Gary Shepherd, Linda Shepherd, and All Other Occupants v. MWS Acquisitions, LLC ( 2023 )

Opinion issued March 21, 2023
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-22-00293-CV
———————————
GARY SHEPHERD, LINDA SHEPHERD, AND ALL OTHER
OCCUPANTS, Appellants
V.
MWS ACQUISITIONS, LLC, Appellee
On Appeal from the County Court
Llano County, Texas1
Trial Court Case No. 03015
2
Per the Texas Supreme Court’s docket-equalization powers, this appeal was
transferred from the Third Court of Appeals to this court on March 29, 2022. See
TEX. GOV’T CODE § 73.001; Order Regarding Transfer of Cases from Courts of
Appeals, Misc. Docket No. 22-9025 (Tex. Mar. 29, 2022). We are unaware of any
relevant conflict between the Third Court’s precedent and ours. See TEX. R. APP.
P. 41.3.
MEMORANDUM OPINION
Gary and Linda Shepherd appeal from a forcible-detainer suit in which the
trial court awarded possession of the property at issue to MWS Acquisitions, LLC.
The Shepherds contend there was not sufficient evidence that they received the
statutorily required notice to vacate. Because we conclude the record contains both
legally and factually sufficient evidence to support the trial court’s finding that the
Shepherds received notice, we affirm the trial court’s judgment.
BACKGROUND
MWS purchased the property where the Shepherds’ home is located at a
foreclosure sale. On October 6, 2021, MWS sent the Shepherds a notice to vacate
the property within three days. MWS sent the notice by three different methods:
(1) certified mail, return receipt requested; (2) regular mail; and (3) posting notice
to the outside of the Shepherds’ front door. MWS used the Shepherds’ home address
for the notices sent by certified mail and regular mail. Several days later, after the
court clerk advised MWS to give the Shepherds a 30-day notice to vacate instead of
the three-day notice MWS had given with the first notice to vacate, MWS sent an
amended notice using the same three methods: (1) certified mail, return receipt
requested to the Shepherds’ home address; (2) regular mail to the Shepherds’ home
address; and (3) posting notice to the outside of the Shepherds’ front door. The
Shepherds contend that they never received any of these notices. Specifically, they
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claim they never received the mailed notices because they do not receive mail at
their home address; all of their mail goes to a separate P.O. Box with a different
address.
MWS filed a forcible-detainer suit against the Shepherds in November, after
the 30-day period to vacate the property had expired and the Shepherds did not
vacate the property. The case was tried to the bench in a justice of the peace court
and then de novo in county court. The county court ruled in favor of MWS and
awarded it possession of the property. The Shepherds now appeal the county court’s
judgment.
DISCUSSION
In three points of error, the Shepherds argue the trial court erred in awarding
possession to MWS because MWS did not prove that the Shepherds received the
notice to vacate, an element that MWS was required to prove to succeed in its
forcible-detainer suit.
A. Trial court did not err in excluding mortgage statements
We first consider the Shepherds’ claim that the trial court erred in excluding
the mortgage statements they sought to introduce into evidence. The mortgage
statements, the Shepherds argue, would have supported Gary Shepherd’s testimony
that he and his wife did not receive mail at their house because the mortgage
statements were addressed to the Shepherds’ P.O. Box.
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1. Standard of review and applicable law
We review the trial court’s exclusion of evidence for abuse of discretion. JBS
Carriers, Inc. v. Washington, 564 S.W.3d 830, 836 (Tex. 2018). A trial court abuses
its discretion when it acts without reference to guiding rules or principles or when
its ruling is arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701
S.W.2d 238, 241–42 (Tex. 1985). Even if evidence is erroneously excluded, we may
not reverse the trial court’s judgment unless the error is harmful, meaning that it
“probably caused the rendition of an improper judgment.” TEX. R. APP. P. 44.1(a)(1);
see Gunn v. McCoy, 554 S.W.3d 645, 666 (Tex. 2018) (to reverse trial court’s
judgment based on exclusion of evidence, appellate court must conclude trial court
committed error and that error was harmful). We will uphold a trial court’s
evidentiary ruling as long as there is any legitimate basis for the ruling. Owens-
Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998).
2. Analysis
The Shepherds sought to introduce several mortgage statements into evidence.
Each mortgage statement was addressed to Gary Shepherd and listed the Shepherds’
P.O. Box as the mailing address. The Shepherds intended to use the mortgage
statements to show they were receiving mail at their P.O. Box and not their home
address.
