Affirmed and Memorandum Opinion filed October 2, 2007.
In The
Fourteenth Court of Appeals
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NO. 14-06-00491-CV
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ROBERT LEE ARMSTRONG, JR., Appellant
V.
EDDIE MAE HARRIS, Appellee
On Appeal from the County Court at Law No. 1
Galveston County, Texas
Trial Court Cause No. 54,180
M E M O R A N D U M O P I N I O N
In a single issue, appellant Robert Lee Armstrong, Jr. challenges the legal and factual sufficiency of the evidence to support the trial court=s finding in favor of appellee Eddie Mae Harris in her forcible detainer action. We affirm.
I. Factual and Procedural Background
On February 1, 2005, Harris and Armstrong executed a contract in which Armstrong agreed to purchase a residence Harris owned in Hitchcock, Texas for $40,000 plus six percent annual interest. The contract and accompanying financing addendum provided the following:
$ Harris would owner-finance the sale pursuant to a promissory note that was Asecured by vendor=s and deed of trust liens.@
$ The note would be payable by Armstrong in 120 installments of $534 Abeginning 01 February 2005 . . . and continuing at monthly intervals thereafter for 10 years when the balance on the Note will be due and payable.@
$ The note would contain a five percent late fee provision for any installment not paid within ten days of the Adue date,@ which was not expressly defined.
$ Upon the closing date, Aon or before February 1, 2015,@ Armstrong would pay the ASales Price@ and Harris would Aexecute and deliver a general warranty deed conveying title to the Property to [Armstrong].@
$ Pursuant to an Aacceleration clause,@ if Armstrong Amisse[d]@ two months of payments, Harris would foreclose and all payments will be treated as A[r]ent.@
$ Armstrong must pay property taxes and Insurance.
$ AAny possession by [Armstrong] prior to closing or by [Harris] after closing which is not authorized by a written lease will establish a tenancy at sufferance relationship between the parties.@
Neither party ever executed a promissory note pursuant to the sales contract.
The primary disputes in this appeal include (1) whether the contract required payment due on the first of each month, (2) whether time was of the essence of the contract, and (3) thus whether Armstrong Amisse[d]@ two monthly payments under the acceleration clause by making them beyond the first of the month, thereby defaulting under the contract and committing forcible detainer after refusing to surrender possession of the property. As payment for the February 2005 installment, Harris testified that Armstrong tendered only $150 two to three weeks after February 1, which she accepted.[1] As payment for the August 2005 installment, Armstrong tendered $200 on August 15,[2] $300 on August 23, and $34 on August 31. With the August 15 payment, Armstrong included a handwritten note addressed to Harris describing the payment as Alate.@ Harris accepted each of these payments. Armstrong then similarly failed to make the September 2005 installment payment on September 1. Thereafter, on September 6, Harris=s daughter, Shirley Louis, sent a letter to Armstrong informing him that she would now collect payments for Harris under the agreement and stating that, as of September 1, Harris would charge a $50 late fee for all payments received after the fifteenth of the month and $10 per day Auntil the note is caught up.@ Louis specified that payments Aha[d] to be in my mail box on or before the 15th of each month.@
Thereafter, at some point in early to middle October, Armstrong tendered payment to Louis for the October installment but did not include any payment for the September 2005 installment or any late fees allegedly incurred pursuant to Louis=s September 6 letter. On October 21, Louis sent Armstrong a Anotice of acceleration@ pursuant to the contract=s acceleration clause, in which Louis stated she was returning Armstrong=s Apartial payment@ and that Armstrong had Amissed [the] September payment and [the] October payment Late fees [were] $50.00 plus $10.00 a day for 45 days as of October 31, 2005.@ Louis further asserted that AHarris . . . will [only] accept from you . . . the balance of what is owed on the house . . . due by November 1, 2005.@
Although the record does not reveal the exact date, Armstrong thereafter attempted to make the September and October payment. On October 31, Harris sent Armstrong a three-day notice to vacate the premises.[3] On November 6, 2005, Louis sent Armstrong a handwritten note returning his money orders and stating that he was Anow 3 months behind plus all late fees@ and that Harris Ais now asking that you vacate [the property].@
On November 29, Harris filed suit against Armstrong in justice court alleging that he committed forcible detainer by Afailing to pay house notes for the period beginning the 1st day of September, and running through [November 29]@ and specifying that Armstrong breached the real estate sales contract by Anot paying as agreedCin default of payment.@ Harris sought possession of the property, back rent for $2,136, Adaily rentals that may accrue between the time of filing [the] petition and [Armstrong] vacates the . . . premises,@ and $600 in late fees Athru November 2005 and $10.00 thereafter.@ On December 6, Armstrong tendered the full payment for the September, October, and November installments, which Harris characterized as Arent@ payments pursuant to the sales contract=s acceleration clause. The justice court subsequently entered a default judgment against Armstrong on December 19 for his failure to appear. Armstrong thereafter appealed to the County Court at Law No. 1 of Galveston County. Following a trial de novo,[4] the county court found that Armstrong committed forcible detainer, granted Harris a writ of possession on the property, and awarded her past due rent to the date of trial, attorney=s fees of $1,600, and costs. The county court made the following relevant findings of fact and conclusions of law:
$ Armstrong failed to pay as required on August 1, September 1, October 1, and November 1 of 2005.
