COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS
NESTOR MENDOZA, JR., § No. 08-17-00117-CV Appellant, § Appeal from the v. § County Court ANNIE MARIE BAZAN, § of Hudspeth County, Texas Appellee. § (TC# CV-570) §
OPINION
Nestor Mendoza Jr. appeals a judgment of eviction and monetary award of unpaid rent
following a forcible detainer suit by Annie Marie Bazan. Mendoza raises eight issues challenging
not only the subject-matter jurisdiction of the courts below, but also the judgment of possession
and unpaid rent. We affirm.
BACKGROUND
In 2003, Annie Bazan (Bazan) and her former husband, Eric Bazan,1 contracted to buy a
home located at 700 and 704 Sierra Blanca Avenue in Sierra Blanca, Texas, (the property), from
the Sierra Blanca Community Development Corporation (CDC), a non-profit corporation.
1 According to a letter from Bazan’s attorney, Bazan’s former husband, Eric Bazan, granted all his interest in the property to Bazan. Although the parties signed a sales contract, the record suggests no closing on the sale ever took
place. According to Bazan’s later testimony and a letter from her attorney, Bazan nevertheless
made ongoing payments to the Bank of Sierra Blanca to purchase the property, and she lived there
for some years. At some point, the Bank of Sierra Blanca informed Bazan that it could no longer
accept payments and it later “folded.” For a time, Bazan’s original note was transferred to Trans
Pecos Bank, but soon, this bank also refused to accept payments from her. While it is unclear
exactly what occurred, the record contains references to the temporary dissolution of the CDC and
its “reinstate[ment]” at some point around this time period.
In 2007, Bazan leased the property to Denise and Nestor Mendoza. Although Nestor
Mendoza (Mendoza) himself did not sign the lease, both he and Denise were listed as prospective
lessees on the agreement which contained Denise’s signature. Two years later, in 2009, Bazan
and the couple entered a second lease for a one-year term that required a monthly rent in the amount
of $500. In the event of default, the lease provided for remedies including “any other recovery to
which Landlord is entitled by law or in equity.” As before, Denise signed the lease agreement,
but Mendoza’s signature is not present.
According to both parties, the Mendozas occupied the property during the term of the 2009
lease and paid rent consistent with the terms of that agreement up until early 2010. The record
suggests that on or about April 20, 2010, Bazan sent a letter of eviction addressed to Denise and
Nestor Mendoza. The record also contains a letter from Bazan’s attorney addressed to the
Mendozas’ attorney. This letter informed the Mendozas they were delinquent in rental payments.
It also warned that if they did not bring their payments current, Bazan would file a suit for forcible
detainer and entry. Bazan then received a letter from an attorney who identified himself as
2 representing both Denise and Nestor Mendoza. The letter claimed that Bazan did not hold legal
title to the property and alleged that Bazan had engaged in fraudulent conduct by accepting their
rent payments. In response, Bazan’s attorney sent a letter to the Mendozas demanding that rent
be paid or they would face eviction by forcible entry and detainer.2
In 2010, when the Mendozas neither vacated the premises nor made rental payments, Bazan
instituted her first forcible entry and detainer suit against them. In this suit, the justice court
entered a take-nothing judgment against Bazan for reasons that are not clear from the record, and
she was unsuccessful in overturning the judgment following a direct appeal and subsequent bill of
review filed with the county court. In January 2015, the Mendozas signed and recorded a
“Homestead Designation and Adverse Possession Affidavit.” In December 2015, the CDC issued
Bazan a warranty deed for the property after the CDC’s reinstatement, which was signed by the
Director of the CDC.
In June 2016, Bazan filed her second forcible detainer action against the Mendozas,
contending they were wrongfully occupying the property. Bazan asked the justice court to restore
possession of the property to her and to award damages for unpaid rent and attorney’s fees. The
justice court rendered judgment restoring possession of the property to Bazan, damages for unpaid
rent totaling $10,000, prejudgment interest, and court costs. The Mendozas filed an appeal in the
County Court of Hudspeth County, which conducted a trial de novo. During the trial, Bazan
testified that she was not aware of Mendoza paying taxes on the property, but instead claimed that
she herself had paid them. On direct examination, Mendoza acknowledged through his testimony
2 A tenant commits forcible detainer by refusing to surrender possession of real property after the landlord has lawfully terminated the tenant’s right to possession. See TEX. PROP. CODE ANN. § 24.002(a).
3 that he did not ever acquire a deed to the property, but nonetheless, he claimed he also paid taxes
on the property. Mendoza also admitted he received notice to vacate the property before the
proceeding.
After taking the case under advisement, the county court entered the same judgment as the
justice court. Nestor Mendoza then filed this appeal of the county court’s ruling against him.
