Stephen C. Kuhns v. Donald F. Carnes

• Court: Court of Appeals of Texas
• Decided: September 10, 1999
• Docket: 03-98-00247-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-98-00247-CV

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Stephen C. Kuhns, Appellant

v.

Donald F. Carnes, Trustee of the Frances P. Kuhns Trust, Appellee

FROM THE COUNTY COURT AT LAW NO. 1 OF HAYS COUNTY

NO. 5860, HONORABLE HOWARD S. WARNER, JUDGE PRESIDING

Donald Carnes, as trustee of the Frances P. Kuhns irrevocable inter vivos trust (the "trust"), initiated this eviction action in the Justice Court Precinct 4 of Hays County seeking possession of a five-acre tract of residential real estate (the "property") from Stephen Kuhns. After the justice court awarded possession of the property to Carnes, Kuhns appealed the ruling to the county court at law. Following a trial de novo, the county court at law granted summary judgment in favor of Carnes and awarded Carnes his attorney's fees. Kuhns, pro se, appeals raising five issues contending that the county court at law erred by granting summary judgment, awarding Carnes his attorney's fees and ruling in favor of Carnes on other post-judgment motions. We will reverse the award of attorney's fees to Carnes and render judgment that Carnes take nothing on that claim and affirm the remaining portions of the county court at law's judgment.

Background

This is another case involving the same residential property that has been at issue in three other cases before this Court. ⁽¹⁾ The property was purchased in 1987 by MBank El Paso acting in its capacity as trustee of the trust. The trusteeship of the trust passed through several corporate trustees until 1992, when Carnes was appointed trustee by order of the Travis County Probate Court. After Carnes settled the trust's debts and paid expenses, the property was the only remaining asset of the trust. Although earlier the trust began building a house on the property and paid a portion of the construction costs, the house has not been completed due to a lack of trust funds. Despite its unfinished state, Kuhns has been residing in the house.

In September 1994, the taxing authorities sued to recover delinquent property taxes. Kuhns attempted to intervene in the suit but his plea in intervention was stricken and he was dismissed by the district court. Ultimately, Carnes and the taxing authorities reached a settlement and the district court signed an agreed judgment. Kuhns appealed his dismissal, and this Court dismissed the appeal for lack of jurisdiction. See Kuhns v. Dripping Springs Indep. Sch. Dist., No. 03-97-722-CV (Tex. App.--Austin April 16, 1998, no pet.) (not designated for publication).

Since the probate court appointed Carnes as trustee, Kuhns has continually denied Carnes's authority over the property. As a result, on October 24, 1996, Carnes asked the probate court for clarification of his trustee duties listed in the trust document and specifically his authority over the property. Almost a year later, Kuhns filed a declaratory-judgment action in the district court of Hays County against Carnes, the predecessor successor trustee, and the individual attorneys and their law firms that represented the taxing authorities in the property-tax suit. Kuhns asked the Hays County district court to declare that he was the sole owner of the legal and equitable title to the property.

On October 10, 1997, the probate court signed a declaratory judgment that stated Carnes, as trustee, owned the property, Kuhns possessed no interest in the property, Carnes could ask Kuhns to leave the property for any reason at any time, and Carnes had the authority to sell the property at any time so long as it was in the trust's best interest. This Court has today modified the probate court's judgment holding that Kuhns possesses an equitable interest in the property without a right to possession and that Kuhns's equitable interest will not prevent Carnes from asking Kuhns to leave the property or from selling the property should Carnes determine that a sale is in the trust's best interest. See Kuhns v. Carnes, No. 03-97-721-CV (Tex. App.--Austin, September 10, 1999, no pet. h.) (not designated for publication).

In the declaratory-judgment action filed by Kuhns in Hays County, the defendants filed pleas to the jurisdiction and pleas in abatement. They contended that by virtue of Carnes's suit filed in the Travis County Probate Court, that court had dominant subject-matter jurisdiction; and, alternatively, the probate court had dominant jurisdiction pursuant to the Texas Probate Code section 5A(b) and (c) because the issues raised in the Hays County lawsuit were incident to an estate. See Tex. Probate Code Ann. § 5A(b) & (c) (West Supp. 1999). The Hays County district court granted the defendants' pleas to the jurisdiction and pleas in abatement, and dismissed Kuhns's case. This Court has today affirmed the dismissal. See Kuhns v. Bank One, Texas, N.A., No. 03-98-177-CV (Tex. App.--Austin 10, 1999, no pet. h.) (not designated for publication).

