Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION
No. 04-22-00343-CV
PALMETTO POINTE APARTMENTS, Appellant
v.
Jonni SALTSMAN, Jacob Sparks and All Other Occupants, Appellees
From the County Court at Law No. 10, Bexar County, Texas Trial Court No. 2022CV01108 Honorable David J. Rodriguez, Judge Presiding
Opinion by: Irene Rios, Justice
Sitting: Irene Rios, Justice Beth Watkins, Justice Lori I. Valenzuela, Justice
Delivered and Filed: January 10, 2024
AFFIRMED
In this forcible detainer case, appellant Palmetto Pointe Apartments (“Palmetto”) sued
appellees Jonni Saltsman and Jacob Sparks (collectively “Sparks”) for possession of a leased
premises. Palmetto appeals a take nothing judgment challenging the trial court’s determination
that Palmetto failed to prove its superior right to possession. We affirm.
BACKGROUND
Palmetto and Sparks executed a residential lease in late January 2022, and Sparks paid the
prorated rent for January. According to Palmetto, Sparks then failed to timely pay rent for February 04-22-00343-CV
2022. On February 4, 2022, Palmetto provided Sparks a written notice to vacate the apartment for
failing to timely pay rent, utilities, and other fees. The notice demanded Sparks vacate the
apartment by February 7, 2022.
On February 10, 2022, when Sparks failed to vacate the apartment as demanded, Palmetto
filed a forcible detainer suit in the justice of peace court. Prior to the trial in the justice court,
Sparks tendered two money orders in person to Palmetto’s management, who accepted them as
payment for February’s rent but instructed Sparks Palmetto would not accept in-person payments
again. Judgment was rendered for Palmetto on March 8, 2022, and Sparks appealed de novo to the
county court at law. In accordance with the Texas Rules of Civil Procedure for appealing a forcible
detainer judgment, Sparks timely paid into the court’s registry the required monthly rent during
the pendency of the appeal. See TEX. R. CIV. P. 510.9.
Following a bench trial, the trial court rendered a take nothing judgment against Palmetto
in Sparks’s favor. At Palmetto’s request, the trial court issued findings of fact and conclusions of
law. Palmetto appeals.
APPLICABLE LAW: FORCIBLE DETAINER
The sole focus of a forcible-detainer action is the right to immediate possession of real
property. Shields Ltd. P’ship v. Bradberry, 526 S.W.3d 471, 478 (Tex. 2017). To establish a
superior right to immediate possession, the plaintiff must show (1) it owns the property, (2) the
defendant is a tenant at will, tenant at sufferance, or a tenant or subtenant willfully holding over
after the termination of the tenant’s right of possession, (3) the plaintiff gave proper notice to the
defendant to vacate the premises, and (4) the defendant refused to vacate the premises. Id.; see
also TEX. PROP. CODE ANN. §§ 24.002(b), 24.005(f). “[A] tenant at sufferance is ‘a tenant who has
been in lawful possession of property and wrongfully remains as a holdover after the tenant’s
interest has expired.’” Coinmach Corp. v. Aspenwood Apartment Corp., 417 S.W.3d 909, 915
-2- 04-22-00343-CV
(Tex. 2013) (quoting tenant at sufferance, BLACK’S LAW DICTIONARY 1605 (9th ed. 2009)). In a
suit involving a tenant at sufferance, the plaintiff must give the tenant at least three days’ written
notice to vacate before the plaintiff files a forcible detainer suit unless the parties contracted for a
different notice period. TEX. PROP. CODE ANN. § 24.005(b). Furthermore, the plaintiff must
comply with statutory requirements in giving the tenant written notice to vacate. See id.
§ 24.005(f).
TRIAL COURT’S FINDINGS OF FACT AND CONCLUSIONS OF LAW
In its findings of fact, the trial court found that in January 2022, Palmetto and Sparks
entered into a written lease agreement. The trial court also found Sparks “failed to timely pay the
lease payment for February 2022.” Additionally, the trial court issued several findings explaining
the conflicting evidence as to the notice provided to Sparks. Notably, the trial court’s findings of
fact also included the following findings:
• Paragraph 9 of Exhibit “A” states as a Special Provision the following:
“Three or more consecutive late payments made after the 10th of such months may be considered a lease default and cause for institution of eviction.” (Paragraph 9 special [provision] of Plaintiff’s Exhibit “A”)
• Furthermore, Paragraph 9, Special Provision of Plaintiff’s Exhibit “A” states:
“The following or attached special provision and any addenda or written rules furnished to you at or before signing will become a part of this lease and will supersede any conflicting provisions of this printed lease form[.]”
