Goggins v. Leo

• Decision Date: 04 February 1993
• Docket Number: No. B14-92-00269-CV,B14-92-00269-CV
• Citation: 849 S.W.2d 373
• Parties: Pat GOGGINS, Appellant, v. Darlene LEO, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 373

849 S.W.2d 373

Pat GOGGINS, Appellant, v. Darlene LEO, Appellee.

No. B14-92-00269-CV.

Court of Appeals of Texas Houston (14th Dist.).

Feb. 4, 1993.

Stephen N. Riner, Houston, for appellant.

Jeffery R. Singer, Houston, for appellee.

Before MURPHY, CANNON and MORSE (Sitting by Designation), JJ.

OPINION

CANNON, Justice.

This is a forcible detainer case. Darlene Leo ("Leo") successfully sued Pat Goggins ("Goggins") in justice court for possession of Leo's condominium. Goggins lost on her appeal to the county court and now appeals to us. We affirm.

For approximately four years, Goggins had leased a condominium from Exocet, Inc. ("Exocet"), not a party to this suit. In May 1988 Ponderosa Forest Utility District and other taxing entities (collectively "Ponderosa") obtained a judgment against Exocet in the 11th District Court for unpaid taxes. In September 1988 the Harris County Precinct No. 4 constable conducted a tax foreclosure sale, but there were no bidders, and the property was struck off to Ponderosa. The record does not contain the deed, but we assume that Ponderosa acquired title to the condo by tax sale deed. In July 1991 for reasons unclear from the record, a second tax foreclosure sale was held where Ponderosa obtained another tax sale deed. That same month, Leo purchased the property from Ponderosa by tax resale deed. She immediately requested in writing that Goggins vacate the property. In August 1991 after Goggins refused to leave, Leo filed a forcible detainer action in the Justice Court, Precinct No. 4, Harris County, and the court awarded Leo possession. In November 1991 Goggins appealed to the County Civil Court at Law No. 2, Harris County (the "trial court"). After a trial de novo bench trial, the county court again awarded Leo possession. Goggins appeals.

A summary of relevant dates and transactions follows:

(1) May 25, 1988--Judgment, by the 11th District Court foreclosing on the condo in favor of Ponderosa and ordering a tax sale.

(2) June 20, 1988--First Order of Sale.

(3) September 6, 1988--First Tax Foreclosure Sale, but no bidders and condo struck off to Ponderosa.

(4) Date Unknown (not in record)--First Tax Sale Deed, conveyance to Ponderosa.

(5) May 22, 1991--Second Order of Sale.

(6) July 18, 1991--Tax Resale Deed, tax resale to Leo.

(7) July 29, 1991--Second Tax Foreclosure Sale, condo bought by Ponderosa.

(8) July 29, 1991--Second Tax Sale Deed, conveyance to Ponderosa.

In point of error eight, Goggins complains that the trial court erred in failing to grant her motion for directed verdict because there was no evidence or insufficient evidence that the condo was located within the jurisdiction of Justice Court, Precinct No. 4, Harris County.

The justice court in the precinct in which the real property is located has jurisdiction in forcible detainer actions. TEX. PROP. CODE ANN. § 24.004 (Vernon Supp.1993). The appellate jurisdiction of the county court is confined to the jurisdictional limits of the justice court. Standard Inv. Co. v. Dowdy, 122 S.W.2d 1107, 1109 (Tex.Civ.App.--Dallas 1938, writ dism'd). The county court has no jurisdiction on appeal unless the justice court had jurisdiction. Lewis v. Terrell, 154 S.W.2d 151, 153 (Tex.Civ.App.--Austin 1941, writ ref'd w.o.m.); 6 TEX. JUR.3d Appellate Review § 946 (1980).

A no evidence challenge requires this court to review only the evidence and reasonable inferences from the evidence that tend to support the finding, disregarding all evidence and inferences to the contrary. Davis v. City of San Antonio, 752 S.W.2d 518, 522 (Tex.1988). We uphold the finding if there is any evidence of probative force in the record to support it. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951).

Goggins requested that the trial court take judicial notice of the complaint for forcible detainer filed by Leo in the justice court. That sworn complaint reads in part, "... the premises situated at 2103 Place Rebecca D7 [,] Houston, Texas 77090 together with the dwelling and outhouses situated in the Justice of the Peace Precinct No. 4 ...." We find that this is some evidence in support of the implied finding that the condo was located in Precinct No. 4, and we overrule Goggins' no evidence challenge.