DISCUSSION
Mendoza raises eight issues on appeal, arguing that (1) the lower courts did not have
jurisdiction over the forcible detainer suit because the amount in controversy totaled $10,000 in
damages, plus attorney’s fees, which exceeds the maximum amount in controversy permitted in a
suit filed in those courts; (2) the lower courts lacked subject-matter jurisdiction over the suit
because no landlord-tenant relationship existed between the parties, and because other disputed
title issues were intertwined with the right of possession issue; (3) the trial court erred by
considering Bazan’s warranty deed and testimony because the deed did not exist at the time
Mendoza breached the lease agreement; (4) Bazan’s award for $10,000 in unpaid rent should be
vacated because the two-year statute of limitations period for bringing a forcible detainer action
for unpaid rent had expired; (5) the evidence was factually and legally insufficient to support
Bazan’s award for unpaid rent because the lease agreement sued upon covered only a one-year
lease term; (6) the trial court erred by not granting judgment in favor of Mendoza based on res
judicata and collateral estoppel since Bazan’s attorney admitted that the same forcible detainer suit
involving the same lease agreement and real property had already been litigated by the same parties
and was decided in Mendoza’s favor; (7) the evidence was legally insufficient to support the award
of unpaid rent because Mendoza was not a party to the lease agreement; and (8) the evidence was
4 legally insufficient to prove the statutory notice to vacate element of the forcible detainer suit
because Bazan did not present evidence that three days’ written notice was given to the Mendozas
to vacate the property.
Several of Mendoza’s issues implicate related inquiries. For brevity, we will consider like
issues together.
Jurisdiction of Lower Courts
Amount in Controversy
In his first issue, Mendoza argues that both the justice court and county court below lacked
jurisdiction to hear the forcible detainer suit because the amount in controversy, when combined
with the attorney’s fees Bazan sought to recover in her pleadings, exceeded the statutory maximum
amount in controversy permitted for those courts. Mendoza bases this contention on TEX. R. CIV.
P. 500.3, which defines a “small claims case” as a suit with an amount in controversy not exceeding
$10,000, including attorney’s fees, and which further states that in an eviction case, a claim for
rent may be joined if the amount of unpaid rent sought to be recovered is not more than $10,000,
including attorney’s fees. TEX. R. CIV. P. 500.3(a), (d).
Yet, as Bazan points out in her response, Rule 816 of the Rules of Civil Procedure also
provides that the rules of procedure “shall not be construed to extend or limit the jurisdiction of
the courts of the State of Texas[.]” TEX. R. CIV. P. 816. Instead, it is the province of the
Legislature to define the jurisdiction of the justice courts, and to set the limit on the amount in
controversy permitted in those cases. See TEX. CONST. art. V, § 19 (justice courts have “such
other jurisdiction as may be provided by law”). Therefore, we must look beyond Rule 500.3 to
determine whether the justice and county courts in this instance properly maintained jurisdiction
5 over Bazan’s forcible detainer suit.
As determined by the Legislature, a justice court has jurisdiction over civil cases in which
the amount of controversy is not more than $10,000, and more specifically, also has original
jurisdiction over cases of forcible entry and detainer. TEX. GOV’T CODE ANN. § 27.031(a)(1), (2);
see also TEX. CONST. art. V, § 19 (justice courts have “such other jurisdiction as may be provided
by law”). In determining the amount in controversy, accrued interest and post-judgment
attorney’s fees are not normally considered. Serrano v. Francis Properties I, Ltd., 411 S.W.3d
661, 664 (Tex. App.—El Paso 2013, pet. dism’d w.o.j.) (citing Tarrant Restoration v. TX Arlington
Oaks Apartments, Ltd., 225 S.W.3d 721, 726 (Tex. App.—Dallas 2007, pet. dism’d w.o.j.);
Crumpton v. Stevens, 936 S.W.2d 473, 477 (Tex. App.—Fort Worth 1996, no writ)). Similarly,
the appellate jurisdiction of a statutory county court is confined to the jurisdictional limits of the
justice court, and a county court does not have appellate jurisdiction over cases originating in the
justice court if the justice court did not initially have jurisdiction. Serrano, 411 S.W.3d at 664
(citing Puentes v. Fannie Mae, 350 S.W.3d 732, 738 (Tex. App.—El Paso 2011, pet. dism’d)).
The existence of subject-matter jurisdiction is a question of law. Id. (citing State Dept. of
Highways and Public Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002)).
Here, Bazan pleaded damages in the amount of $10,000 for unpaid rent, plus attorney’s
fees and court costs. The justice and county courts awarded Bazan $10,000 in damages for the
unpaid rent, plus prejudgment interest and court costs, but did not award attorney’s fees. Since
Bazan pleaded an amount in controversy within the jurisdictional limit of the justice court, and
post-judgment attorney’s fees are not considered in determining the amount in controversy, we
hold that jurisdiction properly vested in both the justice court and county court, respectively. See
6 id.; Tarrant Restoration, 225 S.W.3d at 726; Crumpton, 936 S.W.2d at 477. Likewise, since
justice courts also have original jurisdiction over cases of forcible entry and detainer, we hold that
the justice court (and, by extension, the county court in the de novo trial below) had jurisdiction
over Bazan’s forcible detainer action for this reason as well. See TEX. GOV’T CODE ANN. §
27.031(a)(2) (“[a] justice court has original jurisdiction of . . . cases of forcible entry and detainer”);
see also TEX. R. CIV. P. 509.8(a) (a decision of a justice court may be appealed to a statutory county
court with jurisdiction over the case); Padilla v. NCJ Dev., Inc., 218 S.W.3d 811, 815 (Tex. App.—
El Paso 2007, pet. dism’d w.o.j.); Serrano, 411 S.W.3d at 664; Molinar v. Refaei, No. 08-14-
00299-CV, 2016 WL 5121988, at *1 (Tex. App.—El Paso Sept. 21, 2016, pet. denied) (mem. op.)
