Whitmire v. Greenridge Place Apartments, No. 01-06-00963-CV (Tex. App. 10/4/2007)
| Decision Date | 04 October 2007 |
| Docket Number | No. 01-06-00963-CV.,01-06-00963-CV. |
| Parties | MICHAEL WHITMIRE, Appellant v. GREENRIDGE PLACE APARTMENTS, Appellee. |
| Court | Texas Court of Appeals |
Panel consists of Chief Justice RADACK and Justices ALCALA and BLAND.
Michael Whitmire appeals a judgment in favor of Greenridge Place Apartments (Greenridge) in this forcible entry and detainer case, awarding Greenridge possession, $850 in unpaid rent, and $850 in attorney's fees. Whitmire contends that (1) Greenridge failed to present sufficient evidence that it personally served him, (2) the county court erred in denying his motion for a directed verdict as to the existence of a valid lease and damages, (3) Greenridge failed to present sufficient evidence to support the county court's award of attorney's fees, and (4) the county court abused its discretion in setting the supersedeas bond and in modifying the bond after the expiration of the court's plenary power. We conclude that (1) Whitmire's appearance waives any complaint regarding defects in service, (2) the evidence is legally sufficient to support the both county court's finding that a landlord-tenant relationship existed between Greenridge and Whitmire and its award of damages to Greenridge for unpaid rent, (3) the evidence is legally and factually sufficient to support the attorney's fees award, and (4) under Texas Property Code 24.007, the county court did not abuse its discretion in setting or modifying the supersedeas bond. We therefore affirm.
Greenridge is a residential apartment complex in west Houston. Greenridge leased an apartment to Whitmire from July 1, 2005 until March 31, 2006. On March 28, 2006, Whitmire and Greenridge renewed the lease for the term of April 1, 2006 until January 31, 2007. According to both leases, Whitmire was obligated to pay rent of $850 on the first day of each month.
Whitmire failed to pay rent for April 2006, so Greenridge notified Whitmire that he must vacate his apartment. When Whitmire failed to comply, Greenridge filed a forcible entry and detainer action in a Harris County Justice of the Peace Court and obtained a default judgment. See TEX. PROP. CODE ANN. § 24.004 (Vernon 2000) ( ). Whitmire appealed, seeking a trial de novo in County Civil Court at Law No. 4. See TEX. R. CIV. P. 574b, 749. After a bench trial, the county court entered a judgment in favor of Greenridge. The court awarded Greenridge possession of the leased premises, $850 in damages for back rent, and $850 in attorney's fees. The court also set Whitmire's supersedeas bond at $10,000. Whitmire has remained in possession of the apartment during the pendency of these proceedings.
In an appeal from a bench trial, a trial court's findings of fact have the same weight as a jury's verdict. Amador v. Berrospe, 961 S.W.2d 205, 207 (Tex. App.-Houston [1st Dist.] 1996, writ denied). If a reporter's record exists, the trial court's findings of fact are binding only if supported by the evidence. Id. If the findings are challenged, we review the sufficiency of the evidence supporting the findings by applying the same standards that we use in reviewing the legal or factual sufficiency of the evidence supporting jury findings. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). We review de novo a trial court's conclusions of law and uphold them on appeal if the judgment can be sustained on any legal theory supported by the evidence. BMC Software Belg. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002); In re Moers, 104 S.W.3d 609, 611 (Tex. App.-Houston [1st Dist.] 2003, no pet.).
The test for legal sufficiency is "whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review." City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). In making this determination, we credit favorable evidence if a reasonable fact-finder could, and disregard contrary evidence unless a reasonable fact-finder could not. Id. So long as the evidence falls within the zone of reasonable disagreement, we may not substitute our judgment for that of the fact-finder. Id. at 822. The fact-finder is the sole judge of the credibility of the witnesses and the weight to give their testimony. Id. at 819. Although we consider the evidence in a light most favorable to the challenged findings, indulging every reasonable inference that supports them, we may not disregard evidence that allows only one inference. Id. at 822.
