Notice to Vacate differs from eviction suit

[Ninelvkat]

Jurisdiction

Texas

Hello.
I was being evicted in Texas for non monetary lease violations from my apartment complex. When they served me the original notice to vacate, it listed a specific lease violation as the reason for the notice to vacate. However, when they filed the eviction in court, the reason listed on that paperwork makes no mention of the violation noted on the notice to vacate. It states an entirely different and unrelated lease violation I was never given a notice to vacate about. Would this discrepancy mean that they did not follow proper eviction notice protocols etc and I could use that to win eviction case.
If it matters, we already had the original court date. I lost, and am in the process of appealing.
Thanks for any insight that can be provided for the situation

 

[Zigner]

Hello.
I was being evicted in Texas for non monetary lease violations from my apartment complex. When they served me the original notice to vacate, it listed a specific lease violation as the reason for the notice to vacate. However, when they filed the eviction in court, the reason listed on that paperwork makes no mention of the violation noted on the notice to vacate. It states an entirely different and unrelated lease violation I was never given a notice to vacate about. Would this discrepancy mean that they did not follow proper eviction notice protocols etc and I could use that to win eviction case.
If it matters, we already had the original court date. I lost, and am in the process of appealing.
Thanks for any insight that can be provided for the situation

Did you bring up the discrepancy in court?

 

[Ninelvkat]

I didn't notice it until I was looking over all the paperwork again while preparing for the appeal.

 

[Zigner]

I didn't notice it until I was looking over all the paperwork again while preparing for the appeal.

What is the basis for your appeal?

 

[Zigner]

You may wish to review the following information: Guides: Landlord/Tenant Law: Appealing an Eviction

 

[zddoodah]

Since you failed to raise the discrepancy at the time of trial or in any sort of pre-trial motion, then you may be barred from raising an issue for the first time on appeal.

I'd suggest conferring with a local attorney...ASAP (since the time to appeal is typically very short).

 

[flyingron]

What is the basis for your appeal?

He doesn't need one, probably. Most evictions are held in JP courts and either party can request a de novo hearing if they make the request within five days.

 

[adjusterjack]

When they served me the original notice to vacate, it listed a specific lease violation as the reason for the notice to vacate

What was the violation?
How many days were you given?
Did you respond to that notice, in writing, stating why your tenancy shouldn't be terminated.?

when they filed the eviction in court, the reason listed on that paperwork makes no mention of the violation noted on the notice to vacate. It states an entirely different and unrelated lease violation

And what was that violation?
Did you address that violation either with a written answer or in court?

Would this discrepancy mean that they did not follow proper eviction notice protocols etc and I could use that to win eviction case.
If it matters, we already had the original court date. I lost, and am in the process of appealing.

Generally (and this might or might not apply) when you appeal a court decision your grounds for appeal has to be related to a decision the judge made at trial, a decision that was based on the facts and the evidence presented at the trial.

By your own admission you failed to raise a defense of the change in cause. If the judge otherwise made no error in ruling on the facts and evidence presented you may not have proper grounds for appeal.

With that in mind, I echo Zigner's question. What is the basis for your appeal?

Since you failed to raise the discrepancy at the time of trial or in any sort of pre-trial motion, then you may be barred from raising an issue for the first time on appeal.

I also pointed that out. But further research suggests that flyingron is correct and the appeal is by right and the appeal trial is de novo (a do-over).

This document from Dallas County is a more comprehensive guide to the appeal process, though specific procedures may differ somewhat in a different court.

Eviction.pdf (dallascounty.org)

"(7) Once the tenant files a written answer, the County Court will set the matter for trial. The tenant must appear at the trial to present evidence (documents, witnesses, etc.) that he or she has paid the rent, has not violated the lease agreement, or is otherwise entitled to remain in the leased property."

Back to you, ninelvkat, it looks like you will have to prove that you did not commit any violations of the lease, whether notified or not.

 

[Zigner]

I lost, and am in the process of appealing.

What do you mean by "in the process of appealing?"
When was the case heard?
When did you file your appeal?
Have you filed your written answer? If so, when did you submit it?

 

[Zigner]

By your own admission you failed to raise a defense of the change in cause. If the judge otherwise made no error in ruling on the facts and evidence presented you may not have proper grounds for appeal.

Per the document you provided, this will be a "new trial", but it is in a higher court that is likely more formal and rigid. The OP would do well to have an attorney.

 

[Zigner]

He doesn't need one, probably. Most evictions are held in JP courts and either party can request a de novo hearing if they make the request within five days.

I would agree that no reason (basis) is required for the appeal, but the OP must have some reason for feeling that there was no violation of the lease.

 

[Ninelvkat]

Thank you for the replies.
I didn't have a signed lease at the time of either written notice or the court filing.. had been month to month for some time and during that time the complex was sold to a new management company.
The original written notice to vacate I received states the reason is failure to provide housing income verification. Not true, I did provide all income documents as requested. Have documents proving that.

The court eviction papers state the reason as not allowing entry for required annual housing inspection. Also not true. Have no way to prove that unfortunately. Although neither do they, really. Apartment maintenance personnel was inside the apartment around the same time as these inspections were going on to complete some building upgrades. So I clearly didn't have a problem granting them access. At least one other tenant I'm aware of was evicted about the time I was, also for supposedly not allowing an inspection.

 

[Ninelvkat]

This is probably best left for another topic elsewhere but the attorney on record for the complex in eviction papers is the father of the owners of the new parking app the complex has started using. And the towing company the parking app uses to tow unauthorized vehicles from the premises is owned by even more of the lawyers kids.

 

[Zigner]

This is probably best left for another topic elsewhere but the attorney on record for the complex in eviction papers is the father of the owners of the new parking app the complex has started using. And the towing company the parking app uses to tow unauthorized vehicles from the premises is owned by even more of the lawyers kids.

Sounds like a non-issue to me.

 

[Zigner]

Thank you for the replies.
I didn't have a signed lease at the time of either written notice or the court filing.. had been month to month for some time and during that time the complex was sold to a new management company.
The original written notice to vacate I received states the reason is failure to provide housing income verification. Not true, I did provide all income documents as requested. Have documents proving that.

The court eviction papers state the reason as not allowing entry for required annual housing inspection. Also not true. Have no way to prove that unfortunately. Although neither do they, really. Apartment maintenance personnel was inside the apartment around the same time as these inspections were going on to complete some building upgrades. So I clearly didn't have a problem granting them access. At least one other tenant I'm aware of was evicted about the time I was, also for supposedly not allowing an inspection.

What do you mean by "in the process of appealing?"
When was the case heard?
When did you file your appeal?
Have you filed your written answer? If so, when did you submit it?

 

[adjusterjack]

I didn't have a signed lease at the time of either written notice or the court filing.. had been month to month for some time

Then the owners didn't need a reason to terminate your tenancy. An appeal based on reasons or lack of reasons is likely to fail.

However, notice of termination would have to have been one month per Texas Property Code 91.001:

Texas Property Code Section 91.001 (2022) - Notice for Terminating Certain Tenancies :: 2022 Texas Statutes :: US Codes and Statutes :: US Law :: Justia

You didn't answer my question about how many days notice you were given. If it was less than a month you might win the appeal only to find that you've delayed the inevitable.