Colette Custer v. Wells Fargo Bank, N.A.

Opinion

ACCEPTED 03-15-00362-CV 7506963 THIRD COURT OF APPEALS AUSTIN, TEXAS 10/22/2015 7:49:09 PM JEFFREY D. KYLE No. 03-15-00362-CV CLERK

____________________________________________ FILED IN 3rd COURT OF APPEALS COURT OF APPEALS AUSTIN, TEXAS for the 10/23/2015 7:49:09 PM THIRD DISTRICT OF TEXAS JEFFREY D. KYLE Clerk ________________________________________

Colette Custer,

Appellants, v.

Wells Fargo Bank, N.A.,

Appellee. ________________________________________

Appeal from the County Court at Law No. 1 of Travis County, Texas Honorable Todd Wong, Presiding Judge ________________________________________

BRIEF FOR APPELLEE ________________________________________

Sammy Hooda State Bar No. 24064032 sammy.hooda@buckleymadole.com Buckley Madole 14841 Dallas Parkway, Suite 425 Dallas, Texas 75242 Telephone: 972-643-6600 Facsimile: 972-643-6699 Attorneys for Appellee

ORAL ARGUMENT NOT REQUESTED STATEMENT REGARDING ORAL ARGUMENT

Appellee Wells Fargo Bank, N.A. believes oral argument is not necessary in

this case.

i IDENTITY OF PARTIES AND COUNSEL

Pursuant to TEX. R. APP. P. 38.1(a), the following is a complete list of all

parties to the judgment of County Court at Law No. 3 of Dallas County, Texas and

the names and addresses of all trial and appellate counsel:

Plaintiff-Appellee:

Wells Fargo Bank, N.A. (“Wells Fargo”)

Trial and Appellate Counsel for Plaintiff-Appellee:

Sammy Hooda Buckley Madole, P.C. 14841 Dallas Parkway, Suite 425 Dallas, Texas 75254

Defendants-Appellants:

Samuel G. Breitling JoAnn Breitling

Trial Counsel for Defendants-Appellants:

James Minerve 115 Saddle Blanket Trail Buda, Texas 78610

Appellants Pro Se on appeal

ii TABLE OF CONTENTS

Statement Regarding Oral Argument .........................................................................i

Identity of Parties and Counsel ................................................................................. ii

Index of Authorities ..................................................................................................iv Statement of the Case................................................................................................. v

Issues Presented ........................................................................................................vi

Statement of Facts and Procedural Background ........................................................ 1 Summary of the Argument......................................................................................... 3 Argument.................................................................................................................... 4

I. Whether Wells Fargo Bank, N.A.’s forcible detainer action, premised on a new proper written notice to vacate, is barred by limitations.................. 4

II. Custer has Waived her Constitutional Challenges and Defense of Laches. ............................................................................................................. 7

Prayer ......................................................................................................................... 7

Certificate of Compliance .......................................................................................... 8 Certificate of Service ................................................................................................. 9

iii INDEX OF AUTHORITIES

Cases Federal Home Loan Mortg. Corp. v. Pham, 449 S.W.3d 230, 235 (Tex. App.— Houston [14th Dist.] 2014, no pet.)........................................................................4

Hong Kong Dev., Inc. v. Nguyen, 229 S.W.3d 415, 433 (Tex. App.—Houston [1st Dist.] 2007, no pet.) ................................................................................................4

Jaimes v. Federal Nat’l Mortg. Ass’n, No. 03-13-00290-CV, 2013 WL 7809741, at * 1 (Tex. App.—Austin Dec. 4, 2013, no pet.) ......................................................4

Massaad v. Wells Fargo Bank, Nat’l Ass’n, No. 03-14-00202-CV, 2015 WL 410514, at *1 (Tex. App.—Austin Jan. 30, 2015, no pet.) ....................................5 Montenegro v. Wells Fargo Bank, N.A., No. 03-13-00123-CV, 2015 WL 3543055, at *3 (Tex. App.—Austin June 3, 2015, no pet.) ...................................................5

