Opinion
NO. 03-14-00621-CV
07-07-2016
Frank M. Seliger, Appellant v. Ethiopian Evangelical Church, Appellee
FROM THE COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY
NO. C-1-CV-14-005819, HONORABLE J. DAVID PHILLIPS, JUDGE PRESIDINGMEMORANDUM OPINION
This is an appeal from a final judgment in a forcible-detainer action awarding possession of real property to appellee the Ethiopian Evangelical Church. Appellant Frank M. Seliger, who retains actual possession of the real property as a holdover tenant, contends that the county court erred, first in imposing an "improper judicial structure" on the trial, and second by excluding pertinent evidence. We will affirm the county court's judgment.
Background
The Ethiopian Evangelical Church owns a three-bedroom residence located on two-acres in northeast Austin. In early 2012, while the Church was trying to sell the property, Seliger asked the Church if he could rent it while it was on the market. The Church agreed and the parties met to negotiate the lease. After the negotiation, Church elder LemLem "Lemi" Berhane discussed the terms with Seliger over the phone and then reduced the parties' agreement to writing. In addition to setting the rent at $1,000 per month, the written lease provides that the Church would be able to sell or use the land at any time provided they gave Seliger three months' notice to vacate the premises; that the "lease term will begin on July 1, 2012 and will terminate on June 30, 2013"; and that the tenant, "shall yield possession to Landlord on the last day of the term of this Lease, unless otherwise agreed to by both parties in writing." The lease also includes the following relevant clauses:
Notices under this Lease shall not be deemed valid unless given or served in writing and forwarded by mail, postage prepaid.Both parties signed the lease and Seliger moved onto the premises.
If Tenant maintains possession of the Premises for any period after the termination of this Lease ("Holdover Period"), Tenant shall pay to Landlord lease payment(s) during the Holdover Period at a rate equal to 150% of the most recent rate preceding the Holdover Period. Such holdover shall constitute a month-to-month extension of the Lease.
Notwithstanding any other provision of this Lease, Landlord may terminate this Lease upon [three] months [sic] written notice to Tenant that the Premises have been sold.
At the end of the one-year lease term, Seliger continued to occupy the property without an express renewal or termination of the lease by the parties, and the Church continued to accept his $1,000 monthly rent. In September 2013, the Church sent Seliger a text message telling him he had to vacate the property by December 31, 2013, for an improvement project scheduled to begin in January 2014. Seliger did not move out.
According to Seliger, the parties' lease agreement did not expire at the end of one year but rather required the Church to give him three months' notice in writing before the lease could be terminated at all, and the Church's text message did not fulfill this notice requirement. The church responded by re-notifying Seliger of termination in a certified letter dated January 6, 2014, stating that under the terms of the lease, Seliger had become a holdover tenant on a month-to-month tenancy, which could be terminated upon one-month's notice. On February 17, the Church sent Seliger a written notice that he had to vacate the property within three days.
See Tex. Prop. Code §§ 24.005 (requiring "at least three days' written notice to vacate premises before the landlord file a forcible-detainer suit"), 91.001 (requiring written notice of termination for monthly or month-to-month tenancies).
When Seliger continued to occupy the premises, the Church filed a forcible-detainer action in Travis County Justice Court, which rendered a final judgment granting the Church possession of the property. Seliger appealed that judgment to the county court at law. During the course of the jury trial in the county court, Seliger sought to have admitted into the record a letter from Berhane to the justice court—i.e., the first trial court—that explained why she could not appear as a witness at the first trial. This letter also recounted her understanding of the facts in the underlying controversy, including her role as the drafter of the lease. The county court denied Seliger's request, explaining that the information in the letter was already presented to the jury in Berhane's testimony. Ultimately, the county court rendered final judgment in the Church's favor, granting it possession of the property, $4,000 in unpaid holdover rent, and $2,000 in attorney's fees. It is from this final judgment that Seliger now appeals.
See id. §§ 24.004, .0051 (venue and procedures for eviction suits).
See Tex. R. Civ. P. 510.9 (appeal from justice-court judgment in eviction suit is reviewed de novo by the county court).
