AMENDED REPLY TO COUNTERCLAIM

Case No. 225200163817

WILLIAM KITCHEN,

                         Plaintiff/Counter-Defendant

vs.

TRACY JOSEPH,

                         Defendant/Counter Plaintiff

 IN THE JUSTICE COURT OF

HARRIS COUNTY, TX

PRECINCT 5, PLACE 2

 

 

 

AMENDED REPLY TO COUNTERCLAIM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

TABLE OF AUTHORITIES

Cases

Accord T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 222 (Tex. 1992)…………….. 23

A.H. Belo Corp. v. Blanton, 129 S.W.2d 619 (Tex. 1939)…………………………………………………….. 3

Billings v. Atkinson, 489 S.W.2d 858, 859 (Tex. 1973)………………………………………………………. 11

Bluebonnet Sav. Bank, F.S.B. v. Grayridge Apartment Homes, Inc., 907 S.W.2d 904, 912 (Tex. App.-Houston [1st Dist.] 1995, writ denied)………………………………………………………………………………………. 20

City of Fredericksburg v. Bopp, 126 S.W.3d 218, 221 (Tex. App.— San Antonio 2003, no pet.) 15

Crim Truck Tractor Co. v. Navistar Int’l Transp. Corp., 823 S.W.2d 591, 597 (Tex. 1992)……. 23

Gulf, C. S.F. Ry. Co. v. Mannewitz, 70 Tex. 73, 8 S.W. 66, 67 (1888)…………………………………. 18

Haase v. Glazner, 62 S.W.3d 795, 798 (Tex. 2001)…………………………………………………………… 22

Kamat v. Prakash, 420 S.W.3d 890, 910 (Tex. App.-Houston [14th Dist.] 2014, no pet.)………. 18

McMahan v. Greenwood, 108 S.W.3d 467, 482 (Tex. App.—Houston [14th Dist.] 2003, pet. denied)       21

Mitchell v. C.C. Sanitation Co., 430 S.W.2d 933, 937 (Tex. App.—Houston [14th Dist.] 1968, wit ref’d n.r.e.)………………………………………………………………………………………………………………………………… 21

Rodriguez v. Wal-Mart Stores, Inc., 52 S.W.2d 814, 822 (Tex. App.-San Antonio 2001, pet. granted)       11

Rogers v. Rican Enters., Inc., 772 S.W.2d 76, 80 (Tex. 1989)…………………………………………….. 20

Seale v. Seale, NO. 12-20-00059-CV (Tex. App. Apr. 28, 2021)………………………………………….. 3

Stanfield v. O’Boyle, 462 S.W.2d 270, 272 (Tex. 1971)……………………………………………………… 23

Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 643 (Tex. 1996)………………………………….. 18

Valenzuela v. Aquino, 853 S.W.2d 512, 513 (Tex. 1993)……………………………………………………. 11

Van Zanten v. Energy Transfer Partners, 320 S.W.3d 845 (Tex. App. 2010)……………………….. 19

Statutes

Tex. Prop. Code § 92.103(a)…………………………………………………………………………………………… 12

Texas Civil Practice and Remedies Code, Section 2-10.001…………………………………………………. 7

Texas Penal Code 42.07…………………………………………………………………………………………………… 9

Other Authorities

Restatement, Torts § 918 (1939); 22 Am.Jur.2d Damages §§ 30 — 32, 38 (1965)………………… 18

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ANSWER

NOW COMES WILLIAM KITCHEN, the Plaintiff/Counter-Defendant (hereinafter “Plaintiff”) in the above cause, and files this Amended Response to Counter-Plaintiff’s (hereinafter “Defendant”) Counterclaim. In response thereof Plaintiff states as follows:

  1. Failure to state a cause of action
  2. A cause of action has no basis in law if the allegations, taken as true, together with inferences reasonably drawn from them do not entitle the claimant to the relief sought. A cause of action has no basis in fact if no reasonable person could believe the facts pleaded. Seale v. Seale, NO. 12-20-00059-CV (Tex. App. Apr. 28, 2021).
  3. A “cause of action” is a fact or facts entitling one to institute and maintain an action which must be alleged and proved in order to obtain relief. H. Belo Corp. v. Blanton, 129 S.W.2d 619 (Tex. 1939).
  4. Firstly, Defendant falsely claimed that Plaintiff did not maintain cleanliness in his room and the furniture. However, it is essential to clarify that the furniture in question, actually belonged to Defendant. Hence, Defendant’s testimony is utterly baseless.
  5. Secondly, the defendant alleges that Plaintiff’s room was untidy. Such a claim will need substantiation. It becomes challenging for the court to consider or entertain her arguments when the defendant herself cannot establish whether the furniture belonged to Plaintiff or not. The defendant placed an advertisement seeking a roommate, specifically offering a furnished room. This fact will be established during the court proceedings.
  6. Furthermore, in Defendant’s response, the defendant asserts plaintiff posed a safety hazard. This accusation is entirely false. The defendant expressed concerns because, at times, Plaintiff neglected to lock the door upon entering the apartment. Defendant informed Plaintiff about her involvement in a court case against an individual she considered violent, with whom she had a personal relationship. Given her circumstances, she requested that Plaintiff ensure the door’s security, as the individual had previously displayed aggression towards her and continued to frequent the area. Recognizing the importance of Defendant’s safety, Plaintiff agreed to make a concerted effort to remember to lock the door. As a human being, Plaintiff is not flawless and may inadvertently make mistakes.
  7. It is also worth noting that even the defendant herself acknowledged in her statement the importance of being “aware of one’s surroundings.” Why did she offer such advice? It pertained to her tumultuous relationship with her former boyfriend, whom she decided against testifying against, yet continued to visit and spend nights with. Clearly, the defendant’s priorities are misguided. It is not the first instance where the defendant has exhibited such behavior.
  8. Regarding Defendant’s false written testimony about the incident on March 5, 2022, where both doors were locked, Plaintiff admits that he made a mistake and locked both doors. Plaintiff was running late from a lunch break, and needed to use the restroom and locked both doors in a rush. It was an accident. Plaintiff was in the restroom and was finishing up with a bowel movement. Plaintiff received a text from the Defendant and Plaintiff had to tell the Defendant that he was in the restroom, and that when he finished, he would come back out to open the door for Defendant. Plaintiff apologized for the error. This does not constitute as a self-help eviction because it was done in error, Plaintiff apologized and moved on from the issue. That was not an act of retaliation as the Defendant contends but rather an error due to the circumstances the Plaintiff was in.
  9. It is clear that after the error on Plaintiffs part in that moment, the actions (or lack thereof) of both Plaintiff and Defendant speak to the issue being resolved. That is a stark contrast to what the Defendant did to the Plaintiff. The Defendant had previously sent the Plaintiff a text message advising that she (Defendant) wanted him out. The Plaintiff protested in return. Upon arrival the Defendant locked the Plaintiff from the Dwelling. The Plaintiff asked the Defendant severally to come open the door. The Defendant spoke to the Plaintiff through her Ring Doorbell Camera advising the Plaintiff that he was no longer welcome there and that he was to leave. The Plaintiff informed the Defendant that if she would not come open the door, Plaintiff would contact the police, and it would result in legal action against Defendant. Defendant refused. Plaintiff contacted the police. This resorted to self-help eviction because of what occurred AFTER the Plaintiff asked the Defendant to come open the door. In this particular incident, the Defendant was asked and then she refused to open the door resulting in the police being called, and plaintiff having to leave because the Defendant told the officers that she did not want Plaintiff there.
  10. Officers advised the Plaintiff, William Kitchen that there was nothing that they could do, and that they could not force her to let Plaintiff stay since Plaintiff was not on the lease with the Apartment community. They then informed Plaintiff that this was a civil matter and not a criminal matter, and therefore this was nothing they could do. In the other instance, where Plaintiff accidentally locked both locks, the Defendant asked the Plaintiff to come unlock the door. The defendant ultimately came and unlocked the door.
  11. If the Defendant’s argument was that she had to wait, that should not be interpreted as a self-help eviction because the Defendant had to wait a little longer for the Plaintiff to rectify the error. In the instance where the Defendant helped herself to evict the Plaintiff, the Defendant not only did not rectify her error, but she proceeded to deny the Plaintiff entry which again, ultimately resulted in the police being called, a demand letter being sent, and a lawsuit filed. Once again, Plaintiff sincerely apologized to the defendant and acknowledged that it was an unintentional mistake on Plaintiff’s part.