(forcible detainer judgments may be appealed to a county court for a de novo hearing on the issue
of possession). Mendoza’s first issue is overruled.
Landlord-Tenant Relationship and Title
In his second issue, Mendoza argues that the lower courts lacked subject-matter jurisdiction
because no landlord-tenant relationship between him and Bazan existed at the time of the filing of
Bazan’s forcible detainer suit, and because other disputed title issues were “necessarily intertwined
with the issue of who had the right of possession to the subject property.”
In a forcible detainer suit, a court must determine the right to actual possession of the
premises, but not the issue of who holds title to the premises. TEX. R. CIV. P. 510.3(e). It is well-
settled that issues of title are not adjudicated in a detainer suit, and the only issue the court must
decide is the right to immediate possession of the property. Molinar, 2016 WL 5121988, at *1
(citing Marshall v. Hous. Auth. of City of San Antonio, 198 S.W.3d 782, 785 (Tex. 2006)).
Likewise, a county court hearing a de novo trial from a justice court can only review a justice
7 court’s determination of the right to possession and may not review the issue of title. Id. (citing
Murray v. U.S. Bank Nat. Ass'n, 411 S.W.3d 926, 929 (Tex. App.—El Paso 2013, no pet.)). This
is so because a forcible detainer suit is meant to be a speedy, simple, and inexpensive means of
determining the right to possession of the premises, and the complications inherent in the
determination of title would frustrate the intended purposes of the cause of action. See Mekeel v.
U.S. Bank Nat. Ass'n, 355 S.W.3d 349, 352-53 (Tex. App.—El Paso 2011, pet. dism’d); Rice v.
Pinney, 51 S.W.3d 705, 709 (Tex. App.—Dallas 2001, no pet.).
To prevail in a forcible detainer action, a plaintiff is not required to prove title, but is only
required to show sufficient evidence of ownership to demonstrate a superior right to immediate
possession. Molinar, 2016 WL 5121988, at *2 (citing Rice, 51 S.W.3d at 709). As such, in a
forcible detainer case “[t]he mere existence of a title dispute does not deprive a justice court or
county court at law of jurisdiction,” and a justice court lacks jurisdiction only if “the right to
immediate possession necessarily requires the resolution of a title dispute” such that the issues of
title and possession are “necessarily intertwined.” Id., at *4 (emphasis added) (citing Bruce v.
Fed. Nat. Mortg. Ass’n, 352 S.W.3d 891, 893 (Tex. App.—Dallas 2011, pet. denied)); Dormady
v. Dinero Land & Cattle Co., L.C., 61 S.W.3d 555, 558–59 (Tex. App.—San Antonio 2001, pet.
dism’d w.o.j.). Thus, “a justice court is not deprived of jurisdiction merely by the existence of a
title dispute; [instead], it is deprived of jurisdiction only if resolution of a title dispute is a
prerequisite to determination of the right to immediate possession.” Yarbrough v. Household Fin.
Corp. III, 455 S.W.3d 277, 280 (Tex. App.—Houston [14th Dist.] 2015, no pet.)). Moreover,
“[s]pecific evidence of a title dispute is required to raise an issue of a justice court’s jurisdiction.”
Padilla, 218 S.W.3d at 815.
8 On appeal, Mendoza first argues that there was no landlord-tenant relationship between
Bazan and himself because the original lease had expired at the time of the second detainer suit,
and the absence of said relationship presented a title issue sufficient to divest the justice court of
jurisdiction over the case. We disagree. A forcible detainer suit is the proper method of
determining possession where, as here, a tenant holds over after the expiration of a lease without
the consent of the owner. See TEX. PROP. CODE ANN. § 24.002(a)(1) (“[a] person who refuses to
surrender possession of real property on demand commits a forcible detainer if the person . . . is a
tenant or a subtenant willfully and without force holding over after the termination of the tenant’s
right of possession.”). The record shows that Bazan acquired a deed to the property from the
CDC in 2015, a fact Mendoza does not dispute. During the de novo trial in the county court,
Mendoza did not dispute that he lacked a deed to the property; but rather, Mendoza agreed that his
only possessory claim arose from his status as a “renter.” Mendoza also admitted he had not paid
rent since prior to the institution of the first forcible detainer suit in 2010, but nevertheless claimed
that he had paid taxes on the property. It is also undisputed that Mendoza remained in possession
of the property long after the cessation of the 2009 lease as he continued residing there at the time
of the 2016 detainer suit.
