Opinion
No. 05-08-01103-CV
Opinion issued August 6, 2009.
On Appeal from the County Court at Law No. 2, Dallas County, Texas, Trial Court Cause No. CC-08-05850-B.
Before Justices WRIGHT, BRIDGES, and FRANCIS.
MEMORANDUM OPINION
In this forcible detainer action, Herman Brown and Jon Leshea Brown appeal the trial court's default judgment awarding possession of property to Deutsche Bank National Trust Company. In two issues, appellants contend the judgment is not supported by legally sufficient evidence and is against public policy. We affirm the trial court's judgment.
Herman Brown purchased the property and exercised a deed of trust in the amount of $133,000. Five years later, the property was sold at a non-judicial foreclosure sale. A substitute trustee's deed was executed conveying the property to Deutsche. Deutsche sent written notice to vacate to appellants by certified mail and first-class mail. When appellants failed to vacate, Deutsche filed a Complaint for Forcible Detainer and Original Petition in the justice of the peace court, attaching among other things copies of the deed of trust and notices to vacate. The JP court awarded possession of the property to Deutsche, and appellants appealed to the county court at law.
Appellants did not file a written answer to the petition but appeared in county court with counsel on the day the case was scheduled for a bench trial. During a brief hearing, the trial court admitted two exhibits offered by Deutsche to which appellants said they had "no objection." Exhibit one is a copy of the appointment of a substitute trustee with copies of three notices to vacate the premises attached; exhibit two is the substitute trustee's deed. When Deutsche then offered an affidavit in support of eviction with accompanying documents, which included the same documents previously admitted, appellants objected that they had not previously seen the affidavit. During a discussion concerning its admissibility, the trial court noted that appellants had not filed an answer in the lawsuit and had therefore defaulted. On the same day, the trial court signed a "Default Judgment" in which, "after considering the pleading," it found for Deutsche and awarded judgment for possession of the property to Deutsche. Appeal is taken from that judgment.
In their first issue, appellants argue there is no evidence to support the trial court's finding that appellee was entitled to possession. Within this issue, appellants argue that the evidence to support Deutsche's claim, i.e., the affidavit and accompanying documents, was not admitted into evidence, and therefore there was no evidence to support their claims of "superior right to title" or "claims of proper notice to vacate." The judgment rendered in this case, however, was a default on the pleadings, and appellants make no argument to challenge the propriety of such a judgment under the circumstances presented here. We therefore analyze this issue within the context of the judgment before us.
Texas Rule of Civil Procedure 753 governs judgment by default in forcible detainer cases. That rule provides:
If the defendant has filed a written answer in the justice court, the same shall be taken to constitute his appearance and answer in the county court, and such answer may be amended as in other cases. If the defendant made no answer in writing in the justice court, and if he fails to file a written answer within eight full days after the transcript is filed in the county court, the allegations of the complaint may be taken as admitted and judgment by default may be entered accordingly.
Tex. R. Civ. P. 753.
The supreme court has discussed three types of default judgments that contrast to "a judgment upon trial." Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979). Two of those types of judgment are relevant to our discussion: the no-answer default judgment and the judgment nihil dicit. A judgment nihil dicit is a judgment for the plaintiff rendered when the defendant has appeared but has failed to answer or when the answer has been withdrawn or abandoned and no further defense is made. Bredeson v. Merrill Lynch, Pierce, Fenner Smith, 513 S.W.2d 110, 112 (Tex.Civ.App.-Dallas 1974, no writ). A no-answer default and a judgment nihil dicit are so similar that the same rules apply to each with respect to the effect and validity of the judgment. Stoner, 578 S.W.2d at 682. In both instances, the non-answering party has "admitted" the facts properly pleaded and the justice of the opponent's claim, although a judgment nihil dicit carries an even stronger confession than the default judgment. Id.
Here, appellants did not file a written answer in either the justice court or county court as required by Texas Rule of Civil Procedure 753. They did, however, appear in court with counsel on the day of trial but did not challenge the underlying merits of the case, and Deutsche argues the judgment is actually a judgment nihil dicit. Whether we construe the trial court's judgment as a no-answer default or as a judgment nihil dicit, our result is the same: appellants are deemed to have admitted all material allegations in the petition and cannot challenge the sufficiency of the evidence to support liability. See Holt Altherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992); Morgan v. Compugraphic Corp., 675 S.W.2d 729, 731 (Tex. 1984); Texaco, Inc. v. Phan, 137 S.W.3d 763, 769-70 (Tex.App.-Houston [1st Dist.] 2004, no pet.). And, although appellants do not complain that the pleadings were insufficient to support liability, we will nevertheless review the pleadings.
To prevail and obtain possession in a forcible detainer action after a foreclosure sale, a plaintiff must show (1) the substitute trustee conveyed the property by deed to the plaintiff after the foreclosure sale; (2) the deed of trust signed by one or more of the occupants established a landlord-tenant relationship between plaintiff and the occupants of the property; (3) the plaintiff gave proper notice to the occupants that it required them to vacate the premises; and (4) the occupants refused to vacate the premises. Tex. Prop. Code Ann. §§ 24.002(a)(2), (b); 24.005 (Vernon 2000); U.S. Bank Nat'l Ass'n v. Freeney, 266 S.W.3d 623, 625 (Tex.App.-Dallas 2008, no pet.).
Here, Deutsche's petition alleged it exercised the power of sale expressed in the Deed of Trust and acquired the property at foreclosure sale; that pursuant to the Deed of Trust, signed by Herman Brown, appellants became tenants at sufferance once the property was sold at foreclosure; Deutsche inspected the property and found appellants were still in possession of the property; Deutsche gave appellant written notice to vacate by certified mail, return receipt requested, and by first-class mail; the notice demanded appellants vacate the property within three days after delivery of the notices; and despite demand and notice, appellants had failed and refused to vacate the property. We conclude the petition alleges all elements required to prove a forcible detainer, and appellants' failure to file an answer admits the truth of these allegations. We overrule the first issue.
In their second issue, appellants argue that, as a matter of public policy, the trial court erred in awarding the possession of the property to Deutsche. In particular, they claim the statutory framework for foreclosure and eviction is "unfair, unjust, and no longer makes sense. . . ." This argument, however, was not raised in the trial court. By failing to advance this argument in the trial court, appellants have failed to preserve this complaint for appeal. See Tex. R. App. P. 33.1(a); RT Realty, L.P. v. Tex. Util. Elec. Co., 181 S.W.3d 905, 918 (Tex.App.-Dallas 2006, no pet.). We overrule the second issue.
We affirm the trial court's judgment.