                                                                      ACCEPTED
                                                                  03-14-00621-CV
                                                                          5225035
                                                       THIRD COURT OF APPEALS
                                                                  AUSTIN, TEXAS
                                                            5/11/2015 10:12:28 AM
                                                                JEFFREY D. KYLE
                                                                           CLERK
               03-14-00621-CV

                                         FILED IN
                                  3rd COURT OF APPEALS
 IN   THE COURT OF APPEALS OF TEXAS AUSTIN, TEXAS
         THIRD DISTRICT, AUSTIN   5/11/2015 10:12:28 AM
                                      JEFFREY D. KYLE
                                           Clerk
             FRANK SELIGER,
                Appellant,

                    vs.

  ETHIOPIAN EVANGELICAL CHURCH
              Appellee.


On Appeal from the County Court at Law No. 1
            Travis County, Texas
  Trial Court Cause No. C-1-CV-14-005819


            APPELLEE’S BRIEF




                          Respectfully submitted,
                          By: /s/ James Minerve
                          ____________________________
                          James Minerve
                          State Bar No. 24008692
                          115 Saddle Blanket Trail
                          Buda, Texas 78610
                          (210) 336-5867
                          (888) 230-6397 (Fax)
                          jgminerve@aol.com
                          jgm@minervelaw.com
                          Attorney for Appellee, Ethiopian
                          Evangelical Church

                     i
                       IDENTITY OF THE PARTIES

Appellant

Frank Seliger
2108 E. Yager Lane
Austin, Texas 78754
Appellant, Pro Se

Appellee

Ethiopian Evangelical Church
By: James Minerve
State Bar No. 24008692
115 Saddle Blanket Trail
Buda, Texas 78610
(210) 336-5867
(888) 230-6397 (Fax)
jgminerve@aol.com
jgm@minervelaw.com
Attorney for Appellee Ethiopian Evangelical Church




                                      ii
                                            TABLE OF CONTENTS

Identity of Parties and Counsel ................................................................................. ii

Table of Contents ..................................................................................................... iii

Table of Authorities ..................................................................................................iv

Statement of Jurisdiction............................................................................................ 1

Statement of the Case................................................................................................. 1

Issues Presented ......................................................................................................... 1

Statement of Facts ...................................................................................................... 1

Argument and Authorities.......................................................................................... 3

      ISSUE 1: Whether Frank Seliger, as a holdover tenant, after receiving a
   Notice to Vacate on February 17, 2014, has the right to possession of
   Appellant’s property.

Conclusion ................................................................................................................. 5

Prayer ......................................................................................................................... 5

Certificate of Service ................................................................................................. 6

Certificate of Compliance .......................................................................................... 6




                                                               iii
                                    TABLE OF AUTHORITIES
                                           CASES

Coinmach Corp. v. Aspenwood Apartment Corp., 417 S.W.3d 909 (2013) ............. 4

Gym-N-I-Playgrounds, Inc. v. Snider, 220 S.W.3d 905, 908 (Tex. 2007) ................ 4

ICM Mortgage v. Jacob, 902 S.W.2d 527, 530 (Tex.App.—El Paso 1994 .............. 5

In Re Brunson, 498 B.R. 160 – Bankr. Court, WD Texas (2013) ............................. 5

                                                STATUTES

Texas Property Code, Chapter 51 .............................................................................. 1

Texas Property Code Chapter 92 et seq ..................................................................... 1

                                            CONSTITUTION

Texas Constitution Art. 5, Sec. 6 ............................................................................... 1




                                                        iv
                      STATEMENT OF JURISDICTION

      This Court has jurisdiction of the appeal because Appellant filed a final

Judgment from the Travis County Court at Law #1, Travis County, Texas. Texas

Texas Property Code Chapter 92 et seq. and Texas Constitution, Art. 5, Sec. 6.

      This Court has jurisdiction concerning appeal of forcible detainer

proceedings, Texas Property Code, Chapter 51.

                         STATEMENT OF THE CASE

      This an appeal of a forcible detainer proceeding from the Travis County Court

at Law #1. The jury ruled against Appellant and judgment issued on September 15,

2014 in favor of Appellee.

      Appellant was a hold over tenant whose one-year lease ran from July 1, 2012

to June 30, 2013.

                              ISSUE PRESENTED

      Whether Frank Seliger, as a holdover tenant, after receiving a Notice to Vacate

on February 17, 2014, has the right to possession of Appellant’s property.

                             STATEMENT OF FACTS

                                   TIMELINE

July 1, 2012             Appellant takes possession of Appellee’s property after
                         signing a one year lease.

July 1, 2013             Appellant becomes a holdover tenant.



                                         1
September 14, 2013   Appellant is sent a text message reminding him he needs
                     to find another place to live.

January 7, 2014      Appellant served with Notice of Landlord’s intent not to
                     renew.

February 17, 2014    Appellant is served with 3-day notice to vacate.

March 10, 2014       Appellant served with forcible detainer suit, KBRealton
                     Management v. Frank M. Seliger, Cause No. J1-CV-14-
                     070621 JP Court Precinct 1. KBRealtron was the
                     Management company for the church.

March 10, 2014       Appellant demands jury trial.

April 3, 2014        Verdict rendered in favor of KBRealtron. Judgment
                     signed.

April 8, 2014        Appellant appeals.

April 11, 2014       Case filed in Travis County Court, Cause
                     No. C-1-CV-14-003211.