Based on its findings, the trial court made two conclusions of law. Importantly, the trial
court concluded:
• [Palmetto] failed to meet it[s] burden of proof that [Sparks] defaulted under the terms of the lease, specifically including the special provisions of the lease.
-3- 04-22-00343-CV
PALMETTO’S ISSUES ON APPEAL
Palmetto raises two issues on appeal. Palmetto argues (1) the trial court erred in finding it
failed to properly serve Sparks with the notice to vacate, and (2) the trial court erred in finding
Sparks had a superior right to possession of the leased premises. Because the second issue is
dispositive, we address it first.
STANDARD OF REVIEW
In a bench trial in a civil case, an attack on the sufficiency of the evidence must generally
be directed at specific findings of fact. Arrellano v. State Farm Fire & Cas. Co., 191 S.W.3d 852,
855 (Tex. App.—Houston [14th Dist.] 2006, no pet.). Any unchallenged findings of fact are
binding on an appellate court unless the contrary is established as a matter of law or no evidence
supports the finding. Zagorski v. Zagorski, 116 S.W.3d 309, 319 (Tex. App.—Houston [14th Dist.]
2003, pet. denied); see Mullins v. Mullins, 202 S.W.3d 869, 874, 876–77 (Tex. App.—Dallas 2006,
pet. denied); see also McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986). Any
unchallenged findings that support the judgment will preclude reversal of the case. Zagorski, 116
S.W.3d at 319.
In appeals from judgments after bench trials, we give the trial court’s findings of fact the
same weight as a jury’s verdict. Milton M. Cooke Co. v. First Bank & Trust, 290 S.W.3d 297, 302
(Tex. App.—Houston [1st Dist.] 2009, no pet.) (citing Brown v. Brown, 236 S.W.3d 343, 347 (Tex.
App.—Houston [1st Dist.] 2007, no pet.)). When an appellant challenges a trial court’s findings
of fact, we review those fact findings by the same standards we use to review the sufficiency of
the evidence to support a jury’s findings. Pulley v.
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Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION
No. 04-22-00343-CV
PALMETTO POINTE APARTMENTS, Appellant
v.
Jonni SALTSMAN, Jacob Sparks and All Other Occupants, Appellees
From the County Court at Law No. 10, Bexar County, Texas Trial Court No. 2022CV01108 Honorable David J. Rodriguez, Judge Presiding
Opinion by: Irene Rios, Justice
Sitting: Irene Rios, Justice Beth Watkins, Justice Lori I. Valenzuela, Justice
Delivered and Filed: January 10, 2024
AFFIRMED
In this forcible detainer case, appellant Palmetto Pointe Apartments (“Palmetto”) sued
appellees Jonni Saltsman and Jacob Sparks (collectively “Sparks”) for possession of a leased
premises. Palmetto appeals a take nothing judgment challenging the trial court’s determination
that Palmetto failed to prove its superior right to possession. We affirm.
BACKGROUND
Palmetto and Sparks executed a residential lease in late January 2022, and Sparks paid the
prorated rent for January. According to Palmetto, Sparks then failed to timely pay rent for February 04-22-00343-CV
2022. On February 4, 2022, Palmetto provided Sparks a written notice to vacate the apartment for
failing to timely pay rent, utilities, and other fees. The notice demanded Sparks vacate the
apartment by February 7, 2022.
On February 10, 2022, when Sparks failed to vacate the apartment as demanded, Palmetto
filed a forcible detainer suit in the justice of peace court. Prior to the trial in the justice court,
Sparks tendered two money orders in person to Palmetto’s management, who accepted them as
payment for February’s rent but instructed Sparks Palmetto would not accept in-person payments
again. Judgment was rendered for Palmetto on March 8, 2022, and Sparks appealed de novo to the
county court at law. In accordance with the Texas Rules of Civil Procedure for appealing a forcible
detainer judgment, Sparks timely paid into the court’s registry the required monthly rent during
the pendency of the appeal. See TEX. R. CIV. P. 510.9.
