Bessie Lee, Mickey Gerald, Sr., and All Occupants v. Aurora Loan Services, L.L.C.

• Court: Court of Appeals of Texas
• Decided: January 27, 2009
• Docket: 06-08-00077-CV
• Status: Published

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-08-00077-CV ______________________________

BESSIE LEE, MICKEY GERALD, SR., AND ALL OCCUPANTS, Appellants

V.

AURORA LOAN SERVICES, L.L.C., Appellee

On Appeal from the County Court at Law No. 4 Dallas County, Texas Trial Court No. CC-08-04704-D

Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Moseley MEMORANDUM OPINION

Bessie Lee took out a $455,000.00 variable interest rate loan and secured the loan with a deed

of trust on real property in Farmers Branch, Dallas County, Texas. Lee was eventually unable to

comply with the terms of the loan and Aurora Loan Services, L.L.C. (Aurora), the then-holder of the

loan and lien, accelerated the note and foreclosed the lien through a trustee's sale. Aurora purchased

the real estate at the trustee's sale on April 1, 2008.

One week after the foreclosure, Aurora caused two copies of a notice to vacate addressed to

Lee to be mailed (one of which was directed to her at the address of the foreclosed property and

another of which was directed to her at a Las Vegas, Nevada, address) and a third to be mailed

addressed to "Occupant" at the address of the foreclosed real property: 9208 Hidden Lakes Court,

Grand Prairie, Texas 75104. All three copies, having been sent by certified mail, were returned

unclaimed.

Aurora then caused an action in forcible detainer to be filed in a Dallas County justice court

on May 12, 2008, naming Lee and "all occupants" as defendants. A default judgment for forcible

detainer was rendered in favor of Aurora in that justice court action May 20, 2008. Although the

appeal bond (or pauper's affidavit in lieu of bond) for the appeal from the justice court is not

contained in the record, it would appear that Mickey Gerald made a pro se appearance in the justice

court and took steps to appeal the action; it was docketed with the Dallas County Court at Law

Number 4. After a hearing (during which Gerald testified that he was leasing the property and had

2 an option to purchase it1), the County Court at Law granted a judgment granting possession of the

property to Aurora.2 Although Lee is the named defendant and a notice of appeal purports to bear

her signature, Lee has filed an affidavit with this Court wherein she maintains that she never filed

this appeal or authorized its prosecution on her behalf, that her signature on the notice of appeal was

forged, and that she, in fact, does not even know Gerald at all; she requests that this appeal be

dismissed as to her. We dismiss this appeal as to Lee.3

In a single issue raised for the first time on appeal to this Court, Gerald asks for reversal of

the trial court's judgment because he claims Aurora's petition for forcible detainer insufficiently

described the property, even though the above street address was included. Aurora argues the appeal

is frivolous and asks this Court to award damages, the supersedeas and appeal bonds, and attorney's

fees and costs.

1 Lee's affidavit states, "I do not know a Mickey Gerald, Sr. I have never communicated with him in any way. I have never entered into any leasing agreement with this individual. I have never authorized Mr. Gerald to occupy this property, and his occupation of the property was and is without my knowledge and consent. I have never received any rental payments from Mr. Gerald or any other individual. Any and all representations made by Mr. Gerald to this Court or any other authority regarding his association with me are false and fraudulent." 2 Originally appealed to the Fifth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX . GOV 'T CODE ANN . § 73.001 (Vernon 2005). We are unaware of any conflict between precedent of the Fifth Court of Appeals and that of this Court on any relevant issue. See TEX . R. APP . P. 41.3. 3 There is nothing in the record to suggest there are other occupants located on the property.

3 Gerald's sole point of appeal is that he alleges that the property the subject of the lawsuit is

insufficiently described. Aurora argues it is entitled to damages for frivolous appeal under Rule 45

of the Texas Rules of Appellate Procedure. See TEX . R. APP . P. 45. Aurora also asks the Court to

award it the $20,000.00 supersedeas bond and $10,000.00 appeal bond, as well as attorney's fees and

costs.

