v.
Dannette Zuniga
FILED AMENDED APPELLANT'S BRIEF «N THE 13TH COURT OF APPEALS August 21, 2015 COPPusc^ST,™* AUG U <£$!> Cause Number: 13-14-00606-CV CEGIkE FOY Q@AWj£§$L£RK
In the 13th Court ofAppeal at the Hidalgo County Administration Building 10/^. Cano 5th Floor Edinburg, TX 78539
Cristina Castaneda V. Dannette Zuniga Original proceeding from Hidalgo County Court 2 Honorable Judge Jaime Palacios presiding Appellant's brief on the merits ORAL ARGUMENT REQUESTED Cristina Castaneda 1405 Grouse Ave. Donna, Texas 78537 956-534-7942 [email protected] Pro Se Litigant RECEIVED AUG 2 h 2015 13TH COURT OF APPEALS Identities of Parties and Counsel Pursuant to Texas Rule of Appellate Procedure 38.1(a) Appellant presents the following list of all parties and name and addresses of its counsel. Appellant: Cristina Castaneda 1405 Grouse Ave. Donna, TX 78537 Telephone: 956-534-7942 [email protected] Pro se Respondent: The Honorable Judge Jaime Palacios Hidalgo County Court 2 100 N. Closner3rd Floor Edinburg, TX 78539 Appellee: Dannette Zuniga 3729 Frio Ave. McAllen, TX 78504 Pro se Pursuant to Texas Rule of Appellate Procedure 38.1(b) Appellant presents the following table of contents TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL 1 TABLE OF CONTENTS 2 INDEX OF AUTHORITIES 3 STATEMENT OF CASE 4 ANY STATEMENT REGARDING ORAL ARGUMENT 5 ISSUES PRESENTED _6 STATEMENT OF THE FACTS 7 SUMMARY OF ARGUMENT 8 ARGUMENT 9-10 PRAYER 11 APPENDIX 12 SPECIAL ATTACHEMENTS CONTRACT 13-15 LAST NOTIFICATION OF ADJUSTMENT SEC. 8 16 LETTER REGARDING SPECIAL INSPECTION 17 LETTER 30 DAY NOTICE 18 SPECIAL INSPECTIONS FAILED STATUS ~ 19-21 ORDER DENYING NEW TRIAL 22 ORDER OF EVICTION AND POSTMARKED 23 LETTER FROM MHA JUNE'S RENT 24 ^ Pursuant to Texas Rule of Appellate Procedure 38.1(c) Appellant presents the following index of authorities INDEX OF AUTHORITIES CASES: EDWARDS V. HABIB ANTHONY AWEKKA V. JOHN BONDS COLLIERY CO. V. FOUT STATUES: 24C.F.R. 982.310(B) NON-PAYMENT OF RENT BY PHA IS NOT GROUNDS FOR TERMINATION OF LEASE 24C.F.R. 982.453 OWNER BREACH OF CONTRACT RESULTS IN PENALTIES CONTRACT AUTOMATICALLY 180 DAYS FROM LAST ASSISTANCE CHECK 24C.F.R. 982.310(D) (2) RENOVATIONS NO GOOD CAUSE FOR EVICTION PROPERTY CODE TITLE 8 SEC. 92.052 (a) DILIGENT EFFORT TO REPAIR OR REMEDY PROPERTY CODE TITLE 8 SEC. 92.053 (b) BURDEN OF PROOF DILIGENT EFFORT WAS MADE TO REPAIR SUBSIDY LAWS SEC.8-1 l.G OWNER MUST NOT SEEK PAYMENT FOR AMOUNT ABATED NOR USE AS CAUSE FOR EVICTION TEXAS PROPERTY CODE 92-331 RETALIATION PROHIBITED FOR SIX MONTHS TRCP 509.6(A) FAILURE TO REMEEDY TRCP 509.9 WRITS ARE