters, contractors, nor representatives, or other representatives of (1) being an open and no-grent support support, that (2) being an open and no-grent support support, and (3) being an open and no-grent support support, and (4) being an open and no-grent support support, and (5) being an open and no-grent support support, respectively. The support is not provided by the use of research for the use of the research, but the report is not provided by the use of the research, and the report is not provided by the use of the research.

Responsibilities of Owner and Resident

1. RESPONSIBILITIES OF OWNER. We'll act with customary diligence to: (1) maintain fixtures, hot water, heating, and A/C equipment; (2) substantially, comply with all applicable laws regarding safety, sanitation, and fire housing; and (3) make all reasonable repairs, subject to paragraph 26 and your obligation to pay for damages for which you are liable. If we enable any of the above you may possibly terminate this Lease Contract and even the other remedies under Tease Property Code Section 92.006 by following this procedure: (a) all rent muscles current and you must make a written request for repair or remedy of the condition-after which we'll have a reasonable time for repair or remedy; (b) if we fail tedious, you must make a second written request for the repair or remedy (or make sure that there has been no miscommunication between us)-after which we'll have a reasonable time for the repair or remedy; and (c) if the repair or remedy still has(s) been accomplished within that reasonable time period, you may immediately terminate this Lease Contract by giving us a final written notice. You attempt even the other categories remen the mainest of the two methods: (a) all rent muscles current and you must make a written request for repair or remedy of the condition-after which we'll have a reasonable time for repair or remedy; (b) if we fail tedious, you must make a second written request for the repair or remedy (or make sure that there has been no miscommunication between us)-after which we'll have a reasonable time for the repair or remedy; and (c) if the repair or remedy still has(s) been accomplished within that reasonable time period, you may immediately terminate this Lease Contract by giving us a final written notice. You attempt even the other categories remen the mainest of the two methods: (a) all rent muscles current and you must make a written request for repair or remedy of the condition-after which we'll have a reasonable time for repair or remedy; (b) if we fail incluso, you must make a second written request for the repair or remedy (or make sure that there has been no miscommunication between us)-after which we'll have a reasonable time for the repair or remedy; and (c) if the repair or remedy still has(s) been accomplished within that reasonable time period, you may immediately terminate this Lease Contract by giving us a final written notice. You attempt even the other categories remen the mainest of the two methods: (a) all rent muscles current and you must make a written request for repair or remedy of the condition-after which we'll have a reasonable time for repair or remedy; (b) if we fail incluso, you must make a second written request for the repair or remedy (or make sure that there has been no miscommunication between us)-after which we'll have a reasonable time for the repair or remedy; and (d) if the repair or remedy still has(s) been accomplished within that reasonable time period, you may immediately terminate this Lease Contract by giving us a final written notice. You attempt even the other categories remen the mainest of the two methods: (a) all rent muscles current and you must make a written request for repair or remedy of the condition-after which we'll have a reasonable time for repair or remedy; (b) if we fail incluso, you must make a second written request for the repair or remedy (or make sure that there has been no miscommunication between us)-after which we'll have a reasonable time for the repair or remedy; and (c) if the repair or remedy still has(s) been accomplished within that reasonable time period, you may immediately terminate this Lease Contract by giving us a final written notice. You attempt even the other categories remen the mainest of the two methods: (a) all rent muscles current and you must make a written request for repair or remedy of the condition-after which we'll have a reasonable time for repair or remedy; (b) if we fail incluso, you must make a second written request for the repair or remedy (or make sure that there has been no miscommunication between us)-after which we'll have a reasonable time for the repair or remedy; and (d) if the repair or remedy still has(s) been accomplished within that reasonable time period, you may immediately terminate this Lease Contract by giving us a final written notice. You attempt even the other categories remen the mainest of the two methods: (a) all rent muscles current and you must make a written request for repair or remedy of the condition-after which we'll have a reasonable time for repair or remedy; (b) if we fail incluso, you must make a second written request for the repair or remedy (or make sure that there has been no miscommunication between us)-after which we'll have a reasonable time for the repair or remedy; and (c) if the repair or remedy still has(s) been accomplished within that semantic time period, you may immediately terminate this Lease Contract by giving us a final written notice. 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1. MISCELLANEOUS. Neither we nor any of our representatives have made any and promises, representations, or agreements. This Lease Contract is the entire agreement between you and us. Our representatives (including management personnel, employees, and experts) have no authority to assist, amend, or terminate this Lease Contract or may part of it, unless in writing, and we authority to make promises, representations, or agreements that impose security duties or other obligations on us or our representatives unless in writing. No action or omission by us will be considered a waiver of our rights or of any subsequent violation, default, or time or place of performance. Our not enforcing or belatedly enforcing written-notice requirements, social due dates, acceleration, force, or other rights isn't a waiver under any circumstances. Except when notice or demand is required by statute, you waive any notice and demand for performance from us if you default. Written notice to or from our managers constitutes notice to or from us. Any person giving a notice under this Lease Contract should retain a copy of the menu letter, or fax that was given, as well as any fax transmittal verification. Yes or electronic signatures are binding. All notices must be signed. Notices may not be given by email or other electronic transmission.

