Joella D. Pruitt and All Occupants of 425 Tierra Lane, Waxahachie, TX 75167 v. Pamela D. Scott ( 2019 )

IN THE
TENTH COURT OF APPEALS
No. 10-18-00211-CV
JOELLA D. PRUITT AND ALL OCCUPANTS
OF 425 TIERRA LANE, WAXAHACHIE, TX 75167,
Appellants
v.
PAMELA D. SCOTT,
Appellee
From the County Court at Law
Ellis County, Texas
Trial Court No. 18-C-3399
MEMORANDUM OPINION
In this forcible-entry-and-detainer action, appellants, Joella D. Pruitt and all
occupants of 425 Tierra Lane, Waxahachie, Texas 75167, challenge a judgment entered in
favor of appellee, Pamela D. Scott. Because we overrule all of appellants’ issues on
appeal, we affirm.1
1As this is a memorandum opinion and the parties are familiar with the facts, we only recite those
necessary to the disposition of the case. See TEX. R. APP. P. 47.1, 47.4.
I. THE SUBSTITUTE TRUSTEE’S DEED
In their first issue, appellants complain that the trial court abused its discretion by
overruling their objection and admitting a conclusory portion of appellee’s substitute
trustee’s deed. Specifically, appellants argue that the following portion of the substitute
trustee’s deed was conclusory and, thus, should not have been admitted: “Lender and
Substitute Trustee have satisfied all requirements of the Deed of Trust and applicable law
for enforcement of the power of sale contained in the Deed of Trust and for the sale of the
Property . . . .”
A. Applicable Law
The admission or exclusion of evidence rests in the sound discretion of the trial
court and will not be disturbed absent an abuse of that discretion. Owens-Corning
Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). In determining whether there was
an abuse of discretion, we must ascertain whether the trial court acted without reference
to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,
241-42 (Tex. 1985).
For the admission or exclusion of evidence to constitute reversible error, the
complaining party must show that: (1) the trial court committed error; and (2) the error
probably caused the rendition of an improper judgment. TEX. R. APP. P. 44.1; State v. Cent.
Expressway Sign Assocs., 302 S.W.3d 866, 870 (Tex. 2009). We review the entire record to
determine if the error probably resulted in the rendition of an improper judgment. Cent.
Pruitt, et al. v. Scott Page 2
Expressway Sign Assocs., 302 S.W.3d at 870. Typically, a successful challenge to a trial
court’s evidentiary ruling requires the complaining party to demonstrate that the
judgment turns on the particular evidence excluded or admitted. Tex. Dep’t of Transp. v.
Able, 35 S.W.3d 608, 617 (Tex. 2000); City of Brownsville v. Alvarado, 897 S.W.2d 750, 753-54
(Tex. 1995).
B. Discussion
Assuming, without deciding, that the trial court erred by admitting the
complained-of portion of the substitute trustee’s deed, we cannot say that appellants have
adequately explained how the admission of this evidence caused the rendition of an
improper judgment in this forcible-detainer action.
To prevail and obtain possession in a forcible-detainer action, the law requires
appellees to show: (1) the substitute trustee conveyed the property by deed to appellees
after the foreclosure sale; (2) the deed of trust signed by appellants established a landlord-
tenant relationship between appellants and appellees; (3) appellees gave proper notice to
appellants to vacate the premises; and (4) appellants refused to vacate the premises. U.S.
Bank Nat’l Assoc. v. Freeney, 266 S.W.3d 623, 625 (Tex. App.—Dallas 2008, no pet.); see TEX.
PROP. CODE ANN. §§ 24.002(a)(2), (b), 24.005 (West 2014 & Supp. 2018).
Furthermore, the First Court of Appeals has stated the following in a substantially-
similar situation:
A plaintiff in a forcible detainer action is not required to prove title, but is
only required to show sufficient evidence of ownership to demonstrate a
Pruitt, et al. v. Scott Page 3
superior right to immediate possession. Under well-settled law, a deed of
trust that establishes a landlord-tenant relationship between the borrower
and the purchaser of the property at the foreclosure sale demonstrates such
a superior right to possession. . . .
The deed of trust makes Bierwirth a tenant at sufferance in the event
of foreclosure if she fails to surrender possession of the property. Although
Bierwirth disputes the propriety of the foreclosure, there is no dispute that
HSBC did foreclose and that Bierwirth failed to surrender the property.
