Opinion issued August 27, 2013
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-11-00119-CV ——————————— SAIHAT CORPORATION, Appellant V. KEVIN MILLER, KENDRICK EDWARDS AND GEORGE THOMPSON, Appellees
On Appeal from the County Civil Court at Law No. 4 Harris County, Texas Trial Court Cause No. 949805
MEMORANDUM OPINION
Saihat Corporation appeals the trial court’s judgment in favor of appellees
Kevin Miller, George Thompson, and Kendrick Edwards. In three issues, appellant contends: (1) the trial court erred in finding that the property in question
was not Edwards’ homestead and refusing to set aside the constable’s sale, (2) the
trial court erred in awarding attorney’s fees to Miller because Miller’s pleading
never prayed for them and no evidence as to the reasonableness and necessity of
the fees was presented at trial, and (3) alternatively, the trial court erred in refusing
to grant appellant’s request for forcible detainer against Edwards.
We reverse the portion of the trial court’s judgment awarding attorney’s fees
to Miller, render judgment that Miller take nothing against appellant, and dismiss
the forcible-detainer claim for want of jurisdiction. The trial court’s judgment is in
all other respects, affirmed.
Background
The underlying lawsuit was an attempt by appellant to set aside the sale of a
house located at 5411 Blythewood Street, Houston, Texas (the Property) that
appellant purchased at a Harris County Constable’s sale.
On January 14, 2004, appellee Kevin Miller was awarded a $30,000
judgment against Kendrick Edwards, plus pre- and post-judgment interest and
attorney’s fees. (Harris County Civil Court at Law No. 4, Case No. 805543).
George Thompson was Miller’s attorney in this proceeding. Miller obtained a writ
of execution on the judgment on July 31, 2009 and appellant purchased the
2 Property for $91,000 at the Harris County Constable’s sale held on October 6,
2009.
Appellant filed suit in Harris County Civil Court at Law No. 4 to set aside
the sale arguing that (1) the Property was the homestead of judgment debtor
Edwards, and therefore exempt from the forced sale, and (2) Miller’s attorney,
Thompson, falsely represented to appellant before the constable’s sale that the
Property was free and clear of all liens. (Harris County Civil Court at Law No. 4,
Case No. 949,805). Appellant also filed a forcible detainer suit in the justice court
against Edwards that appellant later appealed to Harris County Civil Court at Law
No. 3 (Case No. 956,362). On appellant’s motion, the forcible detainer suit (Case
No. 956,362) was consolidated with the suit to set aside the sale (Case No.
949,805).
A bench trial on the merits of the consolidated case was held on October 8,
2010. At trial, Edwards testified that he bought the Property on January 9, 2008
and executed a Construction Deed of Trust and Assignment of Rents to Anchor
Capital, LLC in exchange for $265,000, which he used to purchase and improve
the Property. On July 24, 2008, Edwards executed a second Deed of Trust on the
property to Sky Investments in exchange for a $350,000 loan, which he used to pay
off the loan from Anchor Capital. According to Edwards, he was still making
3 improvements to the Property at that time but moved in shortly thereafter.
Edwards and his nine-year old daughter currently reside there.
Edwards testified that the Property is his homestead and that he intended it
to be his homestead from the time he purchased it.
Q (Saihat’s counsel). And I’m going to get straight to the point; is this property your homestead?
A (Edwards). Yes, it is.
Q. Okay. And what do you mean by claiming this is your homestead?
A. This is the place where I live, where I reside, my home.
Q. You sleep there every night.
A. Yes, that’s correct.
Q. Your daughter sleeps there with you?
A. That’s correct.
...
Q. And since [you acquired the Property on January 9, 2008], have you intended that property to be your homestead?
A. That is correct.
Edwards also testified that he had “been in the real estate business for some time”
and that he had purchased other properties, but those properties were “for the real
4 estate business.”1 Edwards acknowledged that, aside from claiming the Property
as his homestead when he applied for property insurance, he never claimed the
Property as his homestead for any other purpose. Edwards did not claim this or
any other property as his homestead for tax exemption purposes. He also
acknowledged that the Deed of Trust to Sky Investments included a provision by
which he contractually agreed not to claim the Property as his homestead.
