MOTION TO DISMISS APPEAL Page 1 of 3 

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NO. 05-15-00080-CV 

IN THE COURT OF APPEALS 

FOR THE FIFTH DISTRICT OF TEXAS 

JOHN H. WHITFIELD, 

AND TAMMY WHITFIELD, 

Appellants, 

v. 

FIG TREE APARTMENTS, 

Appellees. 

MOTION TO DISMISS APPEAL 

Claire Elizabeth Carroll 

State Bar No. 24092224 

MUNSCH HARDT KOPF & HARR PC 

500 N. Akard Street, Ste. 3800 

Dallas, Texas 75201-6659 

Tel: (214) 855-7500 

Fax: (214) 855-7584 

ccarroll@munsch.com 

ATTORNEY FOR APPELLEE, 

FIG TREE APARTMENTS 

 

ACCEPTED

05-15-00080-CV

FIFTH COURT OF APPEALS

DALLAS, TEXAS

3/30/2015 4:10:32 PM

LISA MATZ

CLERK

 FILED IN 5th COURT OF APPEALS DALLAS, TEXAS 3/30/2015 4:10:32 PM LISA MATZ Clerk
MOTION TO DISMISS APPEAL Page 2 of 3 

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MOTION TO DISMISS APPEAL 

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS FOR THE FIFTH 

JUDICIAL DISTRICT OF TEXAS: 

Appellee Fig Tree Apartments files this Motion to Dismiss the Appeal, and would respectfully 

show the Court the following: 

1. Appellants are John H. Whitfield and Tammy Whitfield. Appellee is Fig Tree 

Apartments. 

2. The trial court entered its Amended Final Judgment on January 15, 2015. On January 21, 

2015, Plaintiff Tammy Whitfield filed a Notice of Appeal. 

3. On January 21, 2015, the parties reached a settlement agreement. The terms of this 

agreement were entered into the record orally at a hearing that same day. The Reporter’s 

Record for that hearing is attached hereto as Exhibit 1. 

4. Pursuant to the settlement agreement, on January 23, 2015, the trial court: (1) vacated the 

January 15, 2015 Judgment, a true and correct copy of which is attached as Exhibit 2; and 

(2) entered a new judgment, a true and correct copy of which is attached as Exhibit 3. 

Accordingly, this appeal is moot. 

5. Pursuant to the settlement, Appellee Fig Tree Apartments seeks a dismissal of this appeal 

with prejudice. 
MOTION TO DISMISS APPEAL Page 3 of 3 

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WHEREFORE, PREMISES CONSIDERED, Appellee Fig Tree Apartments respectfully 

requests that the Court dismiss this appeal with prejudice, and for such other and further relief as 

to which it may be justly entitled. 

Dated: March 30, 2015 

Respectfully Submitted, 

MUNSCH HARDT KOPF & HARR, PC. 

 

Claire Elizabeth Carroll 

State Bar No. 24092224 

E-mail: ccarroll@munsch.com 

500 N. Akard Street, Ste. 3800 

Dallas, Texas 75201-6659 

Tel: (214) 855-7500 

Fax: (214) 855-7584 

ATTORNEY FOR PLAINTIFF 

CERTIFICATE OF SERVICE 

I hereby certify that a true and correct copy of the foregoing document has been sent via 

certified mail, return receipt requested, on this 30th day of March, 2015, to the following: 

John H. Whitfield 

2110 Mosier Avenue 

Apartment 115B 

Dallas, Texas 75205 

Tammy Whitfield 

2110 Mosier Avenue 

Apartment 115B 

Dallas, Texas 75205 

____________________________________ 

Claire Elizabeth Carroll 
EXHIBIT 1 
REPORTER'S RECORD 

 VOLUME 1 OF 1 

TRIAL COURT CAUSE NO. 14-06144-C

FIG TREE APARTMENTS, ( IN THE COUNTY COURT

 (

 Plaintiff, (

 (

VS ( AT LAW NO. 3

 (

JOHN H. WHITFIELD and ALL (

OTHER OCCUPANTS, TAMMY L. (

WHITFIELD, (

 (

 Defendants. ( DALLAS COUNTY, TEXAS 

-----------------------------------

 RULE 11 AGREEMENT

-----------------------------------

On the 21st day of January, 2015, the following 

proceedings came on to be heard in the above-entitled and 

numbered cause before the Honorable Sally L. Montgomery, 

Judge presiding, held in Dallas, Dallas County, Texas:

Proceedings reported by machine shorthand.

