In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-04-00025-CV

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PANOLA COUNTY FRESH WATER SUPPLY

DISTRICT NUMBER ONE, ANGUS MIMS, and

MACK BASSETT, Appellants

 

V.

 

PANOLA COUNTY APPRAISAL DISTRICT AND

PANOLA COUNTY APPRAISAL REVIEW BOARD, Appellees

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On Appeal from the 123rd Judicial District Court

Panola County, Texas

Trial Court No. 1998-A-135

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Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Ross

MEMORANDUM OPINION

          Panola County Fresh Water Supply District Number One, Angus Mims, and Mack Bassett, appellants, have filed a motion to dismiss their appeal. Pursuant to Tex. R. App. P. 42.1, the motion is granted.

          We dismiss the appeal.

 

                                                                           Donald R. Ross

                                                                           Justice

Date Submitted:      August 2, 2004

Date Decided:         August 3, 2004

d in the first suit. The Youngs responded that Pyles' claims were barred by res judicata. Following a trial de novo, the county court at law rendered judgment ⁽⁵⁾ that the Youngs were awarded possession of the following premises:

ALL THAT CERTAIN lot, tract, or parcel of land situated in Hunt County, Texas, being described as Lot 11 and Lot 12 of the 3rd Installment of the QUINLAN NORTH subdivision, a subdivision of Hunt County, Texas, as shown of record at Vol. 400, pg. 587, Plat Records Hunt County, Texas; said parcel containing 6.3311 acres of land more or less; together with all improvements located thereon, specifically including the white 12x50 ft. mobile home; more commonly referred to as 8822 PR 2289.

On or about February 15, 2007, the 354th Judicial District Court sitting for the Hunt County Court at Law signed a "Reformed Final Judgment," which included the same property description.

Pyles Failed to Preserve Error Concerning Lack of Notice After the First Suit

Pyles argues the Youngs failed to give him sufficient written notice under Sections 24.002 and 24.005 of the Texas Property Code. Under the Texas Property Code, a landlord must make a statutorily sufficient written demand for possession. See Tex. Prop. Code Ann. ǧ 24.002, 24.005 (Vernon 2000); Kennedy v. Andover Place Apartments, 203 S.W.3d 495, 496 (Tex. App.--Houston [14th Dist.] 2006, no pet.); see also AMC Mortg. Servs. v. Shields, No. 05-06-01194-CV, 2007 Tex. App. LEXIS 3574 (Tex. App.--Dallas May 9, 2007, no pet.) (mem. op.). Although most of Pyles' argument focuses on the notices given before the first suit, the argument could be interpreted as claiming the Youngs were required to give another notice to vacate before filing the second suit.

By holding over after an adverse judgment had been rendered against him, Pyles became a permissive tenant, or a tenant at sufferance. Tex-Wis Co. v. Johnson, 534 S.W.2d 895, 899 (Tex. 1976); Witcher v. Bennett, 120 S.W.3d 922, 924 (Tex. App.--Texarkana 2003, pet. denied). To the extent Pyles' argument claims the Youngs provided insufficient notice to file the second suit, i.e., this forcible detainer suit, Pyles has failed to preserve error. Pyles has failed to direct this Court to where in the record this issue was presented to the trial court. In order to preserve a complaint for appellate review, a party must present to the trial court a timely request, objection, or motion "with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context . . . ." Tex. R. App. P. 33.1(a)(1)(A). Pyles has failed to direct this Court to where in the record he argued he was entitled to additional notice before the filing of the second suit. In Pyles' "Counterpetition," Sections 24.005 and 24.002 are not cited, and Pyles merely alleges the notices in the prior suit were insufficient. Because there is no reporter's record of the trial de novo, there is no record of what arguments were made to the trial court. ⁽⁶⁾ This argument was not raised in any of the post-trial hearings for which we do have a reporter's record. Even if Pyles was entitled to additional notice before the filing of the second suit, the error is not preserved for our review. See Tex. R. App. P. 33.1.

Res Judicata Bars Pyles From Relitigating the Notice Issues Which Should Have Been Raised in the First Suit

To the extent Pyles argues the Youngs provided insufficient notice before the first suit, Pyles' claims are barred by res judicata. Throughout his brief, Pyles argues the notices provided by the Youngs in 2003 and 2004 are inadequate because they were mailed to an incorrect address. Pyles argues the foreclosure notices were insufficient under the Texas Property Code, citing Sections 24.002, 24.005, and 51.002. See Tex. Prop. Code Ann. ǧ 24.002, 24.005, 51.002 (Vernon Supp. 2007). According to Pyles, the Youngs committed fraud on the district court by alleging all proper notices had been given. The Youngs respond that the doctrine of res judicata prohibits Pyles from raising the sufficiency of the foreclosure notices in the first suit. ⁽⁷⁾