Thus, as Bazan points out, the lower courts did not need to resolve a title dispute to decide
whether Mendoza originally entered the property as a tenant pursuant to a residential lease, and
thereafter held over by remaining in possession of the premises after the termination of the lease.
As such, we hold that the lower courts were not deprived of jurisdiction based on whether a
landlord-tenant relationship existed at the time the second forcible detainer suit was filed. See
TEX. PROP. CODE ANN. § 24.002(a)(1); TEX. GOV’T CODE ANN. § 27.031(a)(2).
9 Mendoza next argues that Bazan acquired a fraudulent deed from the CDC. Based on this
assertion, he argues the existing dispute over title deprived the lower courts of jurisdiction over
the case. Mendoza contends there were a “multitude of title issues” which were “necessarily
intertwined” with the issue of who held the superior right of possession over the subject property.
As to title, Mendoza asserts that the CDC issued a fraudulent deed to Bazan in 2015. Mendoza
further asserts that prior to 2015, Bazan lacked a deed or other evidence establishing her ownership
over the subject property. Mendoza argues that Bazan’s testimony did not comport with the
contract for the sale of the property, and that the CDC’s transfer of title to her was ineffective
because the CDC had been defunct for more than three years before it was later reinstated.
Finally, Mendoza contends that his claim for homestead designation and adverse possession of the
property presented another title issue which deprived both courts below of jurisdiction over the
case. We disagree.
This case is somewhat similar to the San Antonio court’s resolution of a forcible detainer
suit in Dormady, 61 S.W.3d at 558–59. There, the court held that the plaintiff-landlord
established in the justice and county courts that (1) it was the owner of the property as shown by
a deed; (2) the defendant-tenant was a tenant at sufferance; and (3) that because the lease had
expired, the landlord had the superior right to immediate possession. Id. at 558. The court also
rejected claims by the tenant that title and possession issues were necessarily intertwined so as to
preclude jurisdiction, concluding that the cases relied upon by the defendant concerned issues of
title only, and not of the right to immediate possession. Id. at 558–59.
Like the landlord in Dormady, Bazan presented evidence at trial showing that she and the
CDC had contracted for the sale of the property, that she had acquired a deed to the property in
10 2015, that the Mendozas had not paid rent in years, and that they still occupied the property as
tenants at sufferance, all of which supported her superior right to immediate possession of the
premises. See id. In contrast, we disagree with Mendoza’s claim that the unknown details of the
transaction between Bazan and the CDC voided her deed or constituted specific evidence of a title
dispute which deprived the lower courts of jurisdiction. See Padilla, 218 S.W.3d at 815.
Mendoza also argues that his claim of adverse possession to the subject property rendered
the issues of title and possession necessarily intertwined so as to preclude the justice court from
deciding the right to possession without deciding the issue of title, citing for that proposition
Gibson v. Dynegy Midstream Services, L.P., 138 S.W.3d 518, 523–24 (Tex. App.—Fort Worth
2004, no pet.). We find Gibson to be distinguishable because in that case, the tenant pleaded a
colorable adverse possession claim for the property, including by alleging that it had been in
possession of the property for longer than the statutory period. See id. In contrast, the Mendozas
entered the property here as tenants in 2009, but Bazan later filed a forcible detainer action in 2016.
Because it is undisputed that the Mendozas did not occupy the property for at least ten years,
Mendoza’s adverse possession claim was grounded in far less than the requisite ten-year period
for possession, and neither did he claim in the lower courts to have title to the property on this
basis, or in the form of a title instrument or homestead application. See TEX. CIV. PRAC. & REM.
CODE ANN. § 16.026(a) (for claimants without a title instrument to the subject property, a person
must bring an adverse possession suit not later than ten years after the day the cause of action
accrues). As such, we conclude that Gibson is distinguishable, and that Mendoza’s adverse
possession claim did not constitute specific evidence which rendered the issues of right of
possession and title so intertwined as to render the justice court without jurisdiction over the
11 forcible detainer suit. See Padilla, 218 S.W.3d at 815.
Because Mendoza did not raise a title issue necessarily intertwined with the issue of right
of immediate possession, and the determination of the right to immediate possession did not
necessarily require the justice court to resolve the question of title, we hold that the lower courts
had jurisdiction over Bazan’s forcible detainer suit. Molinar, 2016 WL 5121988, at *2, 4;
Dormady, 61 S.W.3d at 558–59; Yarbrough, 455 S.W.3d at 280. Mendoza’s second issue is
overruled.
Judgment for Possession
Trial Court’s Consideration of 2015 Deed
We next address Mendoza’s issues pertaining to the judgment for possession. In his third
issue, Mendoza argues that the trial court erred by considering Bazan’s 2015 deed and related
testimony as proof of Bazan’s title when the deed did not exist at the time of the purported breach
of the lease agreement in 2009 or 2010, and when the deed was unrecorded at the time of the
second forcible detainer suit. Yet, as Bazan points out, the issue in a forcible detainer suit is not
whether a lease has been breached, but rather who has the right to immediate possession of the
subject property at the time of suit. See Puentes, 350 S.W.3d at 738. Mendoza cites to no
authority stating that a person cannot lease property before a deed to the property is recorded, or
that the relevant inquiry is whether the landlord had the superior right to possession during the
existence of a lease. As such, since the relevant inquiry is which party has the superior right to
immediate possession of the property at the time of suit, we find Mendoza’s argument to be without
merit. See id.; Dormady, 61 S.W.3d at 558–59. Mendoza’s third issue is overruled.
