Edmund B. Heimlich v. David Cook, Dependent Administrator of the Estate of Ernest L. Heimlich ( 2023 )

Motion Denied as Moot, Vacated and Dismissed in Part, Reversed and
Rendered in Part, and Memorandum Opinion filed May 23, 2023.
In The
Fourteenth Court of Appeals
NO. 14-22-00358-CV
EDMUND B. HEIMLICH, Appellant
V.
DAVID COOK, DEPENDENT ADMINISTRATOR OF THE ESTATE OF
ERNEST L. HEIMLICH, DECEASED, Appellee
On Appeal from the County Civil Court at Law No. 2
Harris County, Texas
Trial Court Cause No. 1183433
MEMORANDUM OPINION
In this appeal from a forcible detainer action, appellant Edmund B. Heimlich
challenges the trial court’s summary judgment awarding possession of the disputed
property and attorney’s fees to appellee David Cook, Dependent Administrator of
the Estate of Ernest L. Heimlich, Deceased. First, we overrule Edmund’s argument
that the justice court lacked jurisdiction to hear this case. Further, because Edmund
has been evicted and has not asserted a claim of right to the current, actual possession
of the property, the forcible detainer portion of the appeal is moot, and we lack
jurisdiction to consider Edmund’s issues to the extent they challenge the right to
possession. Finally, we conclude that Cook failed to establish his entitlement to
attorney’s fees because the written notice to vacate did not comply with Property
Code section 24.006(a), so we sustain Edmund’s first issue.1
Accordingly, we reverse the portion of the trial court’s judgment awarding
Cook attorney’s fees and render judgment that Cook take nothing on his request for
attorney’s fees. We vacate the remainder of the trial court’s judgment and dismiss
that portion of the appeal for lack of jurisdiction.2
Background
Ernest Heimlich died intestate on May 25, 2021. At the time of his death, he
owned and resided in residential property located on Rancho Blanco Court in
Houston (the “Property”). Cook is the dependent administrator of Ernest’s estate.
The order appointing Cook as dependent administrator granted Cook the “power to
secure and s[ell] real estate.” Edmund Heimlich is Ernest’s son and one of five
purported heirs. Edmund moved into the Property after Ernest’s death but before
Cook qualified as the estate’s administrator.
After Cook qualified as dependent administrator, he asked Edmund several
times to vacate the property, but Edmund refused. Cook filed a verified petition for
eviction in justice court on February 17, 2022. In the petition, Cook alleged:
• Edmund and his four siblings are believed to be Ernest’s heirs;
1
Because of our resolution of Edmund’s issues, his Rule 12 Motion to Show Authority is
denied as moot.
2
See Marshall v. Hous. Auth. of the City of San Antonio, 198 S.W.3d 782, 790 (Tex. 2006).
2
• Cook qualified and was appointed as the dependent administrator of
Ernest’s estate;
• After Ernest died and before Cook qualified as administrator, Edmund
moved into the Property;
• Edmund was not a holdover tenant because he never leased the property;
• Edmund had no right to reside at the Property;
• The Property is part of Ernest’s estate;
• Cook repeatedly asked Edmund to vacate the Property;
• Edmund indicated he was unwilling to vacate the Property unless he was
evicted; and
• On January 20, 2022, Cook mailed to Edmund by both registered mail and
certified mail, return receipt requested, a three-day written notice to vacate
the Property.
In the petition, Cook sought possession of the premises and attorney’s fees.
He attached a copy of the notice to vacate, which provided:
PLEASE TAKE NOTICE that you hold possession of the herein
described Premises. You have no legal right to occupy the Premises.
PLEASE TAKE FURTHER NOTICE that within THREE (3) days
after service of this notice, you are hereby required to vacate the subject
Premises, move out, and deliver up possession of the same to David
Cook, as the Dependent Administrator of the Estate of Ernest L.
Heimlich, Deceased (“Administrator”). Failure to vacate the premises
WITHIN THREE (3) days as required by this notice will cause
Administrator to institute a forcible detainer lawsuit against you to
recover damages and possession of said Premises, plus attorney’s fees
and costs of suit, as may be permitted under the laws of the State of
Texas. The exact date and time by which you are required to vacate is
by or before 5:00 p.m. on January 31, 2022.
