Opinion issued April 26, 2012.

In The

Court of Appeals

For The

First District of Texas

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NO. 01-11-00546-CV

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JErry A. Weatherbee, Jr. and Teresa Weatherbee and/or all occupants, Appellants

V.

GMAC Mortgage, LLC, Appellee

On Appeal from the County Civil Court at Law No. 3  

Harris County, Texas

Trial Court Case No. 993346

MEMORANDUM OPINION

GMAC Mortgage, LLC brought a forcible detainer action in justice court seeking possession of property located at 18010 Dunoon Bay Point Court Cypress, Texas.[1]  The justice court entered a judgment in favor of GMAC and against the property’s occupants, Jerry Weatherbee Jr. and Teresa Weatherbee.  On de novo review, the County Civil Court of Law Number 3 awarded GMAC a writ of possession. 

On appeal, appellants, the Weatherbees, argue that the trial court erred in admitting documents authenticated by a business records affidavit and that the evidence was insufficient to support the county court’s writ of possession in favor of GMAC because there was no evidence that GMAC gave the Weatherbees written notice to vacate at least three days before filing the detainer action as required under Texas Property Code section 24.005.  See Prop. Code Ann.
§ 24.005 (West Supp. 2011).  The Weatherbees also contend that the county court lacked jurisdiction to issue a writ of possession because evidence of a title dispute was presented at trial. We affirm. 

Background

          On November 21, 2006, the Weatherbees signed a deed of trust to secure payment of the Texas Home Equity note they executed to purchase the property.  The deed of trust provided the proper method for the trustee to invoke the power of sale in the event of foreclosure.  In addition, section 22 provided that in the event of a foreclosure sale, the borrowers would surrender possession of the property. Specifically, section 22 provided:

If the Property is sold pursuant to this Paragraph 22, Borrower or any person holding possession of the Property through Borrower shall immediately surrender possession of the Property to the purchaser at that sale.  If possession is not surrendered, Borrower or such person shall be a tenant at sufferance and may be removed by writ of possession or other court proceeding.

The Weatherbees defaulted on the note and the property was sold to GMAC at a non-judicial foreclosure sale on February 2, 2010.  On February 23, 2011, GMAC sent the Weatherbees a written notice to vacate.  The notice informed the Weatherbees that GMAC had acquired title to the property at a foreclosure sale and that any occupants were tenants at sufferance pursuant to the original deed of trust. Teresa Weatherbee signed the certified mail return receipt confirmation on February 25, 2011. 

On March 15, 2011, GMAC filed a forcible detainer action against the Weatherbees.  The justice court entered an agreed judgment of possession on April 12, 2011.  The Weatherbees appealed the judgment to the County Court at Law Number 3.  At the bench trial in that court, GMAC entered three documents into evidence: (1) a copy of the notarized Substitute Trustee’s Deed, (2) a certified copy of the Deed of Trust, and (3) a business records affidavit authenticating the February 23, 2011 notice to vacate and a photocopy of the certified mail return receipt confirmation signed by Teresa Weatherbee.  At the conclusion of the trial, the county court entered judgment that GMAC was entitled to possession.   

On appeal, the Weatherbees challenge the sufficiency of the evidence to support the judgment and the admissibility of evidence authenticated by what the Weatherbees argue was an untimely filed business records affidavit.  They also raise a jurisdictional argument within their sufficiency challenge.  Specifically, the Weatherbees contend that because they offered evidence of a title dispute to the trial court, it lacked jurisdiction to address the issue of immediate possession.  

Subject Matter Jurisdiction

A. Standard of Review

Whether a court has subject-matter jurisdiction is a question of law, subject to de novo review.  Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).  Subject-matter jurisdiction may be raised for the first time on appeal.  Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993).

B. Applicable Law

The sole issue to be determined in a forcible detainer action is the entitlement to actual and immediate possession, and the merits of the title shall not be adjudicated.  Hong Kong Dev., Inc. v. Nguyen, 229 S.W.3d 415, 434 (Tex. App.—Houston [1st Dist.] 2007, no pet.); Dass, Inc. v. Smith, 206 S.W.3d 197, 200 (Tex. App.—Dallas 2006, no pet.).  A justice court in the precinct in which real property is located has jurisdiction over a forcible detainer suit but is expressly deprived of jurisdiction to determine or adjudicate title to land.  See Tex. Prop. Code Ann. § 24.004 (West 2000); Tex. Gov’t Code Ann. § 27.031(a)(2),(b)(4) (West Supp. 2011).  A forcible detainer suit may be appealed to the county court, in which trial is de novo.  Tex. R. Civ. P. 749; Hong Kong, 229 S.W.3d at
433–34.  A county court’s appellate jurisdiction is confined to the limits of the justice court.  Hong Kong, 229 S.W.3d at 433–34.  Thus, a county court that conducts a de novo review of a forcible detainer action is restricted to the jurisdictional limits that existed in the justice court, regardless of other statutory grants of jurisdiction to the county court.  Black v. Washington Mut. Bank, 318 S.W.3d 414, 417 (Tex. App.—Houston [1st Dist.] 2010, pet. dism’d w.o.j.).

