Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-13-00141-CV
Marilyn STEWART, Appellant
v. Warren Properties, \ WARREN PROPERTIES, INC., Agent for Vineyard Garden Apartments, Appellee
From the County Court at Law No. 9, Bexar County, Texas Trial Court No. 383509 Honorable Walden Shelton, Judge Presiding
Opinion by: Luz Elena D. Chapa, Justice
Sitting: Catherine Stone, Chief Justice Karen Angelini, Justice Luz Elena D. Chapa, Justice
Delivered and Filed: February 5, 2014
VACATED IN PART AND AFFIRMED IN PART
This is an appeal from the county court at law’s judgment in a forcible detainer action
against Marilyn Stewart. The judgment granted possession of the property to Warren Properties,
Inc., as agent of Vineyard Garden Apartments, awarded it past-due rent in the net amount of
$1,503.00, and awarded it attorney’s fees in the amount of $650.00. We vacate the part of the trial
court’s judgment awarding possession because that issue is moot, and otherwise affirm the
judgment. 04-13-00141-CV
Warren Properties filed the forcible detainer action in December 2012, alleging Stewart
remained on the property after having been given written notice to vacate for failure to pay rent
when due. The justice court rendered judgment for Warren Properties, and Stewart appealed by
filing an uncontested affidavit of indigence and paying $759.00 into the registry of the court. See
TEX. PROP. CODE ANN. § 24.0053(a-1) (West Supp. 2013); TEX. R. CIV. P. 510.9(c)(5)(B)(i)
(formerly Texas Rule of Civil Procedure 749b(1)).
The county court at law conducted a de novo trial in February 2013. The apartment
manager, Sharon Tovar, testified Stewart signed a rental agreement in March 2012. The agreement
is for a month-to-month tenancy and provides that rent is due on the first day of the month. Tovar
testified that the agreement originally stated rent was $754.00 a month, but was changed in March
2012 to state $759.00. Tovar testified Stewart’s November 2012 rent was paid late, and no rent
was paid for December. She gave Stewart a written notice to vacate in early December because
the rent was due and unpaid. As of the date of trial, Stewart remained in the apartment, but had
not paid the rent due for December 2012, January 2013, or February 2013. Stewart did not make
any further rent payments into the registry of the county court while the de novo appeal was
pending. See TEX. PROP. CODE ANN. §§ 24.0053(b), 24.0054 (West Supp. 2013); TEX. R. CIV. P.
510.9(c)(5)(B)(ii) (formerly Texas Rule of Civil Procedure 749b(2)).
On cross-examination, Tovar acknowledged that Stewart had been a good tenant. She also
testified that Stewart had proposed to make her rent payments in two installments during the
month. Tovar testified that Warren Properties does not accept partial payments and that she so
told Stewart.
Tovar further testified that the rental agreement provides that if it is necessary to file suit,
Warren Properties may recover its attorney’s fees. Counsel for Warren Properties testified about
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his qualifications and experience in these types of cases. He further testified that a reasonable fee
for the work he performed in the case, both in the justice court and in the county court, is $650.00.
The county court at law rendered judgment in favor of Warren Properties. The court
awarded Warren Properties: (1) possession of the premises; (2) three months’ rent at a rate of
$754.00 per month; and (3) attorney’s fees of $650.00. The court ordered Stewart to vacate the
apartment by March 4. The judgment, signed February 22, 2013, ordered that the $759.00 in the
registry of the court be paid to Warren Properties and credited against the judgment. In addition,
the court awarded Warren Properties its taxable costs. No findings of fact and conclusions of law
were requested or made.
Stewart filed an affidavit of indigence and a notice of appeal. Subsequently, on March 1,
2013, the parties agreed Stewart would vacate the premises before March 11 and that a writ of
possession would not be executed before that date. The agreement was reduced to writing, signed
by both parties, and filed with the court. Stewart eventually vacated the premises. On appeal,
Stewart contends generally that the record does not support the judgment.
STANDARD OF REVIEW
When the trial court has not made express findings of fact, it is implied that the trial court
made all necessary findings to support its judgment. Worford v. Stamper, 801 S.W.2d 108, 109
(Tex. 1990). We may review the implied findings for legal and factual sufficiency. Holt Atherton
Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992).
In reviewing the legal sufficiency of the court’s implied findings, we credit favorable
evidence that a reasonable factfinder could and disregard contrary evidence unless a reasonable
factfinder could not. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). If there is
more than a scintilla of evidence to support the finding, the no-evidence challenge fails. BMC
Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002). The evidence is factually -3- 04-13-00141-CV
insufficient only if, considering all of the evidence in the record, the trial court’s findings are so
against the great weight and preponderance of the evidence as to be clearly wrong and unjust.
Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996) (per curiam); Flying J Inc. v. Meda, Inc., 373
S.W.3d 680, 690-91 (Tex. App.—San Antonio 2012, no pet.).
