Opinion
NO. 01-17-00841-CV
04-26-2018
IN RE FRANK VASOS, Relator
Original Proceeding on Petition for Writ of Habeas Corpus
MEMORANDUM OPINION
Relator, Frank Vasos ("Vasos"), has filed an application for a writ of habeas corpus, challenging the justice court's judgment of contempt for an alleged violation of a writ of reentry. We grant the application.
The underlying proceeding is Taso Pantazopoulos, Patricia Pantazopoulos, and APS Food Services, Inc., D/B/A Anonymous Cafe v. Frank Vasos and Vasos Bar B-Q, Inc., Case No. 17-JSC41-01205, in Justice Court, Precinct 4 of Fort Bend County, the Honorable Justin M. Joyce presiding.
Background
Vasos and Vasos Bar-B-Q, Inc. (collectively "Landlords") are landlords, and Taso Pantazopoulos, Patricia Pantazopoulos, and APS Food Services, Inc., doing business as Anonymous Café, (collectively "Tenants"), are tenants under a commercial lease for premises used for the Anonymous Café. In October 2017, Tenants filed a sworn complaint for reentry, under section 93.003 of the Texas Property Code, alleging that Landlords had locked Tenants out of the leased premises. On October 5, 2017, the trial court issued a writ of reentry for the premises described as "9920 Highway 90-A #D 130[,] Sugar Land TX 77478," finding "that it [was] reasonable to believe that an unlawful lockout of Tenant[s] [had] occurred." The writ directed the sheriff or constable to "deliver possession" of the premises to Tenants and instruct Landlords "to release possession of the premises to Tenant[s] immediately." The officer's return shows that a copy of the writ was delivered to Vasos on October 5, 2017.
See TEX. PROP. CODE ANN. § 93.003(a), (b) (West 2014).
See id. § 93.003(c).
The mandamus record indicates that Tenants and Landlords shared use of a kitchen and bathrooms and disputed whether the shared kitchen and bathrooms were within the premises described as "#D 130." On November 2, 2017, the trial court signed an order indicating that the Tenants had filed, and the trial court had considered, a "Second Emergency Application for Writ of Re-Entry." The court concluded "that the existing Writ of Re-Entry includ[ed] use of the kitchen and bathrooms, as stated in the original application for writ of re-entry" and ordered that Tenants "be granted access to the kitchen and bathrooms" and "[a]ny barriers blocking such access should be removed, not later than 4:00 p.m., on November 2, 2017." Also on November 2, 2017, the trial court signed the following show cause order:
On November 3, 2017, the trial court held a hearing and signed a judgment for contempt:
Case No. 17-JSC41-01205
Frank Vasos, Vasos Bar-B-Q, Inc.
Please be advised that the above referenced case is set for a Show Cause Hearing on November 03 , 2017 , at 9:00 AM.
You Are Therefore Required To Appear At This Time At 12919 Dairy Ashford, Suite 100 Sugar Land TX 77478.
On this November 3, 2017, the Court has exercised its inherent authority and the authority granted by Section 21.002, Government Code, to compel obedience of Court orders.
The Court finds Frank Vasos in contempt of Court for indirect contemptuous behavior of the Order for Writ of Re-Entry, in the following respect, to wit:
Violate Writ of Reentry by denying or altering access to [Tenants'] Premises.
The Court further finds that the above described actions were in contempt of court and that the conduct presented sufficient exigent circumstances as to merit a finding of contempt in that the actions of the contemnor disrupted proceedings before the court so that they could not be conducted with dignity and in an orderly expeditious manner. The Court further finds that imposition of contempt is necessary to control the proceedings so that justice may be done.The court found Vasos "in contempt of court" and ordered him confined in the Fort Bend County Jail for a period of three days. The record reflects that the sheriff took Vasos into custody on November 3, 2018. On that same day, Vasos filed this application seeking relief from the judgment of contempt, and our Court ordered him released from custody conditioned on posting a $1,000 bond.
See id. § 93.003(i); see also TEX. GOV'T CODE ANN. § 21.002 (West 2004).