  12. Further, the defendant’s claim of having firsthand knowledge of schizophrenia is irrelevant to this case. It does not bear any significance to the legal matter at hand, which is the wrongful eviction Plaintiff experienced at the hands of the defendant. Insinuating that Plaintiff may be schizophrenic without any professional qualifications or credentials to make such a diagnosis is simply an attempt to harass and name-call. Despite being the defendant in a lawsuit, the defendant continues to engage in unprofessional behavior and name-calling, which is clearly evident in her written response. It is essential for the court to recognize this behavior, as it is publicly recorded and reflects her character.
  13. Plaintiff requests this Court to take notice that when the Defendant harassed Plaintiff about trivial matters during the month-long stay at the Defendants home, Plaintiff sent a text message to Defendant advising that if he “CHOSE” to leave he would pay her two months’ rent. The keyword is “CHOSE.” Plaintiff’s position is that he never wanted to leave, and informed the Defendant of this. Defendant cannot argue that Plaintiff wanted to leave on his own accord, AND even involved law enforcement because he wanted to leave. That argument is baseless and should be taken as such. It is crazy to think a Defendant could lock a Plaintiff from his dwelling, and then try to say that he wanted to leave. And if this court would allow that argument to have some weight and validity, the plaintiff avers that this would set a dangerous precedent to similarly situated persons. Plaintiffs position is that it was the Defendant’s action(s) and/or inaction that caused the Defendant to have to sleep in his car for three days and then book an Airbnb when his direct deposit hit.
  14. Also, the Plaintiff puts the court on notice that the Plaintiff had just gone to Target and Sprouts to buy chicken salad, bread, wine, and other groceries that weekend and the week prior, and stored that food in the Defendants Kitchen refrigerator. There is no way the defendant would argue that Plaintiff wanted to leave. Had Plaintiff wanted to leave, Plaintiff would have followed through with the notice agreement. And Plaintiff definitely would not have spent money on groceries to store in her fridge. Therefore, Defendant’s argument is baseless and Plaintiff will challenge Defendants position if necessary.
  15. Defendant is frivolous and litigious
  16. Under Texas Civil Practice and Remedies Code, Section 2-10.001, a frivolous claim is one that someone presents for an improper purpose, such as to harass someone or cause unnecessary delay and increase costs in litigation.
  17. Plaintiff asserts that Defendant is a frivolous litigant. Apart from the present lawsuit, she has faced legal action on three prior occasions. This current lawsuit marks the fourth instance. The case numbers of the previous legal actions are as follows:
  18. Case number 822205 > (Harris County Court {TXHAIL1}): The defendant (Tracy) is listed as the defendant, with a filing date of 03/31/2005, resulting in a $4,839.00 award for the plaintiff.
  19. Case number: SC51C0006307 > (Harris JP Court 5-1 {TXHAIM9}): The defendant (Tracy) is listed as the defendant, with a filing date of 02/22/2000, resulting in a $1,216.00 award for the plaintiff.
  • Case number: 185100253571 > (Civil Judgment, Court ID: TXHAIM9): The plaintiff was awarded $3,130, and Tracy is listed as the defendant.
  1. All parties involved have successfully sought justice against Tracy Joseph (Defendant) in these prior lawsuits.
  2. Moreover, the defendant presented false information to the court, asserting that Plaintiff was evicted from the Resort on 27th in Phoenix, AZ, and had only resided there for two and a half months. This statement is far from accurate. Plaintiff signed a lease agreement with the apartment in January of 2021 and terminated it early in November to prevent eviction. Basic arithmetic clearly demonstrates that January 2021 to November 2021 encompasses a period significantly longer than two months.
  3. Plaintiff is open to finding an amicable resolution to this dispute. However, the defendant has stated her intention to countersue for two months’ rent, falsely claiming that Plaintiff left, when he did not. In reality, the defendant locked Plaintiff out of Plaintiff’s dwelling, leaving Plaintiff no choice but to find accommodation through Airbnb. The police were involved, and recorded conversations will show that Plaintiff protested against surrendering the premises. While Plaintiff intended to file a police report, Plaintiff was informed by the officers that it could only be done for criminal matters, not civil disputes. Therefore, no report was filed. Nevertheless, the dispatcher’s notes reflect Plaintiff’s intent to remain on the premises, and text messages and phone calls will confirm that the defendant locked Plaintiff out.
  4. Plaintiff presumes Defendant has somehow reviewed the documents regarding fees owed to the apartment community, and fees associated with early termination of the lease at the apartment community. If the Defendant had conducted a thorough background check or visited the Maricopa County Small Claims Court website to search Plaintiff’s name in public records, she would see that there is no eviction record. Plaintiff can provide evidence of this in court. However, this case is not about Plaintiff defending himself in that matter.
  5. Also, Plaintiff informed the defendant of his intention to sue her. A reasonable person would typically seek resolution outside of court upon receiving such information. However, Mrs. Joseph did not adopt this approach. Despite Plaintiff’s non-threatening request for her to refrain from contacting Plaintiff and to communicate through mail instead, she chose to persistently text and call, constituting harassment.
