                IN THE


      FIRST COURT OF APPEALS
                                               OCT 28 20,5

          NO. 01-15-00663-CV




   DEVON WILMINGTON, Appellant

                   V.


 BAY AREA UTILITIES, LLC, Appellee


On Appeal from the County Court at Law 3
          Harris County, Texas

     Trial Court Cause No. 1057183



     APPELLANT'S REPLY BRIEF




                 Respectfully submitted,

                 By: /s/Devon Wilmington
                 Devon Wilmington
                 P.O. Box 19547
                 Sugafland, Texas 77496-9547
                 Tel. (832) 754-6152
                 Email: devonwilmington@yahoo.com
                Pro Se Appellant
                                 TABLE OF CONTENTS



I.     Identity of Parties and Counsel                                          3

II.    Index of Authorities.                                                    4

III.   Introduction.                                                            5


IV.    Arguments                                                                5

       1. The County Court correctly granted the Final Judgment on July 27,
          2015 as Bay Area had the superior right to possession of the Real
          Property                                                             ..5

       2. The issue of possession of the Real Property at this time is moot     6

       3. The Trial Court had jurisdiction                                     .7

       4. The monetary judgment against Albert Reff was not appealed and is
          therefore a final judgment and Wilmington has not contested the
          monetary judgment                                                 9


IV.    Prayer                                                                  10

XI.    Certificate of Service                                                  11




01-15-00663-CV, Appellant's Reply Brief(Wilmington)                       Page | 2
                               I.       Identity ofParties and Counsel

The following is a list of all parties and all counsel in this matter:

A.        Appellant is Devon Wilmington, defendant in the trial court.
          Pro Se Appellant is:


          Devon Wilmington
          P.O. Box 19547
          Sugarland, Texas 77496-9547
          P. 832-754-6152;
          devonwilmington@yahoo.com


B.       Appellee is BAY AREA UTILITIES, LLC, plaintiff in the trial court.The
          attorney representing Appellee is:

          Timothy J. Henderson
          State Bar Number 09432500
          6300 West Loop South, Suite 280
          Bellaire, Texas 77401-2905
          P. 713.667.7878 F. 713.668.5697
          timj henderson@msn.com

          CO-COUNSEL:
          Joseph P. Montalbano
          State Bar No. 14279700
          2525 Bay Area Blvd., Suite 310
          Houston, Texas 77058
          P. 281.488.1656 F. 281.488.5884




     01-15-00663-CV, Appellant's Reply Brief (Wilmington)                  Page | 3
                                  II.     Index ofAuthorities

Statutes


        TEX. PROP.CODE ANN § 24.005(b).......                                 ......9
        Texas Rules of Civil Procedures for Justice Courts Rule 510.3(c)            9
        TRAP RULE 9.4                                                          ..10




Cases
        Adedipe v. Guardian Transfer & Storage, Inc., No. 14-10-00752-CV, 2011
        Tex. App. LEXIS 71                                              .......8

        Aguilar v. Weber, 72 S.W.3d 729 (Tex. App. - Waco 2002, pet. dism'd
        w.o.j.)                                                           7

        Dillingham v. Putnam, 109 Tex. 1, 14 S.W. 303 (Tex. 1890)                ..7

        Elwell v. Countrywide Home Loans, Inc., 267 S.W.3d 566, 568-69 (Tex.
        App.-Dallas 2008, pet. Dism'd w.o.j.)                             5

        Gulledge v. White, 73 Tex. 498, 11 S.W. 527 (1889)                        7

        Kennedy v. Andover Place Apartments, 203 S.W.3d 495, 497 (Tex. App.~
        Houston [14th Dist] 2006, no pet.)                                7

        Mekeel v. U.S. Bank National Assn., 355 S.W.3d 349, 357 (Tex. App. - El
        Paso 2010, pet. dism'd)                                                    6

        Schlichting v. Lehman Brothers Bank FSB, 346 S.W.3d 196, 198 (Tex. App.
     -Dallas 2011, pet. dism'd)                                                  ..6

        Texas Best Mortgage, Inc. v. Nieves, No. 04-03-00097-CV, 2003 Tex. App.
        LEXIS 9402, at 7-8(Tex. App. - San Antonio Nov. 5, 2003, no pet.)(mem.
        OP-)                        •             •••              •             1%
      Valdez v. Gonzalez Equities, Ltd., No. 04-12-00466-CV, Defendants           ,8

      Ward v. Malone, 115 S.W.3d 267, 271 (Tex. App. - Corpus Christi 2003, no
     pet                                                                           8

                                                        IMJBBWSl




 01-15-00663-CV, Appellant's Reply Brief (Wilmington)                      Page | 4
                                      I. INTRODUCTION

       By this Reply Brief, no attempt is made to set forth a response to each of

       Appellee's contentions, most of which are fully covered by the opening

       brief. Only those points requiring additional comment will be raised to assist

       this court in resolving the pertinent issues.