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The Shepherds argue on appeal that these mortgage statements would have
helped prove their claim that the notice to vacate was never delivered because it was
sent to the wrong address, their home address, instead of their P.O. Box where they
received mail. We disagree that the mortgage statements could prove the notice to
vacate was not delivered; at most, the mortgage statements would prove the
Shepherds received mail at a P.O. Box. But receiving mail at a P.O. Box does not
prove the Shepherds did not receive mail at their home address or that the notice to
vacate was never delivered. See Carroll v. Bank of N.Y., No. 10-03-00319-CV, 2005
WL 241224, at *2 (Tex. App.—Waco Feb. 2, 2005, no pet.) (mem. op.) (evidence
that appellant had P.O. Box did not speak to whether she received mail at home
address or prove she did not receive notice).
The Shepherds further argue that the mortgage statements would have
substantiated Gary’s testimony that he never received the notice to vacate. Again,
we disagree that the mortgage statements would have proved anything regarding the
notice to vacate, and at most, would have proved that the Shepherds received mail
at their P.O. Box.
On this record, we cannot say the trial court abused its discretion in excluding
the mortgage statements. See Downer, 701 S.W.2d at 242–43 (trial court abuses its
discretion when it acts without reference to guiding rules or principles or when its
ruling is arbitrary or unreasonable). Further, the Shepherds have not shown how the
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exclusion of the mortgage statements “probably caused the rendition of an improper
judgment.” See TEX. R. APP. P. 44.1(a)(1).
The trial court did not abuse its discretion in excluding the Shepherds’
mortgage statements. Therefore, we overrule the Shepherds’ second point of error.
B. Evidence of notice is legally and factually sufficient
Next, the Shepherds argue there was legally and factually insufficient
evidence to prove the notice to vacate was delivered to them; instead, they argue, the
evidence conclusively established they never received notice.
1. Standard of review
In a bench trial, the trial court’s findings of fact carry the same weight as a
jury’s verdict. Yazdani-Beioky v. Sharifan, 550 S.W.3d 808, 821 (Tex. App.—
Houston [14th Dist.] 2018, pet. denied). The trial court, as factfinder, judges the
credibility of the witnesses, determines the weight of their testimony, and resolves
conflicts in the evidence. Id. When challenged, a trial court’s findings of fact are not
conclusive if, as here, there is a complete reporter’s record on appeal. DeClaire v.
G & B McIntosh Fam. Ltd. P’ship, 260 S.W.3d 34, 42 (Tex. App.—Houston [1st
Dist.] 2008, no pet.). We apply the same legal- and factual-sufficiency of the
evidence standards in reviewing a trial court’s findings of fact that we use in
reviewing jury findings. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994).
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We consider the legal-sufficiency challenge first when both legal- and factual-
sufficiency challenges are raised on appeal. See Glover v. Tex. Gen. Indem. Co., 619
S.W.2d 400, 401 (Tex. 1981) (per curiam). When a party challenges the legal
sufficiency of the evidence supporting an adverse finding on which it did not have
the burden of proof at trial, that party must demonstrate there is no evidence to
support the adverse finding. Exxon Corp. v. Emerald Oil & Gas Co., L.C., 348
S.W.3d 194, 215 (Tex. 2011). We will sustain a legal-sufficiency challenge if: (1)
the record shows a complete absence of evidence of a vital fact; (2) rules of law or
evidence bar the court from giving weight to the only evidence offered to prove a
vital fact; (3) the evidence offered to prove a vital fact is no more than a scintilla; or
(4) the evidence conclusively establishes the opposite of the vital fact. See City of
Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). We review the evidence in the
light most favorable to the trial court’s ruling, crediting favorable evidence if a
reasonable factfinder could, and disregarding contrary evidence unless a reasonable
factfinder could not. See id. at 807. If there is more than a scintilla of evidence to
support the challenged finding, we must uphold it. Formosa Plastics Corp. USA v.
Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998).
When a party challenges the factual sufficiency of the evidence on an adverse
finding on which it did not have the burden of proof at trial, we review all of the
evidence in a neutral light and set aside the finding only if it is so contrary to the
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overwhelming weight of the evidence as to be clearly wrong and manifestly unjust.
See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam); Reliant Energy
Servs., Inc. v. Cotton Valley Compression, L.L.C., 336 S.W.3d 764, 782 (Tex.