NEEDED FOR REMOVAL OF PERSONS AND PROPERTIES Pursuant to Texas Rule of Appellate Procedure 38.1(d) Appellant presents the following statement of the case STATEMENT OF THE CASE PROCEDUAL BACKGROUND: APPEALED JUSTICE OF THE PEACE CHARLIE EZPINOZA RULING FOR PLAINTIFF HEARING COUNTY COURT 2 JUDGE JAIME PALACIOS ON SEPTEMBER 2, 2014 RULED IN FAVOR OF THE PLAINTIFF IN THE AMOUNT OF THREE MONTHS RENT AND ORDER TO VACATE BY SEPTEMBER 6, 2015 WHICH WAS SIGHNED AND MAILED SEPTEMBER 5, 2014 AND WAS STAMPED POST MARKED SEPTEMBER 8, 2014 APPEALED HIS JUDGMENT AND REQUESTED MOTION FOR A NEW TRIAL SUBMITTED NEW EVIDENCE FROM LEGAL AID, MCALLEN POLICE DEPT. AND MCALLEN HOUSING AUTHORITY AND WAS DENIED NEW TRAIL NATURE OF THE CASE: PLAINTIFF DANNETTE ZUNIGA BROUGHT A CIVIL SUIT DUE TO CONSTRUCTION AND NON-PAID RENT ON JUNE 3, 2014. ORIGINAL CONTRACT STATES THAT THERE IS A 10 DAY GRACE TO PAY RENT. PLAINTIFF BRETCHED CONTRACT BY FILING SUIT BEFORE THE 10™ AS STATED IN THE CONRACT. PLAINTIFF ALSO FAILED TO MAKE ACCOMIDATIONS OR REPAIRS THAT HAD BEEN REQUSTED IN WRITTING APRIL 30. THE MONTH OF MAY WAS THE LAST ASSISTANCE CHECK ISSUED DUE TO NON COMPLIANCE. PLAINTIFF FAILED TO PROPERLY FILL OUT THE SUBSIDIZED HOUSING PORTION OF THE PETITION WHICH WOULD HAVE SHOWN MY PORTION ($0.00) OF THE RENT AS OF MAY. HOUSING WAS IN CHARGE OF ALL RENT DUE OR ABATED DUE TO NONCOMPLIANCE IN REPAIRS OF THE UNIT ON APRIL 30, 2014. PLANTIFF RECEIVED RENT FOR MAY AND CHOOSE TO REPAIR THE ROOF AND FAILED TO REPAIR THE FAILED STATUS UNDER HOUSING AUTHORITY. ON SEPTEMBER 7, 2014 THE PLAINTIFF REMOVED THE DEFENDANTS PROPERTY WITH OUT A WRIT OF EVICTION KNOWING THAT AN APPEAL WOULD BE FILED. Pursuant to Texas Rule of Appellate Procedure 38.1(e) Appellant presents the following statement of oral argument STATEMENT OF ORAL ARGUMENT: TEXAS LAWS AND RULES WERE DISREGARDED BY THE PLANTIFF, JUDGES AND HOUSING AUTHORITIES. PLAINTIFF WAS OBLIGATED TO THE ORIGINAL CONTRACT AND FAILED TO UPHOLD THE CONTRACT. PLAINTIFF ALLEGEDLY RELEASED THE DEFENDANT OF THE CONTRACT SO THAT THE DEFENDANT COULD MOVE INTO A SUITABLE DWELLING UNIT WITHOUT ANY REPAIRS TO THE FAILED UNIT. (TRCP 509.6(A) FAILURE TO REMEEDY) WHEN RENT WAS NOT PAID PLAINTIFF DECIDED TO FILE SUIT TO COLLECT RENT THAT THE MCALLEN HOUSING AUTHORITY CLAIMED TO ABATE TILL REPAIRS OR ACCOMIDATIONS WERE MADE. (SUBSIDY LAWS SEC.8-1 l.G OWNER MUST NOT SEEK PAYMENT FOR AMOUNT ABATED NOR USE AS CAUSE FOR EVICTION) NOTIFICATIONS AND PROPER PAPERWORK IS STILL PENDING BY McALLEN HOUSING AUTHORITY. A CASE HAS BEEN OPEN BY THE FAIR HOUSING AUTHORITY AGAINST THE McALLEN