  6. It is important to note that informing the defendant of the impending lawsuit does not amount to a threat. Any perceived threat is subjective. To establish intent to annoy under Texas Penal Code 42.07, Plaintiff would need to provide evidence. Despite being provided with Plaintiff’s address, the defendant repeatedly called and texted Plaintiff. It was her conscious choice to do so, even after being advised against it. Actions have consequences, and despite facing multiple lawsuits, the defendant appears to have not learned from them. She admitted to locking Plaintiff out when Plaintiff arrived at the property and requested access. Both doors were locked, and she expressed her refusal to allow Plaintiff entry. Prior to this incident on March 13th, she had texted Plaintiff requesting that Plaintiff vacate the premises by March 31st. This does not comply with the customary 30-day notice period and amounts to a termination of the lease.
  7. If the defendant were locked out by the apartment community, she would have grounds to claim damages in court. Plaintiff protested against being denied access to the dwelling that Plaintiff had paid for, asserting Plaintiff’s right to the services provided. The defendant’s actions were malicious, driven by her desire for control. However, Plaintiff was determined not to succumb to her control, just as she had sought control over her ex-boyfriend. The defendant claimed that she informed Plaintiff about the repair and disclosed the dollar amount, but this is untrue. Both she and Plaintiff know that she never provided the dollar amount.
  8. Under Texas law, Plaintiff would have requested an itemized bill, including clarification on the remaining $70 that she would have been holding at the time. The defendant’s falsehoods are evident. Furthermore, Plaintiff is not required to wait 30 days before filing a lawsuit. Plaintiff afforded her more than 30 days to return Plaintiff’s deposit, as mandated by law.
  9. In fact, Plaintiff provided additional time, sent a letter via text and certified mail, and explicitly demanded the return of Plaintiff’s deposit through text messages. This incident occurred on March 17th, and Plaintiff did not file the lawsuit until mid-May. It is false to claim that Plaintiff stated Plaintiff’s decision to move willingly. The defendant will have to substantiate this claim. Such desperate measures are taken to create the illusion of a voluntary departure when, in fact, she illegally and wrongfully evicted Plaintiff. It is worth noting that the defendant used to rent the room on Airbnb. Plaintiff did not cause any damage, and it is uncertain what actions the defendant took after Plaintiff’s departure. She may have potentially resumed renting the room or engaged in Airbnb activities again. Given her previous breaches of contract, Plaintiff would not put it past her.
  10. It follows, Plaintiff has made every effort to maintain a cordial and professional approach with the defendant. Unfortunately, these attempts have proven unsuccessful. Perhaps this alternative approach will resonate with her. However, the ultimate decision rests with the judge. The defendant’s false allegations and excuses regarding Plaintiff’s deposit only highlight Defendant’s desperation. Plaintiff is fully prepared to let the courts determine the outcome. Plaintiff is confident that the court will see through the gaslighting and lack of transparency surrounding this case. The court will recognize the harm caused to Plaintiff in relation to Plaintiff’s deposit and moving expenses. Plaintiff reiterate Plaintiff’s willingness to seek an amicable resolution outside of court, but the defendant must understand that Plaintiff is prepared to proceed due to the damage and emotional distress she has inflicted upon Plaintiff.
  11. Defendant violated Plaintiff’s privacy
  12. In every residential lease (oral or written), a tenant has an implied right to peaceable, quiet enjoyment of the premises. A tenant also has a right of privacy in his or her own home. A common-law right to privacy exists under Texas law. Billings v. Atkinson, 489 S.W.2d 858, 859 (Tex. 1973); Rodriguez v. Wal-Mart Stores, Inc., 52 S.W.2d 814, 822 (Tex. App.-San Antonio 2001, pet. granted). The elements that must be established for an invasion of privacy claim are: (1) an intentional intrusion, physically or otherwise, upon another’s solitude, seclusion, or private affairs or concerns, which (2) would be highly offensive to a reasonable person. Valenzuela v. Aquino, 853 S.W.2d 512, 513 (Tex. 1993).
  13. In her written response, the defendant revealed that she entered Plaintiff’s room without Plaintiff’s knowledge, claiming it was for an “inspection” and to retrieve some items. She only informed Plaintiff of this after the supposed inspection was completed. It is clear that her intention was to harass Plaintiff about trivial matters such as an unmade bed or an empty cup or food container left on a desk.
  14. Plaintiff repeatedly asked the defendant not to enter Plaintiff’s living space without notice to ensure that Plaintiff could account for any missing items and prevent theft. As Plaintiff works from home and eat at his desk, Defendant’s constant surveillance and nitpicking amounted to harassment. It is important to note that Plaintiff maintains cleanliness and conducts weekly deep cleans in his living space.