Discussion
Seliger challenges the county court's judgment in two issues, asserting that it erred (1) in imposing an "improper judicial structure" on the trial by allowing the Church to present its case before Seliger himself was allowed to testify, and (2) by excluding Berhane's letter from evidence.
Trial procedure
Seliger contends in his first issue that the county court imposed a "bizarre" procedural format that detrimentally affected his ability to present evidence to the jury. Seliger complains that he was not allowed to present his side of the facts before or during his cross examination of the plaintiff's witness. Specifically he complains that, by not allowing him to testify first, the county court limited his ability to present his legal argument to the jury in a coherent way, which created possible confusion for the jurors and resulted in an incorrect verdict. We disagree.
A trial judge has broad discretion regarding the management of trials and the exclusion of evidence. A trial judge abuses its discretion in these areas if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles. The guiding rules and principles for the management of trial proceedings and judicial structure are contained in Rule 265 of the Texas Rules of Civil Procedure, which provides that—unless good cause dictates otherwise—"the party upon whom rests the burden of proof on the whole case" should make the first opening statement and be the first party to present evidence. The adverse party may make an opening statement of his own after the party with the burden of proof does and, likewise, may introduce any evidence he may have following the other party's introduction of evidence. Notably, however, the trial court has broad discretion to limit opening statements. The Rules of Evidence additionally allow a trial court to "exercise reasonable control" over the introduction of witness testimony, and to "avoid needless consumption of time." Erroneous exclusion of evidence is reversible only if it probably resulted in an improper judgment.
See JLG Trucking, LLC v. Garza, 466 S.W.3d 157, 161 (Tex. 2015) (we review trial court's decision regarding exclusion of evidence for abuse of discretion) (citing Interstate Northborough P'ship v. State, 66 S.W.3d 213, 220 (Tex. 2001)); Lorenzo v. State, No. 03-08-00544-CR, 2010 WL 2788757, at *1 (Tex. App.—Austin July 14, 2010, no pet.) (mem. op.) (trial judge has broad discretion in maintaining control and expediting trial); see also Baker v. Sturgeon, 361 S.W.2d 610, 614 (Tex. Civ. App.—Texarkana 1962, no writ) ("The order in which evidence is adduced is considered a procedural incident to be controlled by trial judge who is allowed much discretion in performance of such duty.").
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
See Tex. R. Civ. P. 265(a)-(b).
See id. R. 265(c)-(d).
See Tex. R. Civ. P. 265; see also Ranger Ins. Co. v. Rogers, 530 S.W.2d 162, 170 (Tex. Civ. App.—Austin 1975, writ ref'd n.r.e.) ("The proper limitation of the opening statement is a matter necessarily resting in the discretion of the trial court subject to review for abuse of discretion.").
Tex. R. Evid. 611; see State v. Gaylor Inv. Trust P'ship, 322 S.W.3d 814, 819 (Tex. App.—Houston [14th Dist.] 2010, no pet.) ("The trial court's 'inherent power,' together with applicable rules of procedure and evidence, accord trial courts broad, but not unfettered, discretion in handling trials.").
See JLG Trucking, 466 S.W.3d at 161 (citing Interstate Northborough P'ship, 66 S.W.3d at 220; Tex. R. App. P. 44.1(a)(1)).
In the underlying trial, the county court allowed the Church—the party upon whom the burden of proof on the whole case rested—to introduce its claims and evidence first. During its introduction of evidence, the Church called Berhane as its first witness. Before Seliger began his cross-examination of Berhane, the trial court briefly instructed him as follows:
See Tex. Prop. Code §§ 24.002, .005; Reardean v. Federal Home Loan Mortg. Corp., No. 03-12-00562-CV, 2013 WL 4487523, at *1(Tex. App.—Austin Aug. 14, 2013, no pet.) (landlord must establish statutory grounds for forcible detainer (citing id.; Murphy v. Countrywide Home Loans, Inc., 199 S.W.3d 441, 445 (Tex. App.—Houston [1st Dist.] 2006, pet. denied)).
See Tex. R. Civ. P. 265(b).
THE COURT: Okay. If you have questions for [Ms. Berhane], I would prefer that you ask them now so she can get on about her business.Despite these instructions, the record shows that Seliger's cross examination frequently veered into personal testimony. At multiple times during this cross examination, the court reminded Seliger to direct questions to Berhane rather than make expository statements to the jury. Seliger maintains that these directions show an abuse of discretion in the court's management of proceedings.