In November 1997, Carnes, was once again faced with the trust's inability to pay the property taxes, insurance and other property-maintenance expenses. Kuhns also failed to pay these expenses himself. Carnes gave Kuhns a four-week notice to vacate the property so that Carnes could market and sell the property. Despite the one-month notice, Kuhns did not vacate the property. At the end of the four-week notice period, Carnes gave Kuhns an additional notice to vacate the property by posting a notice inside the front door of the house on the property. On January 8, 1998, twenty days later, when Kuhns did not leave the property, Carnes filed an eviction suit in Justice Court No. 4 of Hays County.

After a jury verdict in favor of Carnes, Kuhns appealed to the county court at law. The county court at law granted summary judgment in Carnes's favor, awarded Carnes his attorney's fees and denied several motions filed by Kuhns. Kuhns appeals the county court at law's judgment and other post-trial rulings.

Discussion

On appeal Kuhns contends that (1) the justice court and consequently the county court at law had no jurisdiction to consider the eviction suit because of unresolved title issues; (2) Carnes did not establish his right to possession as a matter of law or Kuhns raised issues of material fact in his response to the motion for summary judgment; (3) Carnes was not entitled to recover his attorney's fees; (4) Kuhns's affidavit of indigency should have been sufficient to supersede the judgment; and (5) the trial court erroneously denied his motion for sanctions and should not have returned to Carnes the $1,500 paid into the registry of the court in lieu of a possession bond.

Kuhns has filed a motion asking this Court to take judicial notice of "all appellate records before it relavant [sic] to the controversies between Kuhns and appellee Donald F. Carnes (Carnes), and particularly of the 'Order of Sale' in cause 4862 (9/30/97 Order)." We grant the portion of the motion related to taking judicial notice of the appellate records submitted in the various clerk's records accompanying Kuhns's appeals that relate to the property with the exception of the property-tax appeal as we determined that this Court was without jurisdiction over that appeal. We overrule the remaining portions of the motion.

Jurisdiction

In his first issue, Kuhns contends that the county court at law and the justice court had no jurisdiction over the eviction suit because there was ongoing litigation in other courts involving the question of title to the property. Kuhns asserts that he specifically gave notice to both courts that the title issue was unresolved, therefore, the courts were without subject-matter jurisdiction and the case should have been dismissed.

Eviction suits exist to give property owners a "summary, speedy, simple and inexpensive remedy for determination of who is entitled to property without resorting to actions upon title." Home Savings Ass'n v. Ramirez, 600 S.W.2d 911 (Tex. Civ. App.--Corpus Christi 1980, writ ref'd n.r.e.). In an eviction suit, possession of property is the only issue to be decided; the merits of the title shall not be adjudicated. See Tex. R. Civ. P. 746; Mitchell v. Armstrong Capital Corp., 911 S.W.2d 169, 171 (Tex. App.--Houston [1st Dist.] 1995, writ denied). If it becomes apparent that a genuine issue regarding title exists in an eviction suit, the court does not have jurisdiction over the matter. Mitchell, 911 S.W.2d at 171 (citing Haith v. Drake, 596 S.W.2d 194, 196 (Tex. Civ. App.--Houston [1st Dist.] 1980, writ ref'd n.r.e.)).

As summary-judgment proof, Carnes included copies of the probate court's orders which declared Carnes's title to the property; the title issue was resolved in that suit. Kuhns's declaratory-judgment action filed in the Hays County district court had been dismissed. The only issue before the courts below was whether Carnes was entitled to possession of the property.

Additionally, Kuhns's appeal of the probate and district court judgments did not affect the county court at law's reliance on those judgments and its determination about possession. A trial court's judgment is final for purposes of res judicata and estoppel even during an appeal of that judgment. Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1 (Tex. 1986). The first issue is overruled.

Sufficiency of Evidence to Support Summary Judgment

In his second issue, Kuhns contends that Carnes failed to plead or prove his ownership interest in the property, failed to plead or prove that Kuhns had no ownership interest in the property, or that Kuhns had failed to leave the property on demand. Contrary to Kuhns's assertions, after reviewing Carnes's original petition, the motion for summary judgment and the summary-judgment proof attached to the motion, we conclude that Carnes adequately pleaded and proved his ownership interest, Kuhns's lack of a right to possession and that Carnes had asked Kuhns to leave the property and that he had not done so. We overrule this contention.