Exercising one remedy won't constitute an electronic waiver of other remedies. Insurance subrogation is waived by all parties. All remedies are cumulative. No employee, agent, or management company is personally liable for any of our contractual, statutory, or other obligations merely by virtue of acting on our behalf. This Lease Contract binds subsequent owners. Neither an invalid clause nor the omission of initials on any page modulates this Lease Contract. All notices and documents may be in English and, at our option, in any language that you read or speak. All provisions regarding our non-liability and non-duty apply to our employees, agents, and management companies. This Lease Contract is subordinate to existing and future recorded mortgages, unless the owner's leader chooses otherwise. All Lease Contract obligations must be performed in the county where the dwelling is located.

We may deactivate or not install keyless boiling devices on your door-d. (1) you or an occecment in the dwelling is near 25 or disabled, and (2) the requirements of Section 92 (5)set as (1). Texas Property Code are satisfied.

Security Guidelines for Residents

1. SOCIORITY GUIDELINES. We care about your safety and that of other occupants and guests. No security system is failsady. Even the best system can't prevent crime. Alloates act as if security systems don't exist since they are subject to malfunction, tampering, and human error. We disclaim any express or implied warranties of security. The best safety measures are the once you perform as a matter of common sense and habit.

Inform all other occupants in your dwelling, including any children you may have, about these guidelines. We recommend that all residents and occupants use common sense and follow crime prevention tips, such as those listed below:

• In case of emergency, call 911. Always report emergencies to authorities first and then contact the management.
• Report any suspicious activity to the police first, and then follow up with a written notice to us.
• Know your neighbors. Watching out for each other is one of the best defenses against crime.
• Always be aware of your surroundings and avoid areas that are not well-traveled or well-tit.
• Keep your keys handy at all times when walking to your car or home.
• Devast go inside if you arrive home and find your door open. Call the police from another location and ask them to meet you before entering.
• Make sure door locks, window latches and sliding glass doors are properly secured at all times.
• Use the key less deadloth in your dwelling when you are at home.
• Don't put your name or address on your key ring or hide extra keys in obvious places. Slic under a flower pot. If you lose a key or have concerns about key safety, we will rekey your locks at your expense, in accordance with paragraph 9 of the Lease Contract.

Utilities may be used only for normal household purposes and must not be wasted. If your electricity is ever interrupted, you must use only battery operated lighting. 34. PAYMENTS. Payment of all sums is an independent constraint. At our option and without notice, we may apply money received (other than sale proceeds under paragraph 13 or utility payments) subject to government regulations first to any of your unpaid obligations, then to current rent-magnetions of notations on checks or money orders and regardless of when the obligations arise. All sums other than rent are due upon our demand. After the due date, we do not have to accept the rent or any other payments. 35. TAA MEMBERSHIP. We represent that, at the time of signing this Lease Contract. (1) we, (2) the management company that represents us, or (3) any beator service that procured you is a member in good standing of both the Texas Apartment Association and the affiliated local apartment association for the area where the dwelling is located. The member neither answers management company member or an associate member doing business as a beator service (whose name and address must be disclosed on page 6). If not, the following applies: (1) this Lease Contract is voidable at your option and is unenhortable by us (except for property damages) and (2) we may not recover post or future rent or other charges. The above remedies also apply if both of the following occur: (1) the Lease Contract is automatically reserved on a month-to-month basis two or more times after membership in TAA and the local association has lapsed; and (2) neither the owner nor the management company is a member of TAA and the local association at the time of the third automatic renewal. A signed affidavit from the local affiliated apartment association which attests to non-membership when the Lease Contract or renewal was signed will be concluded or evidence of non-membership. Governmental entities may use TAA to add the TAA agrees in writing.