Puentes v. Fannie Mae, 350 S.W.3d 732, 739 (Tex. App.—El Paso 2011, pet. dism’d)....................................................................................................................6 Rice v. Pinney, 51 S.W.3d 705, 709 (Tex. App.—Dallas 2001, no pet.) ..................5

Valencia v. Garza, 765 S.W.2d 893, 899 (Tex. App.—San Antonio 1989, no writ) 4 Williams v. Bayview-Realty Assocs., 420 S.W.3d 358, 361 (Tex. App.—Houston [14th Dist.] 2014, no pet.) ......................................................................................4

Rules TEX. R. APP. P. 33.1(a) ...............................................................................................7

TEX. R. APP. P. 38.1(i)................................................................................................7

Statutes TEX. PROP. CODE § 24.002 .........................................................................................6 TEX. PROP. CODE § 24.002(a) ....................................................................................4

TEX. PROP. CODE § 24.002(b) ....................................................................................5

TEX. PROP. CODE § 24.005(h) ....................................................................................5

iv STATEMENT OF THE CASE

Nature of the Case: This is an appeal from a forcible detainer action awarding immediate possession of residential property occupied by Colette Custer to Wells Fargo Bank, N.A., which had previously acquired the property at a foreclosure sale.

Trial Court: Honorable Todd Wong, County Court at Law No. 1 in Travis County, Texas

Course of Proceedings: After a justice court entered judgment in favor of Custer, Wells Fargo appealed to the county court at law, which conducted a trial de novo without a jury. (2 RR 1-30)

Trial Court’s Disposition The trial court rendered judgment awarding immediate of the Case: possession of the property to Wells Fargo. (CR 282)

v ISSUES PRESENTED

1. Whether Wells Fargo Bank, N.A.’s forcible detainer action, premised

on a new proper written notice to vacate, is barred by limitations.

2. Whether Custer’s constitutional challenges and defense of laches,

raised for the first time on appeal, are waived for failure to preserve.

vi STATEMENT OF FACTS AND PROCEDURAL BACKGROUND

On December 20, 2005, Colette M. Custer (“Custer”) and Shane G. Streetman

(“Streetman”) executed a Deed of Trust encumbering that certain real property with

the reported address of 20433 Rita Blanca Circle, Pflugerville, Texas 78660

(“Property”). (CR 86-94; 3 RR 37-45). Paragraph 18 of the Deed of Trust gave the

beneficiary, Wells Fargo Bank, N.A. (“Wells Fargo”), the right, in the event of

default, to sell the property through foreclosure. (CR 90; 3 RR 41). The same

paragraph also contained a tenant-at-sufferance clause, which stated:

If the Property is sold pursuant to this Paragraph 18, Borrower or any person holding possession of the Property through Borrower shall immediately surrender possession of the Property to the purchaser at that sale. If possession is not surrendered, Borrower or such person shall be a tenant at sufferance and may be removed by writ of possession.

(CR 90; 3 RR41, emphasis added)

After Custer and Streetman defaulted, Wells Fargo posted the Property for

foreclosure. (CR 95-8; 3 RR 47-50). A substitute trustee conducted a foreclosure

sale and Wells Fargo bought the property at the sale on October 4, 2011. (CR 95-8;

3 RR 47-50).

On July 2, 2014, Wells Fargo through its attorney sent Custer 1 “Demand to

1 Notices were also sent to “Shane G. Streetman”, “Current Occupant”, Gordon W. Hardin” and “West Short”; however, none of them are parties to this appeal, and therefore, are not discussed herein.

1 Vacate Premises” notices. Despite the tenant-at-sufferance clause in the Deed of

Trust and Wells Fargo’s request to take possession of the Property, Custer refused

to surrender possession. Wells Fargo then on September 29, 2014 filed a forcible

detainer action against Custer in the justice court. (CR 108-09; 146-47; 161-98; 3

RR 68-9). The justice court rendered a judgment in favor of Custer, and Wells Fargo

appealed to the county court in Travis County, where the case was assigned to

County Court at Law No. 1. (CR 199-200).

