Judith Holmes v. Shirley Al Jaafreh

CourtCourt of Appeals of Texas
DecidedMay 30, 2013
Docket10-11-00313-CV
StatusPublished

This text of Judith Holmes v. Shirley Al Jaafreh (Judith Holmes v. Shirley Al Jaafreh) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Judith Holmes v. Shirley Al Jaafreh, (Tex. Ct. App. 2013).

Opinion

IN THE TENTH COURT OF APPEALS

Nos. 10-11-00148-CV, 10-11-00149-CV, 10-11-00150-CV, 10-11-151-CV, 10-11-00152-CV, 10-11-00153-CV, 10-11-00154-CV, and 10-11-00313-CV

JUDITH HOCE HOLMES, Appellant v.

SHIRLEY AL JAAFREH, Appellee

From the County Court at Law Walker County, Texas Trial Court Nos. 10499CV, 10500CV, 10501CV, 10517CV, 10518CV, 10519CV, 10520CV, and 10537CV

MEMORANDUM OPINION

On February 7, 2011, Appellant Judith Hoce Holmes filed three sworn

complaints in justice court against Appellee Shirley Al Jaafreh, her then-landlord,

seeking writs of restoration under Property Code section 92.0091 and statutory damages

of $500 in each case for utility interruption under Property Code section 92.008. A week

later, on February 14, Holmes filed four more similar complaints. After the justice court denied relief in each case, Holmes appealed all seven cases to the county court, where a

trial de novo occurred with Holmes proceeding pro se (as she is in these appeals). The

county court denied relief in each case, and Holmes appeals all seven cases.

In an eighth case filed on March 4 in justice court, Holmes sued Al Jaafreh for

landlord retaliation under Property Code section 92.331. The justice court denied relief,

and Holmes appealed to the county court, which denied relief after a trial de novo.

Holmes also appeals that case.

Utility Interruption

In each of the first seven appeals, Holmes asserts two identical issues: (1) the

trial court improperly consolidated and heard all seven cases together; and (2) the

evidence is legally and factually insufficient to support the trial court’s judgment.

Consolidation

Holmes’s first issue in these seven cases asserts that hearing all seven cases

together caused her confusion and prevented her from fully developing and presenting

each case. The trial court heard the cases over two consecutive days in a bench trial.

On the first day, the trial court heard Holmes’s case-in-chief on her first three cases.

Only Holmes testified on the first day because Al Jaafreh was not present (though her

attorney was present). On the second day, Al Jaafreh testified in defense of the first

three cases, and then Holmes presented her other four cases.

At no time during the two days of trial did Holmes object to the trial court’s

hearing all seven cases together. In fact, at the beginning of trial, the trial court asked

Holmes if the first three cases were all related, and Holmes replied: “They’re all related

Holmes v. Al Jaafreh Page 2 -- … Different facts on different -- but they’re all restoration of utilities.” The trial

court then said: “Okay, all right. Well, try to cover all three; okay?” Holmes replied:

“Well I need to talk about each of them individually, and I have put a copy of the Texas

Property Code, Chapter 92.”

Furthermore, on the second day of trial, Al Jaafreh asked to have the exhibits that

had been admitted in the first three cases admitted in the four other cases, and Holmes

agreed to that. Holmes thus cannot complain on appeal about all seven cases being

heard together. See Boufaissal v. Boufaissal, 251 S.W.3d 160, 162 (Tex. App.—Dallas 2008,

no pet.) (“a party will not be allowed to complain on appeal of an action or ruling which

she invited or induced”). And by not objecting in the trial court, Holmes failed to

preserve her complaint for appellate review. See TEX. R. APP. P. 33.1(a); Hudson v.