Janet E. Wright

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A P P E A R A N C E S

GREGORY C. NOSCHESE

SBOT NO. 00797164

Munsch Hardt Kopf & Harr, P.C.

500 N Akard St

3800 Lincoln Plz

Dallas, TX 75201

214/855-7589

ATTORNEY FOR PLAINTIFF

 

Janet E. Wright

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 INDEX

JANUARY 21, 2015 

 Page Vol.

Announcements. . . . . . . . . . . . . . 4 1

Proceedings. . . . . . . . . . . . . . . 4 1

Adjournment. . . . . . . . . . . . . . . . . 

Court Reporter's Certificate . . . . . . . . 207 

2

 P R O C E E D I N G S

THE COURT: Back on the record on 14-6144-C. 

Starting with you, state your name for the 

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record. 

MR. NOSCHESE: Greg Noschese N-o-s-c-h-e-s-e. 

THE COURT: You're an attorney? 

MS. CAROL: Yes, ma'am. 

THE COURT: State your name. 

MS. CAROL: Claire Carol. 

THE COURT: Okay. I'm going to swear you both 

in. 

(The witnesses were sworn.)

THE COURT: Okay. And so it's Tammy and John 

Whitfield. 

MR. WHITFIELD: Yes, ma'am. 

MS. WHITFIELD: Correct. 

THE COURT: My understanding is you have an 

agreement in this case. 

There was a judgment signed January 9. It was 

amended January 15th, and I think -- let me see if I can 

state this, and if y'all agree. The agreement is that 

Fig Tree Apartments will forgo their monetary judgment 

against the Whitfields and that the Whitfields -- and let 

you stay until January 30. 

MR. NOSCHESE: Correct, Your Honor. 

THE COURT: Which is a Friday. I assume 

midnight? 

MR. NOSCHESE: Yes, ma'am. Yes, Your Honor. 

Janet E. Wright

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11:59. 

THE COURT: What happened to the 31st?

MR. NOSCHESE: It was always the 30th. 

THE COURT: Okay. January 30th. And that the 

Whitfields will drop any discrimination charges against 

them or complaints against Fig Tree Apartments. It will 

be mutual. And what I could do -- I've been thinking 

ever since y'all have been here -- I could vacate my 

judgments. And then if they're not out by midnight 

Friday night, I will sign another judgment. 

MR. NOSCHESE: Actually, Your Honor, if the 

Court could enter a new order today. 

THE COURT: I can do that. That would get us to 

the 31st.

MR. NOSCHESE: That carries to that Monday. 

THE COURT: But, see, I won't know is the 

problem. 

MR. NOSCHESE: If the Court could enter an 

order -- 

THE COURT: I could sign a judgment dated -- 

MR. NOSCHESE: The 23rd. 

THE COURT: -- the 23rd. 

MR. NOSCHESE: Correct. 

THE COURT: So that'll give me jurisdiction 

through February 2nd. So I would need to hear from y'all 

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February 2. If you're out, I will vacate that judgment, 

and we'll just dismiss it, and that'll be the end of it. 

Except in the meantime we'll have a Rule 11 where you all 

agreed to drop all complaints against them of any kind. 

Will that work? 

MR. WHITFIELD: Yes, ma'am. 

MR. NOSCHESE: The only thing that we had agreed 

on with Mrs. Whitfield was the 570 that's in the registry 

of the court would go to the landlord. 