Res Judicata and Collateral Estoppel
12 In his sixth issue, Mendoza argues that because Bazan and Mendoza already litigated the
issue of who had the superior right to possession in the 2010 forcible detainer suit, res judicata and
collateral estoppel barred the second forcible detainer suit as a matter of law. Res judicata and
collateral estoppel are affirmative defenses which bar the re-litigation of certain issues or cases
between parties which have already been decided. See Puentes, 350 S.W.3d at 739; Hill v.
Heritage Res., Inc., 964 S.W.2d 89, 137 (Tex. App.—El Paso 1997, pet. denied). The burden is
on the party asserting these defenses to plead and prove each defense’s respective elements. See
Hill, 964 S.W.2d at 137. A party successfully asserts a res judicata (or claim preclusion) defense
by proving the following elements: (1) a final prior judgment on the merits by a court of
competent jurisdiction; (2) the identity of the parties, or those in privity with them; and (3) a second
action based on the same claims which were raised, or could have been raised, in the first action.
Puentes, 350 S.W.3d at 739 (citing Pagosa Oil & Gas, L.L.C. v. Marrs & Smith P’ship, 323 S.W.3d
203, 215 (Tex. App.—El Paso 2010, pet. denied)). Likewise, a party successfully raises a
collateral estoppel (or issue preclusion) defense by proving (1) the facts sought to be litigated in
the second action were fully and fairly litigated in the prior action; (2) those facts were essential
to the judgment in the first action; (3) the parties were cast as adversaries in the first action.
Croysdill v. Old Republic Ins. Co., 490 S.W.3d 287, 295 (Tex. App.—El Paso 2016, no pet.) (citing
Sysco Food Services, Inc. v. Trapnell, 890 S.W.2d 796, 801 (Tex. 1994)).
This Court has previously addressed res judicata raised in a forcible detainer action in
Puentes, 350 S.W.3d at 734. There, a landlord filed a forcible detainer suit against tenants present
on the landlord’s property, but the trial court ultimately held in favor of the tenants. Id. at 734–
35. The landlord later filed a second forcible detainer action, and the tenants responded that res
13 judicata barred the second action because the trial court had previously decided the issue in the
first detainer suit. Id. at 735, 739. We rejected the tenants’ res judicata argument, reasoning that
while the two detainer suits were “seemingly identical,” a forcible detainer action is “uniquely
limited in time,” and thus the issue of which party had the superior right to possession at the time
of the second forcible detainer suit had not been previously decided in the first action. Id. at 738–
39. As such, we concluded that since an award of possession on a particular date does not
determine a party’s possessory interests on a future date, the right to immediate possession at the
time of the first detainer action was not implicated in the second action, and the third element of
res judicata was therefore not met. Id.
We are faced with a practically identical situation here. Bazan filed her first forcible
detainer suit in 2010, seeking to eject the Mendozas from the property. The justice court entered
a judgment in favor of the Mendozas, which became final after Bazan’s subsequent bill of review
was denied in 2014. In 2016, Bazan filed the second forcible detainer suit, raising the same claim
and seeking essentially the same remedy. At a first glance, these suits appear to be identical.
Nevertheless, because the central issue in a forcible detainer suit is “who has the right to possession
now,” and not “who had the right of possession in the past,” Bazan’s second forcible detainer suit
is a new and independent action to determine the right of possession at the time the suit was filed.
See id. at 739. It was not a “re-litigation” of the same claims raised in the first action, and thus
the third element required of a res judicata defense has not been satisfied. See id.
Likewise, we reach the same conclusion regarding Mendoza’s collateral estoppel defense
because the issue of right of possession in 2010, at the time Bazan filed the first forcible detainer
suit, was not synonymous with Bazan’s issue of the right to possession at the time of Bazan’s
14 second forcible detainer suit in 2016. Thus, this case is not a re-litigation of the same issue
decided in the previous action. See id.; see also Croysdill, 490 S.W.3d at 295. We therefore hold
that Mendoza’s res judicata and collateral estoppel defenses are without merit. Mendoza’s sixth
issue is overruled.
Notice to Vacate
In his eighth issue, Mendoza contends that there was legally insufficient evidence that
Bazan gave proper notice to the Mendozas to vacate the property, which is required before a
landlord may file a forcible detainer suit.
When an appellant brings a challenge against the legal sufficiency of the evidence
supporting an adverse finding on which he or she did not have the burden of proof at trial, as is the
case here, the appellant must demonstrate that there is no evidence to support the adverse finding.