April 22, 2014       Jury demand by Appellant.

May 15, 2014         Order of Dismissal – “KBRealtron Management is not
                     the owner of the subject premises and is not entitled to
                     bring this suit in its own name.”

May 15, 2014         Forcible detainer filed in JP #1, Cause No. J1-CV-14-
                     071107, Ethiopian Evangelical Church v. Frank Seliger.

May 27, 2014         Appellant filed jury demand.

June 16, 2014        Jury finds in favor of Appellee.

June 24, 2014        Appellant appeals to County Court, Cause No. C-1-CV-
                     14-005819.

August 26, 2014      Jury trial. Jury finds for Appellee.
                                     2
September 16, 2014         Judgment issued.

September 24, 2014         Appellant’s notice of appeal to 3rd Court of Appeals.

                      ARGUMENTS AND AUTHORITIES
                               ISSUE I

   Whether Frank Seliger, as a holdover tenant, after receiving a Notice to
   Vacate on February 17, 2014, has the right to possession of Appellant’s
                                 property.

      Landlord (Appellee) and Tenant (Appellant), signed a one-year lease on July

1, 2012 (RR Vol. 3, Plaintiff’s Exhibit 1).

       Appellant understood that the term of the lease was only one year, as

Appellee had future plans for the property.

      At the end of the lease, July 1, 2013, Appellee’s plans had not yet been

finalized, and Appellee allowed Appellant to stay on the property on a month-to-

month basis.

      On September 24, 2013, Appellee’s agent, Lemi, sent a text to Appellant, (RR

Vol.3, Plaintiff’s Exhibit 2), advising him that the church had finalized plans to begin

a project in January of 2014, and the church would like him to move within the next

three months (RR Vol.3 Plaintiff’s Exhibit 2).

      Appellant refused to move and on January 6, 2014, Appellee served Appellant

with a Notice of Landlord’s Intent Not to Renew, with the ending date of the lease

as February 15, 2014 (RR Vol. 3, Plaintiff’s Exhibit 3).


                                           3
      On February 17, 2014, Appellant was served with a 3-day notice to vacate

giving tenant until February 28, 2014 to vacate (RR Vol. 3, Plaintiff’s Exhibit 4).

      Since March 10, 2014, Appellee has filed two forcible detainers, suffered

through 3 jury trials and now is before this august body.

      Appellant’s continual cry through the entire process has been that he never

received proper notice to vacate, as the lease stated he would have 3 months written

notice if the premises were sold. It appears not to matter to Appellant that the

property was never sold.

      In the last jury trial, Appellant extrapolates the 3-month notice to include “if

the church wanted to build on the property.” This was never an issue except in Frank

Seliger’s mind.

      In the instant case the reason for eviction of the holdover tenant was clear:

    Tenant’s lease had expired, he was not entitled to a renewal and the landlord

      wanted him to leave.

    Tenant was a month-to-month tenant and the landlord wanted him to leave.

      A tenant who continues to occupy the premises after expiration of a lease is a

holdover tenant. Gym-N-I-Playgrounds, Inc. v. Snider, 220 S.W.3d 905, 908 (Tex.

2007); Coinmach Corp. v. Aspenwood Apartment Corp., 417 S.W.3d 909 (2013).




                                          4
      One in lawful possession of premises by permission of the owner or landlord

and for no fixed term is a tenant at will. In Re Brunson, 498 B.R. 160 – Bankr. Court,

WD Texas (2013).

      A tenant at will is terminable at the will of either party upon fair notice. See

ICM Mortgage v. Jacob, 902 S.W.2d 527, 530 (Tex.App.—El Paso 1994, writ

denied).

      Appellant never disputed the fact that he had proper notice, only the 3-month

notice in the event the property was sold, a moot point.

                                  CONCLUSION

      The Ethiopian Evangelical Church owns the property which Frank Seliger

refuses to vacate.

      The Ethiopian Evangelical Church wants Frank Seliger off of the property.

      Frank Seliger has had the benefit of legal and proper notice to leave, yet, Frank

Seliger refuses to leave, and has no legal reason for continuing to occupy the

Church’s property.

      For over one year Frank Seliger has continued to maintain possession of the

Church’s property through legal maneuvering. It is time it ended.

                                     PRAYER

      Appellee prays that this Court find that Appellant has no legal grounds to

continue possession of Appellee’s property.


                                          5
      Appellee prays that this Court uphold the judgment from the Travis County

Court at Law #1 and order the Writ of Possession to issue immediately.



                                             Respectfully Submitted,

                                             By: /s/ James Minerve
                                             ____________________________
                                             James Minerve
                                             State Bar No. 24008692
                                             115 Saddle Blanket Trail
                                             Buda, Texas 78610
                                             (210) 336-5867
                                             (888) 230-6397 (Fax)
                                             jgminerve@aol.com
                                             jgm@minervelaw.com
                                             Attorney for Appellee



                         CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that a true and correct copy of Appellee’s Brief
was sent by U. S. Postal Service on May 8, 2015 to:

      Frank Seliger
      2108 E. Yager Lane
      Austin, Texas 78754




                                    /s/ James Minerve
                          ______________________________
                                   James Minerve




                                         6
                    CERTIFICATE OF COMPLIANCE

    I hereby certify that the document submitted herein was typed in Times New
Roman 14 point and contains 1,266 words.



                                  /s/ James Minerve
                        ______________________________
                                 James Minerve




                                      7