• Check the door viewer before delivering the door. Don't open the door if you don't know the person or have any doubt. Children who are not old enough to take care of themselves should never let anyone inside when home without an adult.
• Regularly check your security devices, smoke alarms and other detection devices to make sure they are working properly. Alarm and detection device batteries should be tested monthly and replaced at least twice a year.
• Immediately report in writing (dated and signed) to us any needed repairs of security devices, doors, windows, smoke alarms and other detection devices, as well as any other malfunctioning safety devices on the property, such as broken access gates, burned out exterior lights, etc.
• If your doors or windows are not secure due to a malfunction or break-in, stay with a friend or neighbor until the problem is fixed.
• When you leave home, make sure someone knows where you're going and when you plan to be lock.
• Lock your doors and leave a radio or TV playing softly while you're gone. Close curtains, blinds and window shades at night.
• While gone for an extended period, secure your home and use lamp timers. Also stop all deliveries (such as newspaper and mail) or have these these picked up daily by a friend.
• Know at least two visit notice from your home, if possible.
• Don't give entry keys, codes or gate access cards to anyone.
• Always lock the doors on your car, even while driving. Take the keys and remove or hide any valuables. Park your vehicle in a well-tit area.
• Check the backseat before getting into your car. Be careful shopping at gas stations or automatic reflex machines at night or anytime when you suspect danger.
• There are more other crime prevention tips readily available from police departments and others.

When Moving Out

1. MOVE-OUT NOTICE. Below moving out, you must give our representatives a chance, written notice, and notice as provided before. Your move-out notice will not release you from liability for the full term of the Lease Contract or renewal term. You will still be liable for the entire Lease Contract term if you move out early (paragraph 22) except under paragraphs 10, 16, 22, 23 or 31). YOUR MOVE-OUT NOTICE MUST COMPLY WITH (AC)T OF THE POLLIONING.

2. We must receive advance written notice of your move-out date. The advance notice must be at least the number of days of notice required in paragraph 3 or in special provisions-even if the Lease Contract has become a month-to-month lease. If a moveout notice is received on the first, it will suffice for move-out on the last day of the month of intended move-out, provided that all other requirements below are met.

3. The move-out date in your notice (clock out) (1) must be the last day of the month, or (2) may be the exact day designated in your notice. If within is checked, the second applies.

