Effel, Lena v. Rosberg, Robert G.



AFFIRM; Opinion issued January 10, 2012

In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-10-00790-CV
............................
LENA EFFEL, Appellant
V.
ROBERT G. ROSBERG, Appellee
.............................................................
On Appeal from the County Court at Law No. 4
Dallas County, Texas
Trial Court Cause No. 10-02881-D
.............................................................
OPINION
Before Justices Morris, O'Neill, and Fillmore
Opinion By Justice Morris

This is an appeal from the trial court's judgment awarding
Robert G. Rosberg possession of property in a forcible detainer action.
Appellant Lena Effel brings seventeen issues generally contending the
trial court did not have jurisdiction to make the award and, in the
alternative, that it erred in concluding Rosberg was entitled to
possession of the property. After examining the record on appeal and
reviewing the applicable law, we conclude appellant's arguments are
without merit. We affirm the trial court's judgment.
I.
On March 1, 2006, Robert G. Rosberg filed suit against Henry
Effel and Jack Effel in district court asserting various claims and
seeking judicial foreclosure on two mechanic's liens. The parties
settled the dispute and signed a settlement agreement and release of
claims. As part of the settlement, Rosberg purchased residential
property in Dallas county owned by Henry and Jack Effel. The settlement
agreement stated that the current resident of the property, appellant,

“shall continue to occupy the property for the remainder of her natural
life, or until such time as she voluntarily chooses to vacate the
premises.” The settlement agreement further stated that a lease
agreement incorporating the terms of the settlement agreement would be
prepared before the closing date of the purchase. Appellant was neither
a party nor a signatory to the settlement agreement.
The property in question was deeded to Rosberg with no
reservation of a life estate. A lease for appellant was prepared by the
Effels' attorney. The term of the lease was “for a term equal to the
remainder of the Lessee's life, or until such time that she voluntarily
vacates the premises.” The lease also contained various covenants
relating to payment of rent and charges for utilities as well as the use
and maintenance of the grounds. The lease provided that if there was any
default in the payment of rent or in the performance of any of the
covenants, the lease could be terminated at the option of the lessor.
The lease was signed by Rosberg as lessor and by Henry Effel on behalf
of appellant under a power of attorney as lessee.
Three years later, on February 24, 2010, Rosberg, through his
attorney, sent a letter to appellant both by regular mail and certified
mail stating that he was terminating her lease effective immediately.
The reason for the termination, according to the letter, was Rosberg's
discovery that appellant had installed a wrought iron fence in the front
yard of the property in violation of two covenants of the lease. The

letter stated that appellant was required to leave and surrender the
premises within ten days and, if she did not vacate the premises,
Rosberg would commence eviction proceedings. Appellant did not vacate
the property.
On April 29, 2010, Rosberg filed this forcible detainer action
in the justice court. The justice court awarded possession of the
property to Rosberg, and appellant appealed the decision to the county
court at law. The county court held a trial de novo without a jury and,
again, awarded the property to Rosberg. The court concluded the lease
created a tenancy at will terminable at any time by either party. The
court further concluded that Rosberg was authorized to terminate the
lease, whether because it was terminable at will or because appellant
violated the terms of the lease, and the lease was properly terminated
on February 24, 2010. Appellant now appeals the county court's judgment.
II.
Appellant first challenges the jurisdiction of both the justice
court and the county court to hear and determine this matter. The
appellate jurisdiction of the county court is confined to the
jurisdictional limits of the justice court, and the county court has no
jurisdiction over an appeal unless the justice court had jurisdiction of
the case below. See Rice v. Pinney, 51 S.W.3d 705, 708 (Tex. App.-Dallas
2001, no pet.). A justice court is expressly denied jurisdiction to
determine or adjudicate title to land. Id. Appellant contends she
specifically pleaded that she had both a life estate in the property as

well as a lifetime lease and that these assertions created a title
dispute depriving the justice court, and by extension the county court,
of jurisdiction.
Although appellant asserted in her pleadings that she had a life
estate in the property at issue, she introduced no evidence at trial to
support this allegation or create a question of fact on the issue. The
evidence in the record shows that appellant had a lease on the property,
the stated term of which was “equal to the remainder of her life or
until such time that she voluntarily vacates the premises.” The warranty
deed transferring the property from Henry and Jack Effel to Rosberg does
not reserve a life estate in favor of appellant, and appellant does not
challenge the validity of the deed. All of the evidence, therefore,
demonstrates that appellant's legal status in connection with the
property is solely that of a tenant.
Where the relationship between the parties is that of landlord
and tenant, the justice and county courts have jurisdiction to determine
the right of immediate possession in a forcible detainer suit. See id.
at 712. The fact that it is necessary to introduce evidence of title to
prove the landlord- tenant relationship does not deprive the court of
jurisdiction because the validity of the title is not at issue. See
Haith v. Drake, 596 S.W.2d 194, 197 (Tex. App.-Houston [1st Dist.] 1980,
writ ref'd n.r.e.).
Appellant relies on the case of Doggett v. Nitschke, 498 S.W.2d
339 (Tex. 1973) to support her position that an assertion of a lifetime