I. Analysis

In order to preserve the issue of sufficient property description for appellate review, Gerald

was required to make a timely, specific objection to the county court. See TEX . R. APP . P. 33.1(a);

Mitchell v. Citifinancial Mortgage Co., 192 S.W.3d 882, 883 (Tex. App.—Dallas 2006, no pet.).

There is nothing before us that suggests he complained about the sufficiency of the property

description below. Therefore, Gerald failed to preserve this issue for appellate review. Id.

Even had he raised the issue at trial, Gerald's contention has no merit. Rule 741 of the Texas

Rules of Civil Procedure states that a complaint for forcible detainer "shall describe the lands,

tenements or premises . . . with sufficient certainty to identify the same." TEX . R. CIV . P. 741.

Gerald argues that a metes and bounds description of the property is required. This is simply not the

law. A street address enables one to identify a piece of property in an action for forcible detainer;

several cases have held that a street address provides the description required under Rule 741.

Mitchell, 192 S.W.3d at 883; Powelson v. U.S. Bank Nat'l Ass'n, 125 S.W.3d 810, 812 (Tex.

4 App.—Dallas 2004, no pet). Further, Gerald's contention is simply wrong; the petition incorporates

the deed of trust executed by Lee by reference to it, and the deed of trust described the property as:

LOT 671 IN BLOCK 1 OF LAKE RIDGE SECTION 12, AN ADDITION TO THE CITY OF GRAND PRAIRIE, DALLAS COUNTY, TEXAS, ACCORDING TO THE CITY OF GRAND PRAIRIE, DALLAS COUNTY, TEXAS, ACCORDING TO THE MAP OR PLAT THEREOF RECORDED IN VOLUME 98043, PAGE 91, PLAT RECORDS, DALLAS COUNTY, TEXAS.

This paragraph not only sufficiently describes the property for the purposes of an action in

forcible detainer, but would allow one to obtain the metes and bounds description from the Dallas

County real property records. As such, there can be no question that the pleading requirements

regarding the property description as contained in Rule 741 of the Texas Rules of Civil Procedure

were met. Even in other kinds of issues which might require more stringent standards, "A writing

need not contain a metes and bounds property description to be enforceable; however, it must furnish

the data to identify the property with reasonable certainty." Tex. Builders v. Keller, 928 S.W.2d 479,

481 (Tex. 1996). The description meets that standard.

Next, should we determine that this appeal was frivolous after considering the record, briefs,

and other papers filed, Rule 45 of the Texas Rules of Appellate Procedure permits us to award "just

damages." Solares v. Solares, 232 S.W.3d 873, 883 (Tex. App.—Dallas 2007, no pet.). Recovery

is authorized if the appeal is objectively frivolous and caused injury to Aurora. See id.; Njuku v.

Middleton, 20 S.W.3d 176, 178 (Tex. App.—Dallas 2000, pet. denied). An appeal is frivolous if it

5 was brought with no reasonable grounds for reversal of the trial court's judgment. Solares, 232

S.W.3d at 883; Keith v. Solls, 256 S.W.3d 912, 919–20 (Tex. App.—Dallas 2008, no pet.).

Here, Gerald's sole ground for appeal was not preserved for review. Even if he had preserved

this alleged error at trial, just a peremptory glance at or brief review of Aurora's petition for forcible

detainer, the deed of trust, Rule 741 of the Texas Rules of Civil Procedure, and relevant caselaw

would have shown that Aurora's descriptions of the property were sufficient for the circumstance of

this suit. Accordingly, Gerald had no reasonable ground to believe that the trial court's judgment

would be reversed. The filing of this appeal has delayed Aurora's rightful possession to the property

and has caused it to expend time, money, effort, and other resources to defend the appeal. We agree

with Aurora that this appeal was patently frivolous and that it is entitled to damages under Rule 45

of the Texas Rules of Appellate Procedure.