The justice court, and a county court on appeal, lack jurisdiction to resolve any questions of title beyond the immediate right to possession but a justice court is not deprived of jurisdiction merely by the existence of a title dispute.  See Rice v. Pinney, 51 S.W.3d 705, 713 (Tex. App.—Dallas 2001, no pet.).  Rather, it is only deprived of jurisdiction if the right to immediate possession necessarily requires the resolution of a title dispute.  Id.  Courts have specifically addressed whether a justice court has jurisdiction over a forcible detainer suit where the case also involves a dispute over a trustee’s deed conveying property purchased at a foreclosure sale.  Courts have explained:

[A] judgment of possession in a forcible detainer action is a determination only of the right to immediate possession of the premises, and does not determine the ultimate rights of the parties to any other issue in controversy relating to the realty in question. . . . [Parties] have the right to sue in the district court to determine whether the trustee’s deed should be cancelled, independent of [the] award of possession of the premises in the forcible detainer action [.]

Id. at 710 (quoting Martinez v. Beasley, 572 S.W.2d 83, 85 (Tex. Civ.
App.—Corpus Christi 1978, no writ)) (emphasis in original).  “To prevail in a forcible detainer action, a plaintiff is not required to prove title, but is only required to show sufficient evidence of ownership to demonstrate a superior right to immediate possession.”  Id. at 709.  In Rice, the Dallas Court of Appeals held that where a deed of trust established a landlord and tenant at sufferance relationship between the purchaser at the foreclosure sale and the previous owners or those holding under them, there was an “independent basis on which the trial court could determine the issue of immediate possession without resolving the issue of title to the property.”  Id. at 712.

C. Analysis

The Weatherbees contend that because they presented evidence of a genuine title dispute, the county court lacked jurisdiction to hear the forcible detainer action.  We disagree. The Weatherbees’ status as tenants at sufferance constituted an independent basis from which the county court could grant GMAC a right to possession without considering the issue of title.  In rendering its judgment the county court had before it the November 2006 Deed of Trust wherein the Weatherbees, as grantors, conveyed the property to a trustee.  The Deed of Trust expressly provided that the Weatherbees would become tenants at sufferance in the event of a foreclosure and sale of the property.  Also before the court was a February 2010 substitute trustee’s foreclosure sale deed explaining the Weatherbees defaulted on the note, that there was a foreclosure pursuant to the deed of trust, and there was a sale of the property to GMAC.  Based on this evidence, it was not necessary for the county court to determine the issue of title to the property, and it made no such determination in awarding GMAC possession.  We conclude that the county court had jurisdiction to hear the forcible detainer action.  See Black, 318 S.W.3d at 418 (by considering deed of trust, substitute trustee’s foreclosure sale deed and related documents establishing appellant’s default on note, notice of eviction, foreclosure pursuant to deed of trust, and sale to appellee, county court could determine right to possession through tenant at sufferance status); Ebert v. Day, No. 03-04-00264-CV, 2004 WL 2814322, at *2 (Tex. App.—Austin Dec. 9, 2004, no pet.) (evidence sufficient to establish tenant at sufferance relationship when deed of trust stated that upon foreclosure and sale appellants would become tenants at sufferance and record contained signed, notarized substitute trustee deed explaining appellant’s default, foreclosure, and sale).

Admission of Business Record

In their second point of error, the Weatherbees contend that the trial court erred in admitting exhibit three, which included (1) the February 23, 2011 written notice to vacate sent by GMAC to “Jerry Weatherbee Jr. and/or current occupants,” (2) a photocopy of a certified mail return receipt signed by Teresa Weatherbee on February 25, 2011, and (3) a business records affidavit authenticating both documents.  Specifically, the Weatherbees argue that exhibit three was inadmissible because GMAC did not give them proper notice of the filing of the business records affidavit. See Tex. R. Evid. 902 (10).

A. Standard of Review

An appellate court reviews a trial court’s decision to admit or exclude evidence under an abuse of discretion standard.  Simien v. Unifund CCR Partners, 321 S.W.3d 235, 239 (Tex. App.—Houston [1st Dist.] 2010, no pet.).  “An abuse of discretion occurs when the trial court acts without reference to guiding rules or principles or acts arbitrarily or unreasonably.”  Id.  An appellate court must uphold the trial court’s evidentiary ruling if there is a legitimate basis for it.
Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). 