Kuhns also argues that an eviction suit was not the proper action for Carnes to bring to have him removed from the property. Kuhns agrees that based upon the probate court's order, he was declared a licensee. Kuhns argues that as a licensee the eviction suit was not the proper type of action to have him removed from the property because there was no landlord-tenant relationship between he and Carnes. Kuhns contends that Carnes should have filed a criminal trespass action to have him removed from the property.

An eviction suit may be brought against a person who refuses to surrender possession of real property on demand if the person:

(1) is a tenant wilfully and without force holding over after the termination of the tenant's right of possession;

(2) is a tenant at will or by sufferance, including an occupant at the time of foreclosure of a lien superior to the tenant's lease; or

(3) is a tenant of a person who acquired possession by forcible entry.

See Tex. Prop. Code Ann. § 24.002(a) (West Supp. 1999). The Property Code also provides an elaborate process that an owner must follow to remove someone from its property.

To merit summary judgment, Carnes had to establish that there were no genuine issues of any material fact, and that he was entitled to possession of the property a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex. 1985); see Tex. R. Civ. P. 166a(c). In an eviction suit, the only issue presented to the trial court is the question of possession. See Haginas v. Malbis Mem. Found., 354 S.W.2d 368, 371 (Tex. 1962); Tex. R. Civ. P. 746.

All issues of law and fact regarding who had the right to possess the property were settled by the probate court's order, a copy of which Carnes submitted to the county court as summary-judgment proof. See Smithwick, 724 S.W.2d at 6. Although the probate court determined that Kuhns was a licensee, in proceeding to have Kuhns removed from the property Carnes treated Kuhns as a tenant by giving him all the statutory notices and removing him from the property according to that status. This provided Kuhns with more due process than if Carnes had proceeded to have the State file a suit for criminal trespass against Kuhns. See Tex. Penal Code Ann. § 30.05(a) (West 1994) (elements of criminal trespass offense). We conclude that Carnes's summary-judgment proof supports the county court at law's judgment. The second issue is overruled.

Attorney's Fees

In his third issue, Kuhns contends Carnes was not entitled to recover his attorney's fees because Carnes failed to comply with the statutory provision allowing recovery of attorney's fees in an eviction action. See Tex. Prop. Code Ann. § 24.006 (West Supp. 1999).

For an owner to recover attorney's fees in an eviction suit, the owner must:

(a) give a tenant who is unlawfully retaining possession of the landlord's premises a written demand to vacate the premises. The demand must state that if the tenant does not vacate the premises before the 11th day after the date of receipt of the notice and if the landlord files suit, the landlord may recover attorney's fees. The demand must be sent by registered mail or by certified mail, return receipt requested, at least 10 days before the date the suit is filed.

Id. (emphasis added) Carnes did not send Kuhns a notice to vacate by certified or registered mail return receipt requested. However, Carnes contends that he followed the statute with reasonable strictness by placing the notice to vacate on the inside of the front door to the premises on December 19, 1997, which was more than ten days before Carnes filed the eviction proceeding in January 1998. ⁽²⁾

We conclude that section 24.006(a) must be strictly construed because it is part of the statutory scheme authorizing eviction actions. See John v. State, 826 S.W.2d 138, 140 (Tex. 1992) (notice requirement of certified or registered mail, return receipt requested, in eminent domain action construed strictly). Moreover, since the language of the statute is clear and unambiguous, it should be enforced as written, giving its terms their usual and ordinary meaning, and without resorting to rules of construction. Id. The express language of section 24.006 states that the landlord "must" send the demand notice by registered or certified mail, return receipt requested. Must "is an imperative term, by ordinary meaning, and requires the performance of the act to be performed. Thus, it should be treated as a mandatory term, unless it is apparent that the legislature intended otherwise." Id. at n.3 (quoting Balios v. Texas Dep't of Pub. Safety, 733 S.W.2d 308, 310 (Tex. App.--Amarillo 1987, writ ref'd)).

Because Carnes did not strictly comply with the statutory notice provision, we reverse the portion of the county court at law's judgment awarding Carnes his attorney's fees. Kuhns's third issue is sustained.

Pauper's Affidavit in Lieu of Supersedeas Bond

In his fourth issue, Kuhns complains about the $9,000 supersedeas bond set by the county court at law. Kuhns contends that the county court at law should have allowed his pauper's affidavit to supersede the county court at law's writ of possession under Rule of Civil Procedure 755 in the same manner as provided in Civil Procedure Rule 749a. Kuhns concedes that he has found no authority to support this contention.