City of Keller v. Wilson, 168 S.W.3d 802, 807–08 (Tex. 2005); Croucher v. Croucher, 660 S.W.2d
55, 58 (Tex. 1983). We review the evidence in the light most favorable to the verdict, crediting
favorable evidence if a reasonable fact finder could, and disregarding contrary evidence unless a
reasonable fact finder could not. City of Keller, 168 S.W.3d at 807. “Our traditional legal
sufficiency—or ‘no evidence’—standard of review upholds a finding supported by ‘[a]nything
more than a scintilla of evidence.’” In re K.M.L., 443 S.W.3d 101, 112 (Tex. 2014) (quoting
Formosa Plastics Corp. U.S.A. v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex.
1998)). More than a scintilla exists when the evidence would enable reasonable and fair-minded
people to reach different conclusions. Burbage v. Burbage, 447 S.W.3d 249, 259 (Tex. 2014).
“However, if the evidence is so weak that it only creates a mere surmise or suspicion of its
existence, it is regarded as no evidence.” Waste Mgmt. of Texas, Inc. v. Texas Disposal Sys.
15 Landfill, Inc., 434 S.W.3d 142, 156 (Tex. 2014). Where, as here, the trial court did not file
findings of fact or conclusions of law, we must imply the findings necessary to support the trial
court’s judgment. Tseo v. Midland Am. Bank, 893 S.W.2d 23, 25 (Tex. App.—El Paso 1994, writ
denied) (citing Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989)); see also Secure Comm,
Inc. v. Anderson, 31 S.W.3d 428, 430 (Tex. App.—Austin 2000, no pet.).
A tenant commits forcible detainer by refusing to surrender possession of real property
after the landlord has lawfully terminated the tenant’s right to possession. TEX. PROP. CODE ANN.
§ 24.002(a). Under the Property Code, a landlord must give a holdover tenant at least three days’
written notice to vacate the premises before the landlord may file a forcible detainer suit. TEX.
PROP. CODE ANN. §§ 24.002(b), 24.005(a). Since forcible detainer is a statutory cause of action,
a landlord must strictly comply with its requirements. Kennedy v. Andover Place Apartments,
203 S.W.3d 495, 497 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (citing Perkins v. Group
Life & Health Ins. Co., 49 S.W.3d 503, 506 (Tex. App.—Austin 2001, pet. denied)). Proper
notice under Section 24.005(a) is an element of a forcible detainer action. Fashakin v. Fed. Home
Loan Mortg. Corp., No. 14-11-01079-CV, 2013 WL 1316694, at *2 (Tex. App.—Houston [14th
Dist.] Apr. 2, 2013, pet. denied) (mem. op.) (citing Murphy v. Countrywide Home Loans, Inc., 199
S.W.3d 441, 446–47 (Tex. App.—Houston [1st Dist.] 2006, pet. denied); Stephens v. Williams,
No. 02-11-00376-CV, 2012 WL 3115826, at *1 (Tex. App.—Fort Worth Aug. 2, 2012, pet.
denied) (mem. op.)).
Section 24.005 requires that when notice to vacate is given by mail, notice shall be given
“to the premises in question.” TEX. PROP. CODE ANN. § 24.005(f). While the statute does not
require receipt by any particular person, notice must be either mailed or hand-delivered to a person
16 at the premises. Id.; see also Trimble v. Fed. Nat’l Mortgage Ass’n, 516 S.W.3d 24, 31 (Tex.
App.—Houston [1st Dist.] 2016, pet. denied). For example, in Trimble, 516 S.W.3d at 31–32,
the owner of the property in question mailed notice via both certified mail with return receipt
requested and by first-class mail. The court decided that, in light of this evidence, the tenant’s
affidavit stating that he had never received notice was insufficient to raise a fact question to rebut
the presumption that notice was properly delivered under Section 24.005(f). Id. at 31-32.
Likewise, in Schor v. U.S. Bank, the court held that a business records affidavit, which stated that
notice to vacate had been mailed via certified mail and “regular mail,” along with copies of the
notice to vacate presented at trial, constituted legally and factually sufficient evidence to satisfy
the notice requirement under Section 24.005(f). Schor v. U.S. Bank NA, No. 07-17-00397-CV,
2018 WL 3799880, at *1, 3 (Tex. App.—Amarillo Aug. 9, 2018, no pet. h.) (mem. op.).
At trial, Bazan presented a document titled “Letter to Tenant for Eviction,” dated April 20,
2010. While the letter appears to contain the mailing address of the property, it does not contain
any evidence that it was mailed via certified or first-class mail. During her testimony, Bazan
claimed that while she had not personally sent notice to vacate via mail or personal delivery, “[her]
attorney took care of that.” When Bazan then stated that her attorney’s secretary had told her that
the notice had been hand-delivered, Mendoza’s attorney objected based on hearsay. The trial
court sustained the objection. Later at trial, Mendoza admitted that he had received the notice to
vacate and that he had knowledge that he was supposed to vacate the premises, but he did not state
when he had received the notice.