$ Harris gave notice to vacate on October 31, 2005.
$ All payments on the property after August 1, 2005 constituted rent payments.
$ Armstrong did not pay taxes due for 2005 and did not furnish proof of insurance.
$ All rent payments were due to Harris by April 11, 2006.
This appeal followed.
II. Standard of Review
In reviewing a trial court=s findings of fact for legal and factual sufficiency, we apply the same standards that we apply in reviewing jury findings. Ulmer v. Ulmer, 130 S.W.3d 294, 299 (Tex. App.CHouston [14th Dist.] 2004, no pet.). In a legal sufficiency or no-evidence review, we determine whether the evidence would enable reasonable and fair‑minded people to reach the finding under review. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). In conducting this review, we credit favorable evidence if reasonable factfinders could and disregard contrary evidence unless reasonable factfinders could not. See id. We must consider the evidence in the light most favorable to the finding under review and indulge every reasonable inference that would support it. See id. at 822. We must, and may only, sustain no-evidence points when either the record reveals a complete absence of evidence of a vital fact, the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, the evidence offered to prove a vital fact is no more than a mere scintilla, or the evidence establishes conclusively the opposite of the vital fact. Id. at 810. Evidence is no more than a scintilla when it is so weak as to do no more than create a mere surmise or suspicion of its existence. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). The factfinder is the sole judge of the credibility of the witnesses and the weight to give their testimony. See City of Keller, 168 S.W.3d at 819.
In a factual sufficiency review, we consider all the evidence supporting and contradicting the finding. Plas‑Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). We set aside the finding only if the finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
III. Analysis
The thrust of Armstrong=s legal and factual sufficiency complaint is that the evidence fails to support the trial court=s finding that he committed forcible detainer. A forcible detainer suit is an action to determine the right to immediate possession of real property where there was no unlawful entry. See Rice v. Pinney, 51 S.W.3d 705, 709 (Tex. App.CDallas 2001, no pet.). The only issue in such an action is the right to actual possession of the property, and the merits of title may not be adjudicated. See Tex. R. Civ. P. 746. AA person who refuses to surrender possession of real property on demand commits a forcible detainer if the person . . . is a tenant or a subtenant wilfully and without force holding over after the termination of the tenant=s right of possession . . . .@ Tex. Prop. Code Ann. ' 24.002(a)(1) (Vernon 2000).[5] A notice to vacate constitutes a demand for possession in this context. See id. ' 24.005(h). Thus, 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. See Rice, 51 S.W.3d at 709; Goggins v. Leo, 849 S.W.2d 373, 377 (Tex. App.CHouston [14th Dist.] 1993, no writ).
Specifically, Armstrong challenges the trial court=s findings that he defaulted under the contract by failing to make payments on August 1 through November 1, 2005 Aas required,@ which gave rise to Harris=s foreclosure and acceleration of the contract pursuant to the acceleration clause and her subsequent action for forcible detainer upon his failure to surrender possession of the property. Armstrong argues that the evidence is insufficient to establish that he defaulted under the contract=s acceleration clause by Amiss[ing]@ two installment payments because (1) the contract did not have a specific due date for payments, and he attempted to make full payment for September and October, (2) time was not expressly or impliedly made of the essence of the contract, and (3) Harris=s attempt to impose a due date on the fifteenth of the month via Louis=s September 6 letter constituted an invalid unilateral modification to the contract.
We disagree with Armstrong=s assertions and conclude that there is legally and factually sufficient evidence to support the trial court=s findings. First, the evidence supports the court=s express finding that payments were due on the first of the month. The contract provision stating that the note would require payments of 120 installments of $534 Abeginning 01 February 2005 . . . and continuing at monthly intervals thereafter for 10 years@ contemplates a due date on the first of the month. Moreover, Armstrong himself described his August 15 payment as Alate@ in his letter to Harris.
