Leslie M. Ellis and All Occupants v. Fremont Investment and Loan
This text of Leslie M. Ellis and All Occupants v. Fremont Investment and Loan (Leslie M. Ellis and All Occupants v. Fremont Investment and Loan) 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.
Opinion
COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 2-06-414-CV
LESLIE M. ELLIS AND APPELLANTS ALL OTHER OCCUPANTS V.
FREMONT INVESTMENT AND LOAN APPELLEE
------------
FROM COUNTY COURT AT LAW NO. 2 OF DENTON COUNTY
MEMORANDUM OPINION 1
I. Introduction
In two issues, Appellants Leslie M. Ellis and All Other Occupants (“Ellis”)
assert, as best we can surmise,2 that they improperly lost possession of
property they occupied because (1) a notice requirement of Texas Property
1 … See T EX. R. A PP. P. 47.4. 2 … Ellis appears pro se, as she did in the justice court and the county court at law. Code section 24.005 was not complied with 3 and (2) the property was
inadequately described in the “petition.”
II. Factual and Procedural History
On May 2, 2006, Appellee Fremont Investment and Loan (“Fremont”)
purchased a foreclosure property, 1400 Oakcrest, Aubrey, Denton County,
Texas (“the Property”), described more specifically as:
LOT 63, BLOCK “W,” OF PROVIDENCE, PHASE 4, AN ADDITION TO THE CITY OF AUBREY, DENTON COUNTY, TEXAS, ACCORDING TO THE MAP THEREOF RECORDED IN CABINET “V,” PAGE 246, OF THE MAP RECORDS OF DENTON COUNTY, TEXAS.
On August 10, 2006, Fremont filed suit against Ellis in the Justice of the Peace
Court, Precinct 5, Denton County, for forcible detainer under chapter 24 of the
Texas Property Code, seeking possession of the Property. On August 21,
3 … Section 24.005 of the property code provides in relevant part:
(b) If the occupant is a tenant at will or by sufferance, the landlord must give the tenant at least three days’ written notice to vacate[.]
....
(f) The notice to vacate shall be given in person or by mail at the premises in question. . . . Notice by mail may be by regular mail, by registered mail, or by certified mail, return receipt requested, to the premises in question.
T EX. P ROP. C ODE A NN. § 24.005(b), (f) (Vernon 2000).
2 2006, Ellis, without filing a written answer, appeared for a trial to the bench,
wherein a judgment for possession in favor of Fremont was signed. Ellis then
appealed the decision and the case was assigned to County Court at Law No.
2, Denton County.
On September 12, 2006, the Denton County Clerk gave notice, through
a letter, to Ellis that the transcript from the Justice of the Peace case had been
filed in the County Court at Law No. 2 and that Ellis should file a written
answer within eight days. Ellis never filed a written answer. On November 8,
2006, the case was called to trial in the County Court of Law No. 2. Ellis
appeared but failed to contest any part of Fremont’s case. Specifically, Ellis
failed to object to the evidence offered by Fremont, and the county court
admitted into evidence Fremont’s “Trustee’s Deed” and “Notice to Vacate.”
On examination, and after the county court admitted Fremont’s exhibits,
Ellis testified as follows:
Q: Would you introduce yourself for the record?
A: Leslie M. Ellis.
Q: And you live at this property in question; is that correct?
A: Yes, sir.
Q: And the property was foreclosed on; is that right?
3 ....
Q: Did you receive a notice to vacate the property?
The county court granted the relief sought by Fremont and signed a
judgment in favor of Fremont for possession of the Property. This appeal
followed.
III. Analysis
As previously recounted, although she appeared at the trials, Ellis did not
file a written answer and did not contest the evidence Fremont presented in the
county court.
Strictly speaking, a judgment rendered against a defendant who appears but does not file an answer is . . . a judgment nihil dicit. Nihil dicit literally means “he says nothing,” that is, “defendant says nothing.” A defendant who appears, but does not put the merits of the plaintiff’s case at issue, is subject to judgment nihil dicit. . . . A judgment nihil dicit is, in its effect, similar to a no-answer default judgment. However, a judgment nihil dicit “carries an even stronger confession than the default judgment.” The submission to a judgment nihil dicit “is an abandonment of every known defense or any defense which ordinary diligence could have disclosed.”
Rose v. Rose, 117 S.W.3d 84, 88 (Tex. App.—Waco 2003, no pet.) (citations
omitted).
An examination of the record first leads us to the “Complaint for Forcible
Detainer and Original Petition.” This petition describes the Property in
4 accordance with the legal description found in the deed of trust (Exhibit A to
the petition), which identifies the Property as 1400 Oakcrest Drive, Aubrey,
Texas 76227, the same address where Ellis was served with the petition.
Exhibits B and C to the petition are each a “Notice to Vacate Premises” sent by
certified mail and first class mail to “Mr. Leslie M. Ellis” and to “All Other
Occupants,” at 1400 Oakcrest Drive, Aubrey, Texas. In one part of Ellis’s brief
to this court, Ellis complains of receiving no notice at all and in another place,
complains that “[p]laintiff did not give [d]efendants written notice pursuant to
24.001 et eq. [sic] of the Texas Property Code,” without describing what the
statutory deficiency may be. The documentary evidence, however, belies these
complaints because, in the county court, Ellis admitted receiving notice to
vacate the property.
Ellis cites to two cases in Texas jurisprudence. Granberry v. Storey, 127
S.W . 1122 (Tex. Civ. App. 1910, no writ), Ellis informs us, stands for the
proposition that “[a]n objection that the property sought to be recovered in
forcible entry and detainer was insufficiently described in the complaint can be
first made on appeal.” Not so. The case actually says that:
[t]he objection to the judgment, made for the first time in the motion now being considered, that the description in appellee’s complaint of the premises in controversy was insufficient, if meritorious, which we do not concede it to be, comes too late. It should have been made, in the first instance, by an exception to
5 complaint urged in the trial court, where, had it been found to be well taken, the complaint could have been amended.
Id. at 1125 (op. on reh’g).
Ellis also cites Steele v. Steele, 2 Willson 299, 1884 WL 8338 (Tex. Ct.
App. 1884), apparently for some proposition concerning an exhibit attached to
a “complaint for forcible detainer,” which “did not contain a full and specific
description of the premises.” In Steele, the court found nothing objectionable
where the complaint described the premises by referring to an exhibit which
contained a full and specific description of the premises, and “[t]he description
of the premises [was] merely for identification, and [was] not such matter as
is required to be formally averred.” Id. at *2. Whatever point Ellis is trying to
make through this citation, it is not relevant to the facts before us because
there is a complete legal description in the petition. The issues which appear
to be raised by Ellis are without merit. We overrule them.
IV. Conclusion
Having overruled the issues raised by Ellis, we affirm the judgment of the
trial court.
PER CURIAM
PANEL F: MCCOY, J.; CAYCE, C.J.; and WALKER, J.
DELIVERED: May 22, 2008
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