Opinion
No. 05-04-00014-CV
Opinion Filed June 3, 2005.
On Appeal from the County Court at Law No. 2, Dallas County, Texas, Trial Court Cause No. cc-03-13696-b.
Affirm.
Before Justices WRIGHT, FITZGERALD, and LANG-MIERS.
MEMORANDUM OPINION
In this forcible detainer case, Paulette Potter appeals the trial court's judgment in favor of Mike Mullen. In four issues, Potter contends: (1) the notices to vacate the property were not sufficient to support a forcible-detainer cause of action; (2) there was no evidence she refused to surrender possession of the premises before Mullen's filed his forcible-detainer action; (3) the trial court erred in refusing to admit evidence of a verbal agreement between Potter and Mullen; and (4) the trial court erred in failing to file findings of fact and conclusions of law as requested by Potter. We affirm the trial court's judgment.
Factual Background
Potter defaulted on a note for her house and lot, and Mullen purchased the property at a foreclosure sale on September 2, 2003. The deed of trust between Potter and the lender provided that in the event of foreclosure, Potter would become the "tenant at sufferance" of the purchaser, the purchaser would have the right of immediate possession, and if Potter failed to vacate the property, the purchaser would have the right to proceed with a forcible-detainer action.
On September 2, 2003, Cardamon posted a notice to vacate on the front door of the property. The notice told Potter she had to vacate the premises within three days, and that if she did not do so, "I will have no choice but to instigate a forcible detainer suit." On the notice, below Mullen's signature, was the statement, "You can call [telephone number] For a better arrangement." Potter called the telephone number and spoke to Mullen who referred her to Cardamon. She told Cardamon she would try to find financing to repurchase the property. Potter agreed to pay rent while she tried to secure financing.
Potter was turned down by several lenders. Potter testified she asked her mother for the money and that her mother agreed to provide it. She testified Cardamon told her on or before October 21 that she had until that Friday, October 24, to purchase the property. However, on October 21, after she spoke with Cardamon, he posted a notice to vacate on her door and filed a forcible-detainer suit in the justice court that same day. Cardamon testified he posted the notice to vacate and filed the forcible-detainer action because he had learned Potter had not gotten money from her mother but had hired an attorney.
The justice court entered a judgment in favor of Mullen, and Potter appealed to county court on November 13, 2003. The county court awarded possession to Mullen and attorney's fees, and Potter appealed to this Court.
Forcible Detainer
The principle purpose of a forcible-detainer suit is to determine who has the right to immediate possession of the premises. Rice v. Pinney, 51 S.W.3d 705, 709 (Tex.App.-Dallas 2001, no pet.); Fandey v. Lee, 880 S.W.2d 164, 168 (Tex.App.-El Paso 1994, writ denied). To obtain a judgment for forcible detainer, a plaintiff must show the defendant refused to surrender possession of the property on demand and that the defendant: (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). Section 24.005(b) of the property code provides, "If the occupant is a tenant at will or by sufferance, the landlord must give the tenant at least three days' written notice to vacate before the landlord files a forcible detainer suit. . . ." Tex. Prop. Code Ann. § 24.005(b) (Vernon 2000).
Jurisdiction of forcible detainer actions lies in the justice court of the precinct where the property is located and, on appeal, in county court for trial de novo. See Tex. Prop. Code Ann. § 24.004 (Vernon 2000); Tex. R. Civ. P. 749; Rice, 51 S.W.3d at 708. The county court's judgment may be appealed to the court of appeals only when the sole use of the premises is for residential purposes. Tex. Prop. Code Ann. § 24.007.
Findings of Fact and Conclusions of Law
In her fourth issue, Potter asserts the trial court erred in not filing findings of fact and conclusions of law when they were timely requested. To obtain findings of fact and conclusions of law, a party must file a request for them within twenty days after the signing of the judgment. Tex. R. Civ. P. 296. The trial court must then file its findings of fact and conclusions of law within twenty days after the request for findings. Id. If the trial court does not make the findings, then the party must file "Notice of Past Due Findings of Fact and Conclusions of Law" within thirty days after filing the initial request. Tex. R. Civ. P. 297. The failure to give notice of past due findings as required by rule 297 waives the request for findings. Las Vegas Pecan Cattle Co. v. Zavala County, 682 S.W.2d 254, 255-56 (Tex. 1984); Ohio Cas. Group v. Risinger, 960 S.W.2d 708, 712 (Tex.App.-Tyler 1997, writ denied).
In this case, the trial court signed the judgment on December 11, 2003. Thus, Potter's request for findings was due within twenty days, which was December 31, 2003. Although Potter's request for findings is not in the record on appeal, the docket sheet indicates Potter timely filed the request on December 29, 2003. The trial court did not file its findings within twenty days of Potter's request as required by rule 296. Thus, rule 297 required Potter to file notice of past-due findings within thirty days of her first request, which would be January 28, 2004. Potter did not file her notice of past-due findings until March 25, 2004, fifty-seven days late. Because her notice of past-due findings was untimely, Potter has waived her request for findings of fact and conclusions of law. We overrule Potter's fourth issue.