Second, the evidence supports the court=s implied finding that time was impliedly of the essence of the contract. Ordinarily, time is not of the essence in contracts. See Kennedy Ship & Repair, L.P. v. Pham, 210 S.W.3d 11, 19 (Tex. App.CHouston [14th Dist.] 2006, no pet.). Moreover, a date stated for performance does not mean time is of the essence. Id. Instead, the contract must expressly make time of the essence or there must be something in the nature or purpose of the contract and the circumstances surrounding it making it apparent that the parties intended that time be of the essence. Id. Unless the contract expressly makes time of the essence, the issue is a question of fact. Id. Although not conclusive, the first of the month due date in the contract constitutes some evidence that time was of the essence. See Builders Sand, Inc. v. Turtur, 678 S.W.2d 115, 118 (Tex. App.CHouston [14th Dist.] 1984, no writ) (holding that designation of a particular date for performance is some indication that time is of the essence). Additionally, while there was evidence that Harris accepted some late payments, she testified that she told Armstrong from the outset and repeatedly thereafter that she would not accept partial or late payments because she needed his house payments to pay her own house note on time. As such, based upon all the evidence in the record, we find sufficient evidence that the parties intended time to be of the essence.[6] See Pham, 210 S.W.3d at 19; see, e.g., Turtur, 678 S.W.2d at 118B19 (finding sufficient evidence that time was of essence of contract for sale of land where contract provided that Aclosing will be within seven (7) days of this contract@ and appellee testified that he told other parties in transaction that it was important to close promptly in order to secure price offered and because appellee was leaving for vacation and had many things to take care of before departure).
Because it is undisputed that Armstrong failed to make the September payment on the first of the month, and he concedes he paid the October payments in the Amiddle@ of October, the evidence establishes that Armstrong Amisse[d]@ two monthly payments under the contract=s acceleration clause, thereby triggering a foreclosure and acceleration by Harris and entitling her to possession of the property. The evidence further establishes that, upon Harris=s demand for possession via the notices to vacate, Armstrong failed to surrender possession, which subject him to liability for forcible detainer. Accordingly, under these circumstances, we conclude that the evidence would enable reasonable and fair‑minded people to reach the trial court=s findings regarding forcible detainer and that such findings are not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.
We therefore overrule Armstrong=s sole issue and affirm the trial court=s judgment.
/s/ Leslie B. Yates
Justice
Judgment rendered and Memorandum Opinion filed October 2, 2007.
Panel consists of Justices Yates, Seymore, and Edelman.*
* Senior Justice Richard H. Edelman sitting by assignment.
[1] However, the record contains correspondence from Harris to Armstrong noting that he paid the February installment in full at some point.
[2] The record contains conflicting documentation as to whether Armstrong made the first August payment on August 15 or 18.
[3] Armstrong claims he sent the September and October payments to Louis after receiving the October 21 notice of acceleration and before receiving the October 31 notice to vacate. However, nothing in the record supports this assertion, and the record contains only two money orders purportedly for September and October payments that are dated November 4, 2005.
[4] The record reveals that the county court originally entered a default judgment against Armstrong for his failure to appear. However, he thereafter timely filed a motion for new trial, which the county court granted, and the case proceeded to a non-jury trial de novo before the county court on April 11, 2006.
[5] Harris classifies Armstrong as a tenant at sufferance, rather than a holdover tenant, based upon his refusal to surrender possession of the land. See ICM Mortgage Corp. v. Jacob, 902 S.W.2d 527, 530 (Tex. App.CEl Paso 1994, writ denied) (noting that a tenant at sufferance is one who wrongfully continues in possession of property after his right to possession has ceased and does not assert a claim to superior title). Although the contract invokes tenancy at sufferance language, the provision at issueCthe acceleration clauseCdoes not and speaks only in terms of Arent.@ In any case, because whether Armstrong constituted a tenant at sufferance or a holdover tenant will not affect the outcome of this appeal, we need not address this issue. See generally McLain v. Lamb, No. 07‑95‑0251‑CV, 1996 WL 721954, at *5 n.6 (Tex. App.CAmarillo Dec. 16, 1996, writ denied) (not designated for publication) (noting the similarities between holdover tenants and tenants at sufferance and that the law of holdover tenants is instructive in issues regarding tenants at sufferance).
[6] We acknowledge that a time of the essence provision may be waived. See Pham, 210 S.W.3d at 20. However, Armstrong did not present this argument to the trial court or to this court. See Tex. R. App. P. 33.1(a).