Res judicata, also known as claim preclusion, prevents the relitigation of a finally-adjudicated claim and related matters that should have been litigated in a prior suit. Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex. 1992). Texas follows the transactional approach to res judicata. Id. at 630. This approach mandates that a defendant bring as a counterclaim any claim arising out of the transaction or occurrence that is the subject matter of the opposing party's suit. State & County Mut. Fire Ins. Co. v. Miller, 52 S.W.3d 693, 696 (Tex. 2001); Barr, 837 S.W.2d at 630. It requires proof of three elements: (1) a prior final judgment on the merits by a court of competent jurisdiction, (2) identity of parties or those in privity with them, and (3) a second action based on the same claims as were raised or could have been raised in the first action. Amstadt v. United States Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996); Cherokee Water Co. v. Freeman, 145 S.W.3d 809, 813 (Tex. App.--Texarkana 2004, pet. denied).

Res judicata will bar the assertion in a second suit of a claim that should have been litigated as a defense or compulsory counterclaim in a prior suit. See Ingersoll-Rand Co. v. Valero Energy Corp., 997 S.W.2d 203, 208-10 (Tex. 1999); Jack H. Brown & Co. v. Nw. Sign Co., 718 S.W.2d 397, 399-400 (Tex. App.--Dallas 1986, writ ref'd n.r.e.) (applies even if original suit ended in default judgment). The Youngs provided proof of all the elements of res judicata. The first suit was a final judgment involving the same transaction, and the notice issues could have been raised in the first action. Both Pyles and the Youngs were parties in the first suit. Res judicata precludes Pyles from claiming in this suit that the notice in the first suit was insufficient.

Pyles argues the Youngs have confused the doctrines of collateral estoppel, or issue preclusion, with res judicata, or claim preclusion. According to Pyles, the "correct doctrine to apply here is collateral estoppel." Issue preclusion, or collateral estoppel, prevents the re-litigation of particular issues already resolved in a prior suit. Lone Star Partners v. Nationsbank Corp., 893 S.W.2d 593, 597 (Tex. App.--Texarkana 1994, writ denied). However, collateral estoppel and res judicata are not mutually exclusive doctrines. "Collateral estoppel is narrower than res judicata. It is frequently characterized as issue preclusion because it bars relitigation of any ultimate issue of fact actually litigated and essential to the judgment in a prior suit . . . ." Bonniwell v. Beech Aircraft Corp., 663 S.W.2d 816, 818 (Tex. 1984). The inquiry for collateral estoppel, unlike res judicata, is focused on the point or question actually litigated and determined in the original action, not what might have been litigated and determined. See Getty Oil Co. v. Ins. Co. of N. Am., 845 S.W.2d 794, 800 (Tex. 1992). The fact that issue preclusion may not bar litigation of an issue does not prevent the application of claim preclusion. Because the elements of claim preclusion have been met, Pyles is prohibited from challenging the adequacy of the notice in the first suit.

Pyles argues that the fraud on the court renders the first suit void. A void judgment is not susceptible to ratification or confirmation, and its nullity cannot be waived. Easterline v. Bean, 121 Tex. 327, 49 S.W.2d 427, 429 (1932); In re Redding, No. 12-07-00098-CV, 2007 Tex. App. LEXIS 3329 (Tex. App.--Tyler Apr. 30, 2007, orig. proceeding [mand. dismissed]); In re Guardianship of Erickson, 208 S.W.3d 737, 740 (Tex. App.--Texarkana 2006, no pet.). However, the fact that a final judgment may have been wrong does not affect the application of res judicata. Segrest v. Segrest, 649 S.W.2d 610, 612 (Tex. 1983). A judgment is void only when the court rendering judgment "had no jurisdiction of the parties or property, no jurisdiction of the subject matter, no jurisdiction to enter the particular judgment, or no capacity to act." Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005) (citing Austin Indep. Sch. Dist. v. Sierra Club, 495 S.W.2d 878, 881 (Tex. 1973)); see Geldard v. Watson, 214 S.W.3d 202, 209 (Tex. App.--Texarkana 2007, no pet.) (judgment void because justice court lacked jurisdiction to adjudicate the merits of title). Because the district court had jurisdiction in the first suit, any other error merely renders the judgment voidable rather than void. Armentor v. Kern, 178 S.W.3d 147, 149 (Tex. App.--Houston [1st Dist.] 2005, no pet.). Even an erroneous judgment does not render the final judgment void. There are procedures by which Pyles may have been able to successfully challenge the foreclosure notices. ⁽⁸⁾ Pyles, though, is now barred from challenging the sufficiency of the foreclosure notices by the doctrine of res judicata.

