Audria Edmond v. Mark McElhannon/Accent Real Estate Services

• Court: Court of Appeals of Texas
• Decided: July 17, 2018
• Docket: 03-17-00760-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-17-00760-CV

Audria Edmond, Appellant

v.

Mark McElhannon/Accent Real Estate Services, Appellee

FROM THE COUNTY COURT AT LAW NO. 1 OF BELL COUNTY NO. 86544, HONORABLE JEANNE PARKER, JUDGE PRESIDING

MEMORANDUM OPINION

Audria Edmond appeals pro se from the county court at law’s final judgment in a

forcible-entry-and-detainer suit awarding possession of certain residential real property in Belton,

Texas, along with specified damages, to Mark McElhannon/Accent Real Estate Services. See Tex.

Prop. Code § 24.001–.011 (forcible entry and detainer). For the reasons explained below, we affirm

the trial court’s judgment.

Background

The underlying facts are not disputed. McElhannon owns residential property and

leases it to Edmond. When Edmond failed to pay her monthly rent of $910 by its due date of

September 1, 2017, McElhannon sent Edmond a notice of eviction that was delivered to Edmond

on September 2, 2017, and then, on September 8, 2017, filed a petition for eviction with the justice

court of Bell County. On September 18, 2017, Edmond paid McElhannon $910 for the past-due September rent, but she did not pay the late fees due under the terms of the lease. The justice court

rendered judgment in favor of McElhannon, awarding him possession of the property, $422 for back

rent, and $146 in court costs. Edmond appealed the justice court’s judgment to the county court at

law. See Tex. R. Civ. P. 509.8 (authorizing de novo appeal).

Following a de novo bench trial, the county court at law rendered final judgment

awarding McElhannon possession of the property, $639 in damages, $1,000 for attorney fees, $146

in court costs, and post-judgment interest. It is from this judgment that Edmond now appeals.

Discussion

Edmond raises five issues on appeal, arguing that the trial court erred in (1) denying

Edmond the right to a trial by jury; (2) failing to credit payments Edmond made to McElhannon;

(3) failing to disclose to her that the judge had a conflict of interest and was potentially biased

against her; (4) awarding rent or late fees owed before the justice court’s September 8, 2017

judgment because the court lacked jurisdiction to award such fees; and (5) awarding court costs

because McElhannon failed to provide her with three days’ notice before filing his eviction suit.

Right to jury trial

Edmond asserts in her first issue that the trial court erred in denying her timely request

for a jury trial. See Tex. Const. art. 1, § 15 (“The right to trial by jury shall remain inviolate.”).

McElhannon argues that Edmond waived her right to complain on appeal that she was denied her

right to trial by jury because she failed to act when the county court at law proceeded with a bench

trial. We agree.

2 A litigant is required to act affirmatively in order to preserve the right to complain

on appeal that he was denied his right to a trial by jury. Vardilos v. Vardilos, 219 S.W.3d 920, 923

(Tex. App.—Dallas 2007, no pet.) (citing Sunwest Reliance Acquisitions Grp., Inc. v. Provident

Nat’l Assurance Co., 875 S.W.2d 385, 387 (Tex. App.—Dallas 1993, no writ)). An appellant may

preserve his right to a jury trial despite announcing “ready” at the opening of a bench trial if he has

taken other affirmative action to show he did not intend to waive his right to a jury trial. See G.W.

v. Texas Dep’t of Protective Servs., No. 03-14-00580-CV, 2015 WL 658466, at *4 (Tex.

App.—Austin Feb. 11, 2015, no pet.) (mem. op.).

Here, although Edmond timely requested a jury trial in her appeal from the justice

court, she announced to the court that she was “ready to go” when the county court at law judge

began a bench trial on the matter. She proceeded to testify, present evidence, and cross-examine

witnesses. It was not until near the very end of the trial that she notified the trial court that she

requested a jury in her petition. Edmond did not object to the case going forward without a jury or

indicate in any way to the trial judge that she intended to stand on her right to jury trial. We hold that

these acts and failure to act constituted a waiver of her right to complain on appeal of the trial court’s

alleged error. See Vardilos, 219 S.W.3d at 923 (holding that appellant waived right to complain on

appeal by not objecting to proceeding without at jury or affirmatively indicate that he intended to

perfect his right to jury trial).

