VOLUME MILLWORK v. WEST HOUSTON AIRPORT, 01-03-01214-CV.

• Decision Date: 14 December 2006
• Docket Number: No. 01-03-01214-CV.,01-03-01214-CV.
• Parties: VOLUME MILLWORK, INC., Appellant, v. WEST HOUSTON AIRPORT CORPORATION, Appellee.
• Court: Texas Court of Appeals

218 S.W.3d 722

VOLUME MILLWORK, INC., Appellant, v. WEST HOUSTON AIRPORT CORPORATION, Appellee.

No. 01-03-01214-CV.

Court of Appeals of Texas, Houston (1st Dist.).

December 14, 2006.

COPYRIGHT MATERIAL OMITTED

Eric G. Carter, The Carter Law Firm, Houston, TX, for Appellant.

George Andrew Coats, Coats & Evans, P.C., The Woodlands, TX, for Appellee.

Panel consists of Chief Justice RADACK and Justices ALCALA and BLAND.

OPINION ON MOTION FOR REHEARING

ELSA ALCALA, Justice.

We issued our opinion in this case on August 3, 2006. Appellant, Volume Millwork, Inc., has filed a motion for rehearing of our opinion and judgment of August 3, 2006, and appellee, West Houston Airport Corporation, has filed a response at our request. We grant rehearing, withdraw our opinion and judgment of August 3, 2006, and issue this opinion and accompanying judgment in their stead.

This is an eviction case resolved by forcible-entry-and-detainer in justice court and appealed by the tenant for trial de novo to county court, the trial court here. Appellant, Volume Millwork, Inc. (tenant), presents four issues challenging the judgment of the trial court. Tenant's first two issues challenge the interlocutory summary judgment rendered on the issues of the rights of appellee, West Houston Airport Corporation (landlord) to sue tenant and to possess the leased premises. Tenant's remaining issues challenge the legal and factual sufficiency of the evidence submitted to the trial court to support the damages and attorney's fees awarded to landlord. Because tenant's first two issues challenge landlord's right of possession to commercial premises, section 24.007 of the Property Code deprives us of jurisdiction to review those issues.¹ Accordingly, we dismiss tenant's appeal of issues one and two. We affirm the judgment of the trial court in all other respects.

Background

Pelican Importing & Exporting Company, the previous owner of real property at the West Houston Airport Subdivision, also owned a hangar that the company had built on lots G-4 and G-5 of the subdivision. Tenant leased the hangar from Pelican in June 1997 for a term of five years that would expire on July 1, 2002, unless terminated earlier, at a base monthly rental payment of $3,600.00. The lease terms included late-payment fees, rental adjustments to compensate for increases in property taxes, and provisions for attorney's fees in the event of litigation arising from the lease. On November 29, 2001, Pelican transferred the airport property, including the hangar on lots G-4 and G-5, to the Woodrow V. Lesikar Family Trust (the trust). On the same day, Pelican assigned tenant's lease to the trust, which assumed Pelican's rights and duties as landlord under the lease with tenant.

On November 30, 2001, Woody Lesikar, in his capacity as landlord's manager, notified tenant that landlord would henceforward be collecting the rent due under the terms of tenant's existing lease with Pelican. Seven days later, landlord's counsel issued a notice informing tenant that it had defaulted on the lease, with respect to both payments and use of the premises, and would be required to vacate unless tenant complied with the lease provisions. See TEX. PROP.CODE ANN. § 24.005 (Vernon 2000) (requiring notice as predicate to filing eviction suit). Notice of default proved ineffective, and landlord filed a forcible-entry-and-detainer action in justice court. Tenant did not appear, and landlord prevailed by default and was issued a writ of possession, in accordance with section 24.0061 of the Property Code and rule 748 of the Rules of Civil Procedure.² See TEX. PROP.CODE ANN. § 24.0061 (Vernon 2000); TEX.R. CIV. P. 748.

After posting bond in compliance with TEX.R. CIV. P. 571, tenant appealed the justice court's ruling by trial de novo to the trial court, County Civil Court No.1 of Harris County. See TEX. GOV'T CODE ANN. §§ 25.0003(a), 26.042(e) (Vernon 2004); TEX.R. CIV. P. 574b, 749. Landlord again prevailed, by interlocutory summary judgment, on its right to possess the leased premises. The summary judgment evidence included the affidavit of Woody K. Lesikar, in his capacity of president of landlord, in which he explained that the trust had assigned its rights in the lease to landlord in exchange for management of the premises. Landlord had also moved for summary judgment on its claims for damages for unpaid holdover rent and attorney's fees, but the parties tried these issues to the court after tenant opposed landlord's motion for summary judgment. Landlord prevailed again, and the trial court rendered a final judgment, from which tenant appeals.