HOUSING AUTHORITY AS WELL AS THE HUD DUE TO THESE ACTIONS. Pursuant to Texas Rule of Appellate Procedure 38.1(f) Appellant presents the following issues presented ISSUES PRESENTED DID THE TRIAL COURT ERR IN EXCLUDING CRITICAL EVIDENCE PRESENTED AT THE TIME? IS THERE FACTUALLY SUFFICIENT EVIDENCE TO SUPPORT THE JUDGEMENT OF THE TRIAL COURTS? DID THE TRIAL COURT ERR IN NOT GIVING SUFFICIENT NOTICE OF THE ORDER? THE LANDLORD ISSUED A 30 DAY NOTICE WITHOUT GOOD CAUSE. DURING THE INITIAL TERM GOOD CAUSE HAS TO BE SOMETHING THE FAMILY DID OR FAIL TO DO. (24 C.F.R. 982.310(D)(2)) JUDGE PALACIOS ORDERED THAT THE DEFENDANT MOVE OUT BY SEPTEMBER 6, 2014 AND ISSUED THE PLATIFF DANNETTE ZUNIGA PAPERWORK TO PREPARE AN ORDER ON SEPTEMBER 2, 2014. THE SIGHNED ORDER WAS MAILED OUT TO DEFFENDANT ON THE 5th OF SEPTEMBER AND WAS NOT RECEIVED TILL SEPTEMBER 8, 2014. PROPER NOTICE WAS NOT GIVEN TO DEFENDANT AND THE ORDER SHOULD BE VOID. PLAINTIFF USED THE ORDER TO REMOVAL OF ALL PROPERTY ON SEPTEMBER 7, 2014 AND REMOVAL OF ALL OCCUPANTS ON SEPTEMBER 10, 2014 BY THE MCALLEN POLICE DEPT. AND WAS DONE WITHOUT A WRIT. (TRCP 509.9 WRITS ARE NEEDED FOR REMOVAL OF PERSONS AND PROPERTIES) Pursuant to Texas Rule of Appellate Procedure 38.1(g) Appellant presents the following statement of the facts STATEMENT OF FACTS ON APRIL 30, 2014 SPECIAL INSPECTION PROPERTY FAILED HUD REGULATIONS ON MAY 1, 2014 NOTICE TO VACATE DUE TO CONSTRUCTION ON JUNE 3, 2014 FILE SUITE IN JUSTICE OF PEACE CHARLIE ESPINOZA ON JUNE 16, 2014 ORDER TO PAY $625 AND $111 IN COURT COSTS ON SEPTEMBER 2, 2014 COUNTY COURT 2 JUDGE JAIME PALACIOS HEARD THE LAWS REGARDING REPAIRS THAT WAS PRESENTED BY THE DEFENSE. ORDER IN FAVOR OF THE PLAINTIFF AND DEFENDANT RECIEVED ORDER ON SEPTEMBER 8, 2014 TO FILE AN APPEAL. ON SEPTEMBER 5, 2014 THE ORDER WAS SIGNED AT 3:12PM ORDERING ALL OCCUPANTS TO VACATE PROPERTY 3709 FRIO AVE. MCALLEN TX 78504 AND RENT OWED OF $1250.00 ON SEPTEMBER 7, 2014 PLAINTIFF DANNETTE ZUNIGA REMOVED PERSONAL PROPERTY WITHOUT A WRIT. ON SETEMBER 10, 2014 PLAINTIFF REMOVED ALL OCCUPANTS WITHOUT A WRIT ON SEPTEMBER 12, 2014 FINAL JUDGEMENT WAS SIGHNED BY JUDGE JAIME PALACIOS MOTION FOR A NEW TRIAL HEARING NOVEMBER 17, 2014 SUBMITTED EXHIBITS 1-6 DENIED A NEW TRIAL INLIGHT OF THE NEW EVIDENCE Pursuant to Texas Rule of Appellate Procedure 38.1(h) Appellant presents the following summary of the argument SUMMARY OF THE ARGUMENT PLAINTIFF IS HOLDING DEFENDANT TO THE ORIGINAL CONTRACT. IN ACCORDANCE TO THE CONTRACT SUIT WILL ONLY BE FILED AFTER THE 10™ FOR UNPAID RENT. (ORIGINAL CONTRACT P.2 EVICTION NOTICE) THE 30 