Following a bench trial, the trial court rendered a take nothing judgment against Palmetto
in Sparks’s favor. At Palmetto’s request, the trial court issued findings of fact and conclusions of
law. Palmetto appeals.
APPLICABLE LAW: FORCIBLE DETAINER
The sole focus of a forcible-detainer action is the right to immediate possession of real
property. Shields Ltd. P’ship v. Bradberry, 526 S.W.3d 471, 478 (Tex. 2017). To establish a
superior right to immediate possession, the plaintiff must show (1) it owns the property, (2) the
defendant is a tenant at will, tenant at sufferance, or a tenant or subtenant willfully holding over
after the termination of the tenant’s right of possession, (3) the plaintiff gave proper notice to the
defendant to vacate the premises, and (4) the defendant refused to vacate the premises. Id.; see
also TEX. PROP. CODE ANN. §§ 24.002(b), 24.005(f). “[A] tenant at sufferance is ‘a tenant who has
been in lawful possession of property and wrongfully remains as a holdover after the tenant’s
interest has expired.’” Coinmach Corp. v. Aspenwood Apartment Corp., 417 S.W.3d 909, 915
-2- 04-22-00343-CV
(Tex. 2013) (quoting tenant at sufferance, BLACK’S LAW DICTIONARY 1605 (9th ed. 2009)). In a
suit involving a tenant at sufferance, the plaintiff must give the tenant at least three days’ written
notice to vacate before the plaintiff files a forcible detainer suit unless the parties contracted for a
different notice period. TEX. PROP. CODE ANN. § 24.005(b). Furthermore, the plaintiff must
comply with statutory requirements in giving the tenant written notice to vacate. See id.
§ 24.005(f).
TRIAL COURT’S FINDINGS OF FACT AND CONCLUSIONS OF LAW
In its findings of fact, the trial court found that in January 2022, Palmetto and Sparks
entered into a written lease agreement. The trial court also found Sparks “failed to timely pay the
lease payment for February 2022.” Additionally, the trial court issued several findings explaining
the conflicting evidence as to the notice provided to Sparks. Notably, the trial court’s findings of
fact also included the following findings:
• Paragraph 9 of Exhibit “A” states as a Special Provision the following:
“Three or more consecutive late payments made after the 10th of such months may be considered a lease default and cause for institution of eviction.” (Paragraph 9 special [provision] of Plaintiff’s Exhibit “A”)
• Furthermore, Paragraph 9, Special Provision of Plaintiff’s Exhibit “A” states:
“The following or attached special provision and any addenda or written rules furnished to you at or before signing will become a part of this lease and will supersede any conflicting provisions of this printed lease form[.]”
Based on its findings, the trial court made two conclusions of law. Importantly, the trial
court concluded:
• [Palmetto] failed to meet it[s] burden of proof that [Sparks] defaulted under the terms of the lease, specifically including the special provisions of the lease.
-3- 04-22-00343-CV
PALMETTO’S ISSUES ON APPEAL
Palmetto raises two issues on appeal. Palmetto argues (1) the trial court erred in finding it
failed to properly serve Sparks with the notice to vacate, and (2) the trial court erred in finding
Sparks had a superior right to possession of the leased premises. Because the second issue is
dispositive, we address it first.
STANDARD OF REVIEW
In a bench trial in a civil case, an attack on the sufficiency of the evidence must generally
be directed at specific findings of fact. Arrellano v. State Farm Fire & Cas. Co., 191 S.W.3d 852,
855 (Tex. App.—Houston [14th Dist.] 2006, no pet.). Any unchallenged findings of fact are
binding on an appellate court unless the contrary is established as a matter of law or no evidence
supports the finding. Zagorski v. Zagorski, 116 S.W.3d 309, 319 (Tex. App.—Houston [14th Dist.]
2003, pet. denied); see Mullins v. Mullins, 202 S.W.3d 869, 874, 876–77 (Tex. App.—Dallas 2006,
pet. denied); see also McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986). Any
unchallenged findings that support the judgment will preclude reversal of the case. Zagorski, 116
S.W.3d at 319.
