Nelida Graciela Garay v. Denise M. Perez Appeal from County Court at Law No. 2 of Dallas County (memorandum opinion)

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AFFIRMED and Opinion Filed April 3, 2025 S In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-01293-CV NELIDA GRACIELA GARAY, Appellant V. DENISE M. PEREZ, Appellee On Appeal from the County Court at Law No. 2 Dallas County, Texas Trial Court Cause No. CC-23-03401-B MEMORANDUM OPINION Before Justices Breedlove, Clinton, and Rossini Opinion by Justice Clinton In four issues, Nelida Graciela Garay appeals the trial court’s final judgment in favor of appellee Denise Perez on the grounds that (1) there was no pre-suit demand for possession before Perez filed the underlying forcible detainer action, (2) Perez’s pleading was not valid, (3) Perez offered insufficient evidence showing she had a superior right of possession, and (4) Perez offered no evidence Garay continued to occupy the property at issue after receiving notice to vacate. We affirm the trial court’s judgment in this memorandum opinion. See TEX. R. APP. P. 47.4. A forcible detainer action is a special proceeding governed by particular statutes and rules that was created to provide a speedy, simple, and inexpensive means for resolving the question of the right to possession of premises. Rice v. Pinney, 51 S.W.3d 705, 709 (Tex. App.—Dallas 2001, no pet.). “A forcible-detainer plaintiff must establish: (1) it owned the property; (2) the occupant was a tenant at will, tenant at sufferance, or a tenant or subtenant willfully holding over after the termination of the tenant’s right of possession; (3) it gave proper notice to the tenant to vacate the premises; and (4) the tenant refused to vacate.” Long v. Paratheke Enters., LLC, No. 05-22-00685-CV, 2023 WL 5214675, at *3 (Tex. App.—Dallas Aug. 15, 2023, pet. denied) (mem. op.). In her first issue, Garay argues Perez failed to make the statutorily required pre-suit demand for possession. See TEX. PROP. CODE § 24.005(b). We liberally construe Garay’s argument as an attack on the legal and factual sufficiency of the evidence to support the trial court’s judgment. “When, as here, the trial court makes no separate findings of fact and conclusions of law, we must draw every reasonable inference supported by the record in favor of the trial court’s judgment.” In re I.I.G.T., 412 S.W.3d 803, 806 (Tex. App.—Dallas 2013, no pet.). “We review the trial court’s implied factual findings for legal and factual sufficiency, and we review the trial court’s implied legal conclusions de novo.” Id. “Under both standards, the trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony, and we will not disturb the court’s resolution of evidentiary conflicts that turn on credibility determinations or the weight of the evidence.” Id. –2– (citing City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005); Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003)). The record contains a deed of trust granted by Garay to Perez that states: If any of the Property is sold under this deed of trust, Grantor must immediately surrender possession to the purchaser. If Grantor does not, Grantor will be a tenant at sufferance of the purchaser, subject to an action for forcible detainer. The record also contains a warranty deed in lieu of foreclosure from Garay selling the property at issue to Perez. Thus, under the circumstances, Garay was a tenant at sufferance and was entitled to a minimum of three days’ written notice to vacate before Perez could file a forcible detainer. See PROP. § 24.005(b); see also Coinmach Corp. v. Aspenwood Apartment Corp., 417 S.W.3d 909, 915 (Tex. 2013) (“[A] tenant at sufferance is ‘[a] tenant who has been in lawful possession of property and wrongfully remains as a holdover after the tenant's interest has expired.’”) (quoting BLACK’S LAW DICTIONARY 1605 (9th ed. 2009)). The record also includes a sworn petition for forcible detainer dated March 9, 2023 containing the following representation: On or about November 14, 2022, Plaintiff delivered to Defendants at the Property a Three-Day Notice to Vacate pursuant to Tex. Prop. Code § 24.005(b). This notice was delivered to Defendant by Certified Mail, Return Receipt Requested and by First Class Mail. A true and correct copy of the Notice to Vacate is attached hereto as “Exhibit 2” and incorporated herein by reference. Exhibit 2 includes a copy of a letter sent from a law firm and addressed to Garay at the same address of the property at issue—identified in both the deed of trust and –3– the deed in lieu of foreclosure—and contains a three-day notice to vacate the property. During the hearing, Perez testified her attorney drafted the notice to vacate on her behalf. Perez’s