Williams, Sylvia May and Williams, Shewanna v. Nelms, Bessie May Gaitor--Appeal from 270th District Court of Harris County

Affirmedand Opinion filed November 21, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-00907-CV

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SYLVIA MAY WILLIAMS and SHEWANNA WILLIAMS, Appellants

V.

BESSIE MAY GAITOR NELMS, Appellee

On Appeal from the 270th District Court

Harris County, Texas

Trial Court Cause No. 99-61031

O P I N I O N

Following the death of Una Mae Martin, a dispute arose between the decedent s sister and her only child regarding who should obtain possession of the decedent=s home. The decedent died intestate, and under the laws of intestate succession, the decedent s daughter, Bessie May Gaitor Nelms claimed ownership of the property. However, the decedent s sister, Sylvia May Williams, and her son, Shewanna Williams, were living in the home at the time of the decedent s death, and Ms. Williams claimed ownership by virtue of a quitclaim deed allegedly executed by the decedent before her death. Nelms sued Williams and her son to obtain title and possession of the property. After a short bench trial, the court granted judgment for NelmsCgranting her title and possession to the property and awarding her actual damages of $11,340, together with pre and post-judgment interest. In three points of error, Williams and her son allege the trial court committed gross error in (1) awarding title to the property to Nelms, (2) awarding actual damages to Nelms, and (3) in issuing a writ of possession on behalf of Nelms. We affirm.

In their first two issues for review, appellants contend the trial court committed gross error in awarding the property and monetary damages to Nelms. Appellants do not specifically explain how the trial court erred, but in their appellate brief they rely heavily on the quitclaim deed to support their claim to the property. Accordingly, we perceive appellants complaint is essentially a challenge to the sufficiency of the evidence.

When reviewing the legal sufficiency of the evidence, we consider only the evidence and inferences tending to support the court=s verdict, disregarding all contrary evidence and inferences. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex. 2001). When reviewing the factual sufficiency of the evidence, we look to see whether the trial court=s finding is against the great weight and preponderance of the evidence. Oadra v. Stegall, 871 S.W.2d 882, 892 (Tex. App.CHouston [14th Dist.] 1994, no writ). Only if the finding is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and manifestly unjust, must we sustain the challenge. Id. Because the appellate court is not the fact finder, it may not substitute its own judgment for that of the trier of fact, even if a different answer could be reached on the evidence. Knox v. Taylor, 992 S.W.2d 40, 50 (Tex. App.CHouston [14th Dist.] 1999, no pet.); Peter v. Ogden Ground Servs., Inc., 915 S.W.2d 648, 649 (Tex. App.CHouston [14th Dist.] 1996, no writ). Thus, the amount of evidence necessary to affirm a judgment is far less than that needed to reverse a judgment. Bracewell v. Bracewell, 20 S.W.3d 14, 23 (Tex. App.CHouston [14th Dist.] 2000, no pet.); Knox, 992 S.W.2d at 50.

Here, the validity of the quitclaim deed was challenged by Nelms who presented expert testimony to support her claim that the decedent=s signature was forged. Accordingly, we must presume the trial court found the deed was, in fact, a forgery. Although appellants presented testimony that the decedent executed the quitclaim deed, the evidence is both legally and factually sufficient to support the trial court=s verdict. Thus, appellants first and second issues are overruled.

In their final issue for review, appellants contend the trial court erred in issuing a writ of possession for the property. Because they presently occupy the property, appellants claim the court s writ of possession violates Rule 755 of the Texas Rules of Civil Procedure. The rule states

The writ of possession, or execution, or both, shall be issued by the clerk of the county court according to the judgment rendered, and the same shall be executed by the sheriff or constable, as in other cases; and such writ of possession shall not be suspended or superseded in any case by appeal from such final judgment in the county court, unless the premises in question are being used as the principal residence of a party.

Tex. R. Civ. P. 755. (Emphasis added). Under the plain wording of Rule 755, it has no application here.

Rule 755 is part of Section 2 of the Texas Rules of Civil Procedure relating to forcible entry and detainer actions. In such suits, the justice court has original jurisdiction. Tex. Prop. Code Ann. ' 24.004 (Vernon 2000). Appeal is to the county court. Goggins V. Leo, 849 S.W.2d 373, 375 (Tex. App.CHouston [14th Dist.] 1993, no writ). The judgment of the county court regarding possession is final and may not be appealed unless the premises in question are being used for residential purposes. Tex. Prop. Code Ann. ' 24.007 (Vernon 2000). However, even if one of the parties is residing on the property, the judgment of a county court may not under any circumstances be stayed pending appeal unless, within 10 days of the signing of the judgment, the appellant files a supersedeas bond in an amount set by the county court. Id.

Here, the plaintiff s suit was for possession based upon title and, thus, was not an action for forcible entry and detainer, but was in the nature of a trespass to try title action. Accordingly, Rule 755 is not applicable in the case presented here. Moreover, appellants have not filed a supersedeas bond and are not entitled to stay the writ of possession in any event. Appellants third issue for review is overruled.

/s/ J. Harvey Hudson

Justice

Judgment rendered and Opinion filed November 21, 2002.

Panel consists of Chief Justice Brister and Justices Hudson and Fowler.

Do Not Publish C Tex. R. App. P. 47.3(b).