Opinion
NO. 12-16-00206-CV
05-08-2018
DIVINE BUSINESS ENTERPRISES, LLC, APPELLANT v. ABLEGROWTH, INC., APPELLEE
APPEAL FROM THE COUNTY COURT AT LAW NO. 1 TARRANT COUNTY , TEXAS
MEMORANDUM OPINION
Divine Business Enterprises, LLC appeals the trial court's judgment rendered in favor of Ablegrowth, Inc. DBE raises five issues on appeal. We dismiss for want of jurisdiction in part and affirm in part.
BACKGROUND
On January 20, 2016, Ablegrowth filed a sworn petition for eviction in the Justice Court for Precinct 7 of Tarrant County, Texas. In its petition, Ablegrowth alleged that it was entitled to possession of the premises because of unpaid rent and other lease violations. The justice court ruled in Ablegrowth's favor, and DBE filed a de novo appeal in the County Court at Law Number One of Tarrant County, Texas.
The county court at law initially ruled for Ablegrowth. Thereafter, DBE retained counsel and filed a motion for new trial, which was granted. Following a bench trial, the county court at law found that Ablegrowth is entitled to possession of the premises and awarded $3,575.00 in past due rent, post judgment interest, and court costs. The trial court further awarded $2,500.00 in attorney's fees. Further still, the trial court ordered the county clerk to issue a check for all remaining funds plus any and all accrued interest minus administrative fees then held in the registry of the court to be paid immediately to Ablegrowth. This appeal followed.
SUBJECT MATTER JURISDICTION
As an initial matter, we must determine if we have jurisdiction to consider the issues DBE raises in its appeal. See Guillen v . U.S. Bank , N.A., 494 S.W.3d 861, 865 (Tex. App.-Houston [14th Dist.] 2016, no pet.). Subject matter jurisdiction is a question of law we review de novo. Id. at 866.
On appeal from a forcible entry and detainer judgment, we have no jurisdiction to review the issue of possession if, as is the case here, the disputed premises were used for commercial purposes. See TEX. PROP. CODE ANN. § 24.007 (West Supp. 2017). The prohibition against considering possession includes consideration of any finding essential to the issue of, dependent on, or primarily concerned with the issue of possession. See Hong Kong Dev ., Inc. v. Nguyen , 229 S.W.3d 415, 431-32 (Tex. App.-Houston [1st Dist.] 2007, no pet.); Volume Millwork , Inc. v. W. Houston Airport Corp., 218 S.W.3d 722, 726-27 (Tex. App.-Houston [1st Dist.] 2006, pet. denied).
In its first issue, DBE argues that the trial court abused its discretion by granting Ablegrowth possession where DBE was not found to be in default of the lease agreement. In its second issue, DBE contends that the trial court abused its discretion by issuing a writ of possession in favor of Ablegrowth after DBE filed a notice of appeal and posted a supersedeas bond and a cash bond. Both of these issues seek for this court to consider possession or a finding primarily concerned with the issue of possession. Therefore, we lack jurisdiction to consider them. See Nguyen , 229 S.W.3d at 431-32.
DBE makes some references to the trial court's monetary award to Ablegrowth. However, DBE makes no discernable effort in its Appellant's brief to distinguish its arguments about this award from its argument concerning the issue of possession. Based on our reading of its brief, the arguments concerning the award appear to be inextricably intertwined with the issue of possession.
COUNTERCLAIMS
In its third issue, DBE argues that the trial court abused its discretion by refusing to consider its counterclaims for breach of contract, wrongful eviction, and retaliation.
As part of its third issue, DBE also argues that the trial court erred in refusing to hear its motion for sanctions, by instructing Ablegrowth on how to proceed in the case and displaying "obvious bias or partiality." In its Appellant's brief, DBE offers no authority in support of its arguments on this part of its third issue. It is not the duty of an appellate court to review the record, research the law, and then fashion a legal argument for an appellant when he has failed to do so. See Canton-Carter v . Baylor Coll. of Med., 271 S.W.3d 928, 931-32 (Tex. App.-Houston [14th Dist.] 2008, no pet.). Briefing waiver occurs when a party fails to make proper citations to authority or to the record or provide any substantive legal analysis. TEX. R. APP. P. 38.1(i); Canton-Carter , 271 S.W.3d at 931. Even though we are required to interpret appellate briefs reasonably and liberally, parties asserting error on appeal still must put forth some specific argument and analysis citing authorities in support of their argument. See San Saba Energy , L.P. v. Crawford , 171 S.W.3d 323, 338 (Tex. App.-Houston [14th Dist.] 2005, no pet.). Thus, to the extent that this part of DBE's third issue is not essential to the issue of, dependent on, or primarily concerned with the issue of possession, we hold that DBE has waived this part of its third issue. See TEX. R. APP. P. 38.1(i).