B. Analysis

To comply with Rule of Evidence 902(10), a party must file with the court a business records affidavit and the records it accompanies at least fourteen days before trial commences and give the parties prompt notice of the filing of such records and affidavit.  Tex. R. Evid. 902(10).  The Weatherbees contend that the affidavit and accompanying records were inadmissible because the Weatherbees did not receive notice of their filing until three days before trial.

To preserve error for appeal, the complaining party must make a timely and specific objection to the evidence and obtain a ruling.  Tex. R. App. P. 33.1(a); Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 235(Tex. 2007) (per curiam); see also Austin v. Weems, 337 S.W.3d 415, 421 (Tex. App.—Houston [1st Dist.] 2011, no pet.); Schwartz v. Forest Pharm., Inc., 127 S.W.3d 118, 123 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) (failure to object in timely and specific manner during trial results in waiver of right to complain on appeal about the admission of evidence).  When a party specifically states that it has “no objection” to the admission of evidence it waives any complaint about the admissibility of the evidence.  Texas Dept. of Transp. v. Pate, 170 S.W.3d 840, 850 (Tex. App.—Texarkana 2005, pet. denied) (“When a party affirmatively asserts during trial that he or she has “no objection” to the admission of the complained-of evidence, any error in the admission of the evidence is
waived . . . .”).  When GMAC offered exhibit three the Weatherbees affirmatively stated that they had “no objection” to its admission.  Thus they have failed to preserve this issue for our review.  See id.; see also Austin, 337 S.W.3d at 425.

We overrule the Weatherbees’ second point of error.

Sufficiency of the Evidence

          In their first point of error, the Weatherbees contend that the evidence is insufficient to support the trial court’s judgment granting possession to GMAC because there is no evidence that GMAC complied with the forcible detainer notice requirements under Texas Property Code section 24.005.  See Tex. Prop. Code Ann. §§ 24.002(b), 24.005 (West 2000).

A. Standard of Review

A no-evidence challenge requires this court to review all evidence in the light most favorable to the verdict, crediting favorable evidence if a reasonable fact finder could, and disregarding contrary evidence unless a reasonable fact finder could not.  City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).  In a bench trial, the trial court is the finder of fact and may take into consideration all the facts and surrounding circumstances in connection with the testimony of each witness and accept or reject all or any part of that testimony.  Merry Homes, Inc. v. Chi Hung Luu, 312 S.W.3d 938 (Tex. App.—Houston [1st Dist.] 2010, no pet.).  If more than a scintilla of evidence exists in the record to support the finding, then the no evidence challenge fails.  See Tarrant Regional Water Dist. v. Gragg, 151 S.W.3d 546, 552 (Tex. 2004).  A scintilla of evidence is evidence so weak that it creates no more than a surmise or suspicion of the existence of the fact sought to be proven.  See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).

B. Applicable Law

Under Texas Property Code section 24.005, the landlord must give a tenant at sufferance at least three days’ written notice to vacate before the landlord files a forcible detainer action.  See Tex. Prop. Code Ann. § 24.005(b).  The notice to vacate shall be given in person or by mail at the premises in question.  Id. at
§ 24.005(f).  Notice by mail may be “by regular mail, by registered mail, or by certified mail, return receipt requested, to the premises in question.”  Id.  The notice period is calculated from the day on which the notice was delivered.  Id. at
§ 24.005(g).

C. Analysis

The Weatherbees argue that because there was no evidence that GMAC provided them with a notice to vacate that met the requirements of Texas Property Code section 24.005, the evidence was insufficient for the trial court to find GMAC was entitled to possession.  We disagree. The trial court admitted GMAC’s exhibit three, which included a business records affidavit authenticating a February 23, 2011 notice to vacate.  The notice was from GMAC and addressed to “Jerry A. Weatherbee and/or all current occupants.”  The same affidavit authenticated a certified mail receipt, which was also admitted as part of exhibit three, and bore the signature of Teresa Weatherbee and date of February 25, 2011.  GMAC filed the forcible detainer action on March 15, 2011, after affording the Weatherbees more than the three day notice required by section 24.005(b).  Tex. Prop. Code Ann. § 24.005(b).  We conclude there was more than a scintilla of evidence from which the trial court could have concluded that GMAC provided the Weatherbees with notice to vacate as required by section 24.005.  See Tex. Prop. Code Ann. § 24.005. 

We overrule the Weatherbees’ first issue. 

Conclusion

          We affirm the judgment of the county court at law.

                                                                   Rebeca Huddle

                                                                   Justice

Panel consists of Justices Jennings, Massengale, and Huddle.

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[1]           The Weatherbees’ style on appeal shows the action is against Washington Mutual Bank, Mortgage Association but the County Court of Law action was brought by GMAC Mortgage, LLC.