The final judgment of the county court premised landlord's recovery on the terms recited in tenant's lease with Pelican, whose obligations landlord had assumed by assignment from the trust. The judgment awarded landlord $15,624.00 in unpaid holdover rent after July 1, 2002, when the lease expired on its own terms, based on the $3,600.00 monthly rental stated in the lease. In addition, and again pursuant to the terms of the lease, the judgment awarded landlord $200.00 for two unpaid delinquent penalty payments, and an additional $1,289.97 for the difference between property taxes assessed for 2001-2002, the year in which the lease expired, and those assessed in 1997, when the lease term began. The judgment thus awarded land lord $17,113.97 for total, unpaid rent under the terms stated in the lease. The judgment also awarded landlord a total of $28,623.10 for attorney's fees, pursuant to section 24.006 of the Property Code, section 38.001(8) of the Civil Practice and Remedies Code, and rule 752 of the Rules of Civil Procedure. TEX. PROP.CODE ANN. § 24.006 (Vernon 2000); TEX. CIV. PRAC. & REM.CODE ANN. § 38.001(8) (Vernon Supp. 2006); TEX.R. CIV. P. 752.

Tenant superseded the judgment, in compliance with rule 749, by filing a $52,592.16 cash deposit with the Harris County clerk, and perfected its appeal to this Court to challenge the county court's determinations on the issue of possession and the award of damages and attorney's fees to landlord. See TEX. PROP.CODE ANN. § 24.007 (Vernon 2000). The record on appeal contains the reporter's record of the trial on landlord's damages and attorney's fees. No party requested findings of fact and conclusions of law, and none were filed.

No Jurisdiction to Review Possession or Issues Essential to Possession

Tenant's first issue challenges landlord's capacity to evict tenant from the hangar premises by bringing the forcible-entry-and-detainer action. Tenant's second issue challenges the interlocutory summary judgment awarding possession of the hangar to landlord. Section 24.007 of the Property Code deprives this Court of jurisdiction to address either of these issues. See TEX. PROP.CODE ANN. § 24.007.³

Subject-matter jurisdiction cannot be conferred by consent, waiver, or estoppel at any stage of a proceeding. See Saudi v. Brieven, 176 S.W.3d 108, 110 (Tex.App.-Houston 1st Dist. 2004, no pet.); Tourneau Houston, Inc. v. Harris County Appraisal Dist., 24 S.W.3d 907, 910 (Tex.App.-Houston 1st Dist. 2000, no pet.) (citing Fed. Underwriters Exch. v. Pugh, 141 Tex. 539, 174 S.W.2d 598, 600 (1943)). Lack of subject-matter jurisdiction is fundamental error that this Court may properly raise and recognize sua sponte. See Saudi, 176 S.W.3d at 113. A court's lack of jurisdiction over the subject matter renders a judgment void and requires dismissal of the cause. State ex rel. Latty v. Owens, 907 S.W.2d 484, 485-86 (Tex.1995); Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993); Saudi, 176 S.W.3d at 113.

The Texas Constitution and the Legislature vest courts of appeals with jurisdiction over civil appeals from final judgments of district and county courts, provided the amount in controversy or the judgment exceeds $100. TEX. CONST. art. V, § 6(a); TEX. CIV. PRAC. & REM. CODE ANN. § 51.012 (Vernon 1997); TEX. GOV'T CODE ANN. § 22.220(a) (Vernon 2004). See Sultan v. Mathew, 178 S.W.3d 747, 752 (Tex.2005). The constitutionally authorized right of appeal may be limited, however, by "such restrictions and regulations as may be prescribed by law," specifically, by legislative action. Sultan, 178 S.W.3d at 752 (quoting TEX. CONST. art. V, § 6(a) emphasis in original). Thus, "`the principle is fixed that the Legislature has the power to limit the right of appeal.'" Id. (quoting Seale v. McCallum, 116 Tex. 662, 287 S.W. 45, 47 (1926)).

Forcible-entry-and-detainer actions provide a speedy, summary, and inexpensive determination of the right to the immediate possession of real property. Scott v. Hewitt, 127 Tex. 31, 90 S.W.2d 816, 818-19 (1936); Gibson v. Dynegy Midstream Servs. 138 S.W.3d 518, 522 (Tex.App.-Fort Worth 2004, no pet.). In keeping with this purpose, the Legislature has exercised its authority to limit this Court's jurisdiction in appeals from forcible-entry-and-detainer eviction proceedings by enacting section 24.007 of the Property Code, pursuant to which, "A final judgment of a county court in an eviction suit may not be appealed on the issue of possession unless the premises in question are being used for residential purposes only." TEX. PROP.CODE ANN. § 24.007 (emphasis added); see also Chang v. Resolution Trust Corp., 814 S.W.2d 543, 545 (Tex.App.-Houston 1st Dist. 1991) (orig.proceeding) (declining to grant injunctive relief or writ of prohibition sought to protect pending appellate jurisdiction because court of appeals had no pending appellate jurisdiction to protect over judgment in forcible-entry-and-detainer action that awarded possession of commercial property); Carlson's Hill Country Beverage, L.C. v. Westinghouse Road Joint Venture, 957 S.W.2d 951, 952-53 (Tex.App.-Austin 1997, no pet.) (concluding that section 24.007 precluded appellate review, not only of issue of possession of commercial premises, but also of "any finding essential to the issue of possession").

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