On July 20, 2023 a
Answer
was filed
involving a dispute between
Fried Chicken Llc,
and
Munoz, Leny J,
for Other Civil
in the District Court of Fort Bend County.
Preview
CAUSE NO. 2 -073177
FRIED CHICKEN IN THE COUNTY COURT AT LAW
VS. NUMBER (4) FOUR
LENY F. MUNOZ
AND/OR ALL OCCUPANTS FORT BEND COUNTY, TEXAS
PLAINTIFF’S RESPONSE TO DEFENDANT
EMERGENCY MOTION TO STAY AND/OR QUASH THE WRIT OF POSSESSION
TO THE HONORABE JUDGE OF SAID COURT:
Comes now, Fried Chicken LLC, hereinafter referred to as "Plaintiff", files its Response
to Defendants’ Defendant's Emergency Motion to Stay and/or Quash the Writ of Possession and
would show unto the Court:
This case was a De Novo eviction appeal from the JP court. This Court denied
Defendant's Plea in Abatement on August 15, 2023 previously reviewing pleadings Motions,
responses, and hearing arguments from counsel for each of the parties. The Court issued
Judgment for Plaintiff for Possession and set the Supersedeas bond on August 23, 2023. The
deadline to pay the Supersedeas Bond was September 1, 2023.
Defendant did not pay a supersedeas bond by the deadline. Plaintiff filed a request for
Writ of Possession on September 5, 2023. Defendant filed a Notice of Appeal and Affidavit of
New Worth on September 5, 2023. Defendant then filed an Emergency Motion to Stay and/or
Quash the Writ of Possession on September 8, 2023.
Defendants' Motion misrepresents the plain language of Texas Rule of Civil Procedure
510.13. Specifically, Defendant through opposing counsel, states that the rule 510.13 reads "...a
Defendant has days by which to file its bond or affidavit of net worth and notice of appeal. If
Defendant does that, the judgment is stayed."
On September 11, 2023, Plaintiff's counsel contacted Defense counsel requesting that
they withdraw his Motion and explaining the arguments stated below. As of the time of this
filing, the Motion has not been withdrawn.
ARGUMENTS AND DISCUSSION
Defendant previously attempted to stop the Plaintiff's suit by filing a Plea in Abatement
which was denied by the Court. The Defendant now misrepresents the clear language of Texas
Rules of Civil Procedure 510.13 which mentions nothing in regards to an Affdavit of Net Worth.
The plain language of the Texas Rule of Civil Procedure Rule 510.13 - Writ of Possession on
Appeal, states the only way to stop enforcement of a writ of possession is to pay the supersedeas
bond within 10 days of execution of the judgment. Specifically, it reads as follows:
“The writ of possession, or execution, or both, will be issued by the clerk of the county court
according to the judgment rendered, and the same will be executed by the sheriff or constable, as
in other cases. The judgment of the county court may not be stayed unless within 10 days from
the judgment the appellant files a supersedeas bond in an amount set by the county court
pursuant to Section 24.007 of the Texas Property Code.” Tex. R. Civ. P. 510.13.
Texas Property Code Sec. 24.007 further states,
"...A judgment of a county court may not under any circumstances be stayed pending appeal
unless, within 10 days of the signing of the judgment, the appellant files a supersedeas bond in
an amount set by the county court..." Tex. Prop. Code 24.007
An Affidavit of Net Worth is not provided as a means to stopping enforcement of a Writ
of Possession and does not apply in enforcement of a Writ of Possession for real property.
Specifically, Texas Rules of Appellate Procedure 24.2(c)(1) specifically limits the use of
Affidavits of Negative Net Worth to types of judgments defined by 24.2(a)(1)(A) which are
judgments for the recovery of money. This supports the clear language of Texas Property Code
Sec. 24.007 as stated above. While Plaintiff does object to the Affidavit of Net Worth and does
plan to file a Contest, as stated earlier it is not relevant to the Judgment for Possession and
corresponding Writ of Possession.