In reviewing a factual sufficiency challenge, we consider and weigh all of the evidence and set aside the finding only if the evidence is so weak as to make the finding clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). In reviewing a factual sufficiency point, we consider all the evidence supporting and contradicting the finding. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). The fact-finder is the sole judge of the credibility of the witnesses and the weight to give their testimony, and may choose to believe one witness and disbelieve another. City of Keller, 168 S.W.3d at 819; Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003).
"An action for forcible detainer is intended to be a speedy, simple, and inexpensive means to obtain immediate possession of property." Marshall v. Hous. Auth. of City of San Antonio, 198 S.W.3d 782, 787 (Tex. 2006). "A person commits a forcible entry and detainer if the person enters the real property of another without legal authority or by force and refuses to surrender possession on demand." TEX. PROP. CODE ANN. § 24.001(a) (Vernon 2000).
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.
TEX. PROP. CODE ANN. § 24.002(a) (Vernon 2000). The only issue decided in a forcible detainer action is which party has the right to immediate possession of the property. Tex. R. Civ. P. 746; Dass, Inc. v. Smith, 206 S.W.3d 197, 200 (Tex. App.-Dallas 2006, no pet.); Rice v. Pinney, 51 S.W.3d 705, 709 (Tex. App.-Dallas 2001, no pet.). A forcible detainer action is dependent on proof of a landlord-tenant relationship. Rice, 51 S.W.3d at 712; Haith v. Drake, 596 S.W.2d 194, 196 (Tex. Civ. App.-Houston [1st Dist.] 1980, writ ref'd n.r.e.). "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." Rice, 51 S.W.3d at 709; Goggins v. Leo, 849 S.W.2d 373, 377 (Tex. App.-Houston [14th Dist.] 1993, no writ).
A suit for rent may be joined with an action for forcible detainer, as long as the claim for rent falls within the justice court's jurisdiction. TEX. R. CIV. P. 738. Additionally, in a trial de novo on appeal to the county court, "the appellant or appellee shall be permitted to plead, prove and recover his damages, if any, suffered for withholding or defending possession of the premises during the pendency of the appeal," although only the party prevailing in the county court may recover these damages. Tex. R. Civ. P. 752; Hong Kong Dev., Inc. v. Nguyen, 229 S.W.3d 415, 434 (). "Such damages include, but are not limited to, loss of rents during the appeal's pendency and reasonable attorney's fees in the justice and county courts . . . ." Id.; see also Tex. R. Civ. P. 752.
In his first issue, Whitmire contends that Greenridge failed to present sufficient evidence that it personally served him a citation to appear. Greenridge responds that Whitmire waived any defect in service by appealing the default judgment of the justice court in the county court.
"[P]erfection of an appeal to county court from a justice court for trial de novo vacates and annuls the judgment of the justice court." Villalon v. Bank One, 176 S.W.3d 66, 69-70 (Tex. App.-Houston [1st Dist.] 2004, pet. denied); see also TEX. R. CIV. P. 574b; In re Garza, 990 S.W.2d 372, 374 (Tex. App.-Corpus Christi 1999, orig. proceeding); Richard v. Taylor, 886 S.W.2d 848, 851 (Tex. App.-Beaumont 1994, writ denied). Additionally, a defendant waives any defect in service by filing an answer. See TEX. R. CIV. P. 121 (); Burrow v. Arce, 997 S.W.2d 229, 246 (Tex. 1999) (); Dawson-Austin v. Austin, 968 S.W.2d 319, 322 (Tex. 1998); In re $475,001.16, 96 S.W.3d 625, 628-29 (Tex. App.-Houston [1st Dist.] 2002, no pet.).
Here, Whitmire appealed the default judgment of the justice court and answered Greenridge's petition in the county court. Whitmire's appeal and answer to Greenridge's petition constitutes an appearance, and he therefore waived any complaint regarding defects in service of process. See TEX. R. CIV. P. 121;Burrow, 997 S.W.2d at 246; Dawson-Austin, 968 S.W.2d at 322; In re $475,001.16, 96 S.W.3d at 628-29.
In his second issue, Whitmire contends the county court erred in denying his motion for a directed verdict. Whitmire,...
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