COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-04-032-CV
RANDOLPH
BROWN APPELLANT
V.
KULA-AMOS,
INC. APPELLEE
------------
FROM
COUNTY COURT AT LAW NO. 1 OF TARRANT COUNTY
MEMORANDUM OPINION1
I. Introduction
Following
a bench trial, the trial court entered judgment for Apellee Kula-Amos, Inc.
(“Kula-Amos”) in its forcible detainer suit against Appellant Randolph Brown
(“Brown”). The judgment awards Kula-Amos $3,126.39 in damages and possession
of certain property that is the subject of a contract for deed between Kula-Amos
and Brown. In five issues, Brown complains that the county court at law lacked
jurisdiction over the suit, that Kula-Amos presented no evidence of ownership to
demonstrate a superior right to immediate possession, that the notice of
noncompliance provided to Brown failed to describe the period of the alleged
deficiency, and that Kula-Amos did not allow Brown the statutorily prescribed
amount of time to cure the default. We will affirm.
II. Factual and
Procedural Background
Brown
and Kula-Amos entered into a contract for deed on September 4, 2000. Brown
agreed to purchase and Kula-Amos agreed to sell the property located at 5607
Fireside Drive in Arlington. The contract for deed contains numerous standard
terms as well as sections outlining Brown’s obligations, Kula-Amos’s rights,
and other general provisions. The deed further provides that Kula-Amos will
convey the property to Brown once Brown “has paid the entire Deferred
Principal Amount, earned interest, and any other indebtedness owed under th[e]
contract.” Kula-Amos sent Brown a notice of noncompliance with the terms of
the contract on August 18, 2003. The notice indicated that Brown failed to make
payments for the period from July 1, 2003 to July 31, 2003 and that Kula-Amos
intended to enforce the remedy of forfeiture and acceleration if payment was not
made by September 2, 2003. Brown responded to the letter and stated that he paid
the amounts due under the contract for June and July 2003, but that he had not
yet paid the balance due for August 2003. Brown further indicated that the
amount due should be adjusted to reflect a new insurance policy that took effect
August 1, 2003. Pete Still, the principal owner of Kula-Amos, acknowledged
Brown’s letter and provided him with a breakdown of the monthly payment.
Kula-Amos
sent Brown a September 3, 2003 notice to vacate the premises. On September 12,
2003, Kula-Amos sued Brown and all occupants of the property located at 5607
Fireside Drive in justice court. The complaint provided that Brown failed to
make a payment of $1359.26 due on August 1, 2003 and that on September 3, 2003
Kula-Amos had given Brown notice to vacate and demand for possession. Brown
answered and submitted a plea to the jurisdiction, arguing that a “claim for
unpaid rent or other damages is not part of an FED case” and that an “FED
suit cannot be used to determine title to real property.” Attached to
Brown’s answer was a contract for deed dated August 1, 2003 indicating that
Brown agreed to sell and Mary Smith agreed to purchase the property located at
5607 Fireside Drive in Arlington. On October 2, 2003, the justice court entered
a judgment for Kula-Amos, ordering that it recover possession of the property
from Brown.
Brown
appealed the justice court judgment to the county court at law for a trial de
novo. Once again, Brown answered and averred that the county court did not have
jurisdiction to consider the case because an “FED suit cannot be used to
determine title to real property.” After Jennifer Bowers, the vice president
and property manager of Kula-Amos, and Brown testified, the county court
requested that the parties provide it with a brief concerning the adequacy of
the notice provided to Brown in the August 18, 2003 notice of noncompliance. The
parties complied, and the county court subsequently signed a judgment on
November 21, 2003 ordering that Kula-Amos have and recover possession of the
property located at 5607 Fireside. This appeal followed.2
III. County
Court At Law Jurisdiction
In
his first issue, Brown argues that the county court did not have jurisdiction to
consider Kula-Amos’s forcible detainer suit because the justice court did not
initially have jurisdiction. Brown contends that the contract for deed executed
by Brown and Mary Smith on August 1, 2003 caused the justice court to be
“faced with a situation where there was an ownership interest in the property
held by a person who was not a party to the proceeding.” This, Brown reasons,
“required the determination of title.” Brown further maintains that
Kula-Amos “could not appear in the Justice Court without an attorney”
because “the filing of an eviction suit in the justice court is not a
ministerial act, but rather, an act that was a nullity.”