MS. WHITFIELD: What are your thoughts on that? 

MR. WHITFIELD: Well, I paid 570 for 202. We 

was trying to get it back so we could find a place to go. 

That's why -- because they called -- someone called. 

THE COURT: But you only paid 570 over four 

months. So they really are definitely entitled to that 

money. 

You really should. You just need to find 

another place, but you will have a clean bill of health. 

You will not have anything hanging over your head. And 

you've only paid $570 for four months to stay there. 

MR. WHITFIELD: I understand that, Your Honor, 

but what I'm saying is the reason why I couldn't pay is 

because of what happened. 

THE COURT: That's up to y'all. You can discuss 

that. 

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MR. WHITFIELD: So if we can get our money back. 

Somebody called my parole officer about my rent and 

everything, trying to get me sent back to prison and 

everything. 

THE COURT: I'm going to let y'all go chat for 

another minute and tell me what you want to do. I guess 

the issue is over the 570. 

I don't want to get involved in this. Y'all 

talk. 

MS. WHITFIELD: May I ask you a question? 

THE COURT: No, I'm going to wait. 

(Pause)

THE COURT: And? 

MR. NOSCHESE: Your Honor, I couldn't figure out 

exactly what they wanted. They continue to want the 570 

in the registry. And, given all of the other sacrifices 

the client's already made, we're just not willing to do 

that. 

THE COURT: Okay. Well, you don't have to. 

Here's the thing, guys. If you don't reach an 

agreement -- you weren't here for the discussion 

earlier. 

MR. WHITFIELD: No, ma'am. 

THE COURT: But here's the thing. They are 

entitled to get a writ of possession today. So they're 

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going to get it, like, tomorrow or the day after if you 

don't reach an agreement. This gives you another week. 

MR. WHITFIELD: So just give us one week. 

THE COURT: Yeah. There was a judgment against 

you on the 9th in the first place. So basically what I'm 

going to let them do is have that judgment back on the 

9th or we can just leave the one we've got right now. 

They can still get their writ. 

MR. WHITFIELD: Okay. Well -- 

THE COURT: If they don't want to give it to 

you, they don't have to. And you will be out, and you 

will not have a clean bill, and you will have a judgment 

against you. So you can still go ahead and pursue your 

actions against them, but I would rather have a clean 

bill of health and have an extra week to try to scrape 

together some more money. 

MR. WHITFIELD: I feel like if I have one week, 

ma'am, I'm pretty sure I could talk to my dad and my 

grandmother because I feel like the reason why I couldn't 

work, ma'am, is because of Eddie Payne. He got me locked 

up, and he lied. I could prove everything. 

So I would rather take my chance and fight. We 

was humiliated. He paid somebody -- 

THE COURT: Here's the thing. You're still 

going to have an eviction judgment against you. It's 

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going to affect your ability to rent from now on. I 

frankly would rather walk away and not take my chances 

with a clean bill of health and pray for forgiveness. 

It's up to you. But it's your decision. 

MS. WHITFIELD: May I ask something at this 

point, though? If Mr. Payne or any parties make any 

retaliatory statements from this point forward -- 

THE COURT: You can get him. 

MS. WHITFIELD: So we're clear with that. We 

can still go from this day forward. 

THE COURT: Yes. 

MR. WHITFIELD: Okay, ma'am. 

THE COURT: I don't know how they're going to 

retaliate because you'll have an agreement to move out. 

MS. WHITFIELD: Mr. Payne is -- 

THE COURT: I don't know how you -- I don't 

think you're going to be able to get somebody to go and 

find you innocent as in the Innocent Project. I think 

you're stuck with whatever has occurred. So I don't 

think your retaliation lawsuit -- you'll have a hard time 

winning it. At least they haven't hurt your rental 

record. 

MS. WHITFIELD: I'm looking at that aspect. 

THE COURT: It's very important. 

