COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00105-CV
SUNNY OBGOMO AND JOAN APPELLANTS
KYANGUNGU
V.
AMERICAN HOMES 4 RENT APPELLEE
PROPERTIES TWO, LLC, A
DELAWARE LIMITED LIABILITY
COMPANY
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FROM COUNTY COURT AT LAW NO. 1 OF TARRANT COUNTY
TRIAL COURT NO. 2013-004764-1
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MEMORANDUM OPINION1
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This is an appeal from a forcible entry and detainer suit. Appellee
American Homes 4 Rent Properties Two, LLC, a Delaware Limited Liability
Company purchased the residential property previously owned by Appellants
1
See Tex. R. App. P. 47.4.
Sunny Obgomo and Joan Kyangungu at a substitute trustee’s sale. After
Appellants failed to vacate the premises, American Homes succeeded in an
action for forcible entry and detainer in the justice court and then on appeal to the
county court at law. On appeal to this court, Appellants argue in two points that
the trial court erred by rendering judgment for American Homes because (1)
American Homes’ pleading was not a valid pleading, and (2) the evidence is
insufficient to support a finding of a valid presuit statutory notice to vacate.
In their first issue, Appellants argue that the trial court erred by rendering
judgment for American Homes because American Homes’ pleading on file at the
time that judgment was rendered was not a valid pleading.2 Appellants claim that
the affidavit attached to American Homes’ original petition did not meet the sworn
pleading requirement of former Texas Rule of Civil Procedure 7393 because the
attorney who signed the original petition averred in his affidavit: “I have personal
knowledge of the facts stated in the foregoing petition and, to the best of my
knowledge, they are true and correct.” [Emphasis added.]
Former rule 739’s personal knowledge requirement provided that a party
initiated a forcible detainer action by filing a “written sworn complaint” with a
2
Appellants preserved this challenge by filing a plea in abatement below
and obtaining a ruling: the county court at law denied Appellants’ plea in
abatement.
3
This rule was repealed effective August 31, 2013; however, we refer to it
because it was the rule that was in effect at the time that suit was filed. See Tex.
R. Civ. P. 739 (West 2004, repealed 2013).
2
justice of the peace. See Tex. R. Civ. P. 739 (West 2004, repealed 2013). A
sworn pleading is one verified by affidavit under the sanction of an oath. Mekeel
v. U.S. Bank Nat’l Ass’n, 355 S.W.3d 349, 355 (Tex. App.—El Paso 2011, pet.
dism’d). A valid verification must be based on personal knowledge. Id. (citing
Kerlin v. Arias, 274 S.W.3d 666, 668 (Tex. 2008)). Any qualifying verbiage, such
as a statement that the affidavit is “based on the best of one’s personal
knowledge,” renders the affidavit legally invalid. Id.
Here, the record reveals that the live pleading at the de novo trial before
the county court at law was American Homes’ “First Amended Petition For
Forcible Entry And Detainer,” which had an affidavit attached that did not contain
the “to the best of my knowledge” language. See Tex. R. Civ. P. 65; Mekeel, 355
S.W.3d at 354–55 (stating general rule that an amended pleading takes the place
of the original pleading and that original pleading is superseded and is no longer
part of the live pleadings). Thus, there is no qualifying verbiage that would
render this affidavit defective. Although Appellants urge in their brief that strict
compliance with former rule 739 is the appropriate standard for verification
requirements and that a complaint for eviction should not “be reformed to comply
with a gatekeeping mandate,” they point us to no case law holding that an
original petition in a forcible entry and detainer case cannot be amended, and
case law holds otherwise. See Mekeel, 355 S.W.3d at 355 (analyzing first
amended petition’s compliance with former rule 739’s personal-knowledge
requirement and holding that affidavit was not defective). Nor do we find merit in
3
Appellants’ contention that the alleged defect in the affidavit attached to
American Homes’ original petition is jurisdictional; this court has previously held
that if such a defect exists—and we hold here that any such defect was corrected
in the affidavit attached to American Homes’ timely-filed amended petition—it is
not jurisdictional and does not deprive the county court at law of jurisdiction. See
Fleming v. Fannie Mae, No. 02-09-00445-CV, 2010 WL 4812983, at *1 (Tex.
App.—Fort Worth Nov. 24, 2010, no pet.) (mem. op.). We therefore hold that the
county court at law had before it a valid pleading on which to render judgment for
American Homes, and we overrule Appellants’ first point.
In their second point, Appellants argue that the trial court erred by granting
judgment for American Homes because the evidence at trial was insufficient to
support a valid presuit statutory notice to vacate. Specifically, Appellants argue
that American Homes never established that it was “a person entitled to
possession” because the business records affidavit to which its evidence of
presuit demand for possession was attached is not based on personal
knowledge or a clear claim of personal knowledge.
To preserve a complaint for appellate review, a party must have presented
to the trial court a timely request, objection, or motion that states the specific
grounds for the desired ruling, if they are not apparent from the context of the
request, objection, or motion. Tex. R. App. P. 33.1(a); see also Tex. R. Evid.