Defendants' Motion further misrepresents the plain language of Texas Rule of Civil
Procedure 510.13. Specifically, Defendants through opposing counsel, state that rule 510.13
reads "...a Defendant has days by which to file its bond or affidavit of net worth and notice of
appeal. If Defendant does that, the judgment is stayed." This is an attempt to mislead the court
since as stated above the plain language of the law states nothing concerning Affidavits of Net
Worth as a means to stopping a Writ of Possession. This clear misrepresentation of the statute as
well as the Motion itself is subject to sanctions under Texas Rule of Civil Procedure 13 and
Chapter 10 of the Texas Civil Practices and Remedies Code since it is not based on existing law
as the law cited was intentionally misrepresented and is being brought for an improper purpose,
specifically to cause an unnecessary delay in execution of a Writ of Possession and also an
increase in the cost of litigation.
CONCLUSION/ PRAYER
Wherefore, premises considered, plaintiff pray the court deny Defendants’ Emergency
Motion to Stay/ Quash the Writ of Possession and allow the Writ of Possession to be carried out
in accordance with the Texas Rules of Civil Procedure and the Texas Property Code and award
Plaintiff its reasonable attorney’s fees, and other relief it may show itself to be justly entitled
including sanctions against the Defendants and Defendants counsel.
Respectfully submitted,
The Law Offices of Sal Momin, PLLC
By: /s/ Salmaan Momin
Salmaan ‘Sal’ Momin
Texas Bar No. 24074742
12750 S. Kirkwood Road, Suite 100
Stafford, Texas 77477
Tel. (281) 201-2682 Fax. (281) 402-3670
E-mail: Sal@MominLawOffices.com
Attorney for Plaintiff
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing Response to Defendant’s Motion to Stay
and/or Quash the Writ of Possession identified above was served upon the following via e-
service pursuant to the Texas Rules of Civil Procedure on this the 11th day of September 2023.
LENY MUNOZ C/O
ROBERT C. NEWARK, III
E-mail: robert@newarkfirm.com
By: /s/ Salmaan Momin
Salmaan Momin
Document Filed Date
September 11, 2023
Case Filing Date
July 20, 2023
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CAUSE NO. 2 -073177 FRIED CHICKEN IN THE COUNTY COURT AT LAW VS. NUMBER (4) FOUR LENY F. MUNOZ AND/OR ALL OCCUPANTS FORT BEND COUNTY, TEXAS PLAINTIFF’S RESPONSE TO DEFENDANT EMERGENCY MOTION TO STAY AND/OR QUASH THE WRIT OF POSSESSION TO THE HONORABE JUDGE OF SAID COURT: Comes now, Fried Chicken LLC, hereinafter referred to as "Plaintiff", files its Response to Defendants’ Defendant's Emergency Motion to Stay and/or Quash the Writ of Possession and would show unto the Court: This case was a De Novo eviction appeal from the JP court. This Court denied Defendant's Plea in Abatement on August 15, 2023 previously reviewing pleadings Motions, responses, and hearing arguments from counsel for each of the parties. The Court issued Judgment for Plaintiff for Possession and set the Supersedeas bond on August 23, 2023. The deadline to pay the Supersedeas Bond was September 1, 2023. Defendant did not pay a supersedeas bond by the deadline. Plaintiff filed a request for Writ of Possession on September 5, 2023. Defendant filed a Notice of Appeal and Affidavit of New Worth on September 5, 2023. Defendant then filed an Emergency Motion to Stay and/or Quash the Writ of Possession on September 8, 2023. Defendants' Motion misrepresents the plain language of Texas Rule of Civil Procedure 510.13. Specifically, Defendant through opposing counsel, states that the rule 510.13 reads "...a Defendant has days by which to file its bond or affidavit of net worth and notice of appeal. If Defendant does that, the judgment is stayed." On September 11, 2023, Plaintiff's counsel contacted Defense counsel requesting that they withdraw his Motion and explaining the arguments stated below. As of the time of this filing, the Motion has not been withdrawn. ARGUMENTS AND DISCUSSION Defendant previously attempted to stop the