1. MOVE-OUT PROCEDURES. The move-out side can't be changed unless we and you both agree in writing. You won't move out before the Lease Contract term or renewal period each unless all rest for the entire Lease Contract term or renewal period is paid or full. Early move-out may result in referring charges and acceleration of future rent under paragraphs 11 and 32 . You're prohibited by law from applying any security deposit to rent. You won't stay beyond the date you are supposed to move out. All residents, guests, and occupants must surrender or abandon the dwelling before the 30 day period for deposit refund begins. You must give us and the U.S. Postal Service, in writing, each resident's forwarding address.
2. CLEANING. You must thoroughly clean the dwelling, including doors, windows, furniture, bathrooms, kitchen appliances, putto, balconies, garages, coquerts, and storage areas. You must follow move-out cleaning instructions if they have been provided. If you don't clean adequately, you'll be liable for reasonable cleaning charges-indicating charges for cleaning carpets, draperies, furniture, walls, etc. that are soiled beyond normal wear (that is, wear or soiling that occurs without negligence, carelessness, accident, or abuse).
3. MOVE-OUT INSPECTION. You should meet with our representative for a move-out inspection. Our representative has no authority to bind or limit in regarding deductions for repairs, damages, or charges. Any statements or estimates by us or our representative are subject to our correction, modification, or disapproval betore thind refunding or accounting
4. SECURITY DEPOST DEDUCTIONS AND OTHER CHARLES. You'll be liable for the following charges, if applicable: unpaid rent, unpaid utilities, unemohorised service charges, repairs or damages caused by negligence, carelessness, accident, or abuse, including stickers, scratches, tears, burns, stains, or unsupported holes; replacement cost of our property that was in or attached to the dwelling and is missing; replacing dead or missing alarm or detection device batteries at any time; utilities for repairs or cleaning; trips to let in company representatives to remove your telephone; Internet, or television services or rental room (if you, so request or have moved out); trips to open the dwelling when you or any guest or occupant is missing, a key, unreturned key; missing or burned-out light bulbs; removing or relaying unauthorised security devices or alarm systems; agreed rejecting charges; packing, removing, or storing property removed or stored under paragraph 13 ; removing or hunting illegally; parked vehicles; false security alarm charges unless due to our negligence, animal-related charges under paragraphs 6 and 27. government fees or cins against us, for violation (by you, your occupants, or guests) of local ordinances relating to alarms and detection devices, take alarms, recycling, or other matters; lateprement and returned-bleek charges; a charge not believed $500b$ for our time and incontinence in our lawful removal of an animal or in any valid eviction proceeding against you, plus altavices's fees, court costs, and likely fees already paid) and other sums due under this Lease Contract. You'll be liable to us for: (1) charges for replacing all keys and access devices listed in paragraph 5 if you las to return them on or before your actual move-out date, (2) accelerated rent if you have violated paragraph 32 , and (3) a rejecting fee if you have violated paragraph 13 .
5. DEPOST RETURN, SURRENDER, AND ARANDONMENT. We'll mail you your security deposit; refund (less lawful deductions) and an unmixed accounting of any deductions no later than 30 days after surrender or abandonment, unless statutes provide otherwise.

You have succeeded the dwelling when: (1) the move-out dates passed and no one is living in the dwelling in our reasonable judgment, or (2) dwelling keys and access devices listed in paragraph 5 have been turned to us as -whether or date occurs first.

You have abandoned the dwelling when all of the following have recurred: (1) every one appears to have moved out in our reasonable judgment, (2) clothes, furniture, and personal belongings have been substantially removed in our reasonable judgment, (3) you're been in default for non-parental of rent for 5 consecutive days, or water, gas, or electric service for the dwelling not connected to our name has been terminated or transferred, and (4) you've not responded for 2 days to our notice left or the inside of the main eetre door, stating that we consider the dwelling abandoned. A dwelling is also "abandoned" 10 days after the death of a sole resident.

Surreeder, abandonment, or judicial eviction ends your right of possession for all purposes and gives us the immediate right to clean up, make repairs in, and refer the dwelling; detection and security deposit dech drawers, and remove property left in the dwelling; surrender, abandonment, and judicial eviction affect your rights to property left in the dwelling (paragraph 2); but do not affect our mitigation obligations (paragraph 32 ).

Signatures, Originals and Attachments 43. ORIGINALS AND ATTACHMENTS. This Lease Contract has been executed in multiple originals, each with original signatures - one for you and one or more for us. Our rules and policies, if any, will be attached to the Lease Contract and given to you at signing. When an Inventory and Condition form is completed, both you and we should retain a copy. The items checked below are attached to and become a part of this Lease Contract and are binding even if not initiated or signed: (1) Access Gate Addendum (2) Additional Special Provision (3) Allocation Addendum for: (1) electricity (1) water (2) gas (3) central system costs (3) trash/recycling, (4) cable/satellite (5) stormwater/blaming: $$ services/government fees (7) Animal Addendum (7) Asbestos Addendum (if asbestos is present) (7) Bed Bug Addendum (7) Early Termination Addendum (1) Inclosed Garage, Carport or Storage Unit Addendum (2) Inventory & Condition Form (3) Intrusion Alarm Addendum (4) Lead Hazard Information and Disclosure Addendum (5) Lease Contract Guaranty (______guaranties, if more than one) (5) Legal Description of Dwelling (optional, if rental term longer than one year) (7) Military SCAA Addendum (7) Mold Information and Prevention Addendum (7) Move-Out Cleaning Instructions (7) Spites of Intent to Move Out Form (2) Theory's Rules or Policies (3) Parking Permit or Sucker (quantity $$ ) (3) Rent Concession Addendum (5) Renter's or Lethality Insurance Addendum (7) Repair or Service Request Form (7) Satellite Dish or Antonio Addendum (7) TCEQ Tenant Guide to Water Admission (7) Utility Submeeting Addendum for: (7) electricity (7) water (7) gas (2) Other Drug Free Bousing (2) Other $$ $$ $$ $$ $$ $$ $$

