Dan Michael Pannell and Everlasting Arms v. Invum Three LLC ( 2019 )

Affirmed and Memorandum Opinion filed June 20, 2019.
In The
Fourteenth Court of Appeals
NO. 14-18-00230-CV
DAN MICHAEL PANNELL AND EVERLASTING ARMS, Appellants
V.
INVUM THREE LLC, Appellee
On Appeal from the County Civil Court at Law No. 3
Harris County, Texas
Trial Court Cause No. 1106690
MEMORANDUM OPINION
Appellants Dan Michael Pannell and Everlasting Arms appeal the trial court’s
judgment for possession granted in favor of Appellee Invum Three LLC. We affirm.
BACKGROUND
This appeal arises out of the foreclosure and sale of real property located at
6144 Imogene Street in Houston. The property was sold at a substitute trustee’s sale
on May 2, 2017 to Invum. Under the terms of the deed of trust, Pannell became a
tenant at sufferance. Invum sent a Notice to Vacate Pursuant to Foreclosure to
“Pannell and/or all occupants” on May 15, 2017. Invum’s authorized agent, Jose
Portillo, filed a petition for eviction on May 22, 2017 in justice court on behalf of
GS Remodeling LLC as the plaintiff and against Dan M. Pannell and Everlasting
Arms as defendants. Portillo filed an amended petition for eviction on June 13, 2017
in justice court, naming Invum Three LLC as the plaintiff.
Appellants removed the case to federal district court on June 19, 2017. The
federal district court remanded the case on September 12, 2017 and concluded
“removal of the case was improper and this Court lacks subject matter jurisdiction.”
In its order, the federal district court acknowledged an amended petition had been
“filed in state court, amending the name of Plaintiff to Invum Three, LLC.” Pannell
then filed a Notice of Stay on October 12, 2017, stating he “commence[d] a chapter
13 bankruptcy case.” The bankruptcy court signed an order on January 16, 2018,
dismissing Pannell’s bankruptcy case with prejudice.
By December 1, 2017, Invum had hired an attorney to represent it in its
forcible detainer suit in justice court. The justice court signed an eviction judgment
on February 2, 2018, which states: (1) Plaintiff Invum Three LLC and Defendants
Dan M. Pannell and Everlasting Arms were present and announced ready for trial;
(2) Invum was represented by its attorney; and (3) the “court, having heard evidence,
determined judgment is for the Plaintiff for possession.”
Appellants appealed to the county civil court at law. Invum filed an Amended
Petition for Forcible Detainer in the county court. The county court held a bench
trial on March 19, 2018. Pannell appeared pro se and Invum was again represented
by its attorney. After considering the evidence and arguments presented, the county
court awarded possession to Invum and signed a judgment for possession.
Appellants filed a timely appeal.
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ANALYSIS
I. Mootness
As a preliminary matter, we address Invum’s argument that Appellants’
appeal should be dismissed as moot because (1) “Appellants did not post a
supersedeas bond;” (2) “a Writ of Possession was issued on April 4, 2018 and
executed;” and (3) Invum “is now in possession of the subject property.”
The only issue in an action for forcible detainer is the right to actual possession
of the premises. See Marshall v. Hous. Auth. of City of San Antonio, 198 S.W.3d
782, 785 (Tex. 2006). If a supersedeas bond in the amount set by the trial court is
not filed, the judgment in a forcible detainer action may be enforced and a writ of
possession may be executed evicting the defendant from the premises in question.
See id. at 786. Failure to supersede the judgment does not divest the defendant of
his right to appeal. Wilhelm v. Fed. Nat’l Mortg. Ass’n, 349 S.W.3d 766, 768 (Tex.
App.—Houston [14th Dist.] 2011, no pet.). However, if a defendant in a forcible
detainer action is no longer in possession of the premises, then an appeal from the
judgment of possession is moot “unless the defendant asserts ‘a potentially
meritorious claim of right to current, actual possession of the [premises].’” Id.