3
THIS LETTER IS INTENDED AS A THREE (3) DAY LEGAL
NOTICE FOR THE PURPOSE OF TERMINATING YOUR
OCCUPATION. THIS TERMINATION OF OCCUPANCY IS IN
ACCORDANCE WITH TEXAS STATE PROPERTY CODE
SECTION 24.005.
ADMINISTRATOR RESERVES ALL THE RIGHTS AND
REMEDIES PROVIDED UNDER APPLICABLE LAWS OF THE
STATE OF TEXAS, INCLUDING BUT NOT LIMITED TO OFFSET,
APPLICATION FOR CONSTRUCTIVE TRUST, DAMAGES TO
THE PROPERTY, AND/OR ATTORNEY’S FEES AND EXPENSES.
NOTHING IN THIS NOTICE MAY BE CONSTRUED AS A
WAIVER OF SUCH RIGHTS AND REMEDIES.
Edmund, representing himself, filed an answer combined with a “Motion to
Dismiss for Plaintiff’s Lack of Standing and Capacity to Sue.” Edmund contended
that Cook, as a fiduciary of the estate, was barred from incurring the expense of the
eviction proceedings by his duty to act in the estate’s—and beneficiaries’—best
interests. Edmund further asserted that Cook, as the estate’s dependent
administrator, lacked legal capacity to bring an eviction action without explicit
permission from the Probate Court.
After a bench trial, the justice court signed a judgment of possession in Cook’s
favor and awarded him $6,500 in attorney’s fees. Edmund appealed to County Court
at Law No. 2.
In the statutory county court, Cook filed a traditional motion for summary
judgment. Cook summarized the above-described facts and attached evidence,
including Ernest’s deed to the Property, the order appointing Cook dependent
administrator of Ernest’s estate, a November 12, 2021 probate court order
authorizing the sale of the Property, copies of emails in which Cook asked Edmund
to vacate the Property, the notice to vacate, Cook’s affidavit supporting the summary
4
judgment motion, documentation of Cook’s attorney’s fees, and Cook’s affidavit
supporting his attorney’s fees.
Edmund filed an “Answer to Eviction,” in which he again challenged Cook’s
standing, sought to set aside the judgment “for fraud or collusion on the
administrator’s part,” and requested a jury trial. Edmund attached his affidavit in
which he averred that he had a “verbal lease” with Cook:
VERBAL LEASE: Shortly after his appointment as Dependent-
Administrator of my Father’s Estate David S. Cook agreed to allow me
to continue to reside at 6410 Rancho Blanco Court in exchange for my
maintenance of the property and for my protection of both the real
property and the personal property of the Estate that remained in the
house. David S. Cook and I have a verbal lease whereby I exchange
my services in lieu of rent.
Edmund filed a response to Cook’s summary judgment motion. He contended
that Cook had no authority to pursue the eviction suit because he failed to obtain
permission from the Probate Court. Next, he asserted that Cook’s attorney’s fees
were unreasonable. Finally, Edmund argued that fact questions precluded summary
judgment, namely: (1) whether he had permission from his father to live in the
Property while Ernest’s estate was being settled; (2) whether he and Cook had a
verbal lease for Edmund to occupy the Property; and (3) whether the eviction and
expenses associated with it were beneficial to the estate.
The trial court signed a final summary judgment and order of possession,
ordering Edmund to vacate the Property by May 24, 2022 or a writ of possession
would be issued, awarding Cook $9,758 in reasonable and necessary attorney’s fees,
and setting a supersedeas bond at $20,000 due to be filed by May 23. Edmund did
not file any subsequent motions or a supersedeas bond, so the writ of possession
issued and he was evicted from the property on June 3.
Edmund timely appealed.