MS. WHITFIELD: Right. Also, I wanted 

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clarification, if I may. He said that if we're not out 

by midnight, January 30 or 31. 

THE COURT: 30. 

MS. WHITFIELD: Then a motion goes forward for 

what again? 

THE COURT: Then the judgment will stay in 

place. I'm signing a new date on it so they can come in 

on Monday and dismiss it. You can, too. Tell them 

you've moved. And I'm going to vacate this judgment. It 

will just be a dismissal. That's why I'm going to sign a 

new one so I still have jurisdiction, and you can move 

out. 

MS. WHITFIELD: Okay. But we do have to be out 

by midnight, January 30, no ifs, ands, or butts, or that 

judgment stands? 

THE COURT: Right. 

MRS. WHITFIELD: So that's what? Nine days?

MR. WHITFIELD: Five days. 

THE COURT: Yeah, but you've had since the 9th 

of January. 

MS. WHITFIELD: Right. I understand. I'm just 

thinking out loud. 

THE COURT: Normally it's five days. And if you 

hadn't put the money in the registry like you did -- 

MS. WHITFIELD: It would have already taken 

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place. 

THE COURT: Right. So the 570 bought you a 

month, really. 

MS. WHITFIELD: So I guess what I'm saying is if 

any parties thereof make any comments, slanders -- 

THE COURT: Just between you guys. It's, So 

what?

MS. WHITFIELD: From going forward, we can do 

that. 

THE COURT: Only if it's made to a third party. 

Y'all should keep it clean between you all. It's not a 

big deal. It's just words. 

Didn't your grandparents or parents say, Sticks 

and stones can break my bones, but words can never hurt 

me? 

MS. WHITFIELD: But if anything comes about --

THE COURT: It's not going to affect you getting 

a new home. 

Now, you talk to your clients and tell them they 

have a clean bill of health, so they can move. 

MR. NOSCHESE: I will. And likewise, Your 

Honor, we ask the Court tell the Whitfield's -- 

THE COURT: They're giving up all claims. 

Besides, your tearing the place down. How can they hurt 

you? It's incinerated. 

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MR. NOSCHESE: Actually -- 

THE COURT: Y'all are going to be out of 

business for a while. So how can they damage you? Put 

you out of business? No, you're out of business. 

They're just trying to drop it and move on. 

Hang on a minute. 

(Pause)

THE COURT: Here's what we're doing. I'm going 

to vacate my January 15th judgment. I'm going to sign 

another judgment that you all are going to agree to, 

which is the January 9 judgment. And the only difference 

is between the two, if you recall, it's a supersedeas 

bond because you're going to give up your right to appeal 

on this one. 

And my understanding is there's an agreement 

among you all -- and tell me if this is true or not -- 

that the Whitfields will vacate this property by 

midnight, January 30, and the apartment will therefore 

have possession January 31st. And in return they will 

not only extend this added possession time for you, but 

they will drop the money judgment against you that's 

going to be reflected in this January 23rd judgment I'm 

drafting up, which I'm not signing today. I'm not going 

to sign it until January 23rd so that I still have 

jurisdiction February 2. So if y'all move out, this will 

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be vacated, and there will be just an order to dismiss 

against you. 

MS. WHITFIELD: Okay. 

THE COURT: And this will let you move. It will 

clean up your rental record. They get the $570 in the 

registry, which they're definitely due. And in return my 

understanding is the Whitfields will drop all complaints 

and claims against Fig Tree Apartments for conduct that's 

occurred between the parties in the past. 

MS. WHITFIELD: Correct. 

THE COURT: Correct. 

MS. WHITFIELD: Correct. 

THE COURT: Mr. Whitfield. 

MR. WHITFIELD: Yes, ma'am. 

MR. NOSCHESE: That is correct, Your Honor. If 

I could have clarification to add the HUD cause number. 

THE COURT: Sure, I'll let you do that. And 

what we're doing right now is a Rule 11. It's like a 

contract. It's on the record, so it's the same thing as 

if you wrote it down. So go ahead. 