A. Jurisdiction
Jurisdiction
over a forcible detainer suit is given to a justice court in the precinct where
the property is located. See Tex.
R. Civ. P. 749; Tex. Prop. Code
Ann. § 24.004 (Vernon 2000); Aguilar v. Weber, 72 S.W.3d 729, 731
(Tex. App.—Waco 2002, no pet.). Either party may then appeal the justice
court’s judgment to the county court for a trial de novo. Aguilar,
72 S.W.3d at 731; Cattin v. Highpoint Village Apartments, 26 S.W.3d 737,
739 (Tex. App.—Fort Worth 2000, pet. dism’d w.o.j.). The appellate
jurisdiction of a statutory county court is confined to the jurisdictional
limits of the justice court, and the county court does not have appellate
jurisdiction if the justice court did not initially have jurisdiction. See
Ward v. Malone, 115 S.W.3d 267, 269 (Tex. App—Corpus Christi 2003, pet.
denied); Aguilar, 72 S.W.3d at 731.
A
forcible detainer action is the procedure by which the right to immediate
possession of real property is determined. See Cattin, 26 S.W.3d at
738-39. It is a special proceeding governed by particular statutes and
rules found in sections 24.001 to 24.011 of the Texas Property Code and Texas
Rules of Civil Procedure 738 to 755. See id. Forcible
detainer actions are intended to be a summary, speedy, and inexpensive remedy
for resolving the question of who is entitled to immediate possession of real
property. See id.; see also Ward, 115 S.W.3d at
270. Thus, Rule 746 provides that “the only issue shall be as to the
right to actual possession; and the merits of the title shall not be
adjudicated.” Tex. R. Civ. P. 746; Rice v. Pinney,
51 S.W.3d 705, 709 (Tex. App.—Dallas 2001, no pet.). Accordingly,
neither a justice court nor a county court has jurisdiction to determine the
issues of title to real property in a forcible detainer suit. See Tex. R. Civ. P. 746; Ward, 115
S.W.3d at 270. However, justice courts may adjudicate possession when
issues related to the title of real property are tangentially or collaterally
related to possession. Gibson v. Dynegy Misdstream Servs., L.P.,
138 S.W.3d 518, 522 (Tex. App.—Fort Worth 2004, no pet.).
A
forcible detainer action based on a contract for deed is dependent on proof of a
landlord-tenant relationship. See Ward, 115 S.W.3d at 270-71; Aguilar,
72 S.W.3d at 733-35; Am. Spiritualist Ass’n v. Ravkind, 313 S.W.2d 121,
124-25 (Tex. Civ. App.—Dallas 1958, writ ref’d n.r.e.). Generally, a
justice court or county court is not required to determine questions of title
when considering a forcible detainer suit if the contract provides for a
landlord-tenant relationship upon default, if the contract provides that the
buyer becomes a tenant-at-sufferance in the event of default, or if the contract
provides that the buyer is subject to a forcible detainer suit upon
default. See Ward, 115 S.W.3d at 270-71; Aguilar, 72 S.W.3d
at 735; Rice, 51 S.W.3d at 711, 713 n.4; see also Martinez v.
Daccarett, 865 S.W.2d 161, 164 (Tex. App.—Corpus Christi 1993, no pet.)
(holding justice and county courts had jurisdiction to hear forcible detainer
suit); Home Sav. Ass’n v. Ramirez, 600 S.W.2d 911, 912-13 (Tex. Civ.
App.—Corpus Christi 1980, writ ref’d n.r.e.) (holding appellant, as grantee
in trustee’s deed, entitled to possession); Haith v. Drake, 596 S.W.2d
194, 197 (Tex. Civ. App—Houston [1st Dist.] 1980, writ ref’d n.r.e.)
(reasoning justice court had jurisdiction to consider forcible detainer
suit). Title is a non-issue because the existence of such language in the
contract “provides a basis for determining the right to immediate possession
without resolving the ultimate issue of title to the property.” See
Dormady v. Dinero Land & Cattle Co., L.C., 61 S.W.3d 555, 559 (Tex.