Standard of Review
This Court has limited jurisdiction over habeas corpus proceedings. See TEX. GOV'T CODE ANN. § 22.221(d) (West Supp. 2017); In re Spriggs, 528 S.W.3d 234, 236 (Tex. App.—Amarillo 2017, orig. proceeding) (explaining appellate courts have habeas jurisdiction only where party's restraint of liberty arises from violation of order, judgment, or decree made by court or judge in civil case). We do not determine a contemnor's ultimate guilt or innocence but ascertain whether he is unlawfully confined or subject to an unlawful restraint on his liberty. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979); In re McLaurin, 467 S.W.3d 561, 564 (Tex. App.—Houston [1st Dist.] 2015, orig. proceeding). A writ of habeas corpus will issue if a trial court's contempt order is void because the court lacked power to issue the order or deprived relator of his liberty without due process. In re Henry, 154 S.W.3d 594, 596 (Tex. 2005). The relator has the burden to show that a contempt order is void. In re McLaurin, 467 S.W.3d at 564.
Discussion
In four issues, Vasos contends that the judgment of contempt is void because (1) the writ of reentry was not sufficiently specific to support a contempt finding for his conduct, (2) the show cause order did not give him adequate notice of the alleged contemptuous conduct, (3) he "was denied an opportunity to respond, including to testify and to cross-examine his accusers," and (4) the justice court lacked jurisdiction to find him in contempt because "the dispute was on appeal to the county court at law." Tenants responded to Vasos's application, asserting that the justice court had jurisdiction to find Vasos in contempt and he had not complied with the writ of reentry. Tenants later filed a "Withdrawal of Response to Application for Writ of Habeas Corpus and Emergency Motion for Bail," asking that the Court not consider their response and "grant any and all relief requested by [Vasos] in his Application for Writ of Habeas Corpus."
In his fourth issue, Vasos contends that the justice court did not have jurisdiction to find him in contempt. See Taub v. Aquila Sw. Pipeline Corp., 93 S.W.3d 451, 461 (Tex. App.—Houston [14th Dist.] 2002, no pet.) ("Subject matter jurisdiction cannot be conferred by consent, waiver, or estoppel at any stage of a proceeding."). Under section 93.003, a commercial tenant that has been locked out of leased premises unlawfully may recover possession of the premises by filing a sworn complaint for reentry. See TEX. PROP. CODE ANN. § 93.003(a), (b) (West 2014); Big State Pawn & Bargain Ctr. No. 1 v. Garton, 833 S.W.2d 669, 670-71 (Tex. App.—Eastland 1992, writ denied); see also TEX. PROP. CODE ANN. § 93.002 (West 2014) (outlining conditions that must be present before landlord may lawfully exclude tenant from leased premises). The complaint must be filed "with the justice court in the precinct in which the rental premises are located." TEX. PROP. CODE ANN. § 93.003(b); see TerrAgora Invs., L.P. v. Niteclubs Enters., Inc., No. 03-06-00259-CV, 2009 WL 483338, at *3 (Tex. App.—Austin Feb. 27, 2009, pet. denied) (mem. op.). Pending a final hearing on the complaint for reentry, the justice court may issue a writ of reentry that entitles the tenant to immediate and temporary possession of the premises. TEX. PROP. CODE ANN. § 93.003(c). And a failure to comply with the writ "is grounds for contempt of court against the landlord or the person on whom the writ was served, under Section 21.002, Government Code." TEX. PROP. CODE ANN. § 93.003(i); see TEX. GOV'T CODE ANN. § 21.002(a) (West 2004) (providing "a court may punish for contempt"), (c) (providing punishment for contempt of justice court is fine of not more than $100 or confinement in jail for not more than three days, or both).
Vasos asserts that the justice court did not have jurisdiction because "the dispute was on appeal to the county court at law." However, he does not identify the specific dispute and, in support of his assertion, provides an unsworn copy of correspondence from the Fort Bend County Clerk advising "that the above mentioned cause has been appealed to County Court" and would be filed "upon payment of filing fees by appellant." See TEX. R. CIV. P. 143a (providing, if appellant fails to pay costs on appeal from justice court judgment within twenty days after being notified to pay costs, "appeal shall be deemed not perfected"). This correspondence identifies the case as "Frank Vasos [a]nd Vasos Bar-B-Q, Inc[.] VS Taso Pantazopoulos, Patricia Pantazopoulos, APS Food Services, Inc., D/B/A Anonymous Cafe, [a]nd All Occupants" and appears to relate to a separate, forcible detainer proceeding that Landlords filed against Tenants. The filing of an appeal to the county court at law in a separate, forcible detainer proceeding did not deprive the justice court of jurisdiction of a proceeding for reentry under section 93.003. Determination of Tenants' right of reentry was within the justice court's exclusive jurisdiction. See Kassim v. Carlisle Interests, Inc., 308 S.W.3d 537, 541-42 (Tex. App.—Dallas 2010, no pet.). Accordingly, Tenants filed their reentry proceeding in the justice court in the precinct where the leased premises were located. See TEX. PROP. CODE ANN. § 93.003(b); see also Andrews v. First Nat'l Bank of Giddings, No. 03-11-00192-CV, 2012 WL 1948346, at *2 (Tex. App.—Austin May 25, 2012, no pet.) (mem. op.) (noting residential tenant's application for writ of reentry was "an original action"). Issuance of the writ of reentry did not affect the rights of either Landlords or Tenants in a forcible detainer action. TEX. PROP. CODE ANN. § 93.003(m); Coinmach Corp. v. Aspenwood Apartment Corp., 417 S.W.3d 909, 920 n.6 (Tex. 2013). Accordingly, we conclude that Vasos has not shown that the justice court did not have jurisdiction to find him in contempt and overrule his fourth issue.