To review a complaint of factual insufficiency, we weigh all the evidence in support of and contrary to the challenged finding. We uphold the finding unless we conclude that the evidence is so weak or so against the great weight and preponderance of the evidence that the finding was manifestly erroneous or unjust. Id. In a bench trial, the trial court is the finder of fact and 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. Southwestern Bell Media, Inc. v. Lyles, 825 S.W.2d 488, 493 (Tex.App.--Houston [1st Dist.] 1992, writ denied).

Leo's sworn complaint avers that the condo was situated in Precinct No. 4. As there was no controverting evidence, we find that the sworn complaint was sufficient to establish the location of the condo and that the trial court's implied finding to that effect was not manifestly erroneous or unjust. We overrule Goggins' insufficient evidence challenge and point eight.

In point seven Goggins argues that the trial court erred in denying her plea in abatement because the dominant jurisdiction over all aspects of the case was vested in the 11th District Court by virtue of the 1988 foreclosure suit.

Goggins contends that the trial court should have dismissed Leo's suit due to the "pendency of Cause No. 86-00465" in the 11th District Court. We disagree that the cause was "pending." The 11th District Court rendered a final judgment on May 25, 1988. However, the record does reflect that Leo filed an application for writ of possession on November 15, 1991, to enforce that judgment. Nevertheless, that enforcement action would not preclude Leo from pursuing a parallel forcible detainer in justice court. Forcible detainer is cumulative, not exclusive, of other remedies. Anarkali Enters. v. Riverside Drive Enters., 802 S.W.2d 25, 26 (Tex.App.--Fort Worth 1990, no writ). Justice and district court remedies may be employed concurrently. Hartzog v. Seeger Coal Co., 163 S.W. 1055, 1060 (Tex.Civ.App.--Dallas 1914, no writ). We overrule point seven.

In point four, Goggins complains that the trial court erred in awarding title to the condo to Leo because there was no evidence or insufficient evidence of Leo's chain of title.

The trial court's judgment stated, "... [T]he property the subject of this lawsuit ... is hereby awarded to Plaintiff Darlene Leo." (emphasis ours). The writ of possession which followed stated, "... Plaintiff(s) ... recovered judgment against defendant(s), Pat Goggins, for possession of the premises...." (emphasis ours). We find that the trial court awarded possession, not title, to Leo, and we overrule point four.

In point five, Goggins contends that the trial court erred in awarding title to Leo because there were no pleadings asserting a claim of title. As in point four, we find that the trial court did not award title to Leo, and we overrule point five.

In point six, Goggins asserts that the trial court erred in awarding title to Leo because the trial court did not have subject matter jurisdiction over suits to determine title to land or recovery of land. As in points four and five, we find that the trial court did not award title to Leo. Moreover, we refer Goggins to TEX. GOV'T CODE ANN. § 25.1032(c)(1) & (6) (Vernon Supp.1993) where the Harris County courts at law are given jurisdiction to decide the issue of title and hear suits for recovery of real property. We overrule point six.

In point two, we reach the heart of Goggins' appeal. Goggins complains that there was no evidence or insufficient evidence to support the implied finding that she committed a forcible detainer. Goggins argues that the only evidence of ownership is Leo's own testimony and her 1991 tax resale deed, and that such evidence is deficient.

The action of forcible detainer was created by the legislature to provide a speedy and inexpensive remedy for determination of who is entitled to possession of property. Johnson v. Fellowship Baptist Church, 627 S.W.2d 203, 204 (Tex.App.--Corpus Christi 1981, no writ). TEX.PROP.CODE ANN. § 24.002 (Vernon Supp.1993) states in pertinent part:

(a) A person who refuses to surrender possession of real property on demand commits a forcible detainer if the person: (1) is a tenant or a subtenant 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. (emphasis added).

A no evidence challenge requires this court to review only the evidence and reasonable inferences from the evidence that tend to support the finding, disregarding all evidence and inferences to the contrary. Davis, supra. We uphold the finding if there is any evidence of probative force in the record to support it. In re King's Estate, supra.

The undisputed facts are that Goggins had lived in the condominium from approximately November 1987 and paid rent monthly to Exocet, the prior owner. The testimony conflicted on whether Goggins and Exocet had a one-year lease or whether Goggins was merely a month-to-month tenant. No lease was introduced into evidence. There was no lease or other agreement between Goggins and Leo. Goggins did not claim to be the owner of the property. Leo purchased the condo from Ponderosa by the 1991 tax resale as evidenced by her 1991 tax resale deed and her own testimony. Leo gave timely written demand for possession. Goggins refused to leave or pay rent to Leo.

There was no landlord-tenant relationship...