Thus, we are faced with a situation in which the tenant does not dispute that he had received
notice to vacate, but nothing in the record establishes that notice was properly delivered by mail
17 or by personal delivery. In prior cases, delivery of notice has been properly established by the
presentation of witness testimony or an affidavit by someone with personal knowledge of the
delivery, or by certified mail with return receipt requested or by first class mail. See, e.g., Trimble,
516 S.W.3d at 27, 31–32; Schor, 2018 WL 3799880, at *1, 3; see also Khalilnia v. Fed. Home
Loan Mortg. Corp., No. 01-12-00573-CV, 2013 WL 1183311, at *3 (Tex. App.—Houston [1st
Dist.] Mar. 21, 2013, pet. denied) (mem. op.) (testimony by landlord’s agent that she personally
mailed the notice by certified mail was evidence of proper notice); Mendez v. Remanente LLC, No.
13-15-00529-CV, 2017 WL 1380529, at *6 (Tex. App.—Corpus Christi Feb. 2, 2017, no pet.)
(mem. op.) (testimony by landlord that he personally handed the letter to tenant was factually
sufficient evidence of notice). Here, the evidence Bazan presented that notice was given was (1)
her testimony that “[her] attorney took care of that;” (2) a letter from Bazan’s attorney demanding
that the Mendozas bring the rent to be current or face eviction; and (3) Mendoza’s admission that
he had received the letter and knew that he and his wife were being asked to vacate the premises.
Unlike other cases in which the legal sufficiency of notice was raised as an issue on appeal,
Bazan did not present testimony or an affidavit from either her attorney or his secretary who
purportedly hand-delivered the notice, nor did she present any evidence that the notice was
properly sent or delivered via certified or first-class mail. See, e.g., Trimble, 516 S.W.3d at 27,
31–32; Schor, 2018 WL 3799880, at *1, 3; Khalilnia, 2013 WL 1183311, at *3; Mendez, 2017
WL 1380529, at *6. Although this evidence is not present in the record before us, we nevertheless
cannot ignore the fact that Mendoza did not dispute, either at trial or on appeal, that he had received
notice to vacate or that he knew he was supposed to vacate the property. Instead, he complains
on appeal about the lack of evidence establishing that the notice was sent at least three days prior
18 to the filing of Bazan’s forcible detainer suit. Although we recognize that Mendoza did not testify
regarding the specific date he received the notice to vacate, and Bazan did not present direct
evidence of the date she either sent or hand-delivered the notice to vacate, we nonetheless hold
that Mendoza’s admission, along with the letter dated April 20, 2010, is sufficient evidence
supporting an implied finding that Bazan sent the notice to vacate on or about April 20, 2010. See
Tseo, 893 S.W.2d at 25 (citing Roberson, 768 S.W.2d at 281); Anderson, 31 S.W.3d at 430. Thus,
we hold that legally sufficient evidence in the record supports an implied finding that Bazan
complied with the three-day notice requirements set forth in Sections 24.002 and 24.005(f).
Mendoza’s eighth issue is overruled.
Judgment for Unpaid Rent
Statute of Limitations and Sufficiency of Evidence
We next discuss Mendoza’s issues pertaining to the trial court’s judgment for unpaid rent.
In his fourth issue, Mendoza argues that the $10,000 award for unpaid rent should be vacated
because the two-year statute of limitation period had expired by the time that Bazan filed her
second forcible detainer suit. He also argues in his fifth issue that the evidence was insufficient
to support the award for unpaid rent. We disagree.
TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a) states that a claimant must bring a suit for
forcible detainer “not later than two years after the day the cause of action accrues.” Nevertheless,
a holdover tenant may be held liable for the rental value of the property during a holdover period.
See Alford v. Johnston, 224 S.W.3d 291, 297 (Tex. App.—El Paso 2005, pet. denied). In an action
for damages for a lessee’s wrongful holdover, the proper measure of damages is the reasonable
market rental value of the property during the holdover period. Id. (citing Downwind Aviation,
19 Inc. v. Orange County, 760 S.W.2d 336, 340 (Tex. App.—Beaumont 1988, writ denied); Standard
Container Corp. v. Dragon Realty, 683 S.W.2d 45, 48 (Tex. App.—Dallas 1984, writ ref’d n.r.e.)).
Here, it is undisputed that Mendoza remained in possession of the property without Bazan’s
consent, and without paying rent, for several years after the expiration of the lease in 2010, as such,
we find sufficient evidence supporting a finding that Mendoza was a holdover tenant, and more
particularly, a tenant at sufferance. See Alford, 224 S.W.3d at 297; see also Coinmach Corp. v.
Aspenwood Apartment Corp., 417 S.W.3d 909, 915 (Tex. 2013) (a tenant at sufferance is “a
[holdover] tenant who has been in lawful possession of property and wrongfully remains as a
holdover after the tenant’s interest has expired”) (citations omitted). The lease between Bazan
and the Mendozas established rent at $500 per month and stated that if the Mendozas defaulted on
their obligations, Bazan, as landlord, would be entitled to “any other recovery to which Landlord
is entitled by law or in equity.” Further, the trial court awarded $10,000 in unpaid rent to Bazan,
which constitutes less than two years’ worth of the total rental obligation at $500 per month
pursuant to the lease terms.