A forcible detainer action is a special proceeding created to provide a speedy, simple, and inexpensive means for resolving the question of the right to possession of premises. See Tehuti v . Bank of New York Mellon Tr. Co., Nat'l Ass'n , 517 S.W.3d 270, 273 (Tex. App.-Texarkana 2017, no pet.). The justice courts have original jurisdiction over forcible entry and detainer cases. See id . at 274. Counterclaims and the joinder of suits against third parties are not permitted in such cases. See TEX. R. CIV. P. 510.3(e). The county court's jurisdiction on appeal extends only as far as the justice court's jurisdiction. Espinoza v. Lopez , 468 S.W.3d 692, 695 (Tex. App.-Houston [14th Dist.] 2015, no pet.). Therefore, we hold that the trial court did not abuse its discretion by refusing to consider DBE's counterclaims since it had no jurisdiction to do so. DBE's third issue is overruled.
ATTORNEY'S FEES
In its fourth issue, DBE contends that the trial court abused its discretion by awarding Ablegrowth $2,500.00 in attorney's fees. Specifically, DBE argues that there is no evidence of record supporting the reasonableness of the attorney's fees awarded. Standard of Review and Governing Law
Neither DBE nor Ablegrowth requested postjudgment findings of fact and conclusions of law pursuant to Texas Rule of Civil Procedure 296, and the trial court filed none. Accordingly, the trial court's judgment implies all findings necessary to support it, provided the necessary findings are raised by the pleadings and supported by the evidence, and the decision can be sustained on any reasonable theory consistent with the evidence and the governing law. See BMC Software Belgium , N.V. v. Marchand , 83 S.W.3d 789, 795 (Tex. 2002); Wade v. Comm'n for Lawyer Discipline , 961 S.W.2d 366, 374 (Tex. App.-Houston [1st Dist.] 1997, no writ); Friedman v. New Westbury Village Assocs., 787 S.W.2d 154, 157-58 (Tex. App.-Houston [1st Dist.] 1990, no writ). Because the record on appeal contains a full reporter's record of the trial, DBE may challenge the trial court's implied findings for legal and factual sufficiency under the same standards that govern challenges to a jury's findings. See BMC , 83 S.W.3d at 795. BGE must, however, demonstrate that the trial court's judgment cannot be sustained by any theory raised by the evidence. See Friedman , 787 S.W.2d at 158.
In City of Keller v. Wilson , 168 S.W.3d 802 (Tex. 2005), the supreme court set forth that the "final test for legal sufficiency" must always be "whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review." Id. at 827. Legal sufficiency review in the proper light must credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not. Id. If the evidence would enable reasonable and fair-minded people to differ in their conclusions, then the trier of fact must be allowed to do so. See id . at 822. As long as the evidence falls within the zone of reasonable disagreement, "[a] reviewing court cannot substitute its judgment for that of the trier-of-fact." Id. at 822. Although the reviewing court must consider evidence in the light most favorable to the judgment, and indulge every reasonable inference that would support it, if the evidence allows only one inference, neither the factfinder nor the reviewing court may disregard it. Id.
A prevailing landlord in an eviction suit is entitled to recover reasonable attorney's fees from the tenant if, among other reasons, the lease so provides. See TEX. PROP. CODE ANN. § 24.006(b) (West 2014). The lease in the instant case contains such a provision. An award of attorney's fees must be supported by evidence that the fees were both reasonable and necessary. See Stewart Title Guar . Co. v. Sterling , 822 S.W.2d 1, 10 (Tex. 1991). A trial court determines the reasonableness of an attorney's fee award by considering the factors enumerated in Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997); see also W . Houston Airport Corp., 218 S.W.3d at 732. The reasonableness of an attorney's fee award generally presents a question of fact. See Ragsdale v . Progressive Voters League , 801 S.W.2d 880, 882 (Tex. 1990); W. Houston Airport Corp., 218 S.W.3d at 735. Ordinarily, the allowance of attorney's fees rests with the sound discretion of the trial court and will not be reversed without a showing of abuse of that discretion. W. Houston Airport Corp., 218 S.W.3d at 735. Evidence of Reasonableness of Attorney's Fees
In the instant case, Ablegrowth's counsel testified in the narrative as follows:
My name is Ian Ghrist. I am a licensed Texas attorney who has been practicing law for a little over two years. I charged $750.00 for the initial trial in this case, and $750.00 for the trial today in this case. As a flat rate fee, I believe that these are reasonable and necessary fees, and that they are in line with going rates in the Tarrant County community for services of this type particularly with regard to lawyers with my experience and qualifications.
During my time as an attorney I've almost exclusivity litigated cases involving real estate. And I would testify that in the event of an appeal to the Court of Appeals, that Ms. Lam and the Plaintiff in this case will incur attorney fees of $3,500. And that in the event of an appeal to the Texas Supreme Court, they would incur attorney fees of $5,000.Ghrist set forth his level of experience. He testified that he charged a flat fee for his work in the trial of this case in both the justice court and the county court at law. He further testified that, in his opinion, the fees charged were reasonable and necessary in light of what was charged in Tarrant County.