We overrule Edmond’s first issue.

3 Sufficiency of the evidence

In her second issue, Edmond contends that the trial court failed to properly credit

her payments to McElhannon and that the amounts awarded were incorrect. We take Edmond’s

assertion here to be a challenge to the legal and factual sufficiency of the evidence. In a

legal-sufficiency challenge, we consider whether the evidence at trial would enable a reasonable and

fair-minded fact finder to reach the findings under review. City of Keller v. Wilson, 168 S.W.3d 802,

827 (Tex. 2005). Evidence is legally insufficient to support a finding when (1) the record discloses

a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence

from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to

prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the

opposite of a vital fact. Bustamante v. Ponte, 529 S.W.3d 447, 455–56 (Tex. 2017); King Ranch,

Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). The record contains more than a mere scintilla

of evidence when the evidence rises to a level that would enable reasonable and fair-minded people

to differ in their conclusions. King Ranch, Inc., 118 S.W.3d at 751. Conversely, the record contains

less than a scintilla when the evidence offered to prove a vital fact’s existence is “so weak as to do

no more than create a mere surmise or suspicion.” Id. All the record evidence must be considered

“in the light most favorable to the party in whose favor the [decision] has been rendered,” and “every

reasonable inference deducible from the evidence is to be indulged in that party’s favor.”

Bustamante, 529 S.W.3d at 456 (quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706,

711 (Tex. 1997)).

4 When reviewing a verdict for factual sufficiency, we consider and weigh all of the

evidence, not just the evidence that supports the finding. Maritime Overseas Corp. v. Ellis,

971 S.W.2d 402, 406–07 (Tex. 1998). When a party challenges the factual sufficiency of the

evidence supporting a finding for which she did not have the burden of proof, we may set aside the

judgment only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong

and unjust. See id. at 407. The amount of evidence necessary to affirm is far less than the amount

necessary to reverse a judgment. GTE Mobilnet of S. Tex. v. Pascouet, 61 S.W.3d 599, 616 (Tex.

App.—Houston [14th Dist.] 2001, pet. denied). We may not substitute our own judgment for that

of the factfinder or pass upon the credibility of witnesses. Ellis, 971 S.W.2d at 407.

Here, the evidence admitted into the county court at law consisted of Edmond’s

residential lease concerning the property and a list of rent payments received and put into evidence

by McElhannon. Based on the information in the transaction listing, Edmond owed $2,459 in rent

and late fees to McElhannon at the time of the trial in the county court at law. This amount included

two rent payments of $910, which were held in the county court at law pending Edmond’s appeal,

leaving a balance of $639 due to McElhannon. Edmond’s lease and the Texas Property Code allow

McElhannon to seek attorney’s fees incurred in a legal proceeding related to the lease, making the

county court at law’s award of $1,000 for legal fees proper. See Tex. Prop. Code § 24.0054(b)(2).

Edmond did not offer any evidence that was contrary to the residential lease or the

transactional listing. Reviewing the evidence in the record as required by the appropriate standards

of review, we hold that the evidence was both legally and factually sufficient to support the trial

court’s award of damages, court costs, and attorneys fees.

5 Edmond also challenges the amount awarded in rent and late fees, claiming that she

owes only $317, not $639, and arguing that she was entitled to have a jury resolve this issue. As

noted above, however, Edmond waived her right to complain on appeal that she was denied her right

to a jury trial. And to the extent that Edmond is challenging the trial court’s calculation of rent and

late fees or the sufficiency of the evidence supporting the same, our review of the record indicates that

Edmond did not dispute the amount of rent and fees owed. At trial, Edmond claimed that she never

received a statement from McElhannon showing that she owed $639. She also argued to the trial

court that she was not aware that the terms of her lease allowed McElhannon to apply the rent

payment first to any non-rent obligations and then to rent. But Edmond never denied that she owed

$639 in past rent and fees and, in fact, admitted to the trial court that she believed she did owe $639.