Although Edwards testified that his driver’s license lists his address as 6464
San Felipe, Edwards explained that the San Felipe address is for an apartment he
co-signed on and leased for his mother and that he only uses that address so that
his daughter can attend school nearby. The Harris County Appraisal District’s
records show 6464 San Felipe as Edwards’ address. Edwards testified that he and
his daughter were the only occupants of the Property, and initially denied having
ever rented the property out. He later explained, that he had, on a temporary basis,
rented two downstairs bedrooms to a friend in need, but that he and his daughter
resided there throughout that time.
Edwards maintains that he never received notice that the Property was going
to be sold at auction to satisfy Miller’s 2004 judgment and he was unaware of the
October 2009 sale until afterwards when one of appellant’s representatives visited
1 Aside from this general reference, there is no testimony or evidence in the record identifying any other real estate purchased by Edwards, in any capacity, other than the Property. 5 the Property. Edwards also testified that he did not recall calling the constable to
discuss the sale of the Property.
Edwards presented the testimony of two other witnesses: his friend,
Candace Cooper, and his colleague, Kim Scott. Both women testified that they
visited Edwards at the Property many times during the last few years and that his
daughter and he occupied and resided on the Property, specifically in October
2009. Scott also testified that she worked for Kendrick Madison Custom Homes as
Edwards’ office and personal assistant. According to Scott, the company was in
the business of building and refurbishing homes.
Deputy Georgette Lee, the Harris County Constable who conducted the
Constable’s Sale, testified that someone who identified himself as “Kendrick
Edwards” called her in August 2009 and told her that he did not own any real
estate. Deputy Lee stated that she could not swear that the person who called her
was “Kendrick Edwards” because she did not see him in person and could not
positively identify his voice. She conceded the possibility that it could have been
someone else.
On December 1, 2010, the trial court signed a judgment in favor of Miller
and Thompson, in which the court denied appellant’s claim to set aside the sale and
awarded Miller $4,400 in attorney’s fees. The trial court also made Findings of
Fact and Conclusions of Law in support of the judgment. In particular, the trial
6 court found that the Property was not Edwards’ homestead. Appellant does not
challenge the portion of the trial court’s judgment finding in favor of Miller and
Thompson with respect to appellant’s false representation claims.
Standing
Miller contends that appellant is without standing to claim that the Property
was Edwards’ homestead, because only Edwards could make that claim. Standing
is a prerequisite to subject matter jurisdiction, and subject matter jurisdiction is
essential to a court’s power to decide a case. Bland Indep. Sch. Dist. v. Blue, 34
S.W.3d 547, 553–54 (Tex. 2000). The general test for standing requires that a real
controversy exists between the parties, which will be actually determined by the
judicial declaration sought. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d
440, 446 (Tex. 1993).
Texas homesteads are generally exempt from “forced sale, for the payment
of all debts,” except for those debts specifically enumerated in the constitution.
TEX. CONST. art. XVI, § 50. The forced sale of a homestead property for a debt not
specifically allowed by the constitution is void, and confers upon the purchaser no
rights in the property. Salomon v. Lesay, 369 S.W.3d 540, 555 (Tex. App.—
Houston [1st Dist.] 2012, no pet.) (citing Heggen v. Pemelton, 836 S.W.2d 145,
148 (Tex. 1992)).
7 Here, appellant purchased the Property at the constable’s sale and later
learned that Edwards was claiming the Property as his homestead. If the Property
is Edwards’ homestead, it is exempt from the forced sale and the deed conveying
the Property to appellant is void. See TEX. CONST. art. XVI, § 50; Heggen, 836
S.W.2d at 148. Appellant has standing to adjudicate its rights with respect to the
Property, regardless of whether Edwards has filed suit to establish the Property as
his homestead. E.g., Hoffman v. Love, 494 S.W.2d 591, 593 (Tex. Civ. App.—
Dallas 1973, writ ref’d n.r.e.) (homestead case); see also Johnson v. Coppel, No.
01–09–00392–CV, 2012 WL 344757, at *3–5 (Tex. App.—Houston [1st Dist.]
Feb. 2, 2012, no pet.) (mem. op.) (concluding plaintiff who asserted equitable title
to condominium that was in his brother’s name had standing to bring suit to set
aside deed of trust allegedly executed by brother due to forgery, because forged
deed was void, not merely voidable). Accordingly, we conclude that appellant has
standing to challenge the validity of the constable’s sale on the basis that the
Property is Edwards’ homestead.