Thus, Bierwirth became a tenant at sufferance, and this landlord-tenant
relationship gives AH4R a basis for its forcible detainer action independent
of its claim to title in the property. The justice court and county court
therefore did not need to determine whether HSBC satisfied all conditions
precedent to the tenancy-at-sufferance clause or properly executed the
foreclosure sale.
Bierwirth v. AH4R I TX, LLC, No. 01-13-00459-CV, 2014 Tex. App. LEXIS 11925, at **11-13
(Tex. App.—Houston [1st Dist.] Oct. 30, 2014, no pet.) (mem. op.).
The evidence complained about in this issue was not essential in this forcible-
detainer action. Rather, the complained-of evidence is more relevant to appellants’
wrongful-foreclosure suit, not this forcible-detainer action. Accordingly, we cannot
conclude that the trial court’s purportedly erroneous evidentiary ruling regarding the
substitute trustee’s deed caused the rendition of an improper judgment. See TEX. R. APP.
P. 44.1; see also Cent. Expressway Sign Assocs., 302 S.W.3d at 870; Able, 35 S.W.3d at 617;
Alvarado, 897 S.W.2d at 753-54. Therefore, any error in this issue is harmless. See TEX. R.
APP. P. 44.1; see also Cent. Expressway Sign Assocs., 302 S.W.3d at 870; Able, 35 S.W.3d at
617; Alvarado, 897 S.W.2d at 753-54. We overrule appellants’ first issue.
Pruitt, et al. v. Scott Page 4
II. APPELLANTS’ MOTION FOR JUDGMENT AS A MATTER OF LAW
In their second issue, appellants assert that the trial court erred by denying their
motion for judgment as a matter of law. Specifically, appellants argue that appellee failed
to present sufficient evidence that: (1) she provided fair notice of intent to terminate
appellants’ right of occupancy; (2) she provided appellants with notice prior to
acceleration; (3) she satisfied the condition precedent under the deed of trust; and (4) a
landlord-tenant relationship existed between appellee and appellants.
A. Applicable Law
At trial, appellants moved for judgment in the form of a directed verdict. We
review the grant or denial of a directed verdict under the same standard that we review
a legal-sufficiency point. See U.S. Invention Corp. v. Betts, 495 S.W.3d 20, 23 (Tex. App.—
Waco 2016, pet. denied). In reviewing the legal sufficiency of the evidence, we consider
the evidence in the light most favorable to the verdict, crediting favorable evidence if
reasonable jurors could and disregarding contrary evidence unless reasonable jurors
could not. See City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). To sustain a legal-
sufficiency challenge, we must find that: (1) there is a complete lack of evidence of a vital
fact; (2) the court is barred by the rules of evidence or law from giving weight to the only
evidence offered to prove a vital fact; (3) there is no more than a scintilla of evidence to
prove a vital fact; or (4) the evidence conclusively establishes the opposite of a vital fact.
Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 903 (Tex. 2004).
Pruitt, et al. v. Scott Page 5
A directed verdict is proper when: (1) a defect in the opponent’s pleading makes
the pleading insufficient to support a judgment; (2) the evidence conclusively proves a
fact that establishes a party’s right to judgment as a matter of law; or (3) the evidence
offered on a cause of action is insufficient to raise an issue of fact. Encina P’ship v.
Corenergy, L.L.C., 50 S.W.3d 66, 68 (Tex. App.—Corpus Christi 2001, pet. denied). The
trial court should enter a directed verdict when reasonable minds can only draw one
conclusion from the evidence. Vance v. My Apartment Steak House of San Antonio, Inc., 677
S.W.2d 480, 483 (Tex. 1984).
B. Discussion
Notwithstanding that this issue is arguably multifarious, we will address
appellants’ argument that the notice terminating the right of occupancy did not provide
fair notice to appellants. See In re S.K.A., 236 S.W.3d 875, 894 (Tex. App.—Texarkana 2007,
pet. denied) (observing that a multifarious issue or point of error is one that raises more
than one specific ground of error); see also Rich v. Olah, 274 S.W.3d 878, 885 (Tex. App.—
Dallas 2008, no pet.) (noting that courts may disregard any assignment of error that is
multifarious; however, courts may consider a multifarious issue if it can be determined,
with reasonable certainty, the error about which appellant wants to complain).
