Jennie Hartwell and All Occupants v. Banyan Tree Apartments--Appeal from County Court at Law No 8 of Bexar County

No. 04-00-00556-CV

Jennie F. HARTWELL,

Appellant

v.

BANYAN TREE APARTMENTS,

Appellee

From the County Court at Law No. 2, Bexar County, Texas

Trial Court No. 261,548

Honorable Karen Crouch, Judge Presiding

Opinion by: Tom Rickhoff, Justice

Sitting: Tom Rickhoff, Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: September 5, 2001

AFFIRMED

This is a forcible entry and detainer action. In three issues, appellant, Jennie Hartwell, asserts the trial court penalized her because of her mere association with an alleged criminal, the trial judge should have recused herself, and the final judgment does not offer an explanation for the trial court's decision. Because we find no error on the trial court's part, we affirm.

BACKGROUND

Appellant was a tenant at the Banyan Tree Apartments. Banyan Tree filed a sworn complaint for forcible detainer, alleging that appellant violated paragraphs two, (1) eighteen, and twenty (2) of the lease agreement. Banyan Tree based its demand that appellant vacate her apartment on the grounds that appellant's husband was an unauthorized occupant of the apartment and he was in the apartment when he was arrested for possession of a controlled substance.

JURISDICTION

As a preliminary matter, Banyan Tree asserts this appeal is moot and this court does not have subject matter jurisdiction, relying on Texas Property Code section 24.007, which states, "A final judgment of a county court in an eviction suit may not be appealed on the issue of possession unless the premises in question are being used for residential purposes only." Tex. Prop. Code Ann. 27.004 (Vernon 2000).

There is nothing in the record to indicate, and Banyan Tree does not contend, that appellant used the apartment for other than residential purposes. Instead, Banyan Tree contends that because appellant no longer resides in the apartment (because she was evicted), she cannot now appeal the eviction. Banyan Tree points to no support for its contention that the statute be read so narrowly, and we refuse to do so.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

In issue three, appellant complains the trial court did not explain its reasons for ruling as it did. We interpret her issue as a complaint that the trial court did not enter findings of fact and conclusions of law. Because appellant did not request findings or conclusions, she has waived this complaint on appeal. See Tex. R. Civ. Proc. 296, 298.

TERMINATION OF TENANCY

In her first issue, appellant asserts the trial court did not have jurisdiction to determine, in a civil proceeding, whether a crime had been committed on the premises. The trial court found that Banyan Tree proved the allegations in its petition, one of which was that appellant violated the clause in the lease requiring that she be the sole occupant of the premises. In a nonjury trial where findings of facts and conclusions of law are not properly requested and none are filed, it will be implied that the trial court made all the necessary findings to support its judgment. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam). Because appellant does not challenge the judgment on the ground that she violated the "Occupants" provision of the lease agreement; we need not address whether the trial court had jurisdiction to determine whether the "Prohibited Conduct" provision had been violated.

RECUSAL

In her second issue, appellant asserts the trial judge should have recused herself. Texas Rule of Civil Procedure 18b sets forth the grounds for disqualification or recusal of a judge. Tex. R. Civ. Proc. 18b. None of the grounds appear in the record; therefore, appellant's complaint is waived. See Ceballos v. El Paso Health Care Sys., 881 S.W.2d 439, 445 (Tex. App.--El Paso 1994, writ denied). Nor does it appear that appellant filed a motion to disqualify or recuse. By not following the procedure for securing recusal or disqualification, appellant waived her right to complain of the judge's failure to recuse or disqualify herself. See Tex. R. Civ. Proc. 18a; Gill v. Texas Dep't of Criminal Justice, 3 S.W.3d 576, 579 (Tex. App.--Houston [1st Dist.] 1999, no pet.).

CONCLUSION

We affirm the trial court's judgment.

Tom Rickhoff, Justice

DO NOT PUBLISH

1. The "Occupants" provision of the lease agreement required that only appellant occupy the premises.

2. The "Prohibited Conduct" provision of the lease agreement required that the occupant and her guests not engage in certain activities, including "manufacturing, delivering, possess[ing] with intent to deliver, or otherwise [possessing] a controlled substance or drug paraphernalia . . . ."