A non-jury trial de novo commenced on June 1, 2015, in which Custer

appeared through counsel. Custer presented the Court with a Plea to the Jurisdiction,

which the Court heard. (2 RR 5-28). After hearing arguments from Custer and Wells

Fargo’s respective counsel, and considering the evidence before it, the trial court

denied Custer’s plea to the jurisdiction, found in favor of Wells Fargo and granted it

a writ of possession. (2 RR 28-29).

2 SUMMARY OF THE ARGUMENT

Jurisdiction: Both the justice court and the county court had jurisdiction to

resolve the issue of immediate possession. That is so because after Wells Fargo

purchased the property at the foreclosure sale, the landlord and tenant-at-sufferance

relationship between Custer and Wells Fargo provided an independent basis on

which the justice and county courts could determine the issue of immediate

possession. Under nearly identical facts, this Court has repeatedly held that justice

and county courts have jurisdiction to decide the issue of immediate possession.

Trial de novo: The county court conducted a trial de novo, it thoroughly heard

arguments from Custer’s counsel that the forcible detainer action was barred by

statute of limitations, it required Wells Fargo to prove its case with evidence, and

after hearing arguments and considering the evidence rendered judgment.

Constitutional challenges and defense of laches: Although Custer’s

Constitutional challenges and defense of laches arguments are meritless, the Court

need not analyze them because Custer has waived those arguments. Custer failed to

raise them below, and has failed to adequately brief her arguments with appropriate

citations to the record and authority.

For these reasons, the judgment awarding possession of the Property to Wells

Fargo should be affirmed.

3 ARGUMENT

I. Whether Wells Fargo Bank, N.A.’s forcible detainer action, premised on a new proper written notice to vacate, is barred by limitations. A forcible-detainer action is the procedure used to determine the right to

immediate possession of real property if there is no unlawful entry. Hong Kong Dev.,

Inc. v. Nguyen, 229 S.W.3d 415, 433 (Tex. App.—Houston [1st Dist.] 2007, no pet.).

Consistent with this purpose, courts throughout Texas have repeatedly recognized

that a judgment of possession in a forcible detainer action is a determination only of

the right to immediate possession and does not determine the ultimate rights of the

parties to any other issue in controversy relating to the property at issue. See, e.g.,

Federal Home Loan Mortg. Corp. v. Pham, 449 S.W.3d 230, 235 (Tex. App.—

Houston [14th Dist.] 2014, no pet.); Williams v. Bayview-Realty Assocs., 420 S.W.3d

358, 361 (Tex. App.—Houston [14th Dist.] 2014, no pet.); Nguyen, 229 S.W.3d at

437; Valencia v. Garza, 765 S.W.2d 893, 899 (Tex. App.—San Antonio 1989, no

writ).

A forcible-detainer action will lie when a person in a possession of real

property refuses to surrender possession on demand if the person is a tenant at will

or by sufferance, “including an occupant at the time of foreclosure of a lien superior

to the tenant’s lease.” See TEX. PROP. CODE § 24.002(a); Jaimes v. Federal Nat’l

Mortg. Ass’n, No. 03-13-00290-CV, 2013 WL 7809741, at * 1 (Tex. App.—Austin

Dec. 4, 2013, no pet.); Rice v. Pinney, 51 S.W.3d 705, 709 (Tex. App.—Dallas 2001,

4 no pet.). Section 24.002 provides that a landlord must make a written demand for

possession and comply with section 24.005’s requirements for a notice to vacate.

TEX. PROP. CODE § 24.002(b); see also TEX. PROP. CODE § 24.005(h) (providing that

a notice to vacate is considered a demand for possession for purposes of section

24.0002(b)). Thus, it stands to reason that every time a notice vacate and demand for

possession is sent, and the occupant of the property fails to vacate, a new and

independent cause of action for forcible detainer accrues.

This Court, along with its sister courts, has “determined that a forcible-

detainer action accrues each time a person refuses to surrender possession of real

property after a person entitled to possession delivers proper written notification to

vacate. Montenegro v. Wells Fargo Bank, N.A., No. 03-13-00123-CV, 2015 WL

3543055, at *3 (Tex. App.—Austin June 3, 2015, no pet.); citing Massaad v. Wells

Fargo Bank, Nat’l Ass’n, No. 03-14-00202-CV, 2015 WL 410514, at *1 (Tex.