Mootness
Miller also argues that the appeal is moot because an actual controversy no
longer exists in this case, in light of a June 28, 2011 quitclaim deed in which
Edwards conveyed and assigned all of his interest in the Property to appellant. The
issue in the suit to set aside the sale is whether the forced sale of the Property is
8 void. If void, appellant is entitled to the return of the amount it paid at the sale,
some of which was ordered to be distributed to Miller and Thompson in
satisfaction of the judgment against Edwards and the award of attorney’s fees. The
quitclaim deed has nothing to do with the validity of the constable’s sale or
whether appellant is entitled to the return of those funds. The quitclaim deed also
does not necessarily indicate that there is no actual controversy between Edwards
and appellant with respect to their rights to immediate possession of the Property
(i.e., appellant’s forcible detainer claim against Edwards).
Accordingly, we conclude that the appeal is not moot.
Homestead
In his first issue, appellant contends that there was insufficient evidence to
support the trial court’s fact finding that the Property was not Edwards’ homestead.
A. Standard of Review and Applicable Law
“Findings of fact in a case tried to the court have the same force and dignity
as a jury’s verdict upon questions.” Anderson v. City of Seven Points, 806 S.W.2d
791, 794 (Tex. 1991); see also Milton M. Cooke Co. v. First Bank & Trust, 290
S.W.3d 297, 302 (Tex. App.—Houston [1st Dist.] 2009, no pet.). Thus, “the trial
court’s findings of fact are subject to sufficiency challenges under the same
standards we apply to address the sufficiency of the evidence to support a jury’s
answer.” Milton M. Cooke Co., 290 S.W.3d at 302. In reviewing a challenge to
9 the factual sufficiency of the evidence, we must consider and weigh all the
evidence and should set aside the judgment only if it is so contrary to the
overwhelming weight of the evidence as to be clearly wrong and unjust. Arias v.
Brookstone, L.P., 265 S.W.3d 459, 468 (Tex. App.—Houston [1st Dist.] 2007, pet.
denied) (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986)). The trial court
acts as fact-finder in a bench trial and is the sole judge of the credibility of
witnesses. HTS Servs., Inc. v. Hallwood Realty Partners, 190 S.W.3d 108, 111
(Tex. App.—Houston [1st Dist.] 2005, no pet.) (citing S.W. Bell Media, Inc. v.
Lyles, 825 S.W.2d 488, 493 (Tex. App.—Houston [1st Dist.] 1992, writ denied)).
As such, the trial court may take into consideration all the facts and surrounding
circumstances in connection with the testimony of each witness and accept or
reject all or any part of that testimony. S.W. Bell Media, 825 S.W.2d at 493. We
may not substitute our judgment for that of the fact finder. Pool v. Ford Motor
Co., 715 S.W.2d 629, 634 (Tex. 1986).
Homestead properties are afforded special and unique protections under the
Texas Constitution and, relevant to this appeal, are generally exempt from “forced
sale, for the payment of all debts,” except those specifically enumerated in the
constitution. See TEX. CONST. art. XVI, § 50. Because these rights protect citizens
from losing their home, courts liberally construe constitutional and statutory
homestead provisions to protect the homestead. Kendall Builders, Inc. v. Chesson,
10 149 S.W.3d 796, 807 (Tex. App.—Austin 2004, pet. denied). To establish a
property as homestead property the claimant “must show a combination of both
overt acts of homestead usage and the intention on the part of the owner to claim
the land as a homestead.” Sims v. Beeson, 545 S.W.2d 262, 263 (Tex. Civ. App.—
Tyler 1976, writ ref’d n.r.e.); see also Salomon, 369 S.W.3d at 554; Dodd v.
Harper, 670 S.W.2d 646, 649 (Tex. App.—Houston [1st Dist.] 1983, no writ).
The homestead character can even be established before actual occupancy when
the owner intends to improve and occupy the premises as a homestead. Gregory v.
Sunbelt Sav., F.S.B., 835 S.W.2d 155, 158 (Tex. App.—Dallas 1992, writ denied).
Generally, whether a piece of property qualifies as a homestead is a fact question.
Brown v. Bank of Galveston, 963 S.W.2d 511, 515 (Tex. 1998); see Sims, 545
S.W.2d at 264–65 (concluding that testimony on homestead issue raised fact
question).