lease is sufficient to raise a title issue depriving the justice and
county courts of jurisdiction. Doggett, however, is distinguishable.
Doggett was not a forcible detainer case but rather involved competing
claims for a condemnation award. Id. at 339. Instead of the limited
issue of the right of immediate possession, the trial court in Doggett
necessarily had to determine “ownership” interests in the subject
property for the purposes of awarding condemnation proceeds. Id.; see
also, Weingarten Realty Investors v. Albertson's, Inc., 66 F.Supp. 2d
825, 845 (S.D. Tex. 1999) (the term “owner” as used in eminent domain
statutes includes lessee for years). Unlike a condemnation proceeding,
it is not necessary to prove title to the property to prevail in a
forcible detainer case. See Rice, 51 S.W.3d at 709. Because title to the
property is not an issue in this case, the justice court and county
court below had jurisdiction to render judgment. We resolve appellant's
first issue against her.
In appellant's remaining issues, she challenges the findings of
fact and conclusions of law made by the county court. In her tenth
issue, appellant challenges the county court's first conclusion of law
in which it stated “[t]he lease, which purported to be for the rest of
Lena Effel's life, created only a tenancy at will terminable at any time
by either party.” Appellant argues that the lease must be read together
with the settlement agreement and the court must give effect to the
intent of the parties. Appellant was not a party to the settlement

agreement, however. Appellant was a party only to the lease. It is the
lease, and not the settlement agreement, that forms the basis of this
forcible detainer action. Accordingly, we look solely to the lease to
determine appellant's rights in this matter.
The lease states that appellant was a lessee of the property
“for a term equal to the remainder of Lessee's life, or until such time
as she voluntarily vacates the premises.” It is the long-standing rule
in Texas that a lease must be for a certain period of time or it will be
considered a tenancy at will. See Holcombe v. Lorino, 79 S.W.2d 307, 310
(Tex. 1935). Courts that have applied this rule to leases that state
they are for the term of the lessee's life have concluded that the
uncertainty of the date of the lessee's death rendered the lease
terminable at will by either party. See Nitschke v. Doggett, 489 S.W.2d
335, 337 (Tex. Civ. App.-Austin 1972), vacated on other grounds, 498
S.W.2d 339 (Tex. 1973); see also, Kajo Church Square, Inc. v. Walker,
No. 12-02-00131-CV, 2003 WL 1848555, at *5 (Tex. App.-Tyler April 9,
2003, no pet.) ( mem. op.).
Appellant argues the current trend in court decisions is away
from finding a lease such as hers to be terminable at will. Appellant
relies on the 1982 decision of Philpot v. Fields, 633 S.W.2d 546 (Tex.
App.-Texarkana 1982, no writ). In Philpot, the court stated that the
trend in law was away from requiring a lease to be of a definite and
certain duration. Id. at 548. In reviewing the law since Philpot,

however, we discern no such trend. See Kajo, 2003 WL 1848555 at *5. The
rule continues to be that a lease for an indefinite and uncertain length
of time is an estate at will. See Providence Land Servs., L.L.C. v.
Jones, No. 11-09-00298-CV, 2011, WL 4506108 at *3 (Tex. App.-Eastland
Sept. 29, 2011, no pet. h.). In this case, not only was the term of the
lease stated to be for the uncertain length of appellant's life, but her
tenancy was also “until such time that she voluntarily vacates the
premises.” If a lease can be terminated at the will of the lessee, it
may also be terminated at the will of the lessor. See Holcombe, 79
S.W.2d at 454. Because the lease at issue was terminable at will by
either party, the trial court's first conclusion of law was correct. We
resolve appellant's tenth issue against her.
In her fourth issue, appellant contends the trial court erred in
concluding that Rosberg sent her a proper notice to vacate the premises
under section 24.005 of the Texas Property Code. Section 24.005 states
that a landlord must give a tenant at will at least three days' written
notice to vacate before filing a forcible detainer suit unless the
parties contracted for a longer or shorter notice period in a written
lease or agreement. Tex. Prop. Code Ann. § 24.005(b) (West Supp. 2011).
The section also states that the notice must be delivered either in
person or by mail at the premises in question. Id. § 24.005(f). If the
notice is delivered by mail, it may be by regular mail, registered mail,
or certified mail, return receipt requested, to the premises in

question. Id.
The undisputed evidence in this case shows that Rosberg, through
his attorney, sent appellant a written notice to vacate the premises by
both regular mail and certified mail on February 24, 2010. The notice
stated that appellant had ten days to surrender the premises. Nothing in
the lease provided for a longer notice period. Henry Effel testified at
trial that appellant received the notice and read it. Rosberg did not
bring this forcible detainer action until April 29, 2010. The evidence
conclusively shows, therefore, that Rosberg's notice to vacate the
property complied with section 24.005.
Appellant argues that the February 24 notice was defective
because it contained two allegedly false statements: that she had
violated the lease agreement by building a fence and that she did not
have a right to cure this purported act of default. Appellant's argument
fails for two reasons. First, even assuming the statements are false,
nothing in section 24.005 requires the landlord to give in the notice to
vacate either a reason for the eviction or an explanation of any right
to cure. See id. at § 24.005. Second, because appellant's tenancy was at
will, Rosberg could terminate the tenancy at any time regardless of
whether appellant had defaulted under the terms of the lease.
Accordingly, the claimed false statements were irrelevant to the
sufficiency of the notice. The trial court correctly concluded that
Rosberg's February 24 notice letter complied with the requirements of
section 24.005. See Footnote 1 We resolve appellant's fourth issue
against her.

Because Rosberg had the right to terminate appellant's tenancy
at any time and properly notified her of the termination under section
24.005 of the Texas Property Code, the trial court did not err in
awarding the property at issue to Rosberg. Consequently, it is
unnecessary for us to address the remainder of appellant's issues.
We affirm the trial court's judgment.

JOSEPH B. MORRIS
JUSTICE
100790F.P05
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Footnote 1
Rosberg posted a second notice to vacate the property on March 17,
2010. Appellant contends this notice was also deficient. Because we have
concluded the February 24 notice was sufficient, we need not address
appellant's arguments relating to the March 17 notice.
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