Plaintiff's suit by filing a Plea in Abatement which was denied by the Court. The Defendant now misrepresents the clear language of Texas Rules of Civil Procedure 510.13 which mentions nothing in regards to an Affdavit of Net Worth. The plain language of the Texas Rule of Civil Procedure Rule 510.13 - Writ of Possession on Appeal, states the only way to stop enforcement of a writ of possession is to pay the supersedeas bond within 10 days of execution of the judgment. Specifically, it reads as follows: “The writ of possession, or execution, or both, will be issued by the clerk of the county court according to the judgment rendered, and the same will be executed by the sheriff or constable, as in other cases. The judgment of the county court may not be stayed unless within 10 days from the judgment the appellant files a supersedeas bond in an amount set by the county court pursuant to Section 24.007 of the Texas Property Code.” Tex. R. Civ. P. 510.13. Texas Property Code Sec. 24.007 further states, "...A judgment of a county court may not under any circumstances be stayed pending appeal unless, within 10 days of the signing of the judgment, the appellant files a supersedeas bond in an amount set by the county court..." Tex. Prop. Code 24.007 An Affidavit of Net Worth is not provided as a means to stopping enforcement of a Writ of Possession and does not apply in enforcement of a Writ of Possession for real property. Specifically, Texas Rules of Appellate Procedure 24.2(c)(1) specifically limits the use of Affidavits of Negative Net Worth to types of judgments defined by 24.2(a)(1)(A) which are judgments for the recovery of money. This supports the clear language of Texas Property Code Sec. 24.007 as stated above. While Plaintiff does object to the Affidavit of Net Worth and does plan to file a Contest, as stated earlier it is not relevant to the Judgment for Possession and corresponding Writ of Possession. Defendants' Motion further misrepresents the plain language of Texas Rule of Civil Procedure 510.13. Specifically, Defendants through opposing counsel, state that rule 510.13 reads "...a Defendant has days by which to file its bond or affidavit of net worth and notice of appeal. If Defendant does that, the judgment is stayed." This is an attempt to mislead the court since as stated above the plain language of the law states nothing concerning Affidavits of Net Worth as a means to stopping a Writ of Possession. This clear misrepresentation of the statute as well as the Motion itself is subject to sanctions under Texas Rule of Civil Procedure 13 and Chapter 10 of the Texas Civil Practices and Remedies Code since it is not based on existing law as the law cited was intentionally misrepresented and is being brought for an improper purpose, specifically to cause an unnecessary delay in execution of a Writ of Possession and also an increase in the cost of litigation. CONCLUSION/ PRAYER Wherefore, premises considered, plaintiff pray the court deny Defendants’ Emergency Motion to Stay/ Quash the Writ of Possession and allow the Writ of Possession to be carried out in accordance with the Texas Rules of Civil Procedure and the Texas Property Code and award Plaintiff its reasonable attorney’s fees, and other relief it may show itself to be justly entitled including sanctions against the Defendants and Defendants counsel. Respectfully submitted, The Law Offices of Sal Momin, PLLC By: /s/ Salmaan Momin Salmaan ‘Sal’ Momin Texas Bar No. 24074742 12750 S. Kirkwood Road, Suite 100 Stafford, Texas 77477 Tel. (281) 201-2682 Fax. (281) 402-3670 E-mail: Sal@MominLawOffices.com Attorney for Plaintiff CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing Response to Defendant’s Motion to Stay and/or Quash the Writ of Possession identified above was served upon the following via e- service pursuant to the Texas Rules of Civil Procedure on this the 11th day of September 2023. LENY MUNOZ C/O ROBERT C. NEWARK, III E-mail: robert@newarkfirm.com By: /s/ Salmaan Momin Salmaan Momin