Opinion
No. 05-08-00142-CV
Opinion Filed April 28, 2009.
On Appeal from the County Court at Law No. 1 Dallas County, Texas, Trial Court Cause No. CC-08-00255-A.
Before Justices RICHTER, LANG, and MURPHY.
MEMORANDUM OPINION
Elias Thompson and Norman Scott appeal the trial court's judgment in this forcible entry and detainer case. Although Thompson and Scott filed a joint notice of appeal, Thompson has not filed a brief in this Court. In a single issue, Scott contends the trial court erred when it granted judgment because the original complaint for forcible entry and detainer "failed to adequately and properly describe the property" that is the subject of this lawsuit. For the reasons set out herein, we decide against Scott on his issue. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.2(a), 47.4. The trial court's judgment is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
An original complaint for forcible entry and detainer was filed in justice of the peace court on December 4, 2007, against Thompson, Scott and all other occupants in possession of:
LOT 111, OF LAKE RIDGE, SECTION 15, AN ADDITION TO THE CITY OF CEDAR HILL, DALLAS COUNTY, TEXAS, ACCORDING TO THE MAP OR PLAT THEREOF RECORDED IN VOLUME 2000015, PAGE 504, MAP RECORDS, DALLAS COUNTY, TEXAS.
hereinafter referred to as the "Property" and more commonly referred to as 2229 SOUTHERN OAKS DRIVE CEDAR HILL, TEXAS 75104.
The complaint identified 2229 Southern Oaks Drive Cedar Hill, Texas 75104 as the "sole home or work address" known to HSBC where Thompson and Scott could be served with process. Also, the complaint stated that after Thompson and Scott defaulted on payment of the promissory note, the trustee foreclosed pursuant to its power of sale under the Deed of Trust, and HSBC purchased the property at a "Non-Judicial Foreclosure Sale." Finally, the complaint stated Thompson and Scott were given notice in writing to vacate the premises pursuant to the Texas Property Code and failed or refused to do so.
The justice of the peace court found HSBC was entitled to possession of the premises located at 2229 Southern Oaks Drive, Cedar Hill, Texas. Thompson and Scott appealed to County Court at Law No. 1, but failed to appear for trial. The trial court ordered HSBC was entitled to possession of the Southern Oaks Drive premises and awarded attorney's fees to HSBC. Thompson and Scott timely filed a joint notice of appeal.
II. SUFFICIENCY OF THE COMPLAINT
Scott contends the trial court erred when it granted possession to HSBC because HSBC did not sufficiently describe the property sought to be recovered in the forcible entry and detainer suit pursuant to rule 741 of the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 741. Specifically, Scott asserts HSBC's complaint "described the premises by referring to an exhibit which was not attached, or made part [sic], and not filed with the complaint." He claims this issue may be brought for the first time on appeal because it is not a defect that may be waived. HSBC responds that Scott failed to preserve his issue on appeal because he did not file a motion for new trial or otherwise seek to set aside the default judgment in accordance with rule 324 of the Texas Rules of Civil Procedure and rule 33.1 of the Texas Rules of Appellate Procedure. See Tex. R. Civ. P. 324; Tex. R. App. P. 33.1. In the alternative, HSBC asserts that even if Scott had preserved his issue on appeal, his issue is "without merit" because the complaint accurately described the property by including both the physical address and legal description.
A. Applicable Law
Pursuant to rule 741 of the Texas Rules of Civil Procedure, a complaint for forcible entry and detainer "shall describe the lands, tenements or premises, the possession of which is claimed, with sufficient certainty to identify the same, and it shall also state the facts which entitled the complainant to the possession and authorize the action under Sections 24.001-24.004, Texas Property Code." Tex. R. Civ. P. 741. This Court has concluded that a street address is sufficiently certain to identify the premises made the subject of a detainer action. See Mitchell v. Citifinancial Mortgage Co., 192 S.W.3d 882, 883 (Tex.App. 2006, no pet.); Powelson v. U.S. Bank Nat'l Ass'n, 125 S.W.3d 810, 812 (Tex.App. 2004, no pet.).
B. Application of the Law to the Facts
Scott claims the sufficiency of the description of the property is a defect that cannot be waived and may be raised for the first time on appeal, relying on Granberry v. Storey. See Granberry v. Storey, 61 Tex. Civ. App. 9, 127 S.W. 1122 (Texarkana 1910, no writ) (op. on reh'g). However, Granberry stands for the opposite proposition and concludes "an objection to the judgment . . . that the description in appellee's complaint of the premises in controversy was insufficient" should be made by "an exception" in the trial court and may not be raised for the first time on appeal. Id. at 1125. Accordingly, Scott has waived this issue. See Huey v. Huey, 200 S.W.3d 851, 854 (Tex.App. 2006, no pet.) (failure to cite applicable authority or provide substantive analysis waives issue on appeal).
However, even were we to assume the issue was preserved, we would still reject Scott's argument based on prior case law and conclude the street address set out in the complaint was sufficient pursuant to rule 741. HSBC's complaint described the premises by its legal description as follows:
LOT 111, OF LAKE RIDGE, SECTION 15, AN ADDITION TO THE CITY OF CEDAR HILL, DALLAS COUNTY, TEXAS, ACCORDING TO THE MAP OR PLAT THEREOF RECORDED IN VOLUME 2000015, PAGE 504, MAP RECORDS, DALLAS COUNTY, TEXAS.
Also, the complaint identified the "Property" as "more commonly referred to as 2229 SOUTHERN OAKS DRIVE CEDAR HILL, TEXAS 75104." Further, the complaint identified the "Property" as the same location where Thompson and Scott could be served with process. Scott does not contend he was misled or confused by the language used in the complaint's identifying information. Rather, he argues the complaint for forcible entry and detainer is insufficient because it described the premises by referring to a missing exhibit. We disagree. The complaint at issue does not refer to an exhibit, but specifically describes the property by both its legal description and street address. Accordingly, both the legal description and street address sufficiently identified the premises at issue pursuant to rule 741. See Mitchell, 192 S.W.3d at 883.
We decide Scott's sole issue against him.
III. CONCLUSION
Because Thompson has not filed an appellate brief to raise any issues on appeal, we have nothing to address as to Thompson and we decide against him on his appeal. See Tex. R. App. P. 38.8(a)(2).We decide Scott's sole issue against him. The trial court's judgment is affirmed.