Appellant argues that the trial court’s finding that the Property was not
Edwards’ homestead was against the overwhelming weight of the evidence
because Edwards, his friend Candace Cooper, and his assistant Kim Scott, all
testified that Edwards resided at the Property with his daughter and that the
Property was Edwards’ homestead and there is no evidence of his having ever
claimed any other property as his homestead since the purchase of this Property in
11 January 2008.2 Appellant further argues that the only evidence inconsistent with
Edwards’ homestead claim is testimony that: (1) Edwards temporarily rented out
two bedrooms to a friend, (2) his driver’s license lists a San Felipe street address,
(3) Edwards never claimed a homestead exemption on the Property for tax
purposes, (4) someone who identified himself as “Kendrick Edwards” contacted
Deputy Lee before the constable’s sale and informed her that he did not own any
real estate, and (5) Edwards contractually agreed in the Deed of Trust to Sky
Investments that he would not claim the Property as his homestead.
Appellant argues that none of these facts are evidence that the Property is
not Edwards’ homestead. See generally TEX. PROP. CODE ANN. § 41.003 (West
2000) (“Temporary renting of a homestead does not change its homestead
character if the homestead claimant has not acquired another homestead.”);
Ramsey v. Davis, 261 S.W.3d 811, 817 n.1 (Tex. App.—Dallas 2008, pet. denied)
(noting that county records relating to homestead exemption are not determinative
of homestead status); First Interstate Bank of Bedford v. Bland, 810 S.W.2d 277,
283–84 (Tex. App.—Fort Worth 1991, no writ) (stating that when claimant owns
only one piece of property that claimant occupies and uses as his home, claimant
not estopped to set up homestead exemption notwithstanding written or oral
declarations to contrary); Dodd, 670 S.W.2d at 649 (stating no specific writing
2 Appellant argues that it was impossible for the San Felipe property to be his homestead because he merely rented the apartment. 12 needed to claim homestead and property owner’s failure to file homestead
exemption not proof that owner did not intend property to be his homestead).
Appellant also contends that Deputy Lee’s testimony that someone who identified
himself as “Kendrick Edwards” called her in August 2009 and told her that he did
not own any real estate, was no evidence that the Property was not Edwards’
homestead because there was no proof that the caller was Edwards and the caller
did not deny that the Property was his homestead.
Although these factors are not dispositive of the issue of whether the
Property is Edwards’ homestead, they are relevant to the trial court’s evaluation of
Edwards’ intentions with respect to the Property and, more importantly, they assist
the trial court’s evaluation of Edwards’ credibility. This is particularly true with
respect to the issue of whether Edwards rented out the Property. Edwards initially
denied renting out the Property. But, after his assistant, Scott, refuted this
testimony, Edwards explained that he had temporarily rented two downstairs
bedrooms to a friend in need, and that he and his daughter also resided at the
Property during that time.
To establish the Property as Edwards’ homestead, there must be evidence of
“both overt acts of homestead usage and the intention on the part of the owner to
claim the land as a homestead.” Sims, 545 S.W.2d at 263. The only evidence that
the Property is Edwards’ homestead is the testimony of Edwards, Cooper, and
13 Scott. After Edwards testified that he had been working in the residential real
estate field for several years and had purchased other properties for his real estate
business, a rational factfinder could have inferred that Edwards initially purchased
the home as an investment (which would explain why he did not initially claim a
homestead exemption on the Property) and then decided to claim the Property as
his homestead after he learned that the valuable piece of real estate had been sold
to satisfy Miller’s default judgment against him. Although Edwards testified that
he intended to claim the Property as his homestead, as the sole fact finder, the trial
court was within its province to disbelieve Edwards’ testimony on this point. See
S.W. Bell Media, 825 S.W.2d at 493 (stating trial court may take into consideration
all facts and surrounding circumstances in connection with testimony of each
witness and accept or reject all or any part of that testimony). The trial court was
also within its province to disbelieve the testimony of Edwards’ friend, Cooper,
and Edwards’ assistant, Scott, about Edwards’ use of and intentions with respect to
the Property. See id.
After considering and weighing all the evidence, we cannot say that the trial
court’s judgment is so contrary to the overwhelming weight of the evidence as to
be clearly wrong and unjust. See Cain, 709 S.W.2d at 176; Arias, 265 S.W.3d at
468.
We overrule appellant’s first issue.