                                           II. ARGUMENT


ISSUE 1: The County Court correctly granted the Final Judgment on July 27,
2015 as Bay Area had the superior right to possession of the Real Property.

Appellant disputes issue 1:

Trial Court erred in rendering judgment in forcible detainer action. BAY AREA

UTILITIES had no legal claim to bring a matter of Forcible Detainer Action. In

order to prevail on its forcible detainer action, [the plaintiff has to] to prove (1) it

owned the property by virtue of a foreclosure sale deed, (2) Defendant became a

tenant at sufferance when the property was sold under the deed of trust, (3)

Plaintiff gave Defendant notice to vacate the premises, and (4) Defendant refused

to vacate the premises. See Elwell v. Countrywide Home Loans, Inc., 267 S.W.3d

566, 568-69 (Tex. App.-Dallas 2008, pet. dism'd w.o.j.).

              BAY AREA UTILITIES has no prima facie evidence that it owned

the property 12951 Iris Garden Lane by virtue of a Substitute Trustee Deed.

Therefore they could not demand possession because they were not entitled to


  01-15-00663-CV, Appellant's Reply Brief (Wilmington)                        Page | 5
possession of property.       Devon Wilmington continues to have superior right to

possession of property.

ISSUE 2: The issue of possession of the Real Property at this time is moot.

Appellant disputes issue 2.

BAY AREA UTILITIES who was not the buyer at the foreclosure sale has failed

in its attempt to offer sufficiency of evidence of good cause, and therefore a

genuine justiciable controversy exists between parties.


In order to prove right to possession, it is sufficient if the buyer at the foreclosure

properly proves up (1) the deed of trust, (2) the substitute trustee's deed, and (3)

the notice to vacate. Mekeel v. U.S. Bank National Assn., 355 S.W.3d 349, 357

(Tex. App. - El Paso 2010, pet. dism'd); Schlichting v. Lehman Brothers Bank

FSB, 346 S.W.3d 196, 198 (Tex. App. - Dallas 2011, pet. dism'd);


Bay Area Utilities has only exercised its right under judgment to obtain writ of

possession. There is no evidence presented as to whether there has been actual

execution of the Writ of Possession. Devon Wilmington continues to assert her

rights of actual possession of property. Devon Wilmington has contended that

BAY AREA UTILITIES has not stated a claim for which relief can be granted and

that superior possession still rests with her. Devon has been, and continues to

stand in defense of possession to subject property. If the evicted party claiming

possession has a potentially meritorious claim to possess the residential premises,

  01-15-00663-CV, Appellant's Reply Brief(Wilmington)                        Page | 6
however, displacement by eviction does not render the appeal moot. Kennedy v.

Andover Place Apartments, 203 S.W.3d 495, 497 (Tex. App.-Houston [14th Dist.]

2006, no pet.)


Devon Wilmington exercised her right to appeal to further claim right to

possession of her property. Devon Wilmington has a right to appeal without

Posting Supersedeas Bond. The Texas Supreme Court held over 120 years ago that

conditioning a party's right to appeal upon posting a supersedeas bond violates the

due course of law provision of the Texas Constitution. See Dillingham v. Putnam,

109 Tex. 1, 14 S.W. 303 (Tex. 1890).


ISSUE 3: The Trial Court had jurisdiction.

Appellant disputes Issue 3.