Therefore, discretionary sanctions may be awarded. Wallingford v. Trinity Universal Ins.

Co., 253 S.W.3d 720, 728 (Tex. App.—Amarillo 2007, pet. denied). Proof by affidavit is a proper

method of establishing the appropriate sanction for the filing of a frivolous appeal. Tex. State

Taekwondo Ass'n v. Lone Star State Taekwondo Ass'n, No. 08-01-00403-CV, 2002 WL 1874852,

at *3 (Tex. App.—El Paso 2002, no pet.) (not designated for publication) (citing Smith v. Brown,

51 S.W.3d 376, 381 (Tex. App.—Houston [1st Dist.] 2001, pet. denied)). Aurora's attorney has filed

an affidavit wherein he states that the charge for his services in defending this appeal was $150.00

per hour. Gerald has challenged neither the form nor the substance of this affidavit.

6 However, although in his affidavit Aurora's attorney swears that at least thirty-four hours

were expended performing legal services in this matter, he does not differentiate between services

performed at the trial court level and services performed thereafter in this appeal. Instead, Aurora

simply asks us to award $7,640.00, without proof or statement justifying this amount. On the other

hand, other Texas courts of appeals have awarded damages in situations in which no evidence of

damages were provided to the courts as the bases for the awards. See Njuku, 20 S.W.3d at 178

(awarding $5,000.00); Salley v. Houston Lighting & Power Co., 801 S.W.2d 230, 232 (Tex.

App.—Houston [1st Dist.] 1990, writ denied) (awarding $6,000.00); Rosenthal v. Nat'l Terrazzo Tile

& Marble, Inc., 742 S.W.2d 55, 57 (Tex. App.—Houston [14th Dist.] 1987, no writ) (awarding

$2,500.00). With the unanswered allegations by Lee that Gerald has forged her name to documents

employed in this appeal and her statements that Gerald is apparently a simple trespasser on the

property, we find this situation and Gerald's actions concerning the appeal particularly egregious.

We also recognize that Gerald's unwarranted action in depriving Aurora of possession of the property

by prosecuting this frivolous appeal has occasioned damage to Aurora. Accordingly, we award

Aurora $7,500.00 against Gerald for this frivolous appeal as just damages.

Aurora also asks that the Court award it recovery under both the $20,000.00 supersedeas

bond and the $10,000.00 appeal bond. A judgment of a county court (or county court at law) after

an appeal of an eviction from a justice court may not be stayed pending appeal under any

circumstance unless, within ten days of the signing of the judgment, the appellant files a supersedeas

7 bond in an amount set by the county court. TEX . PROP . CODE ANN . § 24.007 (Vernon 2000). Rule

43.5 of the Texas Rules of Appellate Procedure states that "[w]hen a court of appeals affirms the trial

court judgment, . . . the court of appeals must render judgment against the sureties on the appellant's

supersedeas bond, if any, for the performance of the judgment." TEX . R. APP . P. 43.5. The

supersedeas bond in this case was intended to indemnify Aurora from losses caused by delay of

appeal. See Baxter v. Gates of Normandie, No. 05-03-00245-CV, 2004 WL 303594, at *1 (Tex.

App.—Dallas Feb. 18, 2004, no pet.); Muniz v. Vasquez, 797 S.W.2d 147, 150 (Tex. App.—Houston

[14th Dist.] 1990, no writ). However, such a bond is not an unconditional agreement to pay a

liquidated amount; it imposes only a contingent or conditional liability. Baxter, 2004 WL 303594,

at *1. "[T]he damages cannot be determined in an appellate court but must be determined by proof

of facts transpiring after judgment and during the pendency of the appeal." Id. Thus, beyond the

sanction assessed above, we may not summarily ascertain the amount of monetary damages

occasioned by this delay on appeal. Id.; Muniz, 797 S.W.2d at 150. Rather, it would be the duty of

Aurora to show the extent of its damage or loss. Baxter, 2004 WL 303594, at *1 (citing State v.

