Florence G. Jones v. Elona M. Kelly and Forrest Bridges, Jr. ( 2009 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-08-00422-CV ____________________

FLORENCE G. JONES, Appellant

V.

ELONA M. KELLY AND FORREST BRIDGES, JR., Appellees

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On Appeal from the County Court at Law No. 1 Jefferson County, Texas Trial Cause No. 111,596

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MEMORANDUM OPINION

In this forcible detainer suit, Florence G. Jones appeals from an adverse judgment of the justice court, which the county court at law affirmed on appeal in a trial de novo. We affirm.

Background

This is a dispute among family members about the right to possession of a family home. Elona M. Kelly, ⁽¹⁾ acting through an agent-her son, Forrest Bridges, Jr.-brought a forcible detainer action against Jones. Jones is Kelly's daughter and Bridges's sister. The family home in dispute is located on Flamingo Lane in Beaumont, Texas ("premises"). ⁽²⁾ Kelly and her first husband owned and lived in the Flamingo Lane home. After her husband's death, Kelly remarried and moved to another residence. Jones and her family occupied the premises after Kelly moved. A conflict, however, subsequently arose about whether Jones agreed to pay rent for the premises and whether she owed Kelly unpaid rent.

On July 21, 2008, the Justice Court of Precinct 6, Jefferson County, Texas rendered a default judgment in favor of Kelly and determined that Jones was "guilty of forcible detainer" of the premises. The court also found that Kelly was entitled to possession of the premises, $10,000.00 for unpaid rent, and $77.00 for costs of court. Jones appealed to the county court at law. Both Kelly and Jones proceeded pro se in the justice court and county court.

On September 5, 2008, the County Court at Law No.1, Jefferson County, Texas, heard Jones's appeal. The court denied Jones's appeal and affirmed the judgment rendered on July 21, 2008. On appeal, Jones raises three issues.

Waiver

In issue one, Jones contends that Kelly did not have the capacity to bring the action against her. Jones, however, did not raise this complaint in the lower court and, thus, waived it. See Tex. R. App. P. 33.1; Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 56 (Tex. 2003) ("An argument that an opposing party does not have the capacity to participate in a suit can be waived by a party's failure to properly raise the issue in the trial court."). Because the issue was not preserved, issue one is overruled.

In issue two, Jones contends that the premises is her homestead and cannot be taken from her in a forcible detainer action. However, Jones did not raise this claim in the lower court and may not do so for the first time on appeal. See Tex. R. App. P. 33.1; see generally Fears v. Tex. Bank, 247 S.W.3d 729, 733 (Tex. App.-Texarkana 2008, pet. denied) (finding that homestead defense not timely presented to the trial court in summary judgment proceeding could not be considered on appeal). Issue two was also not preserved and is overruled.

Action for Rent

In issue three, Jones contends that Kelly could not bring an action for debt as an action for rent in the forcible detainer suit. Jones maintains that she did not owe any rent to her mother and that her mother actually is attempting, through the guise of a claim for unpaid rent, to recover on other claims that Jones also disputes.

A forcible detainer action, which is a special proceeding governed by particular statutes and rules, "was created to provide a speedy, simple, and inexpensive means for resolving the question of the right to possession of premises." Rice v. Pinney, 51 S.W.3d 705, 709 (Tex. App.-Dallas 2001, no pet.); see Tex. Prop. Code Ann. §§ 24.001-24.011 (Vernon 2000 & Supp. 2008); Tex. R. Civ. P. 738-755. Generally, the "sole issue" in the suit is "who has the right to immediate possession of the premises." Rice, 51 S.W.3d at 709; see Tex. R. Civ. P. 746. "To prevail in a forcible detainer action, a plaintiff is not required to prove title, but is only required to show sufficient evidence of ownership to demonstrate a superior right to immediate possession." Rice, 51 S.W.3d at 709. The Texas Rules of Civil Procedure, however, specifically allow a claim for rent to be brought with a forcible detainer action. See Tex. R. Civ. P. 738; Carlson's Hill Country Beverage L.C. v. Westinghouse Road Joint Venture, 957 S.W.2d 951, 954 (Tex. App.-Austin 1997, no pet.).   

Therefore, we first consider whether the evidence shows that Jones owed rent to Kelly. There was conflicting evidence at trial about this issue. Jones testified that her father and mother built the house on Flamingo Lane. Jones further testified that when she had marital problems, her mother "opened her doors up to me and my daughters." When Kelly and her second husband purchased another home, Jones understood that she would be allowed to occupy the premises as long as she wanted. Jones contended that she understood she was to pay the mortgage, not the mortgage and rent, and contended that she had made repairs to the house. However, Jones also acknowledged:

[W]hen my mom and I first made an agreement, it was for $300 a month. There is no date on this [document being offered as an exhibit], but my signature is here and my husband's signature is here, and this is the original copy from way back then. At the time that - at the time that this agreement was made, we both agreed to $300 a month. But this was before my mom took out a second mortgage on the house. The reason my mom took out a second mortgage on the house is because we were behind in the taxes. . . .

Both Bridges and Kelly testified about the past-due rent. Bridges stated that Jones had agreed to pay rent but had failed to do so and that his mother, after making demands for the past-due amounts, was evicting Jones for her failure to pay. Kelly also testified that despite her demands, Jones had not paid the rent.  

At the conclusion of testimony, the county court at law denied Jones's appeal and affirmed the judgment of the justice court. The court stated that " the simple fact is, the issue before this Court is who is entitled to possession and what rent is owed. There is a contract for rent stating that $300 a month would be paid. The evidence establishes that there has not been any rent paid. The evidence establishes that Ms. Kelley has superior title."  

Based on the record before us, we conclude the evidence is legally and factually sufficient to establish Kelly's claim that Jones owed rent. The trial court was entitled to resolve any discrepancies in the testimony, and based on Jones's own testimony and the testimony of Kelly and Bridges, the court found that Jones agreed to pay rent. Based on the testimony of Kelly and Bridges, the trial court could also reasonably have concluded that the evidence established the rent had not been paid.

As to legal sufficiency, having reviewed the record, we conclude that the record contains evidence to support the verdict, and we further conclude that reasonable and fair-minded people could have reached the verdict in favor of Kelly. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); Royce Homes, L.P. v. Humphrey, 244 S.W.3d 570, 574 (Tex. App.-Beaumont 2008, pet. denied). As to factual sufficiency, while the evidence presented by the parties conflicted, it is the factfinder's role to resolve any conflicts in the evidence. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). We find that the evidence supporting the verdict is not so weak that the verdict is clearly wrong and unjust. See Humphrey, 244 S.W.3d at 575 (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986)). We overrule issue three. Having overruled all of Jones's issues, we affirm the judgment of the county court at law.

AFFIRMED.

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HOLLIS HORTON

Justice

Submitted on August 6, 2009

Opinion Delivered August 27, 2009

Before Gaultney, Kreger, and Horton, JJ.

1. Elona M. Kelly's last name also appears in the record as "Kelley."

2. The record is confusing about Bridges's role in this suit. Both Kelly's original complaint and the justice court's judgment show that Kelly was the plaintiff and Bridges was her agent. In Jones's appeal to the county court at law, she stated that Kelly was the plaintiff and could be served through Bridges. After hearing the evidence, the county court at law orally pronounced that Kelly was entitled to possession and that "the judgment of the lower court remains." The style of the written judgment signed by the county court at law, however, shows Kelly and Bridges, individually, as plaintiffs. Jones's notice of appeal names Kelly and Bridges, individually, as plaintiffs. However, there is no indication in the record that Bridges obtained judgment against Jones.