attorney then testified, as an officer of the court, (1) he prepared the three-day notice to vacate, (2) he sent it to Garay and all occupants of the property at issue at the address identified in the deed in lieu of foreclosure via both first-class mail and certified mail, return receipt requested, (3) the first-class mail was not returned, (4) the return receipt was not returned, and (5) “I know the defendant received it because before we filed for the eviction case, we worked with the original attorney and tried to come to [a] resolution before having to file the eviction case[.]” Garay neither testified nor provided any rebuttal evidence concerning receipt of the three-day notice to vacate. Given the evidence before the trial court, we conclude it could have found (1) Perez’s lawyer mailed notice-to-vacate letters to Garay by certified mail, return receipt requested and by first-class mail at least three days before she instituted her forcible-detainer action, (2) Garay failed or refused to claim the certified-mail letter, and (3) Garay received the letter sent via first-class mail. See Johnson v. Sec’y of Veterans Affs., No. 05-03-01560-CV, 2004 WL 1615842, at *1 (Tex. App.—Dallas July 20, 2004, pet. dism’d w.o.j.) (mem. op.) (concluding appellee’s notice to vacate was sufficient when sent by first-class and certified mail to address listed in deed of trust); see also Kaldis v. U.S. Bank Nat’l Ass’n, No. 1411-00607-CV, 2012 WL 3229135, at *3 (Tex. App.—Houston [14th Dist.] Aug. 9, –4– 2012, pet. dism’d) (mem. op.) (holding landlord established delivery of notice to vacate under similar circumstances). Garay further contends—without citations to any authority—that Perez’s notice to vacate did not comply with Texas Property Code section 24.002(b) because a second person to whom Garay granted the property was a necessary party who did not make his own demand to vacate. Cf. TEX. R. APP. P. 38.1(i) (requiring citations to authorities). Although the record shows Garay argued to the trial court that a necessary party was absent, it does not show Garay either secured a ruling with respect to her argument under section 24.002(b) or objected to the absence of a ruling. Therefore, Garay did not preserve this argument for appellate review. See TEX. R. APP. P. 33.1(a)(2). Thus, we overrule Garay’s first issue. In her second issue, Garay argues the trial court erred because Perez’s pleading was not a valid pleading on which the trial court could have granted judgment. Specifically, Garay contends the existence of a title dispute in district court deprived the trial court of jurisdiction to adjudicate Perez’s cause of action. See, e.g., Salaymeh v. Plaza Centro, LLC, 264 S.W.3d 431, 435 (Tex. App.— Houston [14th Dist.] 2008, no pet.) (“[A] justice court is not deprived of jurisdiction merely by the existence of a title dispute; it is deprived of jurisdiction only if resolution of a title dispute is a prerequisite to determination of the right to immediate possession.”); cf. Guillen v. U.S. Bank, N.A., 494 S.W.3d 861, 866 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (“The county court’s jurisdiction on –5– appeal of a forcible entry and detainer judgment is coextensive with that of the justice court.”). “Specific evidence of a title dispute is required to raise an issue of a justice court’s jurisdiction.” Padilla v. NCJ Dev., Inc., 218 S.W.3d 811, 815 (Tex. App.—El Paso 2007, pet. dism’d w.o.j.); accord Sparkman v. State, 968 S.W.2d 373, 378 (Tex. App.—Tyler 1997, pet. denied); Falcon v. Ensignia, 976 S.W.2d 336, 338 (Tex. App.—Corpus Christi-Edinburg 1998, no pet.); Tillis v. Home Servicing, LLC, No. 02-16-00171-CV, 2017 WL 817151, at *4 (Tex. App.—Fort Worth Mar. 2, 2017, no pet.) (mem. op.). The district court records are not part of the appellate record and Garay points us to no specific evidence before the trial court that would have raised the issue of its jurisdiction. See Burke v. Ins. Auto Auctions Corp., 169 S.W.3d 771, 775 (Tex. App.—Dallas 2005, pet. denied) (“We cannot consider those documents that are not properly included in the appellate record or before this Court.”); see also TEX. R. APP. P. 38.1(i) (appellant’s brief must contain appropriate citations to the record). Garay additionally argues in her second issue on appeal that Perez’s petition was facially deficient because the aforementioned second putative owner of the property did not swear to it. Texas Rule of Civil Procedure 510.3(a) requires the plaintiff in an eviction case to file a sworn petition. TEX. R. CIV. P. 510.3(a). Although we construe Garay’s point on appeal to allege a pleading defect, the requirement set forth in Rule 510.3 is not jurisdictional. Lua v. Cap. Plus Fin., LLC, –6– 646 S.W.3d 622, 631 (Tex. App.