Section 24.005(b) of the Property Code provides that “the landlord must give the
tenant at least three days’ written notice to vacate before the landlord files a forcible
detainer suit unless the parties have contracted for a shorter or longer notice period in a
Pruitt, et al. v. Scott Page 6
written lease or agreement.” TEX. PROP. CODE ANN. § 24.005(b) (West Supp. 2018). In the
instant case, the record demonstrates that appellee provided appellants with a notice to
vacate on February 26, 2018, but did not file this forcible-detainer action until more than
a month later on April 4, 2018. As such, we cannot say that appellee violated the notice
requirement of section 24.005(b) of the Property Code. See id.
With regard to appellants’ remaining three arguments in the second issue, we note
that none of them are relevant in a forcible-detainer action. As noted above, the sole issue
in a forcible-detainer action involves who has the right to immediate possession of the
premises. See TEX. R. CIV. P. 510.3(e); Aguilar, 72 S.W.3d at 732. Appellants’ remaining
three arguments in this issue address the propriety of the foreclosure sale, which is not at
issue in a forcible-detainer action. Moreover, the deed of trust made appellants tenants
at sufferance in the event they refused to surrender the property after a foreclosure sale.
There is no dispute that the property was sold at a foreclosure sale and that appellants
refused to surrender the property. As such, appellants became tenants at sufferance, and
this landlord-tenant relationship gave appellees a basis for their forcible-detainer action
independent of any claim to title in the property. See TEX. R. CIV. P. 510.3(e); Williams v.
Bank of New York Mellon, 315 S.W.3d 925, 927 (Tex. App.—Dallas 2010, no pet.) (holding
that allegations concerning defects in the foreclosure process or with title to the property
“are not relevant in [a] forcible detainer action.”); Aguilar, 72 S.W.3d at 732; see also
Bierwirth, 2014 Tex. App. LEXIS 11925, at **11-13. Accordingly, the trial court did not
Pruitt, et al. v. Scott Page 7
need to determine the propriety of the foreclosure sale or the satisfaction of all conditions
precedent to the tenancy-at-sufferance clause in this forcible-detainer action. See TEX. R.
CIV. P. 510.3(e); Williams, 315 S.W.3d at 927; Aguilar, 72 S.W.3d at 732; see also Bierwirth,
2014 Tex. App. LEXIS 11925, at **11-13. Thus, we cannot conclude that the trial court
erred by failing to direct a verdict in appellants’ favor. See City of Keller, 168 S.W.3d at
822; Ramirez, 159 S.W.3d at 903; Betts, 495 S.W.3d at 23; Encina P’ship, 50 S.W.3d at 68. We
overrule appellants’ second issue.
III. THE TRIAL COURT’S JUDGMENT
In their third issue, appellants contend that the trial court erred by entering
judgment in favor of Ronald Scott, despite the fact that it was only appellee who
purchased the property at the foreclosure sale. Assuming, without deciding, that the trial
court erred by including Ronald as a party to the judgment, the error would be harmless
as it could not possibly have caused any harm to appellants. See TEX. R. APP. P. 44.1(a)(1).
As such, we overrule appellants’ third issue.
IV. APPELLANT’S REPLY BRIEF
In their reply brief, appellants reargue the issues raised in their original appellate
brief and add a new argument—that the issue of possession is intertwined with the issue
of title. We need not address this argument because an issue raised for the first time in a
reply brief is ordinarily waived and need not be considered. See TEX. R. APP. P. 38.3; see
also In re Roy, 249 S.W.3d 592, 595 (Tex. App.—Waco 2008, pet. denied) (citing Zamarron
Pruitt, et al. v. Scott Page 8
v. Shinko Wire Co., 125 S.W.3d 132, 139 (Tex. App.—Houston [1st Dist.] 2003, pet. denied)).
However, even if this issue had been properly raised in appellants’ original appellate
brief, for the reasons expressed in Roberts v. HRL Procurement LLC, this contention lacks
merit. See No. 10-18-00275-CV, 2019 Tex. App. LEXIS 2888 at **14-16 (Tex. App.—Waco
Apr. 10, 2019, no pet. h.) (mem. op.).
V. CONCLUSION
Having overruled all of appellants’ issues on appeal, we affirm the judgment of
the trial court.
JOHN E. NEILL
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Neill
Affirmed
Opinion delivered and filed April 24, 2019
[CV06]
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