Comm’n for Lawyer Discipline, No. 05-07-00775-CV, 2009 WL 225386, at *1 (Tex. App.—

Dallas Feb. 2, 2009, pet. denied) (mem. op.) (holding party failed to preserve complaint

about consolidation by never objecting in trial court); Thomas v. Parker, No. 14-97-00835-

CV, 2000 WL 280293, at *3 (Tex. App.—Houston [14th Dist.] Mar. 16, 2000, no pet.) (not

designated for publication) (“Appellant has waived this complaint by failing to object at

trial to the consolidation.”). We overrule issue one in the first seven appeals.

Sufficiency of the Evidence

In her second issue in the first seven appeals, Holmes asserts that the evidence is

legally and factually insufficient to support the judgment. Holmes, as the plaintiff, had

the burden of proof. When the party that had the burden of proof at trial complains of

the legal insufficiency of an adverse finding, that party must demonstrate that the

Holmes v. Al Jaafreh Page 3 evidence establishes conclusively, i.e., as a matter of law, all vital facts in support of the

finding sought. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). In reviewing

the adverse findings for the legal sufficiency of the evidence, we consider all of the

evidence in the light most favorable to the prevailing party, “crediting favorable

evidence if reasonable jurors could, and disregarding contrary evidence unless

reasonable jurors could not.” City of Keller v. Wilson, 168 S.W.3d 802, 808 (Tex. 2005).

Thus, because this was a bench trial, we must credit favorable evidence for Al Jaafreh if

a reasonable factfinder could, and disregard evidence contrary to the factfinder’s

findings. Moreover, we must not substitute our opinion on witness credibility for that

of the factfinder. See id. at 816-17.

When the party complaining of the factual sufficiency of the evidence had the

burden of proof at trial, it must demonstrate that the adverse finding is contrary to the

great weight and preponderance of the evidence. Francis, 46 S.W.3d at 242. We weigh

all the evidence, and we can set aside the adverse finding only if it is so against the

great weight and preponderance of the evidence that it is clearly wrong and unjust. Id.

In doing so, we must detail the evidence and state in what regard the contrary evidence

greatly outweighs the evidence in support of the adverse finding. Id.

We must also remember that it is within the province of the jury to determine the credibility of the witnesses and the weight to be given their testimony. Brush v. Reata Oil & Gas Corp., 984 S.W.2d 720, 725-26 (Tex. App.—Waco 1998, pet. denied). The trier of fact may believe one witness and disbelieve another. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). It may resolve inconsistencies in the testimony of a witness, and it may accept lay testimony over that of experts. Id. We may not pass upon a witness’s credibility or substitute our judgment for that of the jury, even if the evidence might clearly support a different result. Maritime Overseas

Holmes v. Al Jaafreh Page 4 Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998) (citing Pool v. Ford Motor Co., 715 S.W.2d 629, 634 (Tex. 1986)).

O’Connor v. Wilson, 127 S.W.3d 249, 254 (Tex. App.—Waco 2003, pet. denied).

Section 92.008 of the Property Code provides in pertinent part:

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Related

Pool v. Ford Motor Co.
715 S.W.2d 629 (Texas Supreme Court, 1986)
Dow Chemical Co. v. Francis
46 S.W.3d 237 (Texas Supreme Court, 2001)
Maritime Overseas Corp. v. Ellis
971 S.W.2d 402 (Texas Supreme Court, 1998)
Strange v. Continental Casualty Co.
126 S.W.3d 676 (Court of Appeals of Texas, 2004)
O'CONNOR v. Miller
127 S.W.3d 249 (Court of Appeals of Texas, 2003)
City of Keller v. Wilson
168 S.W.3d 802 (Texas Supreme Court, 2005)
Boufaissal v. Boufaissal
251 S.W.3d 160 (Court of Appeals of Texas, 2008)
McGalliard v. Kuhlmann
722 S.W.2d 694 (Texas Supreme Court, 1986)
Brush v. Reata Oil & Gas Corp.
984 S.W.2d 720 (Court of Appeals of Texas, 1998)

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Judith Holmes v. Shirley Al Jaafreh, Counsel Stack Legal Research, https://law.counselstack.com/opinion/judith-holmes-v-shirley-al-jaafreh-texapp-2013.