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Legal Questions and Answers
By: Greg T. Meyer
Editor's note: the purpose of this column is to provide information with respect to current legal developments and topics of general interest. No attempt is made to offer solutions to specific problems. An attorney of your choice should be consulted for advice on particular questions relating to your situation.
Inevitably, changing circumstances and fact-sensitive questions lead to legal conclusions and results that are not discussed here. The following is only a general summary of Texas law and may be inappropriate for a specific situation.
This month's column was prepared by Greg T. Meyer: (972)334-0091 direct line email – meyerlaw@msn.com
Our office has seen an increase in the number of suits filed by tenants and vendors against property owners and management companies in the small claims courts. The following discussion attempts to address issues that seem to reoccur with these types of cases.
Question:
We have been sued by a former tenant in small claims court for return of a security deposit. We have good documentation to defend the claim. Are we required to hire an attorney to represent us in court?
Answer:
An individual owner of the property can always represent him or herself in any court on any matter. Typically, however, limited partnerships or corporations own multi-family properties. If the suit has actually been filed in the small claims court, then a corporation (or limited partnership) need not be represented by an attorney in order to defend the claim. See, § 28.003(e) of the Texas Government Code. If the case has been filed in the justice court then a corporation or limited partnership will need to retain counsel. (Please note that the rules for eviction cases are different and are not discussed herein).
The question turns on correctly determining in what “court” the case has actually been filed. Some explanation is required. The court having jurisdiction to hear small claims cases is the justice of the peace. A small claims case is one where the only relief being sought is the recovery of money in which the amount involved, exclusive of costs, does not exceed $10,000.00. However, a justice of the peace actually presides over two courts: the small claims court and the justice court. A justice court case is one where the amount in controversy is not more than $10,000.00 and some other form of relief (in addition to money) is being sought. This is why eviction cases are filed as justice court cases and not small claims court cases. In eviction cases, the plaintiff is seeking not only past due rent (money damages) but possession of the property as well (non-monetary relief).
There are several ways of determining in which court (small claims or justice court) the case has been filed. First, examine the case number appearing on the statement of claim. Most small claims court actions have a “JS” or “S” appearing before the case number while justice court cases have a “JC” or “CV”, but not always. The statement of claim may state in which court the case is pending. If you cannot determine in which court the case has been filed by examining the statement of claim or by examining the case number then call the clerk’s office for the justice of the peace. The filing fees are different for a small claims case as opposed to a justice court case (with the justice court fees being higher) so the court clerk should be able to readily tell you in which court the case was filed.
Question:
Are there any other differences between the small claims court and the justice court?
Answer:
The two courts differ in certain procedural aspects for case determination. In justice court the formal pleading rules required by the Texas Rules of Civil Procedure are applicable as are the Texas Rules of Evidence. Discovery in all forms (i.e., depositions and written discovery requests) are fully permitted. In small claims cases these rules are applied at the judge’s discretion and discovery is limited to that which the judge views as reasonable and appropriate after a party requests permission to conduct discovery. It goes without saying that it is difficult for a non-lawyer to operate effectively in the justice court under the formal procedural and evidentiary rules.
Question:
What if the suit has been filed in a county where our property is not located? Can the suit be transferred to a more convenient court for us?
Answer:
Yes. Section 15.0115 of the Texas Civil Practice and Remedies Code mandates that a suit between a landlord and a tenant arising under a lease be brought in the county where all or part of the real property is located. We have seen cases where a former tenant has filed suit in a Dallas County small claims court for recovery of a security deposit and has chosen a court that is convenient to the tenant’s then current residence even though the property is located in Collin or Denton County. The case, upon proper written motion made at the time of answering, can be transferred to the appropriate court in the county where the property is located. This is known as transferring venue. A venue transfer may enhance the possibility of the property owner prevailing at trial. This is especially true where the management staff or their counsel frequently appears before the court and have established a good report with the justice of the peace that is receiving the case. The venue transfer request must be made at the time of answering the lawsuit, otherwise; the right to transfer will be waived.
Question:
Do we have to file a written answer to the tenant’s claim and, if so, when does the answer have to be filed?
Answer:
Yes a written answer denying the tenant’s claims must be filed with the court. Failure to file a written answer may result in a default judgment being entered against you. A defendant in a small claims court or justice court action has until 10:00 a.m. on the Monday following the expiration of ten days from the date the citation is served upon the defendant to file a written answer with the court. Thus, if the citation were served upon the defendant on Tuesday, July 15, 2008, the defendant would have until 10:00 a.m., Monday, July 28, 2008, in which to file a written answer with the court.
Question:
After the answer is filed then what happens?
Answer:
The court will, in the normal course of administering its docket, set the matter for trial and will advise the parties in writing of the trial setting. It is important that the court have a good address for the parties so that any notices or communications are timely received. Most small claims court cases are set for trial several months following the filing of the defendant’s answer.
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