MR. NOSCHESE: HUD case number 06-15-0351-8. 

And that would have to be dismissed on or before January 

30th of 2015. 

THE COURT: That Friday afternoon. Maybe you 

need -- they should have your phone number, and somehow 

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y'all need to get back and forth. You need to do 

something in writing where he can have it by that 

afternoon. Has to be during business hours and not at 

4:59. You may want to do it the day before once you get 

it straight where you're moving. It wouldn't hurt if you 

could move a day or two earlier and dismiss it, the 

sooner, the better. 

MR. NOSCHESE: The only other thing, Your Honor, 

I was seeking clarification on is it's release of all 

claims against the Fig Tree Apartments, its employees, 

agents, and property managers. 

THE COURT: Correct? 

MR. WHITFIELD: (Witness nods.)

THE COURT: Got to say something. 

MR. WHITFIELD: Yeah. 

THE COURT: Okay. 

MS. WHITFIELD: And that's where my question 

came. That's pursuant to anything that has happened to 

this date, correct? 

THE COURT: Yes, and it's called priorty claim, 

prior to right this minute. 

MS. WHITFIELD: Yes, ma'am. Yes, Your Honor. 

THE COURT: We're just going to bury the 

hatchet. 

MS. WHITFIELD: So if anything were to take 

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place after this date with those parties again, if they 

did something again, would that also be -- 

THE COURT: Yeah, but let me tell you what. I 

don't know how it's going to damage it. You're not going 

to have a very good claim. How is he going to damage 

you? You're going to move. You're going to have a 

spotless record. 

The only damage would be if the apartment gave 

you all a bad reference, and they can not give you a bad 

reference. That would be the only thing that would 

create a damage. 

MS. WHITFIELD: Or if they tried to do something 

like they did with him before that started this whole 

situation. 

THE COURT: Well, sure, you know, but that would 

be a whole new incident. 

MS. WHITFIELD: Right. So we would be free on 

that, correct? 

THE COURT: Right. 

You can't enter this until the 23rd. 

MR. NOSCHESE: That is correct, Your Honor. 

THE COURT: I'm going to give it to you. You'll 

need to get it to my clerk. I'll forget. And he doesn't 

need it before the 23rd. 

MR. NOSCHESE: Okay. 

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THE COURT: Okay. I'm sorry for the issues. 

MR. NOSCHESE: Everybody's on their way to a new 

and fresh start. 

Your Honor, can we make it clear that they 

agreed to all the terms that we've discussed? 

THE COURT: I think they did. Why don't you say 

yes again. 

MS. WHITFIELD: Yes. 

MR. WHITFIELD: Yes. 

MR. NOSCHESE: Voluntary, nobody's forcing them 

to do anything. 

MS. WHITFIELD: Well, considering the 

circumstances. 

THE COURT: Tough choices. 

MS. WHITFIELD: Yeah, tough choices. Right. 

THE COURT: Right. 

MR. WHITFIELD: Yes, ma'am. 

THE COURT: Okay. Good luck. 

MS. WHITFIELD: Thank you. 

MR. NOSCHESE: Thank you, judge. 

(End of proceedings)

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STATE OF TEXAS )

COUNTY OF DALLAS )

 I, Janet E. Wright, Official Court Reporter in and 

for the County Court of Dallas County, Texas, County 

Court at Law

Number Three, State of Texas, do hereby certify that to 

the best of my ability the above and foregoing contains a 

true and correct transcription of all portions of 

evidence and proceedings requested in writing to be 

included in the Reporter's Record, in the above-styled 

and -numbered cause, all of which occurred in open court 

or in chambers and were reported by me.

 I further certify that this Reporter's Record of 

the proceedings truly and correctly reflects the 

exhibits, if any, admitted by the respective parties.

 I further certify that the total cost for the 

preparation of this Reporter's Record is $85.00 and was 

paid by Mr. Noschese.