Rule 749a addresses appeals of justice-court decisions to county courts in eviction cases. Rule 749a provides that if an individual is unable to pay the costs of appeal or file a bond as required under the rules, the individual may nevertheless appeal a justice-court decision to a county court and suspend the justice court's judgment by filing a pauper's affidavit and following the procedure outlined in the rule. See Tex. R. Civ. P. 749a. Rule 755 addresses writs of possession issued by a county court after a de novo trial of an eviction suit and states that "a writ of possession shall not be suspended or superseded in any case by appeal from such final judgment in the county court, unless the premises in question are being used as the principal residence of a party." See Tex. R. Civ. P. 755. This rule must be read in conjunction with Texas Property Code section 24.007 which provides that

[i]n setting a supersedeas bond the county court shall provide protection for the appellee to the same extent as in any other appeal, taking into consideration the value of rents likely to accrue during appeal, damages which may occur as a result of the stay during appeal, and other damages or amounts the court may deem appropriate.

See McCartney v. California Mortgage Serv., 951 S.W.2d 549, 550 (Tex. App.--El Paso 1997, no pet.) (quoting Tex. Prop. Code Ann. § 24.007 (West Supp. 1999)).

A judgment creditor has a statutory right to have execution issued to enforce a judgment pending appeal, unless and until a valid supersedeas bond has been filed. Texas Employers' Ins. Assoc. v. Engelke, 790 S.W.2d 93, 95 (Tex. App.--Houston [1st Dist.] 1990, orig. proceeding) (citing Anderson v. Lykes, 761 S.W.2d 831, 833 (Tex. App.--Dallas 1988, orig. proceeding) & Elliot v. Lester, 126 S.W.2d 756, 758 (Tex. Civ. App.--Dallas 1939, no writ)). The fact that a judgment debtor is financially unable to file such bond does not destroy this statutory right. Engelke, 790 S.W.2d at 95.

Additionally, Texas Rule of Appellate Procedure 24 addresses suspension of enforcement of judgments pending appeal in civil cases. Tex. R. App. P. 24. Rule 24 provides different methods a party may use to suspend the enforcement of judgments pending appeal including filing with the trial-court clerk a written agreement with the judgment creditor for suspension of enforcement of the judgment, a good and sufficient bond, a cash deposit in lieu of bond, or providing alternate security ordered by the court. See Tex. R. App. P. 24.1. This rule does not include a pauper's affidavit as a method to supersede a judgment and we decline to hold that it does so in this case.

Kuhns also complains that the county court at law abused its discretion in setting the amount of the supersedeas bond. He argues that "no legitimate evidence of any kind" or "any reasonable basis [exists] for the imposition of a $9,000 bond." He contends that the amount is arbitrary and unreasonable particulary when considering his earlier inability to obtain a bond when he appealed the justice court's decision to the county court.

Carnes argued to the county court at law that because of the taxes owed and those that would continue to accrue during an appeal, he was requesting a bond in the amount of $10,000 or $11,000. The county court at law, however, ordered the supersedeas bond in the amount of $9,000, the same amount set by the justice court. We hold that the county court at law acted within its discretion in setting the supersedeas bond at $9,000. The fourth issue is overruled.

Request For Sanctions and Return of Possession Bond to Carnes

In his fifth issue, Kuhns complains about the county court at law's denial of his motion for sanctions. On May 8, 1998, Kuhns filed a motion for sanctions stating generally that he had "been harmed by [Carnes's and his attorney's] conduct as will be shown at [a] hearing." In his sanctions motion, Kuhns requested that the county court at law, "upon [a] hearing on the matter, award sanctions against the parties complained of in an amount curative of the offenses, and for all further and final relief to which appellant may show himself justly entitled." In his motion, Kuhns does not complain about any specific acts of Carnes and his attorney or explain how he was harmed by any of their actions. There is no supporting documentary evidence attached to the copy of the motion contained in the clerk's record.

In his argument accompanying this issue on appeal, Kuhns "complains in part of the ex parte nature of [a] March 6, [19]98 letter of [Carnes's attorney] to the [county court at law]." Kuhns attached a copy of the letter as an appendix to his appellate brief. Apparently, Kuhns's motion for sanctions was based upon Carnes's attorney sending this letter.

