cynthia-richardson-v-wells-fargo-bank-as-trustee-for-securitizes-assets ( 2012 )

Opinion issued April 12, 2012.

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-10-00931-CV

———————————

Cynthia Richardson, Appellant

V.

Wells Fargo Bank, National Association, as Trustee for Securitized Asset Backed Receivables, LLC 2005-FR3 MortgaGe Pass-Through Certificates, Series 2005-FR3, Appellee

On Appeal from the County Court at Law No. 3

Harris County, Texas

Trial Court Case No. 969936

MEMORANDUM OPINION

          In this forcible detainer case, Cynthia Richardson, acting pro se, appeals the trial court’s judgment granting Wells Fargo Bank, National Association, as Trustee for Securitized Asset-Backed Receivables, LLC 2005 FR3 Mortgage Pass-Through Certificates, Series 2005-FR3 (Wells Fargo) possession of Richardson’s former residence. Richardson complains that the trial court erred by (1) denying her the opportunity to seek legal counsel; (2) awarding possession to Wells Fargo in spite of a conflicting claim to ownership; (3) failing to address Wells Fargo’s failure to attend court-ordered mediation; and (4) abusing its authority by requiring her to post a $34,200 supersedeas bond for the appeal.  We hold that Richardson waived these complaints and affirm.

Background

          After Richardson defaulted on her mortgage, her private residence became the subject of a nonjudicial foreclosure sale.  Wells Fargo became owner of the residence under a substitute trustee’s deed.  Richardson continued to live in the residence, so Wells Fargo instituted this forcible detainer lawsuit in justice court to obtain possession of the property. The justice court granted Wells Fargo possession of the property, and Richardson appealed that judgment to the county court at law.  The court at law tried the case de novo and entered final judgment in favor of Wells Fargo.

Discussion

          In its response brief, Wells Fargo contends that Richardson failed to preserve any of her complaints on appeal.  In order to properly preserve a complaint for appellate review, the record must show that (1) the complaint was made to the trial court by a timely request, objection, or motion and (2) the trial court ruled on or refused to rule on the request, objection, or motion.  Tex. R. App. P. 33.1(a).  This rule applies equally to pro se litigants as it does to those represented by counsel. “Pro se litigants,” like Richardson, “are held to the same standards as licensed attorneys and must comply with all applicable laws and rules of procedure.”  Hope’s Fin. Mgmt. v. Chase Manhattan Mortg. Corp., 172 S.W.3d 105, 107 (Tex. App.—Dallas 2005, pet. denied); Kanow v. Brownshadel, 691 S.W.2d 804, 806 (Tex. App.—Houston [1st Dist.] 1985, no writ); see West Columbia Nat’l Bank v. Griffith, 902 S.W.2d 201, 206 (Tex. App.—Houston [1st Dist.] 1995, writ denied); accord Scoville v. Shaffer, 9 S.W.3d 201, 204 (Tex. App.—San Antonio 1999, no pet.); see also Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex. 1978).

With respect to Richardson’s first complaint, the record nowhere reflects that Richardson asked for additional time to seek legal counsel before trial or that the trial court denied such a request.  On the contrary, the trial court’s final judgment states, “Defendant Cynthia Richardson appeared pro se and announced ready.”  After the close of trial, Richardson asked the trial court, “Could I have gotten an attorney?”  As Richardson’s question reflects, this request was untimely.  Thus, Richardson did not preserve this issue for appellate review.  See Tex. R. App. P. 33.1(a).

Richardson’s complaint that the trial court’s ruling does not acknowledge a conflicting claim to ownership is likewise unpreserved.  Richardson did not object to the admissibility of the evidence that Wells Fargo presented to the trial court, nor did she offer any evidence of her own to show that she or another had a superior right to immediate possession, which is the only issue in a forcible detainer action.  Tex. R. Civ. P. 746; see Dormady v. Dinero Land & Cattle Co., 61 S.W.3d 555, 557 (Tex. App.—San Antonio 2001, pet. dism’d w.o.j.).  To the extent Richardson alleges that a conflicting right to ownership exists, that issue lies beyond the scope of a forcible detainer action.  Dormady, 61 S.W.3d at 557; see Fandey v. Lee, 880 S.W.2d 164, 169 (Tex. App.—El Paso 1994, writ denied) (“Where title to the property is directly involved in the suit, the justice and county courts lack jurisdiction.”). 

          With respect to Richardson’s third issue, the record does not contain any written order requiring the parties to mediate their dispute.  It shows only that the trial court delayed entry of judgment for half an hour so that Richardson could “go talk to” Wells Fargo’s counsel “and see if you can’t work out an arrangement.”  This language does not require Wells Fargo to take any action.  Further, Richardson did not move for sanctions against Wells Fargo based on any failure to attend mediation.  As a result, Richardson waived this issue as well.

          Richardson waived her final complaint, that the trial court abused its authority in requiring her to supersede the judgment, by failing to present it to the trial court in the first instance.  The record shows that, although the justice court granted Richardson’s request to proceed in forma pauperis, Richardson informed the court that she was going to post the bond “right now because I do have $34,000.”  By agreeing to post the bond, Richardson waived any complaint about the bond requirement.[1] 

Conclusion

          We hold that Richardson waived her appellate complaints.  We therefore affirm the judgment of the trial court.

                                                                      Jane Bland

                                                                      Justice

Panel consists of Justices Keyes, Bland, and Sharp.

---

[1]         We note that Richardson late-filed her brief after her fifth request for an extension of time to file it was denied. We consider her brief in the interests of justice.  Tex. R. App. P. 2.