Opinion
No. 05-16-00438-CV
06-26-2017
CYNTHIA KING & ALL OCCUPANTS, Appellants v. FORTY 200, Appellee
On Appeal from the County Court at Law No. 5 Dallas County, Texas
Trial Court Cause No. CC-15-06223-E
MEMORANDUM OPINION
Before Justices Bridges, Myers, and Brown
Opinion by Justice Brown
Cynthia King and all other occupants of a certain apartment in Mesquite (collectively referred to as "King") appeal an agreed judgment in favor of Forty 200 in its eviction suit. In a single issue in this pro se appeal, King contends the trial court abused its discretion in failing to appoint an attorney to represent her pro bono under government code section 25.0020. We affirm.
Landlord Forty 200 filed suit in justice court to evict King from an apartment for nonpayment of rent. In November 2015, the justice court rendered a no-answer default judgment in favor of Forty 200. King timely appealed pro se to the county court by filing a statement of inability to pay. See TEX. R. CIV. P. 510.9.
On December 29, 2015, King filed with the county court a written request for an attorney to represent her at trial based on her inability to pay for one. A few days later King filed a pro se answer.
The case was called to trial on January 12, 2016. Forty 200 called one witness, its investment manager who had control over its rental and accounting information. King declined the judge's request to ask the witness any questions. The judge then asked her if she had anything she wanted to say in defense of the lawsuit. King handed the judge something and told him that her attorney "in Judge Benson's court" told her to give it to him. King explained that Forty 200 purchased the apartment property the previous March and took possession of the property in June. She stated that she had been offering Forty 200 rent, but Forty 200 refused to take her money because "the attorneys are working it out." King asked the judge if he got her answer and handed him a copy of it.
King then said, "And she is on her way down here. I don't know if she'll make it in time. That's why we were asking . . . for another attorney, because the current attorney that's representing me is not out of this court and I don't understand all of this stuff that's going on." The judge responded, "Okay." At that point, attorney Nadine King-Mays entered the courtroom. The county court judge indicated he had not realized until then that King was represented by counsel. Forty 200's counsel explained that King-Mays represented King in a separate eviction action in another court. (That suit was apparently brought by the previous owner of the apartment complex who sold the complex to Forty 200.) King had used the answer King-Mays filed on King's behalf in that suit as her pro se answer in this case, and it still had King-May's signature block on it. King confirmed that was correct. King-Mays stated she was under the impression the judge was making a determination as to whether or not King needed to have an attorney representing her pro bono in this case. King-Mays stated her opinion that King needed an attorney because the case was "kind of complex" and because "we're still in Judge Benson's court on this same case." The judge said, "I'll let you go forward with whatever hearing you have in Judge Benson's court . . . but understand now, though, that you're not representing Ms. King in this proceeding." King-Mays responded, "Well, 'cause I had to be appointed as pro bono. In Judge Benson's court I have to be appointed. So if you're going to appoint me, then you're going to appoint me . . . so that I can move over from that court to this court." King-Mays proceeded to argue that King was actually being evicted for having complained about the complex's failure to make repairs.
Forty 200's attorney cross-examined King and then presented evidence of Forty 200's attorney's fees. The judge indicated he was going to withhold judgment until after an upcoming hearing in the other eviction suit and took the matter under advisement.
Three days later, the county court referred the case to a mediator, and the parties reached a settlement at mediation in February 2016. In March 2016, King-Mays filed a notice of non-representation. The notice informed the trial court that King-Mays had been appointed to represent King in County Court at Law No. 1, and that although King had requested an attorney in the trial court, no appointment was made. King believed King-Mays was erroneously listed as King's attorney. At King's request, King-Mays asked the court to correct the error and appoint an attorney to assist King. In April 2016, the trial court and the parties signed an agreed final judgment awarding Forty 200 possession of the property, money damages, and attorney's fees.
In this appeal, King contends the county court abused its discretion in failing to appoint an attorney to represent her in that court pursuant to section 25.0020 of the government code. Section 25.0020 provides:
(a) On a written application of any party to an eviction suit, the county court or county count at law in which an appeal of the suit is filed may appoint any qualified attorney who is willing to provide pro bono services in the matter or counsel from a list provided by a pro bono legal services program of counsel
willing to be appointed to handle appeals under this section to attend to the cause of party who:TEX. GOV'T CODE ANN. § 25.0020 (West Supp. 2016). King argues she was entitled to an attorney because she filed the proper documents and even identified King-Mays as someone who was willing to take her case.
(1) was in possession of the residence at the time the eviction suit was filed in the justice court; and
(2) has perfected the appeal on a pauper's affidavit approved in accordance with [former] Rule 729a, Texas Rules of Civil Procedure.
We conclude King waived her complaint about the court's failure to appoint an attorney for her by waiting until trial was underway to seek a ruling on her request. See TEX. R. APP. P. 33.1(a) (record must show, as prerequisite to presenting complaint for appellate review, that complaint was made to trial court by timely request and that court ruled on request). King filed a written request for an attorney to represent her at trial in the county court. But she did not get a ruling on her request prior to trial. Further, King did not bring her desire for an attorney to the trial court's attention at the start of trial. King waited until the conclusion of the testimony of Forty 200's sole witness and until she herself had presented some of her version of the case to the judge before bringing up the request for an attorney. King's failure to get a ruling on her request for an attorney in a timely manner waives consideration of this complaint on appeal. See In re J.C.W., No. 04-16-00002-CV, 2017 WL 1902066, at *2 (Tex. App.—San Antonio May 10, 2017, no pet.) (mem. op.) (involving inmate's untimely request for attorney in family law matter).
Further, even if error was preserved, we review the county court's decision not to appoint an attorney for King for an abuse of discretion, and we discern no abuse of discretion here. See Gibson v. Tolbert, 102 S.W.3d 710, 712 (Tex. 2003) (considering district court's decision not to appoint counsel under government code section 24.016). The language in section 25.0020 of the government code is permissive. It states that a court "may" appoint an attorney for a party in an eviction suit. TEX. GOV'T CODE ANN. § 25.0020. While the use of the words "shall" or "must" suggest that an action is mandatory, the ordinary meaning of "may" is permissive. In re Ten Hagan Excavating, Inc., 435 S.W.3d 859, 866 (Tex. App.—Dallas 2014, orig. proceeding); see TEX. GOV'T CODE ANN. § 311.016(1) (West 2013) (code construction act provides that "may" creates discretionary authority or grants permission or a power). Thus, appointment of an attorney under section 25.0020 was not mandatory.
As discussed, King brought her request to the court's attention after trial was underway. The record reflects that King was represented pro bono by King-Mays in a related eviction case and that King-Mays was providing advice and assistance to King in this case. We are unaware of any reason why King-Mays could not represent King pro bono without formal appointment by the county court. Also, after trial, the county court referred the case to mediation where the parties settled their dispute. Under these circumstances, we cannot conclude the trial court's failure to appoint a pro bono attorney for King was an abuse of discretion. Accordingly, we overrule King's issue.
We affirm the trial court's judgment.
/Ada Brown/
ADA BROWN
JUSTICE 160438F.P05
JUDGMENT
On Appeal from the County Court at Law No. 5, Dallas County, Texas
Trial Court Cause No. CC-15-06223-E.
Opinion delivered by Justice Brown, Justices Bridges and Myers participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee FORTY 200 recover its costs of this appeal from appellants CYNTHIA KING & ALL OCCUPANTS. Judgment entered this 26th day of June, 2017.