Date: 01-25-2018

Case Style:

Case Number: 02-17-00085-CV

Judge: Kerr

Court: Texas Court of Appeals, Second District on appeal from the County Court at Law No. 1 of Tarrant County

Plaintiff's Attorney: Marc Girling

Defendant's Attorney: Michael Brinkley

Description: In four issues, Tony and Cynthia Jimenez appeal from the trial court’s
judgment awarding possession of real property to Appellee David McGeary. We
affirm.
Background
In August 2010, Metlife Home Loans foreclosed on the Jimenezes’ home
and then sold the property to Federal National Mortgage Association. Jimenez v.
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Fed. Nat’l Mortg. Ass’n, No. 02-15-00229-CV, 2016 WL 3661884, at *1 (Tex.
App.—Fort Worth July 7, 2016, no pet.) (mem. op.). Four years later, FNMA filed
a forcible-detainer action. See id. The county court awarded FNMA possession of
the property, and the Jimenezes appealed. Id. We affirmed the trial court’s
judgment. See id. at *2–3.
While the appeal was pending, FNMA sold the property to McGeary and
his son in June 2016.1 In August 2016, McGeary demanded that the Jimenezes
vacate the property. When they refused, McGeary filed a forcible-detainer action
in justice court. The justice court entered an order evicting the Jimenezes, and
they appealed to county court. After a trial de novo, the county court entered a
judgment for possession of the property in McGeary’s favor.
Discussion
In their first issue, the Jimenezes contend that the trial court erred by not
filing findings of fact and conclusions of law despite their timely request under
rule 296. See Tex. R. Civ. P. 296 (requiring litigants to file a request for findings
and conclusions within 20 days of the final judgment). But because the
Jimenezes did not file the necessary follow-up notice of past-due findings, they
waived their right to complain on appeal about the lack of findings and
conclusions. See Tex. R. Civ. P. 297 (requiring litigants to file a notice of pastdue
findings when the trial court does not file findings within 20 days); Las Vegas
1Neither the Jimenezes nor FNMA informed us that the property had been
sold to the McGearys until after we issued mandate in that appeal.
3
Pecan & Cattle Co., Inc. v. Zavala Cty., 682 S.W.2d 254, 255 (Tex. 1984)
(“Without [the] timely reminder [that rule 297 requires], [the requesting party]
waived its complaint of the failure on appeal.”); Commercial Servs. of Perry, Inc.
v. Woolridge, 968 S.W.2d 560, 563 (Tex. App.—Fort Worth 1998, no pet.) (“The
failure to file a notice of past[-]due findings of fact waives the right to complain
about the trial court’s failure to file findings of fact and conclusions of law.”). We
overrule the Jimenezes’ first issue.
In their third issue, the Jimenezes complain that McGeary should have
joined his son (the property’s other owner) as an indispensable party plaintiff and
that McGeary’s failure to do so deprived the trial court of jurisdiction. An
indispensable party is one whose presence is required for a just adjudication of
the case. See generally Tex. R. Civ. P. 39. A forcible-detainer action is used to
determine the superior right to actual and immediate possession of real property.
See Tex. R. Civ. P. 510.3(e) (stating that in a forcible detainer action, “[t]he court
must adjudicate the right to actual possession and not title”); see also Diffley v.
Fed. Nat’l Mortg. Ass’n, No. 02-13-00403-CV, 2014 WL 6790043, at *1 (Tex.
App.—Fort Worth Nov. 26, 2014, no pet.) (mem. op.); Williams v. Bank of New
York Mellon, 315 S.W.3d 925, 926–27 (Tex. App.—Dallas 2010, no pet.). The
only issue in a forcible-detainer action is which party has the superior right to
immediate possession. See Dyhre v. Hinman, No. 05-16-00511-CV,
2017 WL 1075614, at *2 (Tex. App.—Dallas Mar. 22, 2017, pet. denied) (mem.
4
op.) (citing Williams, 315 S.W.3d at 927); Rice v. Pinney, 51 S.W.3d 705,
709 (Tex. App.—Dallas 2001, no pet.).
Because the only issue in this case in the trial court was who, as between
the Jimenezes and McGeary, had the superior right to immediate possession of
the property, McGeary’s son was not an indispensable party. Moreover, “[a]
failure to join ‘indispensable’ parties does not render a judgment void; there could
rarely exist a party who is so indispensable that his absence would deprive the
court of jurisdiction to adjudicate between the parties who are before the court.”
Browning v. Placke, 698 S.W.2d 362, 363 (Tex. 1985) (orig. proceeding).