Watts, 197 S.W.2d 197, 199 (Tex. Civ. App.—Austin 1946, writ ref'd)).

Here, because Aurora has simply asked the Court to award it recovery under the $20,000.00

supersedeas bond without providing adequate reasoning or proof of the damages sustained by it, we

deny Aurora's request. However, in accordance with Rule 43.5, we render judgment against the

surety on Gerald's supersedeas bond for performance of the judgment, sanctions assessed herein, and

8 the appellate costs taxed against Gerald. See Robertson v. ADJ P'ship, Ltd., 204 S.W.3d 484, 496

(Tex. App.—Beaumont 2006, pet. denied); Atlas Capital Corp. v. Virani, 1 S.W.3d 254, 255 (Tex.

App.—Texarkana 1999, no pet.).

Next, Aurora seeks for this Court to award it the $10,000.00 appeal bond without showing

us the authority under which it could be done or adequate briefing to justify it. An action in a

forcible detainer proceeding is a special proceeding governed under particular rules and statutes.

Haginas v. Malbis Mem'l Found., 163 Tex. 274, 354 S.W.2d 368, 371 (1962). An appeal bond,

which is filed in the justice court, guarantees that an appellant will prosecute his appeal in the county

court with effect or pay all costs and damages which may be adjudged against him. TEX . R. CIV . P.

749. Because Gerald prosecuted his appeal with the county court at law (albeit unsuccessfully and

rather speciously), and the supersedeas bond will cover Aurora if Gerald fails to execute performance

of the judgment, Aurora is not entitled to the $10,000.00 appeal bond filed with the justice court as

liquidated damages.

Finally, Aurora asks this Court to award it attorney's fees and costs under Section 24.006 of

the Texas Property Code. Rule 752 of the Texas Rules of Civil Procedure states, "[o]n the trial of

the cause in the county court," Aurora "shall be permitted to plead, prove and recover" damages

which "may include . . . reasonable attorney fees in the justice court and county courts provided, as

to attorney fees, that the requirements of Section 24.006 of the Texas Property Code have been met."

TEX . R. CIV . P. 752; see Volume Millwork, Inc. v. W. Houston Airport Corp., 218 S.W.3d 722, 732

9 (Tex. App.—Houston [1st Dist.] 2006, pet. denied). Section 24.006 sets out the procedure and proof

required to obtain attorney's fees and costs.

We may review an award of attorney's fees and/or costs, or the lack thereof, for an abuse of

discretion. Lugo v. Herrera, No. 03-08-00215-CV, 2008 WL 4823163, at *3 (Tex. App.—Austin

Nov. 7, 2008, no pet.) (mem. op.). However, neither the justice court nor the county court at law

awarded attorney's fees or costs to Aurora; further, the record we have indicates that Aurora did not

offer proof at the trial court level regarding reasonable and necessary fees or the costs incurred by

Aurora. Aurora has not provided (and we do not find) any authority permitting us to enter an award

of attorney's fees of this type where this matter was not considered first by the trial court.

Accordingly, we deny an award of attorney's fees to Aurora.

II. Conclusion

As stated above, the appeal as to Lee is dismissed because the appeal was filed without her

authority or her knowledge. We conclude both that Gerald failed to preserve error on his sole ground

for appeal and that Gerald's appeal was meritless and frivolous; accordingly, we deny Gerald's point

of error. It is therefore ordered, adjudged, and decreed that Gerald pay to Aurora the sum of

$7,500.00 as just damages for the filing of this frivolous appeal. We also render judgment against

the surety on Gerald's supersedeas bond for performance of the judgment, sanctions assessed herein,

and appellate costs taxed against Gerald. We deny both Aurora's requests to award it further

10 attorney's fees and costs and to award it the $10,000.00 appeal bond filed in the justice court. In all

other respects, we affirm the judgment of the trial court.

Bailey C. Moseley Justice

Date Submitted: January 26, 2009 Date Decided: January 27, 2009