App.—Houston [1st Dist.] 2011, no pet.). We may not substitute our judgment for
that of the factfinder. See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757,
761 (Tex. 2003).
2. Applicable law
A tenant commits a forcible detainer if the tenant refuses to surrender
possession of real property after the landlord makes a written demand for possession.
TEX. PROP. CODE § 24.002. The landlord must give the written demand for
possession, or notice to vacate, at least three days before filing a forcible-detainer
suit. TEX. PROP. CODE § 24.005(b).
There are three ways a landlord may provide the notice to vacate: (1) in
person, either by personal delivery to the tenant or by personal delivery to the
premises by affixing the notice to the inside of the main entry door; (2) by mail “to
the premises in question,” including regular mail, registered mail, or certified mail
with return receipt requested; and (3) in some circumstances, by affixing the notice
to the outside of the main entry door and, not later than 5 p.m. of the same day,
mailing a copy of the notice to the tenant. TEX. PROP. CODE § 24.005(f), (f-1).
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To prevail in a forcible-detainer suit, a landlord must establish that it gave
proper notice to vacate to the tenants. Trimble v. Fed. Nat’l Mortg. Ass’n, 516
S.W.3d 24, 29 (Tex. App.—Houston [1st Dist.] 2016, pet. denied).
We presume a letter that is properly addressed and mailed with prepaid
postage was received by the addressee. Id. at 31 (citing Thomas v. Ray, 889 S.W.2d
237, 238 (Tex. 1994)). In the absence of proof to the contrary, the presumption has
the force of a rule of law. Id. The addressee may rebut this presumption by offering
evidence that the letter was not delivered. Khalilnia v. Fed. Home Loan Mortg.
Corp., No. 01-12-00573-CV, 2013 WL 1183311, at *3 (Tex. App.—Houston [1st
Dist.] Mar. 21, 2013, pet. denied) (mem. op.). Denying the letter was received is
sufficient to rebut the presumption, but denial is “not conclusive and merely presents
a fact issue for the factfinder.” Texaco, Inc. v. Phan, 137 S.W.3d 763, 767 (Tex.
App.—Houston [1st Dist.] 2004, no pet.).
3. Analysis
The Shepherds argue there was legally and factually insufficient evidence to
support the trial court’s finding that notice to vacate was delivered to them. We
conclude there was sufficient evidence to support the presumption that the mailed
notice was delivered to them, and the trial court did not err in resolving the
conflicting evidence against the Shepherds. Thus, there was legally and factually
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sufficient evidence to support the trial court’s finding that notice was delivered to
the Shepherds.
a. The mailed notices
The Shepherds argue that although MWS provided evidence that it mailed the
notice to vacate, MWS did not offer any evidence that the Shepherds actually
received the notice to vacate. They argue that because the three-days’ required notice
to vacate is calculated from the day the notice is delivered, see TEX. PROP. CODE
§ 24.005(g), MWS was required to prove the day on which the notice was delivered
to prove its compliance with the statute.
But the Shepherds’ argument misunderstands the effect of the applicable
presumption. We presume a letter that is properly addressed and mailed with prepaid
postage was received by the addressee. Trimble, 516 S.W.3d at 31. When the sender
has offered evidence to show the letter was properly mailed so that the presumption
applies, then the sender does not need to prove the letter was actually received by
the addressee. That is the purpose of the presumption. The addressee is, of course,
free to rebut the presumption by offering proof that the letter was not delivered.
Phan, 137 S.W.3d at 767 (denying receipt of letter rebuts presumption that it was
delivered).
Here, MWS offered evidence to show the presumption applies. Rheannon
Piercy, MWS’s director of property management, testified that she sent the notice to
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vacate by certified mail and by regular mail. She introduced into evidence her receipt
from the post office showing paid postage for both a first-class letter and certified
mail with return receipt, and she introduced a certified mail receipt addressed to the
Shepherds’ home address. Thus, MWS presented evidence that the notice to vacate
was properly addressed and mailed with prepaid postage, so the factfinder was
entitled to presume the notice was received by the Shepherds. See Trimble, 516
S.W.3d at 31. There is more than a scintilla of evidence to show the notice to vacate
was properly mailed and thus received by the Shepherds, which is legally sufficient
evidence. See Formosa Plastics, 960 S.W.2d at 48 (more than scintilla of evidence
supporting challenged finding is legally sufficient evidence to support finding).