App.—San Antonio 2001, pet. dism’d w.o.j.).
In
the instant case, section one of the “General Provisions” in the contract
for deed between Brown and Kula-Amos states,
As long as Buyer promptly performs all obligations in this contract, Buyer has
the right to possession of the Property. If this contract is canceled because of
Buyer’s default, Buyer will immediately surrender possession of the Property
to Seller. If Buyer fails to do so, Buyer will become a tenant at
sufferance of Seller, subject to an action for forcible detainer. [Emphasis
added.]
Thus,
the contract for deed expressly provides that Brown will become a
tenant-at-sufferance subject to an action for forcible detainer in the event of
default. This language establishes the essential relationship between
Kula-Amos and Brown that is necessary to maintain a forcible detainer suit and
avoid the question of title. See Ward, 115 S.W.3d at 270-71; Aguilar,
72 S.W.3d at 735; see also Tex.
Prop. Code Ann. § 24.002(a)(2) (Vernon 2000) (stating that a person who
refuses to surrender possession of real property on demand commits a forcible
detainer if the person is a tenant at will or by sufferance). Therefore,
the justice court and county court could determine the issue of immediate
possession without making an inquiry into title. See Ward, 115
S.W.3d at 271; Rice, 51 S.W.3d at 711.
Moreover,
Brown’s subsequent contract for deed with Mary Smith would not have caused the
justice court or county court to make an inquiry into title. This is so
because while the buyer under a contract for deed is normally entitled to
possession upon the making of a down payment, the seller retains legal title to
the property and delivers it to the buyer only upon the buyer’s full payment
of the purchase price. See Gibson v. Bostick Roofing and Sheet Metal Co.,
148 S.W.3d 482, 491 (Tex. App.—El Paso 2004, no pet.). There is no
question that Kula-Amos retained title to the property at 5607 Fireside Drive
when it executed the contract for deed with Brown, and title was never
transferred over to Brown. Consequently, the subsequent contract for deed
between Brown and Mary Smith had no effect on the status of the property’s
title. If anything, it merely raised an issue concerning possession,
which, consequently, the justice and county courts resolved.
B. Non Lawyer Representation at Justice Court
Brown
further argues in his first point that Kula-Amos could not appear in the justice
court without an attorney. Brown reasons that Kula-Amos’s suit “was a
nullity” and that “[a]ny act taken by a person who is not an attorney and
which act constitutes an unauthorized practice of law is void and of no
effect.” Brown further cites Rule 7 of the Texas Rules of Civil
Procedure as support for his argument that Kula-Amos must have been represented
by an attorney at the justice court.
To
preserve a complaint for our review, a party must have presented to the trial
court a timely request, objection, or motion that states the specific grounds
for the desired ruling, if they are not apparent from the context of the
request, objection, or motion. Tex. R. App. P. 33.1(a); see also
Tex. R. Evid. 103(a)(1). If
a party fails to do this, error is not preserved, and the complaint is
waived. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on
reh’g). The objecting party must get a ruling from the trial court; this
ruling can be either express or implied. Frazier v. Yu, 987 S.W.2d
607, 610 (Tex. App.—Fort Worth 1999, pet. denied). If the trial judge
refuses to rule, an objection to the refusal to rule is sufficient to preserve
error.
Tex. R. App. P. 33.1(a)(2).
Having
determined above that the justice court and county court had jurisdiction to
consider Kula-Amos’s suit, we cannot agree with Brown that Kula-Amos’s suit
“was a nullity.” Moreover, Brown’s challenge to the authority of
Jennifer Bowers to act as Kula-Amos’s agent in the justice court is an
argument that was not raised in the trial court. Our review of the county
court reporter’s record and clerk’s record shows that at no time did Brown
challenge Bowers’s authority to act as Kula-Amos’s agent. Accordingly,
because he raises this complaint for the first time on appeal, Brown waived
appellate review of this argument by not preserving error. See Tex. R. App. P. 33.1(a); Tex. Prop. Code Ann. § 24.0113; see also Tex.