—Dallas 2022, pet. denied). Thus, the record must reflect Garay preserved her complaint by raising it in the county court. Id. Garay never specially excepted on the basis that a putative owner failed to sign the underlying forcible detainer petition. Therefore, Garay did not preserve this issue for appellate review. See Smith v. Grace, 919 S.W.2d 673, 678 (Tex. App.— Dallas 1996, writ denied) (“A party waives any defect, omission, or fault in a pleading that is not specifically pointed out by a special exception.”); see also TEX. R. APP. P. 33.1(a) (to preserve error for appellate review, record must show complaint was timely made to trial court and trial court either ruled on complaint or refused to rule). Thus, we overrule Garay’s second issue. In her third issue, Garay argues Perez failed to present sufficient evidence demonstrating her superior right to possession of the property at issue. We liberally construe Garay’s point to attack both the legal and the factual sufficiency of the evidence. “When confronted by both a legal and factual sufficiency challenge, we address the legal sufficiency point first.” State Farm Mut. Auto. Ins. Co. v. Nicastro, No. 05-23-00362-CV, 2025 WL 399674, at *4 (Tex. App.—Dallas Feb. 5, 2025, no pet. h.) (mem. op.) (citing Glover v. Tex. Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex. 1981)). “If the evidence is legally insufficient to support the verdict, we need not reach the factual-sufficiency issue.” Id. (citing Windrum v. Kareh, 581 S.W.3d 761, 781 (Tex. 2019)). –7– Evidence is legally insufficient to support a finding when: (1) the record bears no evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence conclusively establishes the opposite of a vital fact. Shields Ltd. P’ship v. Bradberry, 526 S.W.3d 471, 480 (Tex. 2017); Lua, 646 S.W.3d at 632. When determining whether legally sufficient evidence supports a finding, an appellate court must consider evidence favorable to the finding if the factfinder could reasonably do so and disregard evidence contrary to the finding unless a reasonable factfinder could not. Shields, 526 S.W.3d at 480; Lua, 646 S.W.3d at 632. Here, however, the record contains both a deed of trust encumbering the property at issue and a warranty deed from Garay conveying that same property—the property at issue—to Perez. Under the circumstances, we conclude this evidence is legally sufficient to support the trial court’s finding that Perez has a superior right to possession of the property. See Hornsby v. Sec’y of Veterans Affs., No. 05-11-01075-CV, 2012 WL 3525420, at *3 (Tex. App.—Dallas Aug. 16, 2012, no pet.) (mem. op.) (evidence was legally sufficient to establish immediate possession of the property where plaintiff offered the deed of trust, evidence the property was sold, the warranty deed, the notice to vacate, and evidence the property was still occupied at the time of trial). Thus, we overrule Garay’s third issue. –8– In her fourth issue, Garay argues there is no evidence she continued to occupy the property at issue after she received Perez’s three-day notice to vacate. See Long, 2023 WL 5214675, at *3 (plaintiff must prove, in relevant part, the tenant refused to vacate). “In deciding a no evidence point, an appellate court must consider only the evidence and inferences tending to support the finding and disregard all evidence and inferences to the contrary.” Sherman v. First Nat. Bank in Ctr., Tex., 760 S.W.2d 240, 242 (Tex. 1988). Perez testified that “to [her] knowledge,” Garay still occupied the property and explained she had recently visited the premises, she saw seven vehicles parked there, and she believed one of them was Garay’s car based on “what [Garay] had told [Perez] previously.” We conclude that under the circumstances, this evidence supports the trial court’s implicit finding that Garay continued to occupy the property at issue after receiving the three-day notice to vacate. See Hornsby, 2012 WL 3525420, at *3. We therefore overrule Garay’s fourth issue. Having overrule Garay’s four issues on appeal, we affirm the judgment of the trial court. /Tina Clinton/ TINA CLINTON JUSTICE –9– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT NELIDA GRACIELA GARAY, Appellant No. 05-23-01293-CV On Appeal from the County Court at Law No. 2, Dallas County, Texas Trial Court Cause No. CC-23-03401B. Opinion delivered by Justice Clinton. Justices Breedlove and Rossini participating. V. DENISE M. PEREZ, Appellee In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED. It is ORDERED that appellee DENISE M. PEREZ recover her costs of this appeal from appellant NELIDA GRACIELA GARAY. Judgment entered this 3rd day of April 2025. –10–

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