(quoting Marshall, 198 S.W.3d at 787).
Contrary to Invum’s assertion, there is no support in the record before us that
a writ of possession was executed or that Invum “is now in possession of the subject
property.” Therefore, we reject Invum’s mootness argument and proceed to address
the merits.
II. Issues on Appeal
Appellants’ brief consists of two single-spaced pages and fails to comply with
Texas Rule of Appellate Procedure 38.1 (prescribing the requirements for briefs
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submitted on appeal). Appellants’ brief even fails to provide (1) a concise and
nonargumentative statement of the facts of the case supported by record references
and (2) a clear and concise argument for the contentions made with appropriate
citations to authorities and the record. See id. 38.1(g) and (h). Appellants’ brief is
remarkably brief.1
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In its entirety the brief states as follows:
STATEMENT ON APPEAL FROM JUDGMENT
DAN MICHAEL PANNELL, As Trustee For EVERLASTING ARMS U.B.T.O.,
and DAN MICHAEL PANNEL[L] respectfully appeal from the order granting
eviction to and possession of the property located at 6144 Imogene St, Houston ,
Texas 77074 because of the following defects in the proceedings:
1. Appellants have proof that payment was accepted by Wells Fargo N. A.
2. Invum Three LLC has never filed and served a citation and petition for
eviction against appellants and therefore can not receive an order of
eviction[.]
3. GS Remodeling LLC filed a citation and petition for eviction.
4. The citation and petition for eviction was filed by an unlicensed attorney.
5. The law firm representing Invum Three, keeps fraudulently changing the
title of the cause.
6. The filing of GS Remodeling was defective on its face because GS
Remodeling LLC has no standing or claim of title for the afore mentioned
[sic] property.
7. Jose Portillo is not an owner, officer of either LLC.
8. If one did not file a citation and petition, they can not receive a judgment
in their favor.
9. The filing was never properly amended and reserved.
10. The case was removed to the U.S. District Court in Houston.
11. The attorney representing Invum Three LLC, who was never a party to
any action legitimately, simply used Invum Three LLC, and indicated that
the defendants in error named the wrong plaintiff.
Appellants, in this case, did not file any action to commence eviction against
themselves and therfore [sic] can not be responsible for the error. The original
action should have been dismissed with prejudice. The actions were commenced
by Mr. Jose Portillo. The filing was unlawful because he neither had a property
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Despite Appellants’ inadequate briefing, we nonetheless construe Appellants’ brief
liberally to reach the appellate issues on the merits, where possible. See Perry v.
Cohen, 272 S.W.3d 585, 587 (Tex. 2008). Although we liberally read Appellants’
brief, we note that pro se litigants such as Appellants are held to the same standards
as licensed attorneys and must comply with all applicable rules of procedure. See
Reule v. M & T Mortg., 483 S.W.3d 600, 608 (Tex. App.—Houston [14th Dist.]
2015, pet. denied).
In issues two, eight, and nine, Appellants appear to challenge the propriety of
the “order of eviction” in Invum’s favor. They state: (1) “Invum Three LLC has
never filed and served a citation and petition for eviction against appellants and
therefore can not receive an order of eviction;” (2) “If one did not file a citation and
petition, they can not receive a judgment in their favor;” and (3) “The filing was
never properly amended and reserved.”
We reject Appellants’ complaints for several reasons. Although the original
management license, nor a Texas State Bar card. Under Texas Statute an LLC must
be represented by an attorney or an officer of the LLC. Texas statute again clearly
defines how a pleading is amended. That did not occur. Additionally, the civil case
was removed and additionally was under the jurisdiction of the United States
District Court, Southern District of Texas. The sitting justice in case number
1106690, ignored that fact and used a[n] order of remand associated with the justice
of the peace case as reason to move forward. That was improper. The removal for
case number 1106690 is STILL valid and it will remain because the time to ask for
a[n] order of remand has expired. This is a typical illustration of the corruption
which in [sic] rampant in the Texas State Court System. This can not be allowed
to stand. The attorneys involved should be disciplined as well as the justices who
ignore procedure. This lacks integrity and demonstrates the privilege and given to
members of the State Bar unlawfully.