  15. The defendant requested that Plaintiff cleans up immediately after eating but prohibited Plaintiff from disposing of trash in the room, citing concerns about bugs and roaches. While this request is reasonable, the defendant failed to adhere to the same standard herself. She would leave dishes in the sink (a public area) and not clean up after cooking, resulting in greasy dishes sitting there for three days until Plaintiff washed them. If the defendant chooses not to resolve this matter amicably without going to court, Plaintiff can provide evidence of this behavior.
  16. Furthermore, the defendant violated Plaintiff’s privacy by entering Plaintiff’s room without providing any written notice or informing Plaintiff beforehand. The Defendant subleased her room to Plaintiff. The Defendant did not offer the plaintiff any notice before invading his private use of the dwelling he paid for. Her actions were inconsiderate, and an invasion of Plaintiff’s personal space and privacy.
  17. Additionally, the defendant’s actions were harassing and in violation of her own contract as set forth by the leasing office of The Abbey at Briar Forest. The plaintiff also failed to mention that Defendant herself violated her lease agreement by advertising the room and subletting it to Plaintiff.
  18. Defendant is unlawfully holding on to Plaintiff’s security deposit
  19. Prop. Code § 92.103(a)provides that the landlord shall refund a security deposit to the tenant on or before the 30th day after the date the tenant surrenders the premises.
  20. The defendant refused to return the security deposit, alleging that Plaintiff broke her chair, damaged her desk, and she had to shampoo the carpets, futon, bathroom. First, Plaintiff Denies any allegations he damaged any of the Defendant’s property and will request proof. The Defendant stated to the Plaintiff that she used to Airbnb the room prior to renting it to the Plaintiff. Sue tried to abuse him for damaging her desk and plaintiff assertively and was firm in telling the defendant that he did not cause the damage. That is when defendant advised plaintiff that she had rented out the room to Airbnb.
  21. Defendant caused and and/or contributed to the actions and/or omissions of which she now complains
  22. Despite Plaintiff’s multiple attempts to return Defendant’s key, she refused to pick it up. Plaintiff delivered it to her and provided evidence of doing so, including text messages, and images reflecting the key was attached to her door after the defendant was unresponsive and could not be reached. It was only when the Plaintiff sent a text message to the plaintiff showing that the key was taped to the Defendants door did the Defendant say that there was no reason to come back. Plaintiff avers that the Defendant had been defeated at this point. Written notice demanding the return of Plaintiff’s deposit was sent via an attorney and text, along with a forwarding address. However, the defendant failed to comply with the Texas Property Code by not returning the deposit or providing an itemized bill within 30 days.
  23. Plaintiff can provide evidence that Defendant did not repair the chair or send Plaintiff an itemized bill, demonstrating her continuous efforts to cause emotional harm and withhold what is rightfully Plaintiff’s.
  24. As for the deposit, the defendant refuses to return it, alleging that Plaintiff broke her chair. Despite numerous attempts to resolve the matter, she has failed to provide an itemized bill or evidence of repairing the chair. Additionally, she has previously rented out the apartment without any stains or damages caused by Plaintiff. Plaintiff even offered to pay for a professional carpet cleaning if she believed there were any issues. However, she declined, revealing her greed.
  • Defendant has not suffered injury because of any alleged unlawful conduct by the Plaintiff
  1. Regarding the accusation of Plaintiff’s aggressiveness, Plaintiff asserts that he is not aggressive but rather assertive and confident. Plaintiff confronted the defendant about her hypocrisy regarding cleanliness, as she failed to clean up after herself. While Plaintiff understand that she may have hip and knee issues, it is perplexing that she had the energy to harass Plaintiff and neglect her own cleaning responsibilities.
  2. Age should not be a determining factor especially considering the amount of time the defendant took to harass plaintiff about trivial matters. Plaintiff was an independent individual paying for a service defendant offered in violation of her agreement. People come from different backgrounds and have different lifestyles when renting a room, and it is important to recognize and accept these differences. Plaintiff has every right to assert himself and correct Defendant if she is wrong. The defendant may have felt uncomfortable with that, but it is her personal issue. Instead of labeling it as aggression, she should consider it as an adult standing their ground responsibly. Her perspective of, “I’m your elder, so you’re going to listen to me” is just that. Her perspective! The defendant knows that Plaintiff does not bow down to anyone regardless of title or status or age! Plaintiff understand there are rules, and he is willing to follow the rules with discernment and conviction.
  3. Plaintiff has told the defendant that he (Plaintiff) has been a victim for more than 16 years of his life in Child Protective Services, and through the struggle. It is time that Plaintiff fight back and stop letting people walk over him and that is what the defendant saw that day. Not aggressive, but assertive. Plaintiff used to have a foster mother just like defendant and he has learned to stand up to her as well and she does not treat Plaintiff the way she used to. The same applied to the defendant here. If she interprets that as threatening then that is her perception, and is not necessarily the reality.