5
Analysis
A. Applicable Law
A forcible detainer suit is a proceeding to determine the right to immediate
possession of real property when the initial entry onto the property was lawful but
continued possession is unlawful. See, e.g., Goodman-Delaney v. Grantham, 484
S.W.3d 171, 174 (Tex. App.—Houston [14th Dist.] 2015, no pet.); Rice v. Pinney,
51 S.W.3d 705, 709 (Tex. App.—Dallas 2001, no pet.); see also Tex. Prop. Code
§§ 24.001-.002; Tex. R. Civ. P. 510. A forcible detainer suit provides a “summary,
speedy, and inexpensive” means to determine the right to possession of a property,
which is the only issue to be determined in such a proceeding. Goodman-Delaney,
484 S.W.3d at 174; Rice, 51 S.W.3d at 709; Tex. R. Civ. P. 510.3(e); see also
Salaymeh v. Plaza Centro, LLC, 264 S.W.3d 431, 435 (Tex. App.—Houston [14th
Dist.] 2008, no pet.). To prevail in a forcible detainer suit, a plaintiff does not need
to prove title but only needs to show “sufficient evidence of ownership to
demonstrate a superior right to immediate possession” of the property. Rice, 51
S.W.3d at 709. Because the only issue in a forcible detainer action is the right to
actual possession of the premises, an appeal from a forcible detainer judgment
becomes moot if the defendant is no longer in possession of the property, unless he
holds and asserts a potentially meritorious claim of right to current, actual
possession. Marshall v. Hous. Auth. of City of San Antonio, 198 S.W.3d 782, 785,
787 (Tex. 2006).
B. Jurisdiction
We address Edmund’s jurisdictional challenge at the outset. In his fourth
issue, he contends that Cook’s position that the estate has an exclusive right to
possession of the Property creates an issue of title, which deprived the justice court
of jurisdiction over Cook’s forcible detainer suit.
6
Justice courts have jurisdiction to hear forcible detainer suits in which the right
to immediate possession does not necessarily require resolution of a title dispute.
Tex. R. Civ. P. 510.3(e); Salaymeh, 264 S.W.3d at 435; Rice, 51 S.W.3d at 708-09.
However, the mere existence of a title dispute will not deprive the justice court of
jurisdiction. See, e.g., Pinnacle Premier Props., Inc. v. Breton, 447 S.W.3d 558,
563 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (“If the title dispute does not
control the right to possession, it is of no moment.”); Salaymeh, 264 S.W.3d at 435;
Rice, 51 S.W.3d at 708. Instead, to defeat jurisdiction, the title issue must be “so
integrally linked to the issue of possession that possession may not be determined
without first determining title.” Falcon v. Ensignia, 976 S.W.2d 336, 338 (Tex.
App.—Corpus Christi 1998, no pet.); see also Mendoza v. Bazan, 574 S.W.3d 594,
602 (Tex. App.—El Paso 2019, pet. denied). Further, specific evidence of a title
dispute is required to raise an issue as to the justice court’s and county court’s
jurisdiction. Id.Here, Edmund has not presented any specific evidence of a title dispute
integrally linked to the possession issue. Without any such evidence, the justice
court (and, on appeal, the county court) had jurisdiction to determine who has the
right to immediate possession. Falcon, 976 S.W.2d at 338; see also Serrano v. Fed.
Home Loan Mortg. Corp., No. 14-18-01110-CV, 2020 WL 2831931, at *2 (Tex.
App.—Houston [14th Dist.] May 28, 2020, no pet.) (mem. op.); Mendoza, 574
S.W.3d at 602. The lower courts did not need to resolve a title dispute to decide
whether Cook, as the representative of Ernest’s estate, had a superior right to possess
the Property. We overrule Edmund’s fourth issue.
C. Edmund’s Notice and Capacity Issues Are Moot
In issue two, Edmund contends that the trial court erred in granting summary
judgment in Cook’s favor because Edmund did not receive twenty-one days’ notice
7
of the hearing. See Tex. R. Civ. P. 166a(c). In his third issue, Edmund challenges
Cook’s capacity to bring a forcible detainer action because he did not secure the
Probate Court’s permission.
It is undisputed that Edmund failed to supersede the judgment and has lost
possession of the Property. According to Cook, the Property has been sold to a third
party. An appeal from a forcible detainer judgment insofar as the issue of possession
is concerned will become moot if the defendant no longer holds possession of the
property, unless the defendant asserts a potentially meritorious claim of right to
current, actual possession of the property. Marshall, 198 S.W.3d at 786-87; see also
Wilhelm v. Fed. Nat’l Mortg. Ass’n, 349 S.W.3d 766, 768 (Tex. App.—Houston
[14th Dist.] 2011, no pet.). Edmund has no such claim, and thus there remains no
live controversy between the parties as to the right of possession. Therefore, the
matters raised in Edmund’s second and third issues that pertain to possession are
moot. Marshall, 198 S.W.3d at 786-87; Briones v. Brazos Bend Villa Apartments,
438 S.W.3d 808, 813 (Tex. App.—Houston [14th Dist.] 2014, no pet.).3
D. Attorney’s Fees
In Edmund’s first issue, he challenges the attorney’s fees awarded to Cook.