Appellants respectfully ask the 14th Court of Appeals to vacate the judgment on
the grounds that it was fraudulently obtained and issued with bias. Invum Three
LLC never filed any action against appellants and therefore can not possibly receive
judgment in their favor.
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petition for eviction named GS Remodeling LLC as the plaintiff, an amended
petition for eviction was filed in justice court and it named Invum as the plaintiff in
the case. Amendment is permissible when the substitution of a new party plaintiff
does not inject a matter that is materially different in substance or form into the
lawsuit or does not appreciably alter the rights and obligations of the parties to the
prejudice of the defendants. Myers v. HCB Real Holdings, LLC, No. 05-13-00113-
CV, 2015 WL 2265152, at *4 (Tex. App.—Dallas May 14, 2015, pet. denied) (mem.
op.); see also Tex. R. Civ. P. 37 and Mays v. Dallas Cty., No. 06-16-00067-CV,
2017 WL 1739765, at *3 (Tex. App.—Texarkana May 3, 2017, pet. denied) (mem.
op.). Here, the substance of the lawsuit remained the same and there is no evidence
that the change in plaintiff prejudiced Appellants in any way. See Myers, 2015 WL
2265152, at *4. Thus, Appellants incorrectly claim the original petition was “never
properly amended.” Appellants are equally wrong that Invum never filed a petition
for eviction.
Appellants’ assertion that Invum cannot “receive a judgment in their favor”
(because it never served citation on Appellants) is also without merit. Assuming
arguendo Invum did not serve a citation on Appellants, Appellants nonetheless
entered an appearance. This appearance vitiated any alleged harm. See Sherman v.
Boston, 486 S.W.3d 88, 92-93 (Tex. App.—Houston [14th Dist.] 2016, pet. denied)
(“A trial court lacks personal jurisdiction over a defendant to whom citation has not
been issued and served in a manner prescribed by law unless the defendant waives
service or enters an appearance.”). Any alleged lack of service of citation was
waived by Appellants’ appearance and participation on the merits in the justice court
and county court. See Tex. R. Civ. P. 120 (“The defendant may, in person, . . . enter
an appearance in open court. Such appearance . . . shall have the same force and
effect as if the citation had been duly issued and served as provided by law.”), and
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Tex. R. Civ. P. 124 (“In no case shall judgment be rendered against any defendant
unless upon service, or acceptance or waiver of process, or upon an appearance by
the defendant . . . .”); see also Sherman, 486 S.W.3d at 92-93. Accordingly, we
overrule Appellants’ issues two, eight, and nine.
In issues three and six, Appellants state “GS Remodeling LLC filed a citation
and petition for eviction,” and “The filing of GS Remodeling was defective on its
face because GS Remodeling LLC has no standing or claim of title for the afore
mentioned [sic] property.” However, any complaint relating to GS Remodeling is
of no consequence in this appeal because (1) GS Remodeling was not a party to the
action below after being dismissed as plaintiff; (2) Invum was the only named
plaintiff in the amended petition in justice court and again in the county court
lawsuit; and (3) the judgment Appellants appeal was entered in favor of Invum (not
GS Remodeling). Accordingly, we overrule Appellants’ issues three and six.
Appellants argue in issue ten that the “case was removed and . . . was under
the jurisdiction of the” federal district court so that the justice court improperly “used
an order of remand associated with the justice of the peace case as reason to move
forward” when the removal of the case to federal court “is STILL valid and it will
remain because the time to ask for a[n] order of remand has expired.”
After an amended petition was filed in the justice court to name Invum as the
plaintiff in the case, Appellants removed the case to federal district court on June 19,
2017. The federal district court granted Invum’s motion to remand on September
12, 2017. The record before us contradicts Appellants’ contention that the justice
court’s eviction judgment was improper because the removal of the case “is STILL
valid and it will remain because the time to ask for a[n] order of remand has expired.”