 

  • Any alleged damages allegedly suffered by plaintiff were caused by third persons whom Plaintiff had neither responsibility or control.
  1. The defendant’s records of pictures and recordings only demonstrate the extent to which she went to harass Plaintiff. The installation of a camera was not due to Plaintiff’s actions but rather a response to issues with her violent ex-boyfriend. She remarked that people could “just walk into your house here in Houston. This is not Arizona” because Plaintiff had left the door open. The defendant’s written response primarily revolves around blaming Plaintiff without acknowledging her own breach of the law by withholding Plaintiff’s deposit, and self-help (wrongful and illegal) eviction. To this day, she has not offered to return Plaintiff’s deposit despite having no counterclaim.
  2. Defendant should take nothing because defendant acted with unclean hands
  3. The doctrine of unclean hands permits the trial court to deny equitable relief to a party “whose own conduct in connection with the same matter or transaction has been unconscientious, unjust, marked by a want of good faith or violates the principles of equity and righteous dealing.” City of Fredericksburg v. Bopp, 126 S.W.3d 218, 221 (Tex. App.— San Antonio 2003, no pet.).
  4. Defendant is accusing Plaintiff of violating Plaintiff’s contract with her, but she fails to mention that she herself violated her lease agreement by placing an ad and subletting the room to Plaintiff, as well as renting it out on Airbnb. Plaintiff is confident that he can prove this in court on August 9th, 2023, if the defendant chooses not to resolve the matter amicably outside of court. Plaintiff doubts Defendant’s willingness to do so, as she has mentioned counter-suing for two months’ rent, claiming that Plaintiff left when Plaintiff did not. In reality, the defendant locked Plaintiff out of Plaintiff’s own dwelling, leaving Plaintiff no choice but to find alternative accommodation through Airbnb.
  5. The police were involved in the matter, and the recorded evidence will show that Plaintiff clearly expressed Plaintiff’s protest against surrendering the premises. The dispatcher’s notes also reflect Plaintiff’s intention to file a police report. While it is now understood that a police report cannot be filed in a civil matter, only in a criminal matter, the dispatcher’s notes support Plaintiff’s claim that Plaintiff did not willingly leave the premises. Text messages and phone calls can further prove that the defendant locked Plaintiff out.
  6. As Plaintiff has already stated regarding the deposit, the defendant refuses to return the deposit, alleging that Plaintiff broke her chair. However, Defendant declined to pick up the key that was sent to her via UPS, and Plaintiff personally delivered it to her while documenting the process. The defendant then instructed Plaintiff not to come back. It is clear that she is using the chair allegation as a means to retain Plaintiff’s deposit. Plaintiff provided written notice, through an attorney and via text, demanding the return of Plaintiff’s deposit and provided a forwarding address as required by the Texas Property Code.
  7. The defendant failed to comply with these legal requirements by not returning Plaintiff’s deposit within the specified time frame and not providing an itemized bill within 30 days, as advised by the attorney. The defendant will have to provide receipts to prove that she repaired the chair, along with evidence of sending Plaintiff an itemized bill, which she has not done. These actions by the defendant demonstrate her continuous efforts to cause emotional harm and deny Plaintiff what is rightfully mine.
  8. It is also notable that Defendant failed to comply with discovery and did not give Plaintiff any documents relevant to Plaintiff’s motion for discovery. This shows Defendant’s attempts to hide the reality and to frustrate this case by engaging in dilatory tactics through her frivolous counterclaim.
  9. The defendant told the police dispatcher that Plaintiff threatened her, but Plaintiff had his brother on the phone with Plaintiff throughout the incident, and he can verify that Plaintiff did not threaten her or act aggressively. Plaintiff was visibly upset due to the circumstances she put him in, and Plaintiff did mention to his brother that if he could not regain access to his dwelling, he would sue her and seek reimbursement for all the expenses related to this lawsuit. She can interpret Plaintiff’s statement however she wants, but Plaintiff follows through with his words.
  10. In light of the foregoing, Plaintiff asserts that the purpose of taking Tracy Joseph to court is to seek justice for the violation of the law and the financial harm Plaintiff suffered as a result. This lawsuit aims to establish a paper trail, in addition to the existing lawsuits where Tracy was listed as the defendant. This documentation will serve as evidence if she repeats this behavior with someone else in the future. It will demonstrate a pattern of behavior that should be taken into account.
  11. Defendant failed to mitigate her damages, if any.
  12. In Gulf, C. S.F. Ry. Co. v. Mannewitz, 70 Tex. 73, 8 S.W. 66, 67 (1888), the Court stated that failure of an injured person to care for and treat his injuries as a reasonable prudent person would under the same or similar circumstances was ‘a branch of the doctrine of contributory negligence.’ It is a branch of that doctrine only in the sense that damages resulting from such failure are ultimately not proximately caused by the wrongdoer’s acts or omissions, but by the injured person’s own subsequent negligence, and are thus not recoverable from the wrongdoer. See Restatement, Torts § 918 (1939); 22 Am.Jur.2d Damages §§ 30 — 32, 38 (1965).
  13. The defendant claimed there were carpet and pillow stains, but she has not provided an itemized bill to support these claims. It should be noted that she has rented out the apartment before, and Plaintiff have not caused any stains or damages.
  14. Plaintiff even offered to pay for professional carpet cleaning if she believed there was any damage, but she declined. It is clear that her motives are financially driven.
  15. Defendant waived her rights, if any
  16. “The affirmative defense of waiver can be asserted against a party who intentionally relinquishes a known right or engages in intentional conduct inconsistent with claiming that right.” Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 643 (Tex. 1996); see Kamat v. Prakash, 420 S.W.3d 890, 910 (Tex. App.-Houston [14th Dist.] 2014, no pet.)