The Shepherds offered evidence to rebut the presumption, and they argue their
evidence conclusively established that they never received the notice to vacate. At
trial, Gary Shepherd testified that he and his wife receive all of their mail at a P.O.
Box instead of their home address. He explained that there is a mailbox down the
road from their house, but it is “locked down” and “wired shut” with “a big X on it”
so that no mail can be delivered there. He further testified that he never received any
of the notices MWS mailed or posted to the front door. Gary’s testimony rebuts the
presumption that the Shepherds received the notice to vacate, but it does not
conclusively establish that the notice was not delivered. See Phan, 137 S.W.3d at
767 (denying receipt of letter rebuts presumption that it was delivered but is not
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conclusive). Rather, the conflicting testimony presents a fact issue for the factfinder
to resolve. Id.Because MWS and the Shepherds offered conflicting evidence regarding
whether the notice to vacate was delivered to the Shepherds by mail, the trial court
was required to resolve this fact issue. See Yazdani-Beioky, 550 S.W.3d at 821. The
trial court, as factfinder, was the sole judge of the credibility of the witnesses and
the weight to be given their testimony. Id. On a factual-sufficiency challenge, we
may only set aside the trial court’s finding if it is so contrary to the overwhelming
weight of the evidence as to be clearly wrong and manifestly unjust. See Cain, 709
S.W.2d at 176; Reliant Energy Servs., 336 S.W.3d at 782. On this record, we cannot
say the trial court’s finding that notice was delivered to the Shepherds was clearly
wrong or manifestly unjust.
A tenant’s denial of receipt of a notice to vacate that was properly mailed,
without additional evidence that the notice was not delivered, is rarely enough to
overturn a finding that the tenant received the notice. E.g., Smith v. Deutsche Bank
Nat’l Tr. Co. as Tr. for New Century Home Equity Loan Tr. 2005-4, No. 05-17-
01022-CV, 2019 WL 211174, at *2 (Tex. App.—Dallas Jan. 16, 2019, no pet.)
(mem. op.) (landlord sent notice to vacate by regular mail and there was no evidence
letter was returned, so even though tenant testified she never received notice,
evidence was sufficient to conclude tenant received notice by regular mail); Trimble,
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516 S.W.3d at 31–32 (landlord sent notice to vacate by regular mail, and there was
no evidence in record that notice was not delivered, so even though tenant testified
he never received notice, he failed to raise fact question on summary judgment to
rebut presumption that notice was delivered); Kaldis v. U.S. Bank Nat’l Ass’n, No.
14-11-00607-CV, 2012 WL 3229135, at *3 (Tex. App.—Houston [14th Dist.] Aug.
9, 2012, pet. dism’d w.o.j.) (mem. op.) (landlord sent notice to vacate by certified
mail and regular mail, and even though tenant testified he did not receive notice, trial
court as factfinder was not required to accept his testimony). Notably, none of these
cases involve a tenant’s testimony that he could not receive mail at the property in
question. But the trial court was in the position to judge credibility and weigh the
testimony, and we may not substitute our judgment for that of the factfinder. Golden
Eagle Archery, 116 S.W.3d at 761; Yazdani-Beioky, 550 S.W.3d at 821. The
Shepherds did not present any additional evidence to support their claim that they
could not receive mail at their home address—as discussed above, the mortgage
statements mailed to the Shepherds’ P.O. Box, even if they had been admitted into
evidence, would not have supported their claim. Thus, we cannot say the trial court’s
finding that the Shepherds received notice to vacate by mail was so contrary to the
overwhelming weight of the evidence as to be clearly wrong and manifestly unjust.
See Cain, 709 S.W.2d at 176; Reliant Energy Servs., 336 S.W.3d at 782. The
evidence is factually sufficient to support the trial court’s finding that the Shepherds
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received the notice to vacate by mail. See Cain, 709 S.W.2d at 176; Reliant Energy
Servs., 336 S.W.3d at 782.
Because we have concluded the evidence is legally and factually sufficient to
support the trial court’s finding that the Shepherds received the notice to vacate by
mail, we overrule the Shepherds’ first point of error.
b. The posted notices
The Shepherds argue there is no evidence to support the trial court’s finding
that MWS gave them written notice in compliance with Section 24.005(f-1) of the
Property Code, the statute authorizing a landlord to post a notice to vacate on the
outside of a tenant’s front door in certain circumstances. But we need not decide this
issue because we have already concluded there is legally and factually sufficient
evidence to support the trial court’s finding that the Shepherds received the notice
to vacate. See TEX. R. APP. P. 47.1 (written opinion of appellate court need not
address issues unnecessary to final disposition of appeal).