R. Civ. P. 747(a) (“In forcible entry and detainer cases for
non-payment of rent or holding over beyond the rental term, the parties may
represent themselves or be represented by their authorized agents in justice
court.”); Op. Tex. Att’y Gen. No. JM-451 (1986) (stating agent’s authority
under property code is presumed and any challenge to agent’s authority by
another party must be raised in justice court and not for the first time on
appeal.). We overrule Brown’s first issue.
IV. Evidence of
Ownership/Right to Possession
In
his second issue, Brown argues that Kula-Amos presented no evidence of ownership
to demonstrate a superior right to immediate possession. Brown contends that the
only evidence regarding ownership demonstrated that Pete Still was the principal
owner of Kula-Amos, and “[w]hether or not Mr. Still is an owner of the
Plaintiff does not prove that the Plaintiff owned the property.”
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. See Ward, 115
S.W.3d at 270; Goggins v. Leo, 849 S.W.2d 373, 377 (Tex. App.—Houston
[14th Dist.] 1993, no writ).
Here,
the county court admitted the contract for deed between Kula-Amos and Brown into
evidence. The contract is dated September 4, 2000 and provides that
Kula-Amos is the “Seller” and that Brown is the “Buyer.” The
contract lists the property as “5607 Fireside Drive, Arlington, TX 76016"
and provides terms for payment, interest, and insurance. The contract further
provides,
On this date the Property is encumbered by a lien or liens in favor of Kula-Amos
& bank, securing a note in the original principal sum of $97,900. Seller
agrees to pay the note as due and to obtain a release of the Property from the
lien before conveying the Property to Buyer, unless Buyer is to assume such
indebtedness pursuant to this contract.
The
contract also states, “When Buyer has paid the entire Deferred Principal
Amount, earned interest, and any other indebtedness owed under this contract,
Seller will convey the Property to Buyer by warranty deed . . . .”
Moreover, Kula-Amos sent Brown a notice of noncompliance with the terms of the
contract dated August 18, 2003, and Brown acknowledged that he had not paid rent
in a subsequent letter to Kula-Amos. The contract clearly and
unambiguously positioned Kula-Amos as the “Seller” and Brown as the
“Buyer,” and the contract further provided that Kula-Amos would retain title
to the property until Brown satisfied all conditions—monetary or
otherwise. Thus, the evidence before the county court established a
contractual relationship between both parties that was initiated through the
execution of a contract for deed. We hold that Kula-Amos presented
sufficient evidence of ownership of 5607 Fireside Drive, Arlington, TX 76016 to
demonstrate a superior right to immediate possession in relation to Brown. See
Ward, 115 S.W.3d at 270; Goggins, 849 S.W.2d at 377. We
overrule Brown’s second issue.
V. Alleged
Property Code Violations
In
Brown’s third, fourth, and fifth issues, he argues that the county court erred
by entering judgment for Kula-Amos because Kula-Amos failed to comply with
multiple sections of the property code. Specifically, Brown reasons that
he was not given the proper amount of time to cure his default as provided by
sections 5.064 and 5.065 of the property code and that the notice of
noncompliance provided to Brown failed to describe the period of the alleged
deficiency as mandated by section 5.063(b)(2)(C) of the property code.
Subchapter
D of Chapter Five of the property code is titled “Executory Contract for
Conveyance.” Section 5.062(a) of the property code provides that “[t]his
subchapter applies only to a transaction involving an executory contract for
conveyance of real property used or to be used as the purchaser’s residence.”
See Tex. Prop. Code Ann. §
5.062(a) (Vernon 2004) (emphasis added). Thus, section 5.063
(“Notice”), section 5.064 (“Seller’s Remedies on Default”), and
section 5.065 (“Right to Cure Default”) are inapplicable if the buyer was
not using the real property as his residence at the time of the suit or planned
to use the real property as his residence at some point in the future.4
A
“residence” has been defined as the place where one actually lives or has
his home. Owens Corning v. Carter, 997 S.W.2d 560, 571 (Tex. 1999).
Furthermore, “a permanent residence in Texas requires a home and fixed place
of habitation to which a person intends to return when away.” Id.
Here,
Brown testified that he was the owner of the real property at issue and that he
was in possession of it. The following exchange took place on direct
examination:
[Brown’s attorney]: Are you the current owner of the property at 5607 Fireside
Drive in Arlington?