Name, address and telephone number of location service (a) applicable must be completed to newly TAA membership under paragraph 32 . You are legally bound by this document. Please read it carefully.

Before submitting a rental application or signing a Lease Contract, you may take a copy of these documents to review and/or consult an altorner.

Additional provisions or changes may be made in the Lease Contract if agreed to in writing by all parties.

You are entitled to receive an original of this Lease Contract after it is fully signed. Keep it in a safe place.

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NOTES

${}^1$ The lease in Rohrt stated that at the tenant's default, the landlord could elect to retake possession "without prejudice to any remedies for arrears of rent or breach of covenant" and the Court reasoned that future rents for the remaining unexpired term were not "arrears of rent". Id.

${}^2$ Appellant's initial filing in the Justice Court was made on June 6, 2014, when Appellee was current on rent, and though it includes language indicating that Appellant sought "all rents and reletting fees according to the lease[,]" Appellant completed the form without the benefit of counsel and was not advised that the Justice Court only had jurisdiction to award damages for rent that was already due at the time of judgment. CR30, and see Tex. R. Civ. P. 740. Future rent damages were not pled separately in the trial court, nor argued to the jury, nor included in the Charge of the Court for the jury's consideration, nor mentioned in Appellant's Motion for New Trial or her Motion for Judgment Notwithstanding the Verdict. 2R165-2R175, CR144-CR146, CR170-CR172, CR166.

${}^3$ In Rohrt, all delinquent rent had been paid prior to litigation. Rohrt, at 96. The Rohrt Court relied on Walling solely for the portions of the opinion having to do with future rents, but it did mention, in passing, that the Walling Court rendered judgment for the landlord in the matter of rent that was delinquent for time spent in possession. Id, at 97-98 (stating that "Judgment was rendered for [the landlord] only for delinquent rentals due as of date of cancellation[.]"). In Dearborn Stove Co. v. Caples, it was the lessee who terminated the lease by abandonment and the lessor was ruled entitled to keep future rents already paid for time following the abandonment. Id, at 98 (citing Dearborn, 236 S.W.2d 486 (Tex. 1951)).

${}^4$ Appellee's brief states, "Appellant stated on July 22 that she would never accept rent from appellee." DB at 5. Though no citation is offered for this assertion, it is presumable that Appellee is referring to her testimony at trial found on 2R108. Appellant's Attorney has found no other reference to any such statement in the record despite diligent search. It should be noted that this statement consists of inadmissible hearsay and that Appellant's Attorney's declining to make a timely objection does not increase its minimal probative value.

${}^5$ Sanderson involves a contract between a decedent and her final caretaker, whereunder the caretaker was promised the conveyance of a certain piece of real property in exchange for her caring for the decedent until her death. Sanderson, generally. The Court ruled that the caretaker was prevented from doing so when she was ejected from the decedent's home eight months into the term of the contract and two months prior to the death of her charge. Id. Sargent involves a contract between two broadcasters that was breached by the one when it was unable to obtain a certain license from the FCC only because the other refused to provide to the FCC certain documentation under its control that the commission required for the license. Sargent, generally. The Court ruled that because the other prevented the one from performing its obligation, the obligation would be deemed fulfilled. Id.

${}^6$ See Appellant's Brief §§ IA, at PB13-PB14, and IIB, at PB28-PB30.

${}^7$ See Appellant's Brief § IIA, at PB21-PB26.

Case Details

Case Name: Linda S. Nowlin v. Lori Keaton

Court Name: Court of Appeals of Texas

Date Published: Mar 2, 2015

Docket Number: 03-14-00608-CV

Court Abbreviation: Tex. App.