C. Notice was sufficiently specific
In their third issue, the Shepherds argue that even assuming the notices had
been delivered, the trial court erred in finding MWS gave proper notice to vacate
because the two separate notices are confusing and contradictory.
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1. Applicable law
The Shepherds acknowledge that the Property Code does not contain specific
requirements for the content of a notice to vacate. The Property Code only requires
that a landlord give a tenant at least three days’ written notice to vacate, and it
specifies the methods by which notice may be given, including personal delivery and
delivery by mail. TEX. PROP. CODE § 24.005(b), (f), (f-1).
The Shepherds have not identified any authority explaining the required
content for a notice to vacate. They cite Miller v. Vineyard, a case involving an
anticipatory breach of a commercial lease, for the general proposition that a demand
must contain the assertion of a contractual right and a request for compliance. 765
S.W.2d 865, 870 (Tex. App.—Austin 1989, writ denied). The Shepherds also assert
that a notice to vacate must be clear, unequivocal, and leave no room for
disagreement about the date the tenant must vacate; however, they cite only cases
involving nonresidential leases for this proposition: Vinson Minerals, Ltd. v. XTO
Energy, Inc., 335 S.W.3d 344, 357–58 (Tex. App.—Fort Worth 2010, pet. denied)
(holding letter was insufficiently specific to constitute written notice describing
default in royalty payments as required by oil and gas lease); Outdoor Systems, Inc.
v. BBE, L.L.C., 105 S.W.3d 66, 70–73 (Tex. App.—Eastland 2003, pet. denied)
(holding letter requesting additional payment information insufficient as notice of
default required by billboard rental lease).
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2. Analysis
Even assuming the Shepherds’ proposition that a notice to vacate must be
clear, unequivocal, and leave no room for disagreement about the date the tenant
must vacate is supported by authority and applicable here, the Shepherds have not
demonstrated that the notice to vacate violates this requirement.
The first notice to vacate makes a demand that the Shepherds vacate the
property within three days. The document is titled, “NOTICE TO VACATE” and
states, “[T]his is your notice to vacate the Property as required by Section 24.005 of
the Texas Property Code. Demand is hereby made that you surrender possession of
the Property within three days.”2 The notice is dated October 6, 2021. The notice
further states, “If you do not surrender possession of the Property within the required
timeframe, we will take legal action against you, including, but not limited to, a
forcible detainer lawsuit under Chapter 24 of the Texas Property Code.” The notice
is clear, unequivocal, and leaves no room for disagreement about the date the
Shepherds must vacate.
2
In the next sentence, the document also states, “If you have a lease for the Property,
demand is hereby made that you surrender possession of the Property within thirty
days,” as opposed to the demand to vacate within three days in the previous
sentence. Because this language clearly only applies to a tenant with a lease, and the
Shepherds never contended they had a lease, this statement does not make the date
to vacate less clear.
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The second notice to vacate also clearly states a demand to vacate the property
by a certain date. The document is also titled, “NOTICE TO VACATE” and states,
“You along with all other occupants are HEREBY commanded to vacate and remove
all personal belongings from the premises . . . within 529 hours from the
posting/delivery of this notice.” At the bottom of the page, there is a handwritten
note adding: “Original notice to vacate amended to 30 days from 10/6/21. Vacate by
11/5/21.” The notice also states, “Failure to vacate the above premises within 529
hours will result in the filing of an Eviction suit . . . .” This notice is also clear,
unequivocal, and leaves no room for disagreement about the date the Shepherds must
vacate.
The Shepherds argue that these notices do not constitute an adequate,
unambiguous demand for possession, but we disagree. The Shepherds argue we must
focus on whether the notices are sufficiently clear to put them on notice that they
must vacate or face a forcible-detainer suit, but we conclude the notices are
sufficiently clear in that regard. The Shepherds have not demonstrated that the trial
court erred in finding MWS gave proper notice to vacate. We overrule their third
point of error.
CONCLUSION
Because we conclude that the trial court did not err in excluding the
Shepherds’ mortgage statements, that there is legally and factually sufficient
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evidence to support the trial court’s finding that the Shepherds received the notice
to vacate, and that the notices to vacate are sufficiently clear, we affirm the trial
court’s judgment.
Gordon Goodman
Justice
Panel consists of Justices Goodman, Hightower, and Guerra.
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