David Everson and Patricia Everson v. Mineola Community Bank, S.S.B.--Appeal from County Court of Upshur County

NO. 12-05-00313-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

DAVID K. EVERSON AND

PATRICIA M. EVERSON, APPEAL FROM THE

APPELLANTS

V. COUNTY COURT OF

MINEOLA COMMUNITY BANK, S.S.B.,

APPELLEE UPSHUR COUNTY, TEXAS

MEMORANDUM OPINION

David K. Everson and Patricia M. Everson appeal from the trial court s judgment in this forcible detainer case brought by Mineola Community Bank (MCB). In fourteen issues, the Eversons contend the trial court did not have jurisdiction and complain of the admissibility of certain evidence and the sufficiency of the evidence to support the judgment. We affirm.

Background

The Eversons bought a home located at 1765 Crabapple Road, Big Sandy, Texas with money they borrowed from MCB. Due to their failure to make the payments, MCB foreclosed and, due to the Eversons failure to vacate, MCB filed a forcible detainer action. The Upshur County Justice Court determined that MCB had the right to immediate possession of the property and that the Eversons failed to establish their inability to pay costs. The Eversons appealed to County Court where the issue of inability to pay costs was again decided against them and possession was again decided in favor of MCB. The issue of the monthly rental value of the property was submitted to the jury, which returned a verdict of $3,150.00. Based on the jury s verdict, the trial court determined that the Eversons owed MCB $14,700.00 for back rent plus $105.00 a day until they vacated the home.

The Eversons appealed the trial court s judgment to this court pro se. They requested a reporter s record, which was to include the entire proceeding. They also filed a document entitled Defendants Statement of Issues to be Raised on Appeal citing Rule of Appellate Procedure 34.6(c)(1), which applies when an appellant requests a partial reporter s record. Although the reporter informed the Eversons that the record would cost them $1,500.00 and had to be paid for before she would begin production, they sent her a check for $750.00, which the reporter returned. Because the court reporter was not paid, she did not prepare the reporter s record. After notice and an opportunity to cure, this court ordered the cause to be submitted on the clerk s record alone pursuant to Rule of Appellate Procedure 37.3(c).

Sufficiency of the Evidence

In their first, second, and third issues, the Eversons contend the evidence is factually insufficient to support the jury s finding of the amount of the monthly fair market rental value. In their tenth issue, they assert the evidence is legally and factually insufficient to support a finding that a landlord-tenant relationship existed between the parties. In their thirteenth and fourteenth issues, the Eversons contend the trial court erred in denying their motion for new trial, which complained of insufficient evidence. They argue that because they filed a Statement of Issues to be Raised on Appeal, their failure to file a complete record should not prejudice them.

The Eversons were responsible for paying for the preparation of the reporter s record. Tex. R. App. P. 35.3(b)(3), 37.3(c)(2). They have not paid the fee, made arrangements to pay the fee, or established entitlement to appeal without paying for the reporter s record. See Tex. R. App. P. 37.3(c)(2). This court gave them notice of the deficiency and afforded them a reasonable opportunity to cure it, but they failed to do so. Rule 34.6(c) provides a method for obtaining a partial reporter s record. Tex. R. App. P. 34.6(c). Simply filing a statement of issues does not constitute compliance with that rule. Further, the appellants must pay for whatever portion of the record they request to be transcribed and filed. Because the Eversons neither complied with the requirements of Rule 34.6(c) regarding reliance on a partial reporter s record nor filed a complete reporter s record, we presume that the omitted portions support the judgment. See Tex. R. App. P. 34.6(c); Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990). Without a reporter s record, the Eversons cannot demonstrate that the evidence is insufficient to support the judgment. See Sandoval v. Comm n for Lawyer Discipline, 25 S.W.3d 720, 722 (Tex. App. Houston [14th Dist.] 2000, pet. denied). We overrule the Eversons first, second, third, tenth, thirteenth, and fourteenth issues.

Admissibility of Evidence

In their fourth through ninth issues, the Eversons contend the trial court erred in admitting into evidence the deed of trust and the correction trustee s deed to the home. They assert that the evidence is insufficient to show that the original deed was valid or that there was a proper evidentiary foundation for the correction trustee s deed. They argue that the correction trustee s deed is incomplete and recited an invalid deed.