  17. The defendant did not file a police complaint, nor did she legally initiate eviction proceedings as required by law. She did not engage an attorney to communicate with Plaintiff either. None of her actions or reactions support her claim that she felt her life was in danger. She never texted Plaintiff expressing any sense of insecurity or discomfort. If she had, Plaintiff would have made an effort to reach a mutually agreeable resolution through written communication to terminate the lease early. However, she chose not to do so.
  • Defendant’s claims are barred by estoppel
  1. Equitable estoppel prevents one party from misleading another to the other’s detriment or to the misleading party’s own benefit. Van Zanten v. Energy Transfer Partners, 320 S.W.3d 845 (Tex. App. 2010). Under Texas law, the doctrine of equitable estoppel is available when a person with actual or constructive knowledge of material facts makes a false representation or conceals those facts to a party who doesn’t have knowledge or the means of obtaining knowledge of the facts, intending that party to act upon it.
  2. First, Defendant cannot claim any damages under the lease agreement, because the agreement was in itself an illegality. She failed to mention that she herself violated her lease agreement by advertising the room and subletting it to Plaintiff.
  3. Next, Defendant fraudulently misrepresented the facts when she posted the advertisement for a roommate. She failed to mention any requirements to be on the lease with the apartment community. Defendant had an obligation to disclose all information on the advertisement. She knew that it was her obligation to notify and/or inform Plaintiff of such information. Defendant cannot therefore seek to claim any damages arising from her own illegal conduct.
  4. Next, Defendant informed Plaintiff that she used to Airbnb the room prior to renting it to the Plaintiff. This fact itself absolves Plaintiff of the allegations of repair and/or damage.
  5. Also, Plaintiff made multiple attempts to deliver Defendant her key, which she refused to pick up. Plaintiff provided evidence of delivering the key including text messages, and images reflecting the key attached to her door. It was only when the Plaintiff sent a text message to the Defendant showing that the key was taped to the Defendant’s door did the Defendant say that there was no reason to come back.
  • Defendant’s claims are barred by the doctrine of latches
  1. “[L]aches is an equitable remedy that prevents a plaintiff from asserting a claim due to a lapse of time.” Bluebonnet Sav. Bank, F.S.B. v. Grayridge Apartment Homes, Inc., 907 S.W.2d 904, 912 (Tex. App.-Houston [1st Dist.] 1995, writ denied).
  2. The elements of a laches defense are (1) an unreasonable delay in asserting a legal or equitable right, and (2) a good faith, detrimental change of position because of the delay. Rogers v. Rican Enters., Inc., 772 S.W.2d 76, 80 (Tex. 1989). “Although a court applying the doctrine of laches is not bound by any particular statute of limitations, the statute of limitations [may be] one measure of whether a claim has become stale.” Bluebonnet Sav. Bank, 907 S.W.2d at 912.
  3. While Plaintiff reserves her defense that Defendant has not stated any valid claim, Plaintiff further asserts that Defendant failed to promptly asserting her claims, if any, before this Court.
  4. For Defendant’s claims of Plaintiff’s aggressiveness, it is noteworthy that she did not engage an attorney to communicate with Plaintiff. None of her actions or reactions support her claim that she felt her life was in danger. She never texted Plaintiff expressing any sense of insecurity or discomfort. If she had, Plaintiff would have made an effort to reach a mutually agreeable resolution through written communication to terminate the lease early. However, she chose not to do so.
  5. . The Defendant also claimed there were carpet and pillow stains, but she has not provided an itemized bill to support these claims. It should be noted that Defendant had rented out the apartment before. It is therefore evident that Plaintiff has not caused the alleged stains or damages. Plaintiff even offered to pay for professional carpet cleaning if she believed there was any damage, but she declined.
  • Any and all decisions made by Plaintiff were made under duress
  1. Duress is “[a]ny coercion of another, either mental, physical, or otherwise, causing him to act contrary to his own free will or to submit to a situation or conditions against his own volition or interests.” Mitchell v. C.C. Sanitation Co., 430 S.W.2d 933, 937 (Tex. App.—Houston [14th Dist.] 1968, wit ref’d n.r.e.).
  2. Under Texas law, the elements of duress are: “(1) a threat or action was taken without legal justification; (2) the threat or action was of such a character as to destroy the other party’s free agency; (3) the threat or action overcame the opposing party’s free will and caused it to do that which it would not otherwise have done and was not legally bound to do; (4) the restraint was imminent; and (5) the opposing party had no present means of protection.” McMahan v. Greenwood, 108 S.W.3d 467, 482 (Tex. App.—Houston [14th Dist.] 2003, pet. denied).
  3. Defendant began showing Plaintiff hostile conduct. For instance, Defendant violated Plaintiff’s privacy. In Defendant’s written response, the Defendant revealed that she entered Plaintiff’s room without Plaintiff’s knowledge. Defendant claimed it was for an “inspection” and to retrieve some items. She only informed Plaintiff of this after the supposed inspection was completed. It is clear that her intention was to harass Plaintiff about trivial matters such as an unmade bed or an empty cup or food container left on a desk. Plaintiff had repeatedly asked the Defendant not to enter his living space without notice.
  4. Another example of Defendant’s hostility towards Plaintiff is seen where Defendant requested that Plaintiff cleans up immediately after eating but prohibited Plaintiff from disposing of trash in the room, citing concerns about bugs and roaches. While this request is reasonable, Defendant failed to adhere to the same standard herself. She would leave dishes in the sink (a public area) and not clean up after cooking, resulting in greasy dishes sitting there for three days until Plaintiff washed them.
  5. Plaintiff responded to a text message from the Defendant. The Plaintiff responded that if he chose to leave, he would pay the remaining two months’ rent and abide by the agreement. Plaintiff maintains his position that he did not choose to leave, and that Defendant Tracy Joseph, by her conduct and actions of locking Plaintiff from dwelling and negligence, forced the Plaintiff to move against his will.