103(a)(1). If a party fails to do this, error is not preserved, and the complaint is
waived. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh’g). The
4
objecting party must get a ruling from the trial court. Tex. R. App. P. 33.1(a)(2),
(b). This ruling can be either express or implied. Id.; Frazier v. Yu, 987 S.W.2d
607, 610 (Tex. App.—Fort Worth 1999, pet. denied). Moreover, the complaint on
appeal must be the same as that presented in the trial court. See Banda v.
Garcia, 955 S.W.2d 270, 272 (Tex. 1997). An appellate court cannot reverse
based on a complaint not raised in the trial court, id., nor can it reverse on
“unassigned error,” i.e., a ground not presented in the appellate briefs. Pat Baker
Co. v. Wilson, 971 S.W.2d 447, 450 (Tex. 1998); see Tex. R. App. P. 53.2(f);
Sonat Exploration Co. v. Cudd Pressure Control, Inc., 271 S.W.3d 228, 236 (Tex.
2008).
Here, when the business records affidavit and notice to vacate were
offered at trial, and the trial court asked if Appellants had any objections to their
admission, Appellants’ attorney stated, “I think [the notice] is superfluous since
the affidavit is already on file, and we’ve filed any objection within the 14 days.”
The record reveals that Appellants included the following objection in their
document entitled “Defendant[s’] Plea in Abatement and Original Answer Subject
to Plea”: “Defendants object to any proffered business records affidavit filed by
Plaintiff due to the absence of capacity in the chain of title leading to Plaintiff, and
hence to all contents thereof and attachments thereto.” [Emphasis added.] The
trial court impliedly overruled Appellants’ objection and admitted the business
records affidavit and notice to vacate. Appellants’ complaint on appeal—
challenging the business records affidavit as insufficient to show that the affiant
5
had personal knowledge of the matters stated therein—does not match the
objection they presented to the trial court. See Banda, 955 S.W.2d at 272.
Even broadly construing Appellants’ objection in the trial court to preserve
the complaint now raised on appeal, the record reflects that the business records
affidavit accompanying the notice to vacate states in pertinent part:
“ . . . All facts and matters set forth herein are, to the best of
my knowledge, based on company records and documentation and
are true and correct.
“As part of my duties in my representation of Plaintiff, I was
required to provide the Defendants with Notice To Vacate the
subject residence. A true and correct copy of that Notice To Vacate,
dated JUNE 26, 2013, together with the postal receipt for each copy
served by certified mail is attached hereto and incorporated herein
for all purposes as Exhibit A. These records are kept by me in the
regular course of my law practice, and it was the regular course of
business at my office for an employee, with knowledge of the act,
event, condition, opinion, or diagnosis, recorded to make the record
or transmit information thereof to be included in such record, and the
record was made at or near the time or reasonably soon thereafter.
The records attached hereto are duplicates of the originals.
“On the date noted thereon, the Notice to Vacate was mailed
to the Defendants at the Plaintiff’s request. One copy was sent by
certified U.S. Mail delivery with first-class postage including the fees
for certified mail and return of the Domestic Return Receipt fully
prepaid; another copy of the Notice to Vacate was served on the
Defendants by regular U.S. Mail delivery with first-class postage fully
prepaid. Neither copy of the Notice to Vacate was returned as
undeliverable due to improper address.” [Emphasis added.]
The rules of evidence do not require that the qualified witness who lays the
predicate for the admission of business records be their creator, be an employee
of the same company as the creator, or have personal knowledge of the contents
of the record; personal knowledge of the manner in which the records were kept
6
will suffice. See Tex. R. Evid. 803(6), 902(10); see also In re E.A.K., 192 S.W.3d
133, 142 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) (explaining that
witness laying predicate for admission of a document under business-records
exception need only have knowledge of how the records were prepared). Here,
American Homes’ attorney averred that an employee with knowledge of the act
or event made the record; thus, the business records affidavit substantially
complied with the business-records exception. See Tex. R. Evid. 803(6),
902(10). After reviewing the affidavit and the attached notice to vacate, we hold
that the evidence is sufficient to prove that American Homes served Appellants
with valid presuit statutory notice to vacate,4 and we therefore overrule
Appellants’ second point.
Having overruled both of Appellants’ points, we affirm the trial court’s
judgment.
/s/ Sue Walker
SUE WALKER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
DELIVERED: December 18, 2014
4
Appellants also complain on appeal that the business records affidavit
accompanying the substitute trustee’s deed and the deed of trust does not reflect
that it is based on personal knowledge. We have previously held that a
challenge to the sufficiency of the affidavit accompanying a substitute trustee’s
deed is an attack on the validity of the foreclosure and sale of the property, which
cannot be raised in a forcible detainer case. See Fleming, 2010 WL 4812983, at
*4; see also Couch v. Fed. Home Loan Mortg. Corp., No. 02-10-00261-CV, 2011
WL 1103684, at *2 (Tex. App.—Fort Worth Mar. 24, 2011, no pet.) (mem. op.).
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Sunny Obgomo and Joan Kyangungu v. American Homes 4 Rent Properties Two, LLC, a Delaware Limited Liability Company
Combined Opinion