Latasha and Cedric Gardner v. Francisco and Yancy Morazan ( 2022 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00251-CV
___________________________
LATASHA AND CEDRIC GARDNER, Appellants
V.
FRANCISCO AND YANCY MORAZAN, Appellees
On Appeal from County Court at Law No. 2
Denton County, Texas
Trial Court No. CV-2021-02410-JP
Before Birdwell, Bassel, and Womack, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION
I. Introduction
Appellants Latasha and Cedric Gardner raise a single issue in their appeal from
the trial court’s forcible detainer judgment: that the trial court erred by granting
possession of the leased premises to the landlords, appellees Francisco and Yancy
Morazan, because the evidence shows they gave the Gardners only one day’s notice to
vacate the leased premises. We affirm.
II. Background
In June 2021, the Morazans filed a forcible detainer suit against their tenants,
the Gardners, in the Denton County justice court. They alleged that the Gardners’
lease term had ended on April 30, 2021, that the Gardners were holdover tenants, and
that the Morazans had given the Gardners notice to vacate the premises on May 1,
2021, by regular and certified mail. On June 22, 2021, the Morazans filed an amended
petition adding a claim for past-due rent.
After a trial via Zoom on June 28, 2021, the justice court signed a judgment for
the Morazans, awarding them possession of the leased premises and $7,889 in back
rent. The Gardners filed a de novo appeal in the county court and deposited a cash
bond with the county court at law.
The parties tried the case to the court on August 13, 2021. The trial court
admitted a copy of the lease into evidence. Paragraph 27.B. of the lease states, “If
Tenant fails to timely pay all amounts due under this lease or otherwise fails to comply
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with this lease, Tenant will be in default and . . . Landlord may terminate Tenant’s
right to occupy the Property by providing Tenant with at least one day written notice
to vacate . . . .”
The Morazans’ property agent testified that the Gardners owed $11,304 in back
rent. She also testified that on May 1, 2021, she sent the Gardners, on the Morazan’s
behalf, a “1 Day Notice to Vacate” by both regular and certified mail. The trial court
admitted a copy of the notice into evidence.
The trial court rendered judgment for possession of the premises to the
Morazans and also awarded them rent of $11,304. The Gardners then filed a notice
of appeal to this court. Although the trial court issued a writ of possession, it was
recalled when the Gardners paid a $25,278 bond to supersede the judgment.
III. Discussion
The Gardners raise a single issue in their brief: that “[t]he trial court erred in
awarding possession to the Morazans as the ‘1 Day Notice to Vacate’ is insufficient as
a matter of law to provide proper statutory notice under [the] Texas Property Code.”
The sole focus of a forcible detainer action is the right to immediate possession
of real property. Shields Ltd. P’ship v. Bradberry, 526 S.W.3d 471, 478 (Tex. 2017). To
establish a superior right to immediate possession, the Morazans had the burden to
prove (1) that they owned the property, (2) that the Gardners were either tenants at
will, tenants at sufferance, or tenants or subtenants willfully holding over after the
termination of their right of possession, (3) that the Morazans gave proper notice to
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the Gardners to vacate the premises, and (4) that the Gardners refused to vacate the
premises. See Tex. Prop. Code Ann. § 24.002; Shields Ltd. P’ship, 526 S.W.3d at 478.
The Gardners challenge only element (3), whether the Morazans gave them
proper notice to vacate.1 The Gardners argue that the Morazans’ notice failed to
comply with Section 24.005(b) of the Property Code, which requires “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 written lease or
agreement.” Tex. Prop. Code Ann. § 24.005(b).
The record shows that the Morazans mailed their notice to vacate on May 1,
2021; they did not file their forcible detainer suit until June 7, 2021. The Gardners
still possessed the leased premises on August 13, 2021, the day of trial in the county
court at law and several months after trial in the justice court. Not only did the
Morazans give at least one day’s notice to vacate as provided in paragraph 27.B. of the
lease, they also provided more than three days’ notice under Section 24.005(b) of the
Property Code before they filed their suit. Thus, the Morazans proved that they gave
the Gardners sufficient statutory notice before filing their forcible detainer suit. See
id.; Quintanilla v. ANG Rental Holdings Series, LLC-Series Redeemer, No. 05-20-00062-CV,
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The Morazans contend that the Gardners failed to preserve their appellate
complaint. But because proper notice is an element of the Morazans’ suit, the
Gardners’ challenge to the sufficiency of that notice evidence may be brought for the
first time on appeal. See Tex. R. App. P. 33.1(d); Tex. R. Civ. P. 324(a)–(b); Briones v.
Brazos Bend Villa Apartments, 438 S.W.3d 808, 815 (Tex. App.—Houston [14th Dist.]
2014, no pet.).
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2021 WL 3625075, at *5 (Tex. App.—Dallas Aug. 16, 2021, no pet.) (mem. op.);
Standiford v. CitiMortgage, Inc., No. 14-18-00061-CV, 2019 WL 3997106, at *5 (Tex.
App.––Houston [14th Dist.] Aug. 22, 2019, no pet.) (mem. op.); Roberts v. HRL
Procurement LLC, No. 10-18-00275-CV, 2019 WL 1561598, at *5 (Tex. App.—Waco
Apr. 10, 2019, pet. denied) (mem. op.).
We overrule the Gardners’ issue.
IV. Conclusion
Having overruled the Gardners’ sole issue, we affirm the trial court’s judgment.
We decline to order an expedited mandate at this time. See Tex. R. App. P. 18.1(c)
(“The mandate may be issued earlier if the parties so agree, or for good cause on the
motion of a party.”).
/s/ Dana Womack
Dana Womack
Justice
Delivered: May 5, 2022
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