 

  1. Plaintiff’s damages do not exceed reasonable wear and tear
  2. Natural wear and tear is an affirmative defense that is used when the defendant claims that the plaintiff’s injuries were caused by natural wear and tear rather than by the defendant’s actions.
  3. Defendant failed to demonstrate that Plaintiff damaged any of the property. Notably, the receipts provided by Defendant only show carpet cleaning and/or shampooing. The receipts were not indicative of any repair and/or damage whatsoever to any of Defendant’s properties.
  • Fraudulent misrepresentation
  1. “”Texas law has long imposed a duty to abstain from inducing another to enter into a contract through the use of fraudulent misrepresentations.” Haase v. Glazner, 62 S.W.3d 795, 798 (Tex. 2001).
  2. In Crim Truck Tractor Co. v. Navistar Int’l Transp. Corp., 823 S.W.2d 591, 597 (Tex. 1992), the Supreme Court of Texas noted: ” when one party enters into a contract with no intention of performing, that misrepresentation may give rise to an action in fraud.”
  3. A “promise to do an act in the future is actionable fraud when made with the intention, design and purpose of deceiving, and with no intention of performing the act.” Accord T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 222 (Tex. 1992); Stanfield v. O’Boyle, 462 S.W.2d 270, 272 (Tex. 1971).
  4. In this case, the Defendant fraudulently misrepresented the facts when posting the advertisement for a roommate. Defendant failed to mention any requirements to be on the lease with the apartment community. Defendant knew or ought to have known that Plaintiff should be informed of the requirements.
  5. Plaintiff relied on the misrepresentations and/or omissions of the Defendant, and entered the Agreement.
  6. It follows; Defendant’s attempts to enforce the misrepresented facts and/or claim damages thereof should be denied. Plaintiff is not bound by requirements that were fraudulently omitted by Defendant.

 

WHEREFORE, PREMISES CONSIDERED, Counter-Defendant respectfully prays that this Honorable Court denies Counter-Plaintiff’s Counterclaim, in its entirety.

Respectfully submitted,

Dated: __________

______________________________

WILLIAM KITCHEN

22720 Morton Ranch Rd #160-221

Katy, TX 77449

 

Counter-Defendant, Pro se

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CERTIFICATE OF SERVICE

Plaintiff hereby certify on the ____________day of _______________, 2023, that a true and correct copy of the foregoing Motion were served by placing a copy in the United States Postal Service, with postage prepaid, addressed upon the following:

SERVICE ON:

Tracy Joseph

11655 Briar Forest Dr.

Phase 1, Building 5, Apartment 61

Houston, TX 77077

 

 

______________________________

WILLIAM KITCHEN

22720 Morton Ranch Rd #160-221

Katy, TX 77449

 

Counter-Defendant, Pro se

 

 

 

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