DISCUSSION
Possession
Stewart first contends the trial court erred in awarding possession to Warren Properties
because she should have been able to pay her rent in two installments, the stove in her apartment
did not work properly, the rent charged was substantially higher than market value, and Warren
Properties had accepted late payments in the past. 1 Warren Properties argues the issue of
possession is moot.
A judgment of possession in a forcible detainer action is solely a determination of the right
to immediate possession of the premises; it is not intended to be a final determination of whether
the eviction was wrongful. Marshall v. Housing Auth. of the City of San Antonio, 198 S.W.3d 782,
787 (Tex. 2006); see TEX. PROP. CODE ANN. § 24.008 (West 2000) (“[A]n eviction suit does not
bar a suit for trespass, damages, waste, rent, or mesne profits.”). Where there is no live controversy
between the parties as to a current right to immediately possess the property, the issue of possession
is moot. Marshall, 198 S.W.3d at 787.
Stewart’s month-to-month rental agreement has long expired and she does not contest
Warren Properties’ assertions that no writ of possession was ever executed and that Stewart
vacated the premises in March 2013. She does not present any basis for claiming a right to current,
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Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-13-00141-CV
Marilyn STEWART, Appellant
v. Warren Properties, \ WARREN PROPERTIES, INC., Agent for Vineyard Garden Apartments, Appellee
From the County Court at Law No. 9, Bexar County, Texas Trial Court No. 383509 Honorable Walden Shelton, Judge Presiding
Opinion by: Luz Elena D. Chapa, Justice
Sitting: Catherine Stone, Chief Justice Karen Angelini, Justice Luz Elena D. Chapa, Justice
Delivered and Filed: February 5, 2014
VACATED IN PART AND AFFIRMED IN PART
This is an appeal from the county court at law’s judgment in a forcible detainer action
against Marilyn Stewart. The judgment granted possession of the property to Warren Properties,
Inc., as agent of Vineyard Garden Apartments, awarded it past-due rent in the net amount of
$1,503.00, and awarded it attorney’s fees in the amount of $650.00. We vacate the part of the trial
court’s judgment awarding possession because that issue is moot, and otherwise affirm the
judgment. 04-13-00141-CV
Warren Properties filed the forcible detainer action in December 2012, alleging Stewart
remained on the property after having been given written notice to vacate for failure to pay rent
when due. The justice court rendered judgment for Warren Properties, and Stewart appealed by
filing an uncontested affidavit of indigence and paying $759.00 into the registry of the court. See
TEX. PROP. CODE ANN. § 24.0053(a-1) (West Supp. 2013); TEX. R. CIV. P. 510.9(c)(5)(B)(i)
(formerly Texas Rule of Civil Procedure 749b(1)).
The county court at law conducted a de novo trial in February 2013. The apartment
manager, Sharon Tovar, testified Stewart signed a rental agreement in March 2012. The agreement
is for a month-to-month tenancy and provides that rent is due on the first day of the month. Tovar
testified that the agreement originally stated rent was $754.00 a month, but was changed in March
2012 to state $759.00. Tovar testified Stewart’s November 2012 rent was paid late, and no rent
was paid for December. She gave Stewart a written notice to vacate in early December because
the rent was due and unpaid. As of the date of trial, Stewart remained in the apartment, but had
not paid the rent due for December 2012, January 2013, or February 2013. Stewart did not make
any further rent payments into the registry of the county court while the de novo appeal was
pending. See TEX. PROP. CODE ANN. §§ 24.0053(b), 24.0054 (West Supp. 2013); TEX. R. CIV. P.
510.9(c)(5)(B)(ii) (formerly Texas Rule of Civil Procedure 749b(2)).
On cross-examination, Tovar acknowledged that Stewart had been a good tenant. She also
testified that Stewart had proposed to make her rent payments in two installments during the
month. Tovar testified that Warren Properties does not accept partial payments and that she so
told Stewart.
Tovar further testified that the rental agreement provides that if it is necessary to file suit,
Warren Properties may recover its attorney’s fees. Counsel for Warren Properties testified about
-2- 04-13-00141-CV
his qualifications and experience in these types of cases. He further testified that a reasonable fee
for the work he performed in the case, both in the justice court and in the county court, is $650.00.
The county court at law rendered judgment in favor of Warren Properties. The court
awarded Warren Properties: (1) possession of the premises; (2) three months’ rent at a rate of
$754.00 per month; and (3) attorney’s fees of $650.00. The court ordered Stewart to vacate the
apartment by March 4. The judgment, signed February 22, 2013, ordered that the $759.00 in the
registry of the court be paid to Warren Properties and credited against the judgment. In addition,
the court awarded Warren Properties its taxable costs. No findings of fact and conclusions of law
were requested or made.
Stewart filed an affidavit of indigence and a notice of appeal. Subsequently, on March 1,
2013, the parties agreed Stewart would vacate the premises before March 11 and that a writ of
possession would not be executed before that date. The agreement was reduced to writing, signed
by both parties, and filed with the court. Stewart eventually vacated the premises. On appeal,
Stewart contends generally that the record does not support the judgment.