As part of this issue, he contends that the trial court erred in awarding fees because
Cook failed to satisfy the statutory requirements to recover fees. We construe this
issue as a challenge to the legal sufficiency of the evidence to support the attorney’s
fee award.
3
In Edmund’s second issue, he complains that he lacked twenty-one days’ notice of the
summary judgment hearing. Part of Cook’s summary judgment motion requested attorney’s fees,
which the court awarded. As we explain below, the dispute regarding attorney’s fees is not moot.
Thus, Edmund’s second issue is not moot to the extent he complains that he lacked twenty-one
days’ notice of Cook’s request for attorney’s fees. But because we conclude that Cook failed to
prove entitlement to attorney’s fees for independent reasons, we need not address Edmund’s notice
arguments.
8
When reviewing the legal sufficiency of the evidence, we consider the proof
in the light most favorable to the finding, crediting evidence in its favor if a
reasonable fact finder could and disregarding contrary evidence unless a reasonable
fact finder could not. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).
The proof is legally insufficient if: there is no proof of a vital fact; rules of law or
evidence bar the court from giving any weight to the only proof of a vital fact; the
proof supporting a vital fact is no more than a scintilla of evidence; or the proof
conclusively shows the opposite of a vital fact to be true. See Gharda USA, Inc. v.
Control Sols., Inc., 464 S.W.3d 338, 347 (Tex. 2015).
An entire case “is not rendered moot simply because some of the issues
become moot during the appellate process.” In re Kellogg Brown & Root, Inc., 166
S.W.3d 732, 737 (Tex. 2005) (orig. proceeding). If only some claims or issues
become moot, the case remains “live” as to those claims or issues that are not moot.
See id. In the forcible detainer context, issues such as a challenge to the award of
attorney’s fees are not rendered moot by a defendant’s failure to supersede and
subsequent loss of possession. E.g., Briones, 438 S.W.3d at 813; Daftary v.
Prestonwood Mkt. Square, Ltd., 399 S.W.3d 708, 711-12 (Tex. App.—Dallas 2013,
pet. denied).
To recover attorney’s fees in a forcible detainer action, a landlord must give a
tenant who is unlawfully retaining possession of the landlord’s premises written
notice to vacate sent by registered or certified mail, return receipt requested, at least
ten days before filing suit. See Tex. Prop. Code § 24.006(a). The demand must state
that if the tenant does not vacate before the eleventh day after the date of receipt of
the notice and if the landlord files suit, the landlord may recover attorney’s fees. See
id.
9
Because forcible detainer is a statutory cause of action, a landlord must strictly
comply with statutory requirements. Kennedy v. Andover Place Apartments, 203
S.W.3d 495, 497 (Tex. App.—Houston [14th Dist.] 2006, no pet.). Cook is
considered a “landlord” under the Property Code because “landlord” includes an
“owner,” 4 and Cook is the representative of the estate, which owns the Property.
Here, Cook’s notice to vacate did not strictly comply with the statutory requirements
because it did not state that if Edmund failed to vacate before the eleventh day after
the date of receipt of the notice, Cook may recover attorney’s fees if he filed suit.
This failure is fatal to Cook’s claim for attorney’s fees. See Tex. Prop. Code
§ 24.006(a); Whitehurst v. Thomas, No. 01-21-00309-CV, 2023 WL 1786160, at *4-
5 (Tex. App.—Houston [1st Dist.] Feb. 7, 2023, no pet. h.) (mem. op.); Washington
v. Related Arbor Ct., LLC, 357 S.W.3d 676, 681-82 (Tex. App.—Houston [14th
Dist.] 2011, no pet.).
We sustain Edmund’s first issue.
Conclusion
We reverse the portion of the trial court’s judgment awarding Cook attorney’s
fees and render judgment that he take nothing on his request for fees. We vacate the
remainder of the trial court’s judgment and dismiss for lack of appellate jurisdiction
Edmund’s challenges except for his challenge to the attorney’s fees.5
/s/ Kevin Jewell
Justice
Panel consists of Justices Wise, Jewell, and Poissant.
4
See Tex. Prop. Code § 92.001.
5
See Marshall, 198 S.W.3d at 788.
10