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Judge dismisses $2.5 million eviction suit
By Stephanie Flemmons Staff writer
A suit claiming illegal eviction filed against Collin County Constable Johnny Todd was thrown out of court Wednesday due to discrepancies in the original complaint.
But the plaintiff believes the case has plenty of substance and plans to file an appeal within 30 days.
“The best decisions come out of the appellate court,” said James McGuire, legal researcher. “We are confident a judge will see our side.”
Robert Wright’s lawsuit targeted Todd for pursuing the late-2006 eviction at his Plano (located in Collin County) home although the writ of possession was signed by a Dallas County judge. Wright claims the eviction was unlawful since a forcible detainer action was not filed in a Collin County justice court. He said rather than following mandated eviction procedures and paying Collin County $237 for court and constable fees, a lawyer for EMC Mortgage Corporation’s outside law firm conspired with the Collin County constables to use a writ from Dallas County as an eviction order, delivered it to Collin County constables and ordered them to “get it done.”
“The constables knew it was wrong to execute an eviction in Collin County when the writ of possession was issued out of Dallas County,” Wright said. “I called the Dallas County court and they told me they did not have jurisdiction over the case. What the constables did was wrong.”
Wright said the case was dismissed due to the defense arguing that the original suit filed had a procedural violation. Wright, who is representing himself, initially filed the suit naming the Collin County constable’s office in general, instead of solely naming Todd and the constables who were present during the eviction.
“They are using this because they can’t beat me on the law,” Wright said. “There is not a law out there that will allow them to do what they did. They had to go back to a procedural issue. I did not know the names of the constables that were present.”
Judge Mark Rusch of the 401st District Court ruled on behalf of legal conglomerate Fulbright & Jaworski, EMC and Todd, after they cited the pleading was not viable, naming the Texas Tort Claims Act.
“This was a frivolous lawsuit Mr. Wright filed,” said Robert Davis, an attorney involved in the case. “All the defendants were dismissed [Wednesday] and the judge sanctioned Mr. Wright for the false allegations contained in the lawsuit.”
Davis added that the writ of possession was legal even though it was signed by a Dallas judge, and the constables would have been in violation of the law if they had not executed it.
“Constables are not allowed to second guess a judge’s orders,” he said. “The order was signed by a judge authorizing eviction. Mr. Wright does not know what he is talking about.”
In early June, Davis wrote a letter to Wright stating his suit was also improper due to the statute of limitations expiring. The writ of possession was executed on Dec. 12, 2006 and the statute of limitations regarding any alleged deficiency expires after two years.
Wright said he was unaware that the writ was illegal until two years after it was executed. According to a court document prepared by Wright, he explains the unfairness of armed men forcefully taking over his home without due diligence.
“The residents of Collin County would find it very disturbing that this court allows entities to take the property of Collin County residents without legal authority permitting them to do so,” he said. “Collin County residents have no protection or recourse against such brazen and illegal acts. This is not just a case for me; this is a case for all Collin County residents.”
Fulbright and Jaworski attorneys included literature in their answer, filed a few days before the hearing, that claims against Todd should be barred, considering he had no personal involvement in the eviction and was not present at the scene.
Wright claims he has photos of Todd on his property the day of the eviction. When he informed the attorneys of that information, he said they were told by Todd he was not present.
“He threatened to shoot my dogs and he kicked my car,” Wright said of Todd. “He was definitely there and that is definitely him in the photo.”
Davis said the photos were never presented into evidence and the person in the photo is not Todd. Davis added that Todd was out of state visiting a sick relative when the eviction was executed.
“If they presented false testimony in a judicial proceeding, they could be charged with perjury,” he said. “That could be considered a criminal felony. I suspect when they saw Constable Todd in the courtroom today, they realized that he was not the person shown in the photo. In my opinion, considering Mr. Wright was already in enough hot water for the false allegations he had already made in his pleadings, it was wise he did not compound the problem by presenting false evidence.”
Wright also said Todd was accompanied by three other deputy constables during the eviction.
The district judge ruled Wright’s motives were in “bad faith” due to refusing to dismiss the lawsuit after numerous attempts from Davis explaining why the suit was frivolous.
The court noted that Wright contacted the State Bar of Texas, the media and the Collin County DA’s office in an effort to “cast the defendants and their counsel in an untrue light and cause them unjustified negative public and professional attention.”
Rusch ordered Wright to pay all attorneys’ fees assessed, and prohibited him from initiating any more lawsuits concerning this matter.
Wright said he is already working on the appeal.
“I’m fighting for my rights and my property,” he said. “I’m not going down without a fight. These people I’m up against are very powerful, but I know they can’t prove this was lawful.”
Contact Stephanie Flemmons at: email@example.com
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