DAY NOTICE THAT WAS GIVEN WAS DUE TO CONSTRUCTION, (24 C.F.R. 982.310(D) (2) STATES RENOVATIONS ARE NO GOOD CAUSE FOR EVICTION.) PLAINTIFF FAILED TO REEMEDY THE FAILED INSPECTION. (TRCP 509.6(A) FAILURE TO REMEEDY) PLAINTIFF WAS GIVEN ALL OF MAY TO COMPLY WITH HOUSING REGULATIONS INSTEAD PLAINTIFF COMPLETED THE CONSTRUTION ON THE ROOF BY THE 2nd WEEK OF MAY AND REFUSED TO MAKE REEMEDIES TO REPAIRS TO COMPLY THE CONTRACT REGARDING ACCOMIDATIONS, OR WITH MCALLEN HOUSING AUTHORITY'S STANDARDS. DUE TO THE BRECH IN CONTRACT DEFENDANT WAS FORCED TO FIND A SUITABLE DWELLING UNIT FOR THE HEALTH AND WELLBEING OF ALL OCCUPANTS. PLAINTIFF ALSO REFUSED TO RETURN THE SECURITY DEPOSIT WHICH WOULD HAVE HELPED THE DEFENDANT TO MOVE OUT PRIOR TO THE PROCEEDINGS. (TEXAS PROPERTY CODE 92-331 RETALIATION PROHIBITED FOR SIX MONTHS) Pursuant to Texas Rule of Appellate Procedure 38.1(i) Appellant present(s) the following argument ARGUMENT PLAINTIFF DANNETTE ZUNIGA HAS NOT COMPLIED WITH THE CONTRACT SIGHNED IN JANUARY. ON APRIL 30, 2014 MCALLEN HOUSING AUTHORITY FAILED A SPECIAL INSPECTION AND PAID THE FULL RENT FOR MAY. PLAINTIFF ONLY FIXED THE CONSTRUCTION ON THE ROOF BUT FAILED TO REEMEDY OR REPAIR THE REQUEST DONE BY THE HOUSING INSPECTION. (TRCP 509.6(A) FAILURE TO REMEEDY) ON MAY 1, 2014 PLAINTIFF GAVE 30 DAY NOTICE DUE TO CONSTRUCTION. (24 C.F.R. 982.310(D) (2) RENOVATIONS NO GOOD CAUSE FOR EVICTION) ON JUNE 1, 2014 RENT WAS NOT PAID BY THE MCALLEN HOUSING AUTHOEITY, (24 C.F.R. 982.453 OWNER BREACH OF THE CONTRACT RESULTING PENALTIES) AND PLAINTIFF FILLED A CIVIL SUIT ON JUNE 3, 2014. (SUBSIDY LAWS SEC.8-1 l.G OWNER MUST NOT SEEK PAYMENT FOR AMOUNT ABATED NOR USE AS CAUSE FOR EVICTION) THE ORIGINAL CONTRACT CLEARLY STATES THAT A TEN DAY GRACE WOULD BE GIVEN WHEN RENT IS NOT PAID. IN ACCORDACE WITH THE CONTRACT SUIT SHOULD NOT HAVE BEEN FILLED AFTER JUNE 10, 2014. (ORIGINAL CONTRACT EVICTIONS P2) ON JUNE 17™ THE DEFENDANT REFUSED TO ACCEPT PAYMENT FROM HOUSING AND INSISTED ON GOING FORTH WITH THE EVICTION. AFTER THE J.P. COURT'S CHARLIE ESPINOZA'S RULING THE DEFENDANT INFORMED THE HOUSING AUTHORITY OF THE EVICTION ORDER WHICH PUT A STOP TO JUNE'S RENT. FURTHER MORE, PLAINTIFF SHOULD NOT PENALIZE DEFENDANT FOR THE PORTION OF RENT KEPT BY MCALLEN HOUSING AUTHORITY DUE TO FAILED INSPECTION. (SUBSIDY LAWS SEC.8-1 l.G OWNER MUST NOT SEEK PAYMENT FOR AMOUNT ABATED NOR USE AS CAUSE FOR EVICTION) ON SEPTEMBER 2, 2014 JUDGE JAIME PALACIOS RULED IN FAVOR OF THE PLAINTIFF FOR THREE MONTHS RENT AND ORDERED TO VACATE BY SEPTEMBER 6, 2014. UPON IS RULING JUDGE PALACIOS GAVE THE PLAINTIFF