App.—Austin Jan. 30, 2015, no pet.) (each refusal to surrender possession

constitutes new forcible detainer); Pham, 449 S.W.3d at 235-36 (same).

In Montenegro and Massaad this Court reviewed this is exact same issue,

whether Wells Fargo’s forcible-detainer action was barred by the two-year statute of

limitations [under Texas Civil Practice and Remedies Code section 16.003]. See

Montenegro, 2015 WL 3543055, at *3; Massaad, 2015 WL 410514, at *1. The

appellants in both of these cases asserted that Wells Fargo’s cause accrued the date

5 after which appellants failed to vacate the property after Wells Fargo provided them

with its first notice to vacate, and the present forcible detainer action brought after

limitations expired was barred. Id. The Court reasoned [agreeing with the Pham

Court’s conclusion], the Texas Property Code provides that a forcible detainer is

committed when a person refuses to surrender possession of real property on demand

if a property demand for possession is made in writing by a person entitled to

possession of the property. See TEX. PROP. CODE § 24.002; Massaad, 2015 WL

410514, at *1. The Court concluded that each refusal to surrender possession of real

property on written demand for possession constitutes a new forcible detainer.

Massaad, 2015 WL 410514, at *1.

Here, when Custer refused to vacate the property after she received the written

notice from Wells Fargo on July 2, 2014, she committed a forcible detainer, which

gave rise to a new and independent case of action. (CR 166-187; 3 RR 8-35);

Massaad, 2015 WL 410514, at *1. Wells Fargo filed it sworn complaint for forcible

detainer on September 29, 2014, which was well within the two-year statute of

limitations for bringing such action. (CR 108-109; 146-147; 161-198). The

September 29, 2014 suit was a new and independent action to determine whether

Custer or Wells Fargo had the superior right to immediate possession of the Property

at the time the suit was filed. Massaad, 2015 WL 410514, at *1; citing Puentes v.

Fannie Mae, 350 S.W.3d 732, 739 (Tex. App.—El Paso 2011, pet. dism’d).

6 II. Custer has Waived her Constitutional Challenges and Defense of Laches. Custer includes in her brief discussion of violations of the Texas Constitution

and asserts the defense of laches. (Brief at 13-17). The Court need not examine these

principles because Custer has waived these arguments in two different ways.

First, Custer has not preserved any of these arguments for review because she

failed to raise them in the court below. See TEX. R. APP. P. 33.1(a). Second, although

Custer has provided citations to authorities, she has failed to make “a clear and

concise argument for the contentions made, with appropriate citations . . . to the

record.” TEX. R. APP. P. 38.1(i).

Therefore, these issues raised for the first time on appeal by Custer should be

overruled for failure to preserve error for appeal.

PRAYER For the reasons stated above, Wells Fargo Bank, N.A. respectfully prays that

the Court affirm the judgment of the county court awarding immediate possession

of the property to Wells Fargo.

7 Respectfully submitted,

/s/ Sammy Hooda Sammy Hooda State Bar No. 24064032 sammy.hooda@buckleymadole.com Buckley Madole 14841 Dallas Parkway, Suite 425 Dallas, Texas 75242 Telephone: 972-643-6600 Facsimile: 972-643-6699

Attorneys for Appellee

CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume limitation of TEX. R. APP. P. 9.4(i)(2)(B) because it contains 2,333 words, excluding the parts of the brief exempted by TEX. R. APP. P. 9.4(i)(1).

2. This brief complies with the typeface requirements of TEX. R. APP. P. 9.4(e) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2013 in 14 point Times New Roman font (and 12 point for footnotes).

/s/ Sammy Hooda Sammy Hooda

8 CERTIFICATE OF SERVICE

The undersigned certifies that a copy of this Brief for Appellee was served by certified mail, return receipt requested on the 22nd day of October, 2015 on the following:

Collette Custer 20433 Rita Blanca Circle Pflugerville, Texas 78660

/s/ Sammy Hooda Sammy Hooda