Accordingly, we overrule Appellants’ issue ten.
Next, we address Appellants’ issues four and seven, which state: “The citation
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and petition for eviction was filed by an unlicensed attorney” and “Jose Portillo is
not an owner, officer of either LLC.” Appellants contend that “actions were
commenced by Mr. Jose Portillo. The filing was unlawful because he neither had a
property management license, nor a Texas State Bar card. Under Texas Statute an
LLC must be represented by an attorney or an officer of the LLC.”
As with all previous issues we addressed in this appeal, Appellants cite no
authority to support their contentions. We also note that, in the justice and county
courts below, Appellants did not complain that Portillo was not an owner or officer
of Invum, or that he lacked a property management license. Nor have Appellants
pointed to any evidence showing that Portillo was not an owner or officer of Invum.
Appellants’ sole statement in the county court was: “Portillo filed an eviction and a
lawyer has to be — a lawyer has to file for a corporation. He filed for a corporation.
He is not a lawyer.”
Invum need not be represented by a licensed attorney and may represent itself
in justice court. See Tex. Gov’t Code Ann. § 27.031(d) (Vernon 2017) (allowing
corporate entities to appear in justice court even though not represented by an
attorney); see also Genender v. USA Store Fixtures, LLC, 451 S.W.3d 916, 920 &
n.1 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (noting LLC filed two petitions
and represented itself in justice court and citing Tex. Gov’t Code Ann. § 27.031(d)),
and Sherman, 486 S.W.3d at 97 (Frost, C.J., concurring and dissenting) (noting LLC
is a corporate entity and “can represent itself in justice court” and citing Tex. Gov’t
Code Ann. § 27.031(d)).
Additionally, a document filed in court by a nonlawyer purportedly on behalf
of a corporate entity is defective but not void and may be effective for certain
purposes. See Rabb Int’l, Inc. v. SHL Thai Food Serv., LLC, 346 S.W.3d 208, 209-
10 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (concluding motion for new trial
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filed by nonlawyer on behalf of corporation was not void and was effective to extend
deadline to perfect an appeal); Guadalupe Econ. Servs. Corp. v. Dehoyos, 183
S.W.3d 712, 715-16 (Tex. App.—Austin 2005, no pet.) (concluding answer filed by
nonlawyer on behalf of corporation, although defective, still prevents the trial court
from granting a default judgment); Home Sav. of Am. FSB v. Harris Cty. Water
Control & Improvement Dist. No. 70, 928 S.W.2d 217, 219 (Tex. App.—Houston
[14th Dist.] 1996, no writ) (same). Furthermore, Invum hired an attorney after the
amended petition was filed in justice court and was represented thereby both at trial
in justice court and later in county court. Accordingly, we overrule Appellants’
issues four and seven.
Finally, Appellants state in issues one, five, and eleven that: (1) “Appellants
have proof that payment was accepted by Wells Fargo N. A.;” (2) “The law firm
representing Invum Three, keeps fraudulently changing the title of the cause;” and
(3) “The attorney representing Invum Three LLC, who was never a party to any
action legitimately, simply used Invum Three LLC, and indicated that the defendants
in error named the wrong plaintiff.”
However, even reading Appellants’ statements liberally, we do not understand
what Appellants are trying to challenge by their statements. We would have to make
legal arguments for Appellants in order to address issues one, five, and eleven.
Appellants present neither argument nor citations to authorities or record evidence
for us to understand and address their issues. Appellants waived issues one, five,
and eleven due to wholly inadequate briefing. See Tex. R. App. P. 38.1(i).
Accordingly, we overrule Appellants’ issues one, five, and eleven.
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CONCLUSION
Having overruled Appellants’ eleven issues, we affirm the trial court’s
judgment.
/s/ Meagan Hassan
Justice
Panel consists of Justices Christopher, Hassan and Poissant.
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