We overrule Edmond’s second issue.

Alleged conflict of interest and bias

In her third issue, Edmond asserts that the trial court had a conflict of interest and was

biased against her. In support of her allegations, Edmond emphasizes an alleged post-trial and

off-the-record exchange between the trial court and McElhannon’s counsel in which the judge

allegedly stated that “it had been some years since [the judge] had purchased a home through [Accent

Real Estate Services].” On appeal, Edmond contends that this exchange indicates that the judge had

a “financial relationship” with Accent and that, had Edmond been aware of that financial relationship,

she would have asked the judge to recuse himself for “conflict of interest and potential bias.”

It is grounds for recusal that a judge, among other matters, “has a financial interest in

the subject matter in controversy or in a party to the proceeding, or any other interest that could be

6 substantially affected by the outcome of the proceeding.” Tex. R. Civ. P. 18b(b)(6). A financial

interest is defined as a means of ownership of a legal or equitable interest, or a relationship as a

director, advisor or other active participant in the affairs of a party. Id. at 18b(d)(4). Even assuming

the accuracy of Edmond’s contentions here regarding the conversation and its contents, which does

not appear in the record before us, the fact that a judge purchased a home at some time in the past

using the same company that McElhannon employs to manage his rental property does not rise to the

level of a “financial interest,” or of any interest for that matter, in the possession of the real property

at issue here. Such an interest would be “merely indirect, incidental, remote, contingent, or possible.”

Cameron v. Greenhill, 582 S.W.2d 775, 776 (Tex. 1979).

We overrule Edmond’s third issue.

Jurisdiction

As her fourth issue, Edmond claims that because pleadings listed the amount of rent

delinquent as $910, instead of the actual amount of fees owed to McElhannon in addition to

September rent, the lower court did not have jurisdiction to hear the case. We disagree. Justice courts

have original jurisdiction over forcible-entry-and-detainer cases, see Tex. Gov’t Code § 27.031, and

the county court at law had jurisdiction to hear Edmond’s appeal from the justice court, see Tex. R.

Civ. P. 509.8. Whether Edmond was confused or unaware of the amount she owed McElhannon has

no effect on the court’s jurisdiction to hear the case and award damages to McElhannon.

We overrule Edmond’s fourth issue.

7 Three days’ notice

In her final issue, Edmond contends that the trial court erred in awarding monetary

damages and court costs because McElhannon failed to give her three days’ notice of the amount of

damages sought before filing suit against her. We disagree.

Section 24.005 of the Property Code requires a landlord to give at least three days’

written notice to vacate before the landlord files a forcible-detainer suit unless the parties have

contracted otherwise. See Tex. Prop. Code § 24.005(a)–(c). Nowhere in the Property Code does it

specify that the landlord is required to give the occupant/tenant three days’ notice of the amount of

damages sought. See id. §§ 24.001–.011 (chapter on forcible entry and detainer). The record here

indicates that McElhannon provided Edmond with a written notice to vacate on September 2, 2017,

and then subsequently filed its petition for eviction on September 8, 2017. We note that McElhannon’s

petition for eviction stated, as required by Rule 510.3, the total amount of rent due and unpaid at the

time of filing, see Tex. R. Civ. P. 510.3(a)(4), and further that McElhannon reserved the right to

amend that amount at trial. We would also note that the parties’ lease agreement set forth the possible

fees associated with default, including that Edmond might be liable for additional fees, any unpaid

rent, attorney fees, and court costs resulting from eviction proceedings. Based on the record before

us, Edmond was given the notice to which she was entitled.

We overrule Edmond’s fifth issue.

Conclusion

Having overruled each of Edmond’s issues, we affirm the trial court’s judgment.

8 __________________________________________ Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Pemberton and Field

Affirmed

Filed: July 17, 2018