Appellant asserts that the trial court did not have jurisdiction, because no landlord-

tenant relationship was set forth in a contract for deed.         A landlord-tenant

relationship is required to support a forcible detainer action. Gulledge v. White, 73

Tex. 498, 11 S.W. 527 (1889); See Aguilar v. Weber, 72 S.W.3d 729 (Tex. App. -

Waco 2002, pet. dism'd w.o.j.). Here the appellate court held that because no

landlord-tenant relationship was set forth in the contract for deed and the buyers

contested the default issue related to possession, title was at issue and the county

court erred by interpreting title under the contract in order to determine possession

in a forcible detainer lawsuit. The court reasoned that the eviction case involved a


  01-15-00663-CV, Appellant's Reply Brief (Wilmington)                      Page | 7
right to possession dependent on the contract for deed and, therefore, the justice

court and county court lacked jurisdiction of the forcible detainer lawsuit. Id.;

accord, Ward v. Malone, 115 S.W.3d 267, 271 (Tex. App. - Corpus Christi 2003,

no pet.); Texas Best Mortgage, Inc. v. Nieves, No. 04-03-00097-CV, 2003 Tex.

App. LEXIS 9402, at 7-8 (Tex. App. - San Antonio Nov. 5, 2003, no pet.) (mem.

op.).


When a contract for deed is not introduced into evidence and the buyer alleges

fulfillment of the terms of an agreement, "the justice court lacks jurisdiction

because the suit necessarily involves a determination of title." Valdez v. Gonzalez

Equities, Ltd., No. 04-12-00466-CV, Defendants.


The county court at law lost its jurisdiction when it alleged damages in excess of

$59,053.79. When an appellee amended his suit and alleged damages in excess of

$10,000 in county court at law, the county court at law lost jurisdiction because the

justice court did not have jurisdiction. Adedipe v. Guardian Transfer & Storage,

Inc., No. 14-10-00752-CV, 2011 Tex. App. LEXIS 71.




  01-15-00663-CV, Appellant's Reply Brief (Wilmington)                      Page | 8
ISSUE 4: The monetary judgment against Albert Reff was not appealed and is
therefore a final judgment and Wilmington has not contested the monetary
judgment.

Appellant disputes issue 4.

Albert Reff was not and is not a party to this forcible detainer suit due to the fact

he was not named in the petition neither served with citation. Albert Reff is not

named under a lease. Therefore no judgment can attach.       I rebut the presumption

that Albert Reff owes a money judgment. According to Rule 510.3(c); when the

eviction is based on a written residential lease, the plaintiff must name as

defendants all tenants obligated under the lease residing at the premises whom

plaintiff seeks to evict. No judgment or writ of possession may issue or be

executed against a tenant obligated under the lease and residing at the premises

who is not named in the petition and served with citation.


BAY AREA UTILITIES was not the purchaser at foreclosure sale and therefore

not entitled to rents. According to TEX. PROP. CODE ANN. § 24.005(b)

(purchaser at foreclosure sale entitled to rent paid after giving notice to tenant of

foreclosure sale).


Devon Wilmington rebuts the presumption of any money judgment owed and has

contested the Final Judgment of the Trial Court in her opening brief, which is



  01-15-00663-CV, Appellant's Reply Brief (Wilmington)                      Page | 9
inclusive of the Money Judgment.




                                        X.         Prayer

Appellant prays that this Court reverse the Trial Court's ruling without remand and
renders a take nothing judgment and grant Devon Wilmington any further equitable
relief it deems appropriate.



                                   st ectfully.          ted,

                                     on Wilmington


                                By: _ Devon Wilmington, PRO SE
                                P.O. Box 19547;
                                Sugarland, TX 77496-9547;
                                P. 832.754.6152



 CERTIFICATE OF COMPLIANCE - Pursuant to Tex. R. App. Pro. 9.4, I
 hereby certify that this Appellant's Reply Brief contains 1,567 words. This is a
 computer-generated document created in Microsoft Word, using 12 or 14-point
 typeface for all text, except for footnotes which are in 12-point typeface. In making
 this certificate of compliance, I am relying on the word count provided by the
 software^used to preparethe^jument.




  01-15-00663-CV, Appellant's Reply Brief (Wilmington)                     Page | 10
                        XL      CERTIFICATE OF SERVICE



     A copy of this Appellant's Reply Brief was served upon Timothy J.

Henderson, 6300 West Loop South Suite 280 Houston, TX 77401-2905 counsel

for Appellee and Joseph P. Montalbano 2525 Bay Area Blvd. Suite 310 Houston,

Texas 77058 secondary counsel for Appellee, via certified mail.




01-15-00663-CV, Appellant's Reply Brief (Wilmington)              P a g e | 11
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