[Brown]:
Yes, sir.
[Browns’
attorney]: You have possession and control of that property right now, sir?
However,
after this, Brown testified that he had moved out of the residence in mid-July
2003. This exchange took place:
[Brown’s attorney]: Okay. You lived in that house [5607 Fireside Drive], sir?
[Brown’s
attorney]: From the time you bought it in 2000?
[Brown]:
Yes.
[Brown’s
attorney]: When is it that you moved out, sir?
[Brown]:
Moved out July, about mid-July.
[Brown’s
attorney]: Of what year?
[Brown]:
2003.
[Brown’s
attorney]: 2003?
[Brown’s
attorney]: Okay. Just less than a month from the filing of this suit here, sir?
[Brown’s
attorney]: Okay. Why is it that you moved out, sir?
[Brown]:
My wife and I, at the time, we could not afford making the type of payments that
we were making. We were paying 1,256, I believe, estimated amount of payments
monthly, and then they -- the payments went up because the taxes on the house
went up, went all the way to 1,300 and something dollars a month, and we just
could no longer afford living there.
Brown
did not testify that he intended to return to the property in question.
Accordingly, pursuant to section 5.062, sections 5.063, 5.064, and 5.065 are
inapplicable because 5607 Fireside Drive was not “used . . . as [Brown’s]
residence” when Kula-Amos sued on September 12, 2003. See Tex. Prop. Code Ann. § 5.062(a); Owens
Corning, 997 S.W.2d at 571; Dickey, 115 S.W.2d at 45-46; Teachout,
2004 WL 794383, at *2-4. Because subchapter D is inapplicable, the trial court
did not err by entering judgment for Kula-Amos despite the alleged noncompliance
with the property code. We overrule Brown’s third, fourth, and fifth issues.
VI. Conclusion
Having
overruled all five of Brown’s issues, we affirm the trial court’s judgment.
SUE
WALKER
JUSTICE
PANEL
B: DAUPHINOT, WALKER, and MCCOY, JJ.
DELIVERED:
March 24, 2005
NOTES
1.
See Tex. R. App. P. 47.4.
2.
Kula-Amos tendered a brief for purposes of this appeal, but because it was
untimely despite the granting of two extensions of time, it was ordered
stricken.
3.
Section 24.011 states:
In eviction suits in justice court for nonpayment of rent or holding over beyond
a rental term, the parties may represent themselves or be represented by their
authorized agents, who need not be attorneys. In any eviction suit in
justice court, an authorized agent requesting or obtaining a default judgment
need not be an attorney.
4.
Kula-Amos and Brown executed the contract for deed on September 4, 2000.
At the time the contract was entered into, section 5.062 was numbered as 5.091
and contained an extra subsection that the legislature deleted in 2001.
However, the legislature did retain the language in section 5.091 pertaining to
usage. Section 5.091(b) read, “This subchapter applies only to a
transaction involving an executory contract for conveyance of real property used
or to be used as the purchaser’s residence.” See Act of May 27,
1995, 74th Leg., R.S., ch. 994, § 3, sec. 5.091(b), 1995 Tex. Gen. Laws 4982,
4984 (amended 2001) (current version at Tex.
Prop. Code Ann. § 5.062(a) (Vernon 2004)). Thus, the 2001
amendments do not affect the applicability of this subsection for our purposes.
We
also interpret the language “used . . . as the purchaser’s residence” to
refer only to current residences, as opposed to, or including, property
that was previously used as the debtor’s residence. See Dickey
v. McComb Dev. Co., Inc., 115 S.W.3d 42, 45-46 (Tex. App.—San Antonio
2003, no pet.) (holding sections 5.061, 5.062, and 5.063 inapplicable because
“a trier of fact could reasonably infer from the record that the property was
not going to be used as a residence by the Dickeys” and impliedly reasoning
that previous residence insufficient to satisfy residence requirement); Teachout
v. Kitchen, No. 14-03-00215-CV, 2004 WL 794383, at *2-4 (Tex. App.—Houston
[14th Dist.] 2004, no pet.) (not designated for publication) (examining
legislative intent with regard to language “used as the debtor’s
residence” and holding that such language applies only to current residences).