The March 6, 1998 letter was addressed to the Hays County Clerk from Carnes's attorney and was as follows:

On February 2, 1998, we won a jury trial awarding us possession of the premises. Stephen C. Kuhns said that he was going to appeal [to] the County Court at Law. Apparently, his appeal (and our ability to get him finally evicted) is being held up because your office refuses to docket the appeal. This is exactly what Mr. Kuhns wants, as he is without funds the longer he can delay staying on the property, the better for him.

I respectfully insist that you give this matter a docket number and notify my office immediately of the docketing, as we intend to file a motion for summary judgment as soon as we have a cause number and set the matter for hearing on that motion.

I look forward to hearing from you at your earliest convenience.

Very truly yours,

s/s

We hold that the March 6 letter was not an ex parte communication to the county court at law judge, rather it was a letter sent to the county clerk and was administrative in nature. The trial court did not err in denying Kuhns's motion for sanctions.

In his fifth issue, Kuhns also contends that the county court at law erred by releasing to Carnes his cash deposit in lieu of a possession bond. The county court at law required Carnes to post a $1,500 possession bond in order to obtain a writ of possession. On July 15, 1998, Carnes filed a cash deposit in lieu of a bond with the Hays County Clerk to be placed in the registry of the court. Kuhns filed a petition for a writ of mandamus in this Court seeking relief from the writ of possession; this Court denied the petition. See In re Kuhns, No. 03-98-375-CV (Tex. App.--Austin August 7, 1998, orig. proceeding) (not designated for publication). Kuhns then filed a petition for writ of mandamus and motion for emergency stay in the supreme court; that court overruled the motion and denied the petition. See In re Kuhns, 41 Tex. Sup. Ct. J. 1323 (August 14, 1998). The Hays County sheriff executed the writ of possession on August 19, 1998. The county court at law released the cash deposit on August 31, 1998. Without citing any authority, Kuhns argues that the county court at law should not have returned the $1,500 to Carnes until after disposition of this appeal.

A possession bond entitles the prevailing party in an eviction suit to obtain a writ of possession before the sixth day after the judgment is rendered or to obtain possession of the property pending the trial of the eviction suit. See Tex. Prop. Code Ann. § 24.061(b) (West Supp. 1999) (emphasis added); Tex. R. Civ. P. 740. In this case, the writ of possession was not issued until sixty-seven days after the trial court's judgment was signed. Certainly as of August 31, 1998, after this Court and the supreme court denied Kuhns's requests for relief from the writ of possession and after the writ of possession had been executed, there was no longer any need for a possession bond. To suspend the writ of possession, Kuhns was required to post the $9,000 supersedeas bond set by the county court at law. The trial court did not err in returning the cash deposit to Carnes. Kuhns's fifth issue is overruled.

Conclusion

We reverse the portion of the county court at law's judgment that awarded Carnes attorney's fees and render judgment that he take nothing on that claim. We affirm the county court at law's judgment in all other respects.

Lee Yeakel, Justice

Before Justices Jones, B. A. Smith and Yeakel

Reversed and Rendered in Part and Affirmed In Part

Filed: September 10, 1999

Do Not Publish

1.   The related cases include Kuhns v. Carnes, No. 03-97-721-CV (Tex. App.--Austin September 10, 1999, no pet. h.) (not designated for publication) (declaratory judgment from the Travis County Probate Court), Kuhns v. Dripping Springs Indep. Sch. Dist., No. 03-97-722-CV (Tex. App.--Austin April 16, 1998, no pet.) (not designated for publication) (property-tax case), and Kuhns v. Bank One, Texas, N.A., No. 03-98-177-CV (Tex. App.--Austin September 10, 1999, no pet. h.) (not designated for publication) (declaratory-judgment action from Hays County district court).

2.   The notice placed on the inside of the front door to the premises read as follows:

NOTICE TO VACATE

To: Stephen C. Kuhns

Re: 5.00 acres out of Lot 23, LONGVIEW II, Hays County, Texas

You have previously been given a demand to surrender possession of the premises. The deadline for your surrendering possession was December 17, 1997.

Since you have not surrendered possession, you are hereby given notice to vacate the premises. You must vacate within three days from the date of this notice. If you have not vacated after the third day, then I will file suit seeking to have you evicted. If you have not vacated the premises before the 11th day after the date of this notice, then I will seek to recover attorney's fees and costs of court from you as well as a writ of possession.

Hand delivered on this 19th day of December, 1997.

___________________________

Donald F. Carnes, Trustee of the

Frances P. Kuhns Trust

r in denying Kuhns's motion for sanctions.

In his fifth issue, Kuhns also contends that the county court at law erred by releasing to Carnes his cash deposit