In appeals from judgments after bench trials, we give the trial court’s findings of fact the
same weight as a jury’s verdict. Milton M. Cooke Co. v. First Bank & Trust, 290 S.W.3d 297, 302
(Tex. App.—Houston [1st Dist.] 2009, no pet.) (citing Brown v. Brown, 236 S.W.3d 343, 347 (Tex.
App.—Houston [1st Dist.] 2007, no pet.)). When an appellant challenges a trial court’s findings
of fact, we review those fact findings by the same standards we use to review the sufficiency of
the evidence to support a jury’s findings. Pulley v. Milberger, 198 S.W.3d 418, 426 (Tex. App.—
Dallas 2006, pet. denied); see also M.D. Anderson v. City of Seven Points, 806 S.W.2d 791, 794
(Tex. 1991).
-4- 04-22-00343-CV
We review a trial court’s conclusions of law de novo and independently evaluate them to
determine whether the court correctly drew its legal conclusions from the facts. BMC Software
Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). We will uphold conclusions of law on
appeal if the judgment can be sustained on any legal theory supported by the evidence. Mack v.
Landry, 22 S.W.3d 524, 528 (Tex. App.—Houston [14th Dist.] 2000, no pet.).
In reviewing the legal sufficiency of the evidence, we must consider all the evidence in the
light most favorable to the verdict and indulge every reasonable inference that would support it.
City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We must consider evidence favorable
to the finding if a reasonable factfinder could do so, and we must disregard contrary evidence
unless a reasonable factfinder could not disregard it. Id. at 827. We will sustain a legal sufficiency
challenge if the record shows one of the following: (1) a complete absence of a vital fact; (2) rules
of law or evidence that bar the court from giving weight to the only evidence offered to prove a
vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the
evidence conclusively establishes the opposite of the vital fact. Id. at 810.
When considering a factual sufficiency challenge, we must consider and weigh all the
evidence, not just evidence which supports the findings. Maritime Overseas Corp. v. Ellis, 971
S.W.2d 402, 406–07 (Tex. 1998). We may set aside a finding only if it is so contrary to the great
weight and preponderance of the evidence that it is clearly wrong and unjust. Ortiz v. Jones, 917
S.W.2d 770, 772 (Tex. 1996).
ANALYSIS
The trial court determined that, based on special provisions in the lease, Palmetto failed to
prove Sparks defaulted under the terms of the lease—thereby precluding Palmetto from
successfully showing it had a superior right to possession of the leased premises. See Shields Ltd.
P’ship, 526 S.W.3d at 478. Palmetto did not challenge the findings of fact supporting this
-5- 04-22-00343-CV
conclusion, specifically those referring to the special provisions in paragraph nine of the written
lease. Palmetto failed to even mention the special provisions and their impact on the lease terms.
Rather, in its second issue, Palmetto mistakenly claims that because the trial court found that
Sparks failed to timely pay his February rent, Sparks necessarily breached the lease. The record
before us does not support Palmetto’s assertion. To the contrary, the trial court did not conclude
Sparks breached the lease. Instead, the record reflects, and the trial court found, Sparks made one
late payment in February, which was eventually paid in early March, a fact acknowledged by
Palmetto. Thus, any potential breach caused by Sparks’s late February payment was subsequently
cured. Furthermore, because Sparks continued to pay his monthly rent into the court’s registry
after his February payment, the record does not indicate the trial court found Sparks failed to timely
pay his rent three or more consecutive months. Therefore, the record supports the trial court’s
conclusion that Palmetto failed to prove Sparks defaulted under the terms of the lease.
As unchallenged findings are binding on Palmetto and this court, sufficient evidence
supports the trial court’s conclusion that Palmetto failed to show Sparks defaulted on the lease,
and thus failed to show it had the superior right to possession. See Mullins, 202 S.W.3d at 874,
876–77; Zagorski, 116 S.W.3d at 319; see also McGalliard, 722 S.W.2d at 696. We overrule
Palmetto’s second issue. Because the second issue is dispositive, we need not address Palmetto’s
first issue. See TEX. R. APP. P. 47.1 (“The court of appeals must hand down a written opinion that
is as brief as practicable but that addresses every issue raised and necessary to final disposition of
the appeal.”).
CONCLUSION
We affirm the trial court’s take nothing judgment in Sparks’s favor.
Irene Rios, Justice
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