Also as part of their third issue, the Jimenezes complain that the notices to
vacate were insufficient under property code sections 24.002 and
24.005 because they were not made on behalf of both owners. See Tex. Prop.
Code Ann. § 24.002 (West 2014), § 24.005 (West Supp. 2017). The Jimenezes
do not cite, nor have we found, any authority to support this proposition. The
Jimenezes also contend that the notices to vacate were made on McGeary’s
son’s behalf, not on McGeary’s. McGeary testified that he purchased the property
but that both he and his son were named as owners on the deed. The special
warranty deed admitted into evidence listed David E. McGeary and David E.
McGeary, Sr. as grantees. Two notices to vacate (one to each of the Jimenezes)
sent on behalf of “David McGeary” were also admitted into evidence. McGeary’s
attorney stated, “We sent [a notice] to both of the Defendants.” [Emphasis
added.] As McGeary’s son was not at trial, we conclude that this was sufficient to
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establish that the notices to vacate were sent on McGeary’s behalf. We overrule
the Jimenezes’ third issue.
In their second issue, the Jimenezes complain that McGeary’s live
pleading was “not a valid pleading on which judgment could have been granted”
because it was improperly verified by McGeary’s attorney instead of by McGeary,
and the trial court therefore lacked jurisdiction to hear this case and render
judgment in McGeary’s favor.2 See Tex. R. Civ. P. 510.3(a) (providing that “a
petition in an eviction case must be sworn to by the plaintiff”). We have
considered this same issue on numerous occasions involving corporate plaintiffs,
and each time we have concluded that a party’s attorney may verify a petition in
a forcible-detainer action as that party’s agent. See, e.g., Colon v. Wilmington
Sav. Fund Soc’y, No. 02-16-00113-CV, 2017 WL 3184695, at *1–2 (Tex. App.—
Fort Worth July 27, 2017, pet. denied) (mem. op.); Deubler v. Bank of New York
Mellon, No. 02-16-00390-CV, 2017 WL 2290193, at *1 (Tex. App.—Fort Worth
May 25, 2017, pet. denied) (mem. op.); Jimenez, 2016 WL 3661884, at *2;
Gaydos v. Fed. Nat’l Mortg. Ass’n, No. 02-16-00003-CV, 2016 WL 7405809, at
2The Jimenezes complain on appeal that McGeary’s son was also required
to verify the petition. But because the Jimenezes did not raise this argument in
the trial court, they did not preserve it for our review. See Saenz v. U.S. Bank
Nat’l Ass’n, No. 02-13-00221-CV, 2014 WL 1096042, at *2 (Tex. App.—Fort
Worth Mar. 20, 2014, pet. dism’d w.o.j.) (mem. op.) (concluding that appellant
“waived the lack of sufficient verification by failing to raise it in his plea in
abatement or his motion for new trial”). Even if they had preserved this complaint,
it lacks merit because, as we explained above, McGeary’s son was not, nor was
he required to be, a party to the suit.
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*1 (Tex. App.—Fort Worth Dec. 22, 2016, no pet.) (mem. op.); Norvelle v. PNC
Mortg., 472 S.W.3d 444, 447–49 (Tex. App.—Fort Worth 2015, no pet.).
We see no reason why this conclusion should not extend to eviction cases
in which the plaintiff is a natural person rather than an entity of some sort. As we
noted, rule 510.3(a) provides that “a petition in an eviction case must be sworn to
by the plaintiff.” Tex. R. Civ. P. 510.3(a). In Norvelle, we concluded that rule
510 did not conflict with the rest of the rules governing eviction cases3 and held
that the language of rule 510.3(a), “when read in the context of the other rules of
this section, clarifies who may sign a petition and swear to the facts contained
therein.” 472 S.W.3d at 447 & n.3. Rule 500.2 defines “plaintiff” as “a party who
sues,” and a “party” as “a person or entity involved in the case that is either suing
or being sued, including all plaintiffs, defendants, and third parties that have been
joined in the case.” Tex. R. Civ. P. 500.2(u), (s). Rule 500.4 provides that, in an
eviction case, individuals may represent themselves or have an authorized agent
or attorney represent them and that corporations or other entities may be
represented by nonattorney employees, owners, officers, or partners, by a
property manager or other authorized agent, or by an attorney. Tex. R. Civ. P.
500.4(a), (b). And except for oral motions made during trial or when all parties
are present, “every pleading, plea, motion, application to the court for an order, or
3As set out in rule 500.3(d), eviction cases are governed by rules 500–
