Tony Pyles v. Loren B. Young and Louise Young--Appeal from County Court at Law of Hunt County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-07-00066-CV
______________________________
TONY PYLES, Appellant
V.
LOREN B. YOUNG AND LOUISE YOUNG, Appellees
On Appeal from the County Court at Law
Hunt County, Texas
Trial Court No. CC0600542
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION

Loren B. Young and Louise Young petitioned the Hunt County Justice of the Peace Court, 4th Place, for a forcible entry and detainer to remove Tony Pyles and Teresa Overstreet from a residence. The 196th Judicial District Court had determined in an earlier judgment that the residence belonged to the Youngs. Pyles claimed the Youngs had failed to provide sufficient notice. Both the justice court and, on appeal, the Hunt County Court at Law found in the Youngs' favor. Pyles appeals the judgment and raises three issues on appeal. According to Pyles, the trial court erred in rendering judgment for the Youngs because there was insufficient notice under the Texas Property Code; the Youngs obtained the district court judgment by committing fraud; and the trial court should have granted a new trial. We affirm the judgment of the trial court because 1) Pyles failed to preserve error concerning any lack of notice subsequent to the first suit and 2) res judicata bars relitigation of the sufficiency of the notice in the first suit. We decline the request of both parties for sanctions.

Facts

On February 26, 1998, Pyles and Overstreet entered into a contract for deed with the Youngs for the purchase and sale of residential real property located at 8822 P.R. 2289. (1) The parties dispute the terms of this contract. (2) During 2003 and 2004, the Youngs sent several notices of default and foreclosure to Pyles and Overstreet. The record contains three notices mailed during this period. (3) On or about December 23, 2003, a notice of default letter was sent to Pyles and Overstreet at 8822 P.R. 2284 and returned marked "Undeliverable As Addressed - No Box." The certified mail return receipt was returned unsigned. On or about March 8, 2004, a failure to cure default letter was sent to Pyles and Overstreet at 8822 P.R. 2284. The attached certified mail return receipt was not signed and, although not legible in the record, the letter appears to have been returned undelivered. Pyles asserts the letter was returned marked "Insufficient Address." On or about April 22, 2004, a notice of cancellation of the contract for deed was sent to Pyles and Overstreet at 8822 P.R. 2284. The letter states a copy of the foreclosure deed and affidavit of foreclosure sale April 6, 2004, were included. The record does not contain any envelopes or certified mail return receipts for this letter.

On or about May 18, 2005, the Youngs filed a complaint for forcible detainer against Pyles in district court (the first suit). The Youngs' petition was later amended to bring a trespass to try title suit. On April 24, 2006, the district court signed an order finding the Youngs to be owners of the property at "8822 PR 2289." The judgment provides "[t]he Defendant, although duly notified of the trial date, failed to appear." According to Pyles, he was "ill and unable to attend trial or pursue his remedies in that action." Pyles did not appeal the post-answer default judgment of the district court.

On August 21, 2006, the Youngs filed a forcible detainer action in justice court (the second suit). The justice court rendered judgment (4) for the Youngs, and Pyles (who had defended himself pro se), appealed the justice court's judgment to the county court at law. In the county court at law, Pyles, now represented by counsel, filed a "Counterpetition" alleging the Youngs committed fraud 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. 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. 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 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.