The admission or exclusion of evidence is a matter within the trial court s discretion. Interstate Northborough P ship v. State, 66 S.W.3d 213, 220 (Tex. 2001). Without a reporter s record, we cannot review the trial court s ruling for an abuse of discretion. Willms v. Americas Tire Co., 190 S.W.3d 796, 803 (Tex. App. Dallas 2006, pet. denied). We overrule the Eversons fourth through ninth issues.

Jurisdiction

In their eleventh and twelfth issues, the Eversons assert that the County Court did not have jurisdiction over this suit and erred in denying their plea to the jurisdiction. They argue that the deed of trust and trustee s deed relied on by MCB are invalid and cannot be used to prove the existence of a landlord/tenant relationship between the parties. In the absence of such a relationship, a forcible detainer action is improper and, they contend, MCB must have the title issue resolved in district court before pursuing resolution of the possession issue.

A plea to the jurisdiction contests the trial court s authority to determine the subject matter of the cause of action. Cornyn v. County of Hill, 10 S.W.3d 424, 427 (Tex. App. -- Waco 2000, no pet.). Subject matter jurisdiction is a legal question, and the plea to the jurisdiction is reviewed under a de novo standard of review. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). Dismissing a cause of action for lack of subject matter jurisdiction is proper only when it is impossible for the plaintiff s petition to confer jurisdiction on the trial court. Harris County v. Cypress Forest Pub. Util. Dist., 50 S.W.3d 551, 553 (Tex. App. -- Houston [14th Dist.] 2001, no pet.). In reviewing a plea to the jurisdiction, we review the pleadings and any evidence relevant to the jurisdictional issue. Texas Dep t of Crim. Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001).

Jurisdiction of forcible detainer actions is expressly given to the justice court of the precinct where the property is located and, on appeal, to county courts for a trial de novo. Tex. Prop. Code

Ann. 24.004 (Vernon 2000). The right of possession is the only issue in a forcible detainer action. Tex. R. Civ. P. 746. The issue of title cannot be adjudicated in a forcible detainer action. Id. To prevail in a forcible detainer action, a plaintiff is not required to prove title, but is only required to show sufficient evidence of ownership to demonstrate a superior right to immediate possession. Rice v. Pinney, 51 S.W.3d 705, 709 (Tex. App. Dallas 2001, no pet.). The right to immediate possession can be determined separately from the right to title. Id. at 710. The Eversons are entitled to bring suit in the district court to determine the question of title. Id. at 709.

Therefore, contrary to the Eversons argument that title must be determined first, the county court was not deprived of jurisdiction on this basis. Further, in the absence of a record, we are unable to review the Eversons argument that the deed of trust is invalid. See Christiansen, 782 S.W.2d at 843. We overrule the Eversons eleventh and twelfth issues.

Sanctions

MCB contends that this appeal is frivolous and requests this court sanction the Eversons. Rule of Appellate Procedure 45 authorizes the court of appeals to award damages to the prevailing party if it determines that the appeal is frivolous. Tex. R. App. P. 45.

Whether to grant sanctions is a matter of discretion, which we exercise with prudence and caution, and only after careful deliberation. Conseco Fin. Servicing Corp. v. Klein Indep. Sch. Dist., 78 S.W.3d 666, 676 (Tex. App. Houston [14th Dist.] 2002, no pet.). We will grant sanctions only in circumstances that are truly egregious. Id. If an appellant s argument on appeal fails to convince the court, but has a reasonable basis in law and constitutes an informed, good faith challenge to the trial court s judgment, sanctions are not appropriate. Id. A party s decision to appeal should be based on professional judgment made after careful review of the record for preserved error in light of the applicable standards of review. Chapman v. Hootman, 999 S.W.2d 118, 125 (Tex. App. Houston [14th Dist.] 1999, no pet.).

While some of the Eversons issues have no reasonable basis in law, the issues concerning the jury s finding on rental value present good faith challenges to the judgment. We decline to impose sanctions against the Eversons.

Disposition

We affirm the trial court s judgment.

JAMES T. WORTHEN

Chief Justice

Opinion delivered January 31, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)