STANDARD OF REVIEW
When the trial court has not made express findings of fact, it is implied that the trial court
made all necessary findings to support its judgment. Worford v. Stamper, 801 S.W.2d 108, 109
(Tex. 1990). We may review the implied findings for legal and factual sufficiency. Holt Atherton
Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992).
In reviewing the legal sufficiency of the court’s implied findings, we credit favorable
evidence that a reasonable factfinder could and disregard contrary evidence unless a reasonable
factfinder could not. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). If there is
more than a scintilla of evidence to support the finding, the no-evidence challenge fails. BMC
Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002). The evidence is factually -3- 04-13-00141-CV
insufficient only if, considering all of the evidence in the record, the trial court’s findings are so
against the great weight and preponderance of the evidence as to be clearly wrong and unjust.
Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996) (per curiam); Flying J Inc. v. Meda, Inc., 373
S.W.3d 680, 690-91 (Tex. App.—San Antonio 2012, no pet.).
DISCUSSION
Possession
Stewart first contends the trial court erred in awarding possession to Warren Properties
because she should have been able to pay her rent in two installments, the stove in her apartment
did not work properly, the rent charged was substantially higher than market value, and Warren
Properties had accepted late payments in the past. 1 Warren Properties argues the issue of
possession is moot.
A judgment of possession in a forcible detainer action is solely a determination of the right
to immediate possession of the premises; it is not intended to be a final determination of whether
the eviction was wrongful. Marshall v. Housing Auth. of the City of San Antonio, 198 S.W.3d 782,
787 (Tex. 2006); see TEX. PROP. CODE ANN. § 24.008 (West 2000) (“[A]n eviction suit does not
bar a suit for trespass, damages, waste, rent, or mesne profits.”). Where there is no live controversy
between the parties as to a current right to immediately possess the property, the issue of possession
is moot. Marshall, 198 S.W.3d at 787.
Stewart’s month-to-month rental agreement has long expired and she does not contest
Warren Properties’ assertions that no writ of possession was ever executed and that Stewart
vacated the premises in March 2013. She does not present any basis for claiming a right to current,
1 The record contains no evidence about the market value of the apartment or whether Warren Properties regularly accepted late payments, nor is there evidence the apartment was not habitable. We also note that the rental agreement required payment in full on the first day of the month and Stewart has cited no authority that a landlord must accept installment payments of rent.
-4- 04-13-00141-CV
actual possession of the premises. Under these circumstances, the issue of possession of the
premises is moot. See id. The proper disposition of the claim for possession is to vacate that part
of the judgment. See id. at 790; Cavazos v. San Antonio Housing Auth., No. 04-09-00659-CV,
2010 WL 2772450, at *2 (Tex. App.—San Antonio July 14, 2010, no pet.).
Award of rent
Stewart next complains about the amount of rent awarded in the judgment. The
uncontroverted evidence at trial was that Warren Properties did not receive rent payment for the
months of December 2012, January 2013, or February 2013. Stewart remained in possession of
the apartment until after the February 22, 2013 trial and therefore owed rent for those months. She
also complains of confusion in the record about whether her rent was $754.00 or $759.00 per
month. The evidence was that Stewart’s rental agreement originally stated $754.00, but was
corrected or amended in March 2012 to state rent was $759.00 per month. 2 Nevertheless, any
confusion in the record was resolved in Stewart’s favor because the trial court awarded rent at the
rate of $754.00 per month.
The judgment against Stewart for three months’ rent at $754 per month, with a credit for
the $759 that she paid into the registry of the court, is supported by more than a scintilla of evidence
and is not so against the great weight and preponderance of the evidence as to be clearly wrong
and unjust.
Attorney’s fees and costs
Stewart next complains of the trial court’s award of attorney’s fees and costs. The rental
agreement provided that Stewart would be liable for reasonable attorney’s fees and costs if Warren
Properties was required to file a suit for eviction. See TEX. PROP. CODE ANN. § 24.006(b), (d)
2 In her brief, Stewart asserts that she was denied the opportunity to call a witness who would testify differently. The record does not support the assertion.
-5- 04-13-00141-CV
(West 2000) (where written lease so provides, landlord entitled to recover reasonable attorney’s
fees, and prevailing party is entitled to recover costs of court); see also TEX. R. CIV. P. 510.11
(recoverable attorney’s fees include fees incurred in both justice and county courts) (formerly
Texas Rule of Civil Procedure 752).
The record contains legally and factually sufficient evidence that Stewart contractually
obligated herself to pay attorney’s fees and costs of court and that $650.00 is a reasonable
attorney’s fee. Stewart does not present any legal basis for reversing the award.
CONCLUSION
We vacate the trial court’s judgment of possession because the issue is moot. We affirm
the trial court’s judgment in favor of Warren Properties for rent in the net amount of $1,503.00,
attorney’s fees of $650.00, costs, and post-judgment interest.
Luz Elena D. Chapa, Justice
-6-