 WITNESS MY OFFICIAL HAND this the 25th day of 

January, 2015.

/s/ Janet E. Wright 

_______________________________

 JANET E. WRIGHT, Texas CSR #1532

 Expiration Date: 12-31-15

Official Court Reporter

 County Court-at-Law No. 3

 600 Commerce Street, Suite 585

Dallas, Texas 75202

 214/653-7831

Janet E. Wright

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EXHIBIT 2 
Cause No. cc-14-6144-c 

Fig Tree Apartments IN THE COUNTY COURT 

Plaintiff 

vs. AT LAW NO. 3 

John H Whitfield eta! 

Defendant DALLAS COUNTY, TEXAS 

f-~.i ;£r- {0Yv-J/4'-I-a ~l J 

ORDER 10 V ACA T9JAMENDED FINAL UDGMEN~ . Ja~t t( juj;_.~'-t"I_J q,b {1.14-4.. fvu-.. a r-~ w..l pr. / 

On th~1 ~th day ~f January, 2015, thi ~ Court, e~~ Amended Final Judgment. The 

Court has reconsidered 1ts order;and finds tfli's order:.shoulo be vacated. 

·-t 1 IT IS, TJ-IEREFO~E, OI~DERED, ADJUDGED AND DECREED by the Court that the;-;;_ :/" ' ...,Jl.t-tL0rN- .J Jj, 1

/'l//S ~~:t ~ Amended Fi l~udgment vacated. Lij V;s·;;s"' 

SO ORDERED this JA day of January, 20 15 

JJ 

CC - 14 - 06144-C 

COVA 

UROER - VACATE (OCA - REOPEN CASE) 

741911 

\II\ \lllllllllll\11\lll\1\l\111111111 Ill 
EXHIBIT 3 
CAUSE NO. CC-14-06144-C 

CC- 14- 06144-C 

CfJ 

FINAL JUDGMENT 

1429&3 

1111 1111111111111111111111111 11111111111 

FIG TREE APARTMENTS, § 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

IN THE COUNTY COURT 

Plaintiff 

VS. DALLAS COUNTY, TEXAS 

JOHN H. WHITFIELD, TAMMY LYNN 

WHITFIELD And All Other Occupants 

Defendants COUNTY COURT NO.3 

FINAL JUDGMENT 

Came on for trial on the 23~"~-lo f January, 2015, the above entitled and numbered cause. 

Plaintiff and Defendants appeared . All issues of fact and law were tried to the Court. The Court, 

after having received the evidence presented, testimony of the witnesses and argument of counsel 

issues the following order. 

The Court finds that Plaintiff is entitled to exclusive possession of that residence located 

at 2110 Moser Ave., #115B, Dallas, Texas 75206, the "Property"). 

The Court further finds that Plaintiff is entitled to recover the following amounts: 

a) court costs in the amount of $206.00~ and 

b) damages in the amount of $2,280.00 in past due rent less the $570 in the 

Registry of the Court for a total amount of $1710.00. 

The Court finds that an appeal bond has been paid into the registry of the court in the 

amount of $570.00, and the Court Orders that this appeal bond be paid to the Plaintiff upon 

presentation of this Judgment. 

IT lS ORDERED that Plaintiffs FIG TREE APARTMENTS shall have and recover 

Judgment against Defendants JOHN H. WHITFIELD and TAMMY LYNN WHITFIELD the 
total amount of $1960.00 plus post-judgment interest in the amount of 5% per annum until 

judgment is paid in full. 

ORDERED that Plaintiff shall be entitled to possession of the Property Jn.~t.."];c..t-.3? 'Zo/5 I' 

I , and the Clerk of this Court is so directed, to issue a Writ of Possession in 

favor of Plaintiff to allow Plaintiff possession of the Property. 

This judgment is a final judgment as to these parties. 

,-J' 

SIGNED thisZ1 day of January, 2015,