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Rule 752. Damages
On the trial of the cause in the county court the appellee shall be permitted to prove the damages for withholding the possession of the premises from the appellee during the pendency of the appeal and the reasonable expenses of the appellee in prosecuting or defending the cause in the county court; and, if the possession of the premises be not adjudged to the appellant said court shall render judgments also in favor of the appellee and against said appellant and the sureties on his bond for the damages proven and all costs.
Source: Art. 3990, unchanged.
Oct. 29, 1940, eff. Sept. 1, 1941.
June 16, 1943, eff. Dec. 31, 1943
July 22, 1975, eff. Jan. 1, 1976
July 15, 1987, eff. Jan. 1, 1988. Repealed by order of April 15, 2013, eff. Aug. 31, 2013.
(No. 83) Question: In regard to Rules 749 and 752 relating to Forcible Entry and Detainer:
1. Do the rules require the plaintiff or landlord to give an appeal bond in order to appeal to the County Court?
2. Where the tenant is the appellee in the County Court, does Rule, 752 contemplate that such appellee could, under any circumstances, recover damages or expenses incurred in defending the appeal?
Answer: In our opinion both of said questions should be answered in the affirmative.
We call attention to the fact that these two rules are exact copies of the former Statutes, and therefore these rules effect no change in the former practice under the Statutes.
It had been held under the Statutes that the giving of the prescribed bond was a prerequisite to an appeal to the County Court by either party. In regard to the recovery of damages or expenses by a tenant who is appellee in the County Court under Rule 752 (formerly Article 3990), reference is made to Tallwater v. Brodnax, 137 Tex. 604, 156 S.W.2d 142 (1941); and Perry v. Leuttich, 132 Tex. 159, 121 S.W.2d 332 (1938), decided by the Commission of Appeals.
6 Tex. B.J. 49 (1943) reprinted in 8 Tex. B.J. 31 (1945).
Question: Rule 752 under Forcible Entry and Detainer relates to recovery of damages and expenses when such a suit is appealed to the County Court. Does this Rule, as amended on December 31, 1943, mean that whichever party finally prevails in the County Court may recover expenses and costs, including attorney's fees, regardless of the fact that he may himself have remained in possession of the premises up to the time of the trial in the County Court and the possession of the premises has not been withheld from him?
Answer: It is the opinion of the Sub-Committee that the question should be answered in the affirmative.
Prior to its amendment on December 31st, 1943, Rule 752 and the Statute from which it was taken only allowed the recovery of damages and expenses by the "appellee," and because of the peculiar wording of the Statute it was held frat the expenses in prosecuting or defending the cause in the County Court, including attorney's fees, could only be recovered by an appellee from whom the premises had been "withheld." Perry v. Leuttich, 132 Tex. 159, 121 S.W.2d 332 (1938). Rule 752 was amended on December 31, 1943, and it appears to us that the amendment effects two changes, namely, it allows the appellant as well as the appellee to recover such elements of damage and expense, and it also makes it reasonably clear that either party who prevails can recover such expenses or attorney's fees regardless of whether there was a withholding of the premises from said party. The Rule now expressly states that the appellant or appellee shall be permitted to plead and prove his damages if any suffered for withholding or defending possession of the premises during the pendency of the appeal and also all necessary and reasonable expenses incurred in prosecuting or defending the cause in the County Court. The italicized words were added by the amendment of 1943, and we feel that the amendment indicates an intention to broaden the scope of the Rule in both the respects noted above, and that such construction is naturally arrived at if the changes made by the amendment are to be given effect.
In the inquiry addressed to the Sub-Committee it is suggested that if such a construction is given, to the Rule it would probably lead to the filing of substantial claims for damages and attorney's fees in practically all cases of Forcible Entry and Detainer when appealed to the County Court. Of course all such damages, expenses and attorney's fees are limited by the Rule to those arising during the pendency of the appeal. Furthermore, as to a party who has not had the premises withheld from him there could be no element of damage in that respect, and his only claim would be for reasonable expenses incurred in prosecuting or defending the cause in the County Court. The recovery of such expenses as to the appellee was allowed under the old Statute and Rule if the premises had been withheld from him, and if such relief was proper in that instance it would seem that it would also be proper in all instances allowed under the amended Rule. However, the Sub-Committee cannot undertake to pass upon the desirability or validity of the amendment.
8 Tex. B.J. 129 (1945).