Notice to Vacate
In her first issue, Potter asserts that the September 2, 2003 notice to vacate could not form the basis of Mullen's forcible-detainer action. Potter argues Mullen waived enforcement of the September 2 notice to vacate by agreeing she could stay in the house while trying to obtain financing.
When findings of fact and conclusions of law are not filed or properly requested, it is implied that the trial court made all necessary findings to support its judgment. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992); Beck v. Walker, 154 S.W.3d 895, 902 (Tex.App.-Dallas 2005, no pet.). When, as in this case, a reporter's record is filed, an appellant may challenge the legal and factual sufficiency of these implied findings. Holt Atherton Indus., Inc., 835 S.W.2d at 84. In reviewing a legal sufficiency challenge, the no-evidence challenge fails if there is more than a scintilla of evidence to support the finding. BMC Software Belgium, NV v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002); Holt Atherton Indus., Inc., 835 S.W.2d at 84. In reviewing a factual sufficiency challenge, we set aside the trial court's decision only if its ruling is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951).
Potter asserts Mullen failed to prove he demanded she vacate the premises and that she refused to vacate. She also asserts the September 2 notice to vacate did not apply to the October 21 forcible-detainer action. Much of Potter's argument depends on her assertion that she had an oral lease with Mullen to stay in the house while paying rent until she purchased the house from him. Thus, she argues, Mullen waived the September 2 notice to vacate and made no subsequent demands to vacate before October 21 that she refused. She argues the October 21 notice to vacate could not support the forcible-detainer action filed that same day because section 24.005 of the property code requires three days' notice to vacate before a property owner may bring a forcible-detainer action.
After reviewing the evidence, we conclude the trial court could find Mullen demanded on September 2 that Potter vacate the house and that at Potter's request, Mullen agreed to delay filing a forcible detainer action for enforcement of the September 2 notice to vacate while Potter diligently sought financing and had reasonable expectations of obtaining financing. When Potter stopped searching for financing, hired an attorney, and stayed in the house, her actions constituted a refusal to vacate as demanded in the September 2 notice to vacate. Although both Cardamon and Potter testified Potter agreed to pay rent while she stayed in the house, neither testified there was a lease or any type of contractual arrangement giving Potter a right to remain in possession, and the trial court could have found there was no oral or written lease between the parties. This interpretation of the evidence is supported by more than a scintilla of evidence and is not against the great weight and preponderance of the evidence. Accordingly, we conclude the implied findings support the trial court's judgment, and the September 2, 2003 notice to vacate could form the basis of Mullen's forcible detainer action.
This theory is different from that alleged in Mullen's "Complaint for Forcible Detainer." However, in an appeal from the justice court by trial de novo in the county court, when the proof varies from or has no support in the written pleadings, and there is no objection to the variance, the proved claim is deemed tried by consent. See Tex. R. Civ. P. 67, 274, 277, 279 (Opinions of Subcommittee on Interpretation of Rules: Appeals from justice to county court[s], 5 Tex. B.J. 287 (1942); 8 Tex. B.J. 19 (1945)).
Potter also argues the forty-nine-day interval between the September 2 notice to vacate and the October 21 forcible-detainer action, by itself, "should not make the notice sufficient for the purposes of Section 24.002 of the Texas Property Code." Potter cites no authority for this proposition, and section 24.002 places no limit on the time between the demand for possession of real property and the filing of a forcible-detainer action.
We overrule Potter's first issue. Accordingly, we need not address Potter's second issue asserting the October 21, 2003 notice to vacate could not support the forcible-detainer action.
Exclusion of Evidence
In her third issue, Potter asserts the trial court erred in refusing to admit evidence of the verbal agreement between Cardamon and herself. Rule of evidence 103 provides, "Error may not be predicated upon a ruling which . . . excludes evidence unless . . . the substance of the evidence was made known to the court by offer, or was apparent from the context within which questions were asked." Tex. R. Evid. 103(a). Potter complains of the trial court's exclusion of her answers to two questions. The first question asked Potter the price for her repurchase of the house that she and Cardamon had discussed. The second question asked her Cardamon's response to the news that she had obtained the funds from her mother. The trial court sustained Mullen's objections to both of these questions, and Potter did not answer them. Potter did not make an offer of proof of her answers to these questions, and the answers are not apparent from the context of the record. Accordingly, Potter has failed to preserve any error. See Smith v. Smith, 143 S.W.3d 206, 211 (Tex.App.-Waco 2004, no pet.). Accordingly, we overrule her third issue.
We affirm the trial court's judgment.