507 and 510, and to the extent there are any conflicts between rule 510 and the
rest of those rules, rule 510 applies. Tex. R. Civ. P. 500.3(d).
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other form of request must be written and signed by the party or its attorney and
must be filed with the court.” Tex. R. Civ. P. 502.1.
Here, the petition contained a verification sworn to by McGeary’s counsel,
stating his authority to make the verification and swearing that the facts
contained in the pleading were both within his personal knowledge and true and
correct. As he acted as McGeary’s agent for purposes of instituting the case, this
sufficed to meet rule 510.3(a)’s requirements. But even if the verification here
were defective, the trial court still would have had jurisdiction. See Fleming v.
Fannie Mae, No. 02-09-00445-CV, 2010 WL 4812983, at *2 (Tex. App.—Fort
Worth Nov. 24, 2010, no pet.) (mem. op.) (holding that defective verification does
not deprive county court of jurisdiction to hear a forcible-detainer action); see
also Norvelle, 472 S.W.3d at 446 (stating same and citing Fleming and other
cases holding same). We overrule the Jimenezes’ second issue.
In their final issue, the Jimenezes assert that McGeary was not entitled to
possession of the property because (1) he could not rely on the tenancy-atsufferance
language in the foreclosed-upon home-equity security agreement
because he “was not in privity of contract with [the] Jimenez[es] in regard to the
claimed lien instrument,” and (2) he failed to offer the home-equity security
agreement or any other evidence to show that the Jimenezes were tenants at
sufferance.
A tenant at sufferance who refuses to surrender property on demand
commits a forcible detainer. Tex. Prop. Code Ann. § 24.002(a)(2). As we noted in
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Jimenez, the home-equity security instrument contained a tenancy-at-sufferance
clause providing that the Jimenezes would become tenants at sufferance if they
did not surrender possession of the property to the buyer at the foreclosure sale.
2016 WL 3661884, at *2. The Jimenezes are correct that McGeary did not offer
the security instrument into evidence. But such evidence was unnecessary to
establish the Jimenezes’ status as tenants at sufferance because such a tenancy
is created when one wrongfully continues in “naked possession of property” after
his right to possession has ended and does not assert a claim to superior title.
Williams v. Deutsche Bank Nat’l Trust Co., No. 05-11-00434-CV,
2012 WL 1899156, at *2 (Tex. App.—Dallas Apr. 27, 2012, no pet.) (mem. op);
ICM Mortg. Corp. v. Jacob, 902 S.W.2d 527, 530 (Tex. App.—El Paso 1994, writ
denied); see Goggins v. Leo, 849 S.W.2d 373, 377 (Tex. App.—Houston [14th
Dist.] 1993, no writ) (“A tenant at sufferance does not have privity with the
landlord but is merely an occupant in naked possession after his right to
possession has ceased.”) No contract is required for a party to be subject to a
forcible-detainer action. Brooks v. Wells Fargo Bank, N.A., No. 05-16-00616-CV,
2017 WL 3887296, at *9 (Tex. App.—Dallas Sept. 6, 2017, no pet.) (mem. op.).
“In the absence of a legally enforceable agreement, such as a lease or rental
agreement or a contract to sell, an occupier of premises is at best a tenant at
sufferance and at worst a trespasser.” Fandey v. Lee, 880 S.W.2d 164, 169 (Tex.
App.—El Paso 1994, writ denied) (op. on reh’g). “Under such circumstances, the
record title owner of the premises would be entitled to possession, after notice
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and demand, by merely showing ‘sufficient evidence of ownership to
demonstrate a superior right to immediate possession.’” Id. (quoting Goggins,
849 S.W.2d at 377).
The special warranty deed in evidence established that McGeary was one
of the property’s owners. See Rice, 51 S.W.3d at 709 (“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.”). The Jimenezes’ continued possession of the property
following McGeary’s notices to vacate created a tenancy at sufferance. See
Williams, 2012 WL 1899156, at *2. Evidence of the Jimenezes’ tenancy at
sufferance, along with the notices to vacate, established McGeary’s right to
immediate possession of the property. See id. We overrule the Jimenezes’ fourth
issue.

Outcome: Having overruled each of the Jimenezes’ four issues, we affirm the trial
court’s judgment.

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