THE RULING SO THAT AN ORDER COULD BE FILED AND WHEN DEFENDANT ASKED FOR THE SAME RULING SO THAT AN APPEAL COULD BE MADE JUDGE PALACIOS EXPLAINED TO GO TO THE LAW LIBRARY. THE ORDER WHICH WAS SIGHNED ON SEPTEMBER 5, 2014 WAS MAILED AND POSTMARKED SEPTEMBER 8, 2014. PLAINTIFF REMOVED ALL PROPERTY WITH OUT ANY NOTIFICATION OR ORDER OF WRIT ON SEPTEMBER 7, 2014. ON SEPTEMBER 10, 2014 DEFENDANT WENT TO RECOVER PROPERTY THAT WAS THROWN OUTSIDE AND TO MAKE A REPORT OF THE MISSING PROPERTY WHEN PLAINTIFF SHOWED UP AT THE DWELLING UNIT TO HAVE THE DEFENDANT REMOVED FROM THE PROPERTY BY THE POLICE OFFICER WITHOUT RECOVERING ANY PROPERTY. (TRCP 509.9 WRITS ARE NEEDED FOR REMOVAL OF PERSONS AND PROPERTIES) DUE TO THE DEFENDANT'S SANITATION COMPLAINT THAT THE LANDLORD NOT ONLY FAILED TO CORRECT BUT PLAINTIFF RETALIATED AGAINST THE TENANTS BY GIVING A 30 DAY NOTICE TO VACATE DUE TO CONSTRUCTION. (EDWARD VS. HABIB), (TEXAS PROPERTY CODE 92-331 RETALIATION PROHIBITED FOR SIX MONTHS) THE TRIAL COURT'S DECISION DISREGARDED THE LAWS THAT ARE SET FORTH TO PROTECT THE TENANT. (SUBSIDY LAWS SEC.8-1 l.G OWNER MUST NOT SEEK PAYMENT FOR AMOUNT ABATED NOR USE AS CAUSE FOR EVICTION) BASED UPON THE EVIDENCE THE JUDGMENT SHOULD BE OVERTURNED AND THE CASE DISMISSED.
[*10]Pursuant to Texas Rule of Appellate Procedure 38.1(j) Appellant presents the following prayer
PRAYER
APPELLANT IS REQUESTING THAT THE CASE BE DISMISSED AND THAT THE PLAINTIFF RETURN THE SECURITY DEPOSIT AND PAY FOR PROPERTY THAT WAS REMOVED BY THE PLAINTIFF, (TRCP 509.9 WRITS ARE NEEDED FOR REMOVAL OF PERSONS AND PROPERTIES) AND ANY OTHER RELIEF THAT THE COURTS DEEM FIT (TRCP 509.6(2) (D) (E) AWARD TENANTS DAMAGES AND COURT FEES) Pursuant to Texas Rule of Appellate Procedure 38.1(k) Appellant presents the following appendix in civil cases
[*11]APPENDIX
ATTACHMENTS:
LETTER 30 DAY NOTICE
LETTER FROM VIRGINIA CHAVEZ EXECUTIVE DIRECTOR AT THE MCALLEN HOUSING AUTHORITY DATED JULY 2, 2014 REGARDING SPECIAL INSPECTIONS ON APRIL 30, 2014
MCALLEN HOUSING AUTHORITY SPECIAL INSPECTIONS FAILED
NOTIFICATION OF ADJUSTMENT TO THE SEC. 8 CONTRACT DATED 4/24/2014 EFFECTIVE 5/1/2014
ORDER DENYING DEFENDANT'S MOTION FOR A NEW TRIAL
ORDER OF EVICTION AND POST MARK
ORIGINAL CONTRACT REGARDING 10 DAY GRACE BEFORE EVICTION PROCEEDINGS Contract for House 3709 Frio Ave McAllen TX 78504
[*12]1. Owner Information "Twufimuiuj Fwuim SkmqOimmg CmmmdUes"" McALLEN HOUSING AUTHORITY 2301 JASMINE AVENUE TEXAS MCALLEN. TEXAS 78501
[*16]July 2, 2014 •£ % -np- _¥•• £301 Jasmine Avenue i~w_/rtr?«^«y Pe-n-Mb*. Ja-.v^AcJti.^ _w_-, _s«_£^*' ivicAllen. Teas 78501