14 Attorney’s Fees
In its second issue, appellant contends that the trial court erred in awarding
attorney’s fees to Miller because Miller neither requested them in his pleadings nor
presented any evidence they were reasonable and necessary. Absent a mandatory
statute, the trial court’s jurisdiction to render a judgment for attorney’s fees must
be invoked by the pleadings. R. Conrad Moore & Assocs. v. Lerma, 946 S.W.2d
90, 96 (Tex. App.—El Paso 1997, writ denied); see generally Tony Gullo Motors I,
L.P. v. Chapa, 212 S.W.3d 299, 310–11 (Tex. 2006) (“For more than a century,
Texas law has not allowed recovery of attorney’s fees unless authorized by statute
or contract.”). A judgment not supported by pleadings requesting an award of
attorney’s fees is a nullity. Lerma, 946 S.W.2d at 96; see generally Stoner v.
Thompson, 578 S.W.2d 679, 683–84 (Tex. 1979) (stating party may not be granted
relief absent pleadings supporting such relief). In this case, there is no pleading to
support an award of attorney’s fees.
We sustain appellant’s second issue.
Forcible Detainer
In its third issue, appellant contends that the trial court erred in refusing to
grant appellant’s request for forcible detainer against Edwards. Appellant
originally filed its petition for forcible detainer in the justice court. On January 15,
2010, the justice court rendered judgment in favor of appellant. Edwards appealed
15 the justice court’s decision to County Civil Court at Law No. 3 on February 12,
2010. On April 15, 2010, the trial court granted appellant’s motion to consolidate
the appeal in the forcible detainer suit (Case No. 956,362) with the suit to set aside
the sale (Case No. 949,805). 3
The sole issue in a forcible-detainer action is which party has the right to
immediate possession of the property. See Dormady v. Dinero Land & Cattle, Co.,
61 S.W.3d 555, 557 (Tex. App.—San Antonio 2001, pet. dism’d w.o.j.). Although
justice courts and, on appeal, county courts, have jurisdiction of forcible-detainer
suits, TEX. PROP. CODE ANN. § 24.004(a) (West Supp. 2012), TEX. R. CIV. P. 749,
justice courts may not adjudicate title to land. TEX. GOV’T CODE ANN.
§ 27.031(b)(4) (West Supp. 2012). Courts have recognized that a question of title
may be so intertwined with the issue of possession so as to preclude adjudication
of the right to possession without first determining title. In such cases, neither the
3 Although it appears that the county court’s consolidation of the forcible detainer appeal and the suit to set aside the sale was simple error, none of the parties have raised this issue. See Hong Kong Dev., Inc. v. Nguyen, 229 S.W.3d 415, 442 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (holding trial court abused its discretion by consolidating tenant’s tort suit against landlord, in which it exercised original jurisdiction, with landlord’s forcible detainer appeal; reviewing error as simple, as opposed to fundamental error); see also Tate v. Andrews, 372 S.W.3d 751, 754 (Tex. App.—Dallas 2012, no pet.) (holding tenants failed to preserve issue that consolidation of forcible detainer appeal and tort suit filed by tenants against landlord deprived them of opportunity to present evidence or argument in support of their claims because tenants did not make this argument to trial court).
16 justice court nor the county civil court at law on appeal has jurisdiction over the
forcible-detainer action. Dormady, 61 S.W.3d at 557–58; Mitchell v. Armstrong
Capital Corp., 911 S.W.2d 169, 171 (Tex. App.—Houston [1st Dist.] 1995, writ
denied). Appellant’s superior right to possession in the forcible-detainer action
was based on the deed to the Property it acquired at the constable’s sale. Edwards
responded and claimed that he had a superior right to possession because the
Property was his homestead. 4 In this case, neither the justice court nor the county
court at law could have determined which party had the superior right of
possession without first determining title (i.e., whether the constable’s sale was
void because the property was Edwards’ homestead). Because neither the justice
court nor the county court at law had jurisdiction over the forcible-detainer action,
we do not have jurisdiction over this issue on appeal. Accordingly, we dismiss the
forcible-detainer claim for want of jurisdiction.
We overrule appellant’s third issue.
Conclusion
We reverse the portion of the trial court’s judgment awarding attorney’s fees
to Miller, render judgment that Miller take nothing against appellant, and dismiss
4 The justice court’s judgment indicates that both appellant and Edwards were present when the court heard the forcible-detainer action on January 15, 2010. Edwards filed an answer in the county court on February 19, 2010.
17 the forcible-detainer claim for want of jurisdiction. The trial court’s judgment is in
Jim Sharp Justice
Panel consists of Chief Justice Radack and Justices Sharp and Massengale.