As such, while Bazan did not file her forcible detainer suit until longer than two years after
the accrual of the cause of action, the trial court’s award of $10,000 in unpaid rent was for a period
of time less than the two-year statute of limitations.3 We therefore hold that the award of unpaid
rent for less than the value of two years’ worth of rent was not barred by the two-year statute of
limitations period, and is supported by sufficient evidence in the record. See TEX. CIV. PRAC. &
REM. CODE ANN. § 16.003(a); Alford, 224 S.W.3d at 297; Downwind, 760 S.W.3d at 340; Standard
Container Corp., 683 S.W.2d at 48. Mendoza’s fourth and fifth issues are overruled.
3 At a rate of $500 per month for a period of two years, such an amount would be $12,000.
20 Party to the Lease
Finally, we address Mendoza’s seventh issue, in which he argues that the evidence was
legally insufficient to support the award for unpaid rent because Mendoza was not a party to the
lease agreement. Mendoza contends that the lease was not enforceable against him because he
did not sign the agreement. Although his issue on appeal is framed as an insufficient evidence
point, Mendoza essentially raises the statute of frauds as an affirmative defense.4
As a preliminary matter, we address Bazan’s argument that Mendoza did not raise this
argument in the trial court, and that his issue is therefore not preserved for our review. Since the
primary function of pleadings is to notify the opposing party of one’s claims and defenses, as well
as the relief sought, a party cannot be granted relief unless such relief is supported by the party’s
pleadings. See In re Park Memorial Condominium Ass’n, Inc., 322 S.W.3d 447, 450–51 (Tex.
App.—Houston [14th Dist.] 2010, no pet.) (citing Herrington v. Sandcastle Condo. Ass'n, 222
S.W.3d 99, 102 (Tex. App.—Houston [14th Dist.] 2006, no pet.); Cunningham v. Parkdale Bank,
660 S.W.2d 810, 813 (Tex. 1983)). As such, affirmative defenses to liability, such as statute of
frauds, must be pleaded or else such argument is waived and unavailable for appellate review.
Kinnear v. Texas Com’n on Human Rights ex rel. Hale, 14 S.W.3d 299, 300 (Tex. 2000) (citing
Davis v. City of San Antonio, 752 S.W.2d 518, 519–20 (Tex. 1988)); see also TEX. R. CIV. P. 94
(listing statute of frauds as an affirmative defense which must be pleaded). Here, Mendoza’s live
pleadings showed that while he raised lack of notice, res judicata and collateral estoppel, fraud,
4 Under the statute of frauds, “[a] promise or agreement [such as a lease of real estate for a term longer than one year] is not enforceable unless the promise or agreement . . . is (1) in writing[] and (2) signed by the person to be charged with the promise or agreement or by someone lawfully authorized to sign for him.” TEX. BUS. & COM. CODE ANN. § 26.01(a).
21 and statute of limitations as affirmative defenses, he did not plead statute of frauds as an affirmative
defense. As such, we hold that he has waived this argument. See Kinnear, 14 S.W.3d at 300;
TEX. R. CIV. P. 94.
Even if Mendoza had not waived his argument, we find that the statute of frauds did not
operate to invalidate the enforceability of the lease for lack of Mendoza’s signature. As Bazan
points out, the partial-performance exception to the statute of frauds operates to render lease terms
enforceable against a non-signatory where the lessor fully performs by delivering possession of
the premises and the lessee partly performs by paying rent. See Stovall & Associates, P.C. v.
Hibbs Fin. Ctr., Ltd., 409 S.W.3d 790, 800–01 (Tex. App.—Dallas 2013, no pet.) (landlord’s
delivery of possession of premises and tenant’s payment of rent for a portion of the lease term
removed the agreement from the statute of frauds); Tinsley v. Metzler, 44 S.W.2d 820, 822 (Tex.
App.—El Paso 1931, writ dism’d w.o.j.) (“[W]here the tenant has gone into possession and paid
rent, this is such part performance as takes the transaction out of the operation of the statute [of
frauds] and renders it unavailable as a defense” in an action for unpaid rent.).
Here, it is undisputed that Bazan performed her obligations under the 2009–2010 lease by
delivering possession of the property to the Mendozas. Likewise, Mendoza testified at trial that
he occupied the property during the lease, and partially performed his obligations thereunder by
paying monthly rent until some point in 2010. As such, we hold that although Mendoza is not a
signatory to the lease, Bazan’s full performance and Mendoza’s partial performance under the
lease renders that exception to the statute of frauds applicable here, and the statute of frauds does
not preclude enforcement of the terms of lease against him. See Stovall & Associates, P.C., 409
S.W.3d at 800–01; Tinsley, 44 S.W.2d at 822. Mendoza’s seventh issue is overruled.
22 CONCLUSION
Having overruled Mendoza’s issues, we affirm the judgment below.
GINA M. PALAFOX, Justice April 5, 2019
Before McClure, C.J., Rodriguez, and Palafox, JJ.