We note that the terms of the fee agreement between Ablegrowth and its counsel are irrelevant to Ablegrowth's right to recover reasonable and necessary attorney's fees from DBE. See Sloan v . Owners Ass'n of Westfield , Inc., 167 S.W.3d 401, 405 (Tex. App.-San Antonio 2005, no pet.).
But, as DBE contends, Ghrist did not testify in any detail about the work he performed in representing Ablegrowth. But the trial court was able to consider more than Ghrist's testimony that he tried the matter both in the justice court and the county court at law. The clerk's record includes a motion for judgment and plea for attorney's fees as well as an order, which Ghrist filed in the county court at law. It also includes a response to a motion for new trial. Because DBE was granted a new trial, Ghrist tried the matter to the county court on two separate occasions. Further, the record reflects that the parties attended mediation regarding the matter. Further still, DBE's attorney testified to her fees, which greatly exceed those to which Ghrist testified were reasonable in that community.
We conclude that the trial court had documents and information before it that were consistent with Ghrist's testimony concerning the work he performed. See id . at 735-36. Moreover, because the case Ghrist presented to the county court at law involved the same matter he tried to the justice court, the trial court was entitled to find that he performed similar work in proving up Ablegrowth's case in the justice court. Cf. id . Thus, we hold that there is legally sufficient evidence to support the finding that the attorney's fees awarded to Ablegrowth were reasonable. DBE's fourth issue is overruled.
SUBJECT MATTER JURISDICTION - TITLE TO PROPERTY
In its fifth issue, DBE argues that the county court at law lacked subject matter jurisdiction because Ablegrowth raised the issue of title when it admitted documentary evidence and testimony demonstrating that Ablegrowth is not the owner of the subject property.
If the right of recovery in a suit depends, at least in part, upon the title to land, but there is no real dispute between the parties over the question of title, the question of title is incidental. See Merit Mgmt . Partners I , L.P. v. Noelke , 266 S.W.3d 637, 648 (Tex. App.-Austin 2008, no pet.). In the instant case, the document to which DBE refers indicates that the property was conveyed by Ablegrowth to Furizon Limited. But Doris Lam explained the relationship between Ablegrowth and Furizon when she testified on direct examination as follows:
Q. [Do] you work for the landlord, Ablegrowth, Inc.?In order to prove its forcible entry and detainer action, Ablegrowth was required to prove the existence of a landlord-tenant relationship. See Haith v . Drake , 596 S.W.2d 194, 196 (Tex. Civ. App.-Houston 1980, writ ref'd n.r.e.). Here, Ablegrowth is listed in the lease as the landlord, DBE is listed as the tenant, and Lam is listed as agent.
A. Yes.
Q. What is your job title?
A. The Manager, Shopping Center Manager.
Q. Does Ablegrowth Inc., own the property?
A. Yes, the general partner of Furizon Limited.
Q. Are you testifying that Ablegrowth Inc., is the general partner of Furizon Limited?
A. Yes.
. . . .
Q. And do you also work for BMD, Inc.?
A. Yes.
Q. What is BMD, Inc.?
A. It is the manager company, and I manage multiple properties.
Q. Is BMD, Inc., an agent of Ablegrowth, Inc., and Furizon Limited?
A. Yes.
Based on our review of the record, we conclude that the right of recovery in this suit does not depend upon the title to land. See Noelke , 266 S.W.3d at 648. Because there is no real dispute between the parties over the question of title, we hold that the question of title is incidental. See id . DBE's fifth issue is overruled.
DISPOSITION
We lack subject matter jurisdiction to consider DBE's first and second issues. Accordingly, we dismiss DBE's appeal for want of jurisdiction to the extent it requires the consideration of any finding essential to the issue of, dependent on, or primarily concerned with the issue of possession. Furthermore, we have overruled DBE's third, fourth, and fifth issues. Having done so, we affirm the trial court's judgment to the extent it does not relate to the issue of possession. All pending motions are hereby overruled as moot.
GREG NEELEY
Justice Opinion delivered May 8, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(PUBLISH)
COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
Appeal from the County Court at Law No. 1 of Tarrant County, Texas (Tr.Ct.No. 2016-000963-1)
THIS CAUSE came to be heard on the appellate record and briefs filed herein; and the same being considered, it is the opinion of this court that this court is without jurisdiction of that portion of Appellant's appeal which requires the consideration of any finding essential to the issue of, dependent on, or primarily concerned with the issue of possession, and that portion of the appeal should be dismissed for want of jurisdiction. We affirm the trial court's judgment to the extent it does not relate to the issue of possession.
It is therefore ORDERED, ADJUDGED and DECREED by this court that that portion of Appellant's appeal from the trial court's judgment which requires the consideration of any finding essential to the issue of, dependent on, or primarily concerned with the issue of possession be, and the same is, hereby dismissed for want of jurisdiction; that in all other respects the judgment of the court below is hereby affirmed; that the Appellee, ABLEGROWTH, INC, recover of and from the Appellant, all costs in this behalf expended, both in this court and the court below for all of which execution may issue; and that this decision be certified to the court below for observance.
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.