We Decline to Assess Sanctions Against Either Party

Both sides have requested that this Court award sanctions for their opponent's actions. Pyles requests that we assess sanctions under various rules, including Tex. R. App. P. 43.6, which allows this Court to make "any other appropriate order that the law and the nature of the case require." See Tex. R. App. P. 43.6. Pyles claims theYoungs and their counsel have misstated and misquoted the law and the facts. In addition, Pyles requests we assess sanctions against the Youngs and their counsel for committing fraud in the first suit. The Youngs claim Pyles has brought a frivolous appeal and request sanctions against Pyles and his counsel. Under Rule 45, we may, at our discretion, award "just damages" to a prevailing party in an appeal if we determine the appeal is frivolous after considering the record, briefs, or other papers filed. See Tex. R. App. P. 45; Solares v. Solares, 232 S.W.3d 873, 883 (Tex. App.--Dallas 2007, no pet.). "An appeal is frivolous if when it is brought there were no reasonable grounds to believe the judgment would be reversed or when it is pursued in bad faith." Id. We have no doubt both sides could have disposed of this dispute more efficiently. However, after reviewing the record and the briefs, we decline to find Pyles' appeal frivolous and decline to sanction the Youngs under Rule 45. We overrule both requests for sanctions.

We affirm the judgment of the trial court.

Jack Carter

Justice

Date Submitted: November 21, 2007

Date Decided: December 21, 2007

1. The contract contains a handwritten notation correcting the address from 8822 P.R. 2284.

2. The copy of the contract filed by the Youngs contains a handwritten correction that the monthly installments shall continue until April 1, 2005. The copy of the contract filed by Pyles does not contain this correction and specifies the monthly installments shall continue until April 1, 2002.

3. Young claims a letter notifying Pyles of default was sent April 25, 2003. The record does not contain a copy of this letter.

4. We note the justice court rendered judgment to the wrong address: 8822 PR 2284.

5. The judgment also provides that Pyles' "Original Counterpetition" shall be severed from this cause. No complaint has been made to the severance.

6. We note that we do not have a complete record on appeal. The trial in the county court at law occurred on or about December 20, 2006. The reporter's record filed with this Court does not contain any record of the proceedings on December 20, 2006. The Texas Rules of Appellate Procedure now provide for the use of a partial record. See Tex. R. App. P. 34.6(c). If Rule 34.6(c) is properly invoked, we must presume that the record is the entire record for purposes of reviewing stated issues, even if the issue complains of the insufficiency of evidence to support a specific finding. See id.; Furr's Supermarkets, Inc. v. Bethune, 53 S.W.3d 375, 380 (Tex. 2001). Pyles, though, failed to successfully traverse the rule. Under Rule 34.6(c)(1), "[i]f the appellant requests a partial reporter's record, the appellant must include in the request a statement of the points or issues to be presented on appeal and will then be limited to those points or issues." See Tex. R. App. P. 34.6(c)(1). The record in this case does not contain a statement of points.

If the record is incomplete and the appellant has not complied with Rule 34.6(c), the appellate court must presume that the omitted portions support the judgment or order from which the appeal is taken. In re Estate of Arrendell, 213 S.W.3d 496, 503 (Tex. App.--Texarkana 2006, no pet.); CMM Grain Co. v. Ozgunduz, 991 S.W.2d 437, 439-40 (Tex. App.--Fort Worth 1999, no pet.); see Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990). Therefore, we must presume the omitted portions of the record support the judgment.

7. The Youngs also claim the notices were "actually delivered to Appellant on numerous occasions, both personally and through his counsel of record." The Youngs, though, fail to direct us to where this statement is supported by the record.

8. Pyles had the opportunity to challenge the foreclosure notices at the first trial in district court, but failed to appear for trial. Pyles did not appeal the post-answer default judgment. We note Pyles cites several provisions from Texas Jurisprudence providing a judgment can be vacated based on fraud. See 48 Tex. Jur. 3d Judgments ǧ 257, 328 (2007). Section 257 specifically provides such a challenge "is in essence a bill of review and is governed by the law applicable to such proceedings." 48 Tex. Jur. 3d Judgments § 257. A bill of review requires the proponent to plead and prove 1) a meritorious defense, 2) that he or she was prevented from making due to the fraud, accident, or wrongful act of his or her opponent, and 3) that the failure to appear was unmixed with any fault or negligence of his or her own. 5 Roy W. McDonald & Elaine A. Carlson, Texas Civil Practice § 29:10 (1999); Cortland Line Co. v. Israel, 874 S.W.2d 178, 183 (Tex. App.--Houston [14th Dist.] 1994, writ denied). According to an attachment filed to appellee's brief, Pyles has filed a bill of review action in a separate proceeding.