In his second issue, Vasos asserts that the contempt judgment is void because the justice court's show cause order did not provide him adequate or "full and unambiguous notice of the accusation" against him. "Contempt proceedings are quasi-criminal in nature, and the contemnor is entitled to procedural due process throughout the proceedings." In re Davis, 305 S.W.3d 326, 330 (Tex. App.—Houston [14th Dist.] 2010, orig. proceeding). Contempt that occurs outside of the court's presence is constructive contempt. In re Reece, 341 S.W.3d 360, 365 (Tex. 2011). Before a court can punish for constructive contempt, due process requires that the alleged contemnor "must have full and complete notification of the subject matter, and the show cause order or other means of notification must state when, how, and by what means the defendant has been guilty of the alleged contempt." In re Parks, 264 S.W.3d 59, 62 (Tex. App.—Houston [1st Dist.] 2007, orig. proceeding) (internal quotations and citation omitted); see Ex parte Adell, 769 S.W.2d 521, 522 (Tex. 1989) (explaining alleged contemnor must have "full and unambiguous notice" of contempt accusation). A contempt order rendered without adequate notice is void. Ex parte Gordon, 584 S.W.2d at 688; In re Houston, 92 S.W.3d 870, 877 (Tex. App.—Houston [14th Dist.] 2002, orig. proceeding).
In a reentry proceeding, a tenant may file "an affidavit stating the name of the person who has disobeyed the writ and describing the acts or omissions constituting the disobedience." TEX. PROP. CODE ANN. § 93.003(i). The justice then "shall issue a show cause order, directing the person to appear on a designated date and show cause why he should not be adjudged in contempt of court." Id. Here, Vasos asserts that Tenants did not file an affidavit and, having withdrawn their response, they do not contest Vasos's assertion.
Here, the justice court found Vasos in contempt "for indirect contemptuous behavior," namely, "denying or altering access to [Tenants'] Premises." This contempt was constructive contempt because Vasos's denying or altering of the access to the premises at issue occurred outside the court's presence. See Ex parte Alloju, 907 S.W.2d 486, 487 (Tex. 1995) ("Constructive contempt is a violation of a court order outside the presence of the court . . . .). Accordingly, Vasos was entitled to "full and complete notification" of each act alleged to constitute contempt. See In re Houston, 92 S.W.3d at 877.
The justice court's show cause order was not specific enough to satisfy these requirements. It was addressed to Vasos and Vasos Bar-B-Q Inc., stated that the "case" was set for "a Show Cause Hearing" on November 3, 2017, at 9:00 a.m., and required Vasos and Vasos Bar-B-Q Inc. to attend the hearing. The order did not adequately identify the alleged contemnor or the alleged contemptuous conduct. Accordingly, we conclude that the show cause order did not give Vasos sufficient notice of the contempt allegations against him and, thus, the judgment of contempt is void. We sustain Vasos's second issue.
Conclusion
Because we sustain his second issue, we need not address Vasos's first and third issues in which he contends that the writ of reentry was not sufficiently specific to support a contempt finding and he was denied an opportunity to respond to the contempt allegation. We grant Vasos's application for a writ of habeas corpus, vacate the November 3, 2017 judgment holding him in contempt and ordering that he be confined, and order him released from the bond set by this Court on November 3, 2017. We further dismiss all pending motions as moot.
Russell Lloyd
Justice Panel consists of Justices Bland, Lloyd, and Caughey.