SELIGER: Okay. I need to outline some inconsistencies before I start questioning her because it's not going to work otherwise.
THE COURT: This witness is on the stand. She's your witness now to interrogate. Now is the time to do it.
SELIGER: All right. Can I make a statement first before I interrogate her?
THE COURT: No. But you can ask her leading questions. You can bring it out by a leading question. "Isn't it true that . . . ."
Although the scope of a cross-examination is broad given Rule 611 allows inquiry into "any relevant matter, including credibility," the rule itself presupposes a question to the witness being cross-examined. In this instance, Seliger was not asking Berhane questions; he was testifying on his own behalf. As such, the trial court was not prohibiting him from cross-examining Berhane on "any relevant matter, including credibility"—i.e., from eliciting evidence from her—but was instead simply restricting Seliger from presenting his evidence during the cross-examination of the Church's witness during the Church's case in chief. Given the general scope of trial procedure as set forth in the rules and the discretion given to the trial judge in managing the trial, the county court adhered to the relevant guiding rules and, as such, did not abuse its discretion.
Tex. R. Evid. 611(a).
Id.
See Downer, 701 S.W.2d at 241-42 (trial judge abuses its discretion if it acts in arbitrary or unreasonable manner without reference to any guiding rules or principles).
We overrule Seliger's first issue on appeal.
Exclusion of Berhane's letter
In his second issue, Seliger contends that the county court erroneously excluded from the evidence the letter Lemi Berhane had written to the justice court in connection with the first trial in this matter. That letter included the following relevant information:
I signed up on the lease agreement for the church when the property located at 2108 E. Yager Ln, Austin, TX 78754 that belongs to the Ethiopian Evangelical Christian Church rented in July of 2012. The contract has not been renewed at this time. At the time we agreed that this will probably be a short time lease and we will tell him to move if we decide to build a structure or sell the property. When
the one year lease was over the church needed to use the space for the community development center and I was told to contact the tenant.Seliger maintains that the court was "required" to admit the letter because (1) it was written by the drafter of the lease and, as such, constituted pertinent "legal evidence" as to the true meaning of the lease terms and, (2) because it was "already part of the record" having been addressed to the justice court by Berhane herself. By refusing to admit the letter into evidence, Seliger complains, the county court excluded evidence upon which the entire case turned and thereby caused an improper judgment. We disagree.
I texted the tenant back in September 24, 2013 telling him that the board of elders have decided to use the property for our community development starting January 2014 therefore he needs to move by December 31, 2013.
Even if we assume without deciding that the trial court abused its discretion in excluding Berhane's letter, such error was harmless. As the county court stated when it ruled to exclude the proffered document, Berhane's letter would have offered no additional information to the jury that Berhane's prior testimony during the Church's case in chief had done: "It's just the same thing she's testified today. It's a waste of time. Let's move on to new questions. . . . She has given her testimony. The jury has heard it." Specifically, before Seliger offered the letter into evidence, Berhane had testified as to each of the matters discussed in her letter and, as noted above, Seliger had the opportunity to cross-examine her on these issues. Further, the record shows that there was other evidence in the record the jury could consider, namely the written lease agreement, that addressed issues covered in the letter. As such, Berhane's letter was cumulative of other evidence in the record and, therefore, its exclusion was harmless.
See Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998) (noting that we review trial court's exclusion of evidence for abuse of discretion and that erroneous exclusion of evidence is reversible only if it probably resulted in improper judgment (citing Tex. R. App. P. 44.1(a)(1))).
See Mentis v. Barnard, 870 S.W.2d 14, 16 (Tex.1994) ("An error in the exclusion of evidence requires reversal if it is both controlling on a material issue and not cumulative." (emphasis added) (citing Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989))). --------
We overrule Seliger's second issue on appeal.
Conclusion
Having overruled appellant's issues on appeal, we affirm the county court's judgment.
/s/_________
Jeff Rose, Chief Justice Before Chief Justice Rose, Justices Goodwin and Field Affirmed Filed: July 7, 2016