Behzad Khalilnia v. Federal Home Loan Mortgage Corp

Opinion issued March 21, 2013.

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-12-00573-CV
———————————
BEHZAD KHALILNIA, APPELLANT
V.
FEDERAL HOME LOAN MORTGAGE CORPORATION, APPELLEE

On Appeal from County Civil Court at Law Number One
Harris County, Texas
Trial Court Cause No. 1005416

MEMORANDUM OPINION

This is an appeal from a final summary judgment in an action for forcible

detainer, in which the trial court awarded possession of a residence located at 2308

Woodland Park Drive, in Houston, to the Federal Home Loan Mortgage

Corporation (FHLMC). Behzad Khalilnia appeals, contending that the trial court:

(1) improperly considered certain summary judgment evidence; (2) erred in
granting summary judgment, because fact issues exist regarding whether FHLMC

demanded possession and whom has the superior right to possession; (3) lacked

jurisdiction, because Behzad’s wife, Olga, was a necessary and indispensable

party; and (4) abused its discretion in issuing an overbroad judgment that applies to

Olga, who is not named in the suit. We hold that the trial court did not abuse its

discretion in considering the challenged summary judgment evidence, the trial

court properly granted summary judgment, and Behzad waived his objection to

Olga’s absence. We therefore affirm.

Background

Behzad, as the sole grantor on a deed of trust on his and his wife’s home,

defaulted on the note it secured. The property became the subject of a non-judicial

foreclosure sale. FHLMC purchased the property at the sale in August 2010.

Behzad and his family remained on the property after the foreclosure sale as

tenants at sufferance. Thereafter, FHLMC entered into a month-to-month

residential lease agreement with Behzad and Olga Khalilnia. The lease provided

that either party could terminate the lease by providing thirty days’ written notice.

The lease provided that any notice to the Khalilnias was to be sent to the “Tenant

at the Property” by mail or hand-delivery, and was effective from the time notice

was sent.

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 September 13, 2011, FHLMC exercised its right to terminate the lease

agreement and notified the Khalilnias that they had to surrender the property in

thirty days. Its agent, Felicia Brain, sent the notice via certified and first class mail,

addressed to “Behzad Khalilnia And/or All Current Occupants Of [the property].”

The notice sent by certified mail was delivered on September 27, 2011. On

October 24, FHLMC sent notice to the Khalilnias that they had to vacate the

Property within three days after receipt of the notice. This notice, too, was sent by

certified and first class mail and addressed to “Behzad Khalilnia and/or all

occupants of [the property].” The certified mail notice was returned unclaimed, but

the first class mail notice was not returned.

When the Khalilnias failed to surrender the premises, FHLMC sued in the

justice court for forcible entry and detainer, naming “Behzad Khalilnia And All

Occupants of [the property]” as defendants. It secured a ruling in its favor. Behzad

sought de novo review in the county civil court at law, which granted summary

judgment in favor of FHLMC.

Discussion

I. Admissibility of Summary Judgment Evidence

Behzad first contends that the October 24, 2011 notice to vacate and copies

of the envelopes in which it was sent to Behzad are hearsay and thus the trial court

improperly considered them as summary judgment evidence. Summary judgment

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evidence must be presented in a form that would be admissible at trial. Friday v.

Grant Plaza Huntsville Assocs., 713 S.W.2d 755, 756 (Tex. App.—Houston [1st

Dist.] 1986, no writ). We review a trial court’s decision to admit or deny summary

judgment evidence under an abuse of discretion standard. Owens-Corning

Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). A trial court abuses its

discretion if it acts without reference to any guiding rules or principles. Carpenter

v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 687 (Tex. 2002). We must

uphold an evidentiary ruling if there is any legitimate basis for it. Malone, 972

S.W.2d at 43.

Texas Rule of Evidence 803(6) provides that a business record is not

excluded from evidence by the hearsay rule if it is:

in any form, of acts, events, conditions, opinions, or diagnoses, made
at or near the time by, a person with knowledge, if kept in the course
of a regularly conducted business activity, and if it was the regular
practice of that business activity to make the memorandum, report,
record, or data compilation . . . by affidavit that complies with Rule
902(10)

TEX. R. EVID. 803(6). Rule 902(10) sets out a form of affidavit to be used with

business records under rule 803(6). TEX. R. EVID. 902(10). Rule 902(10) further

provides that the form set out in the rule is not exclusive. Id. An affidavit that

substantially complies with the form of affidavit set out in the rule will suffice. See

Fullick v. City of Baytown, 820 S.W.2d 943, 944 (Tex. App.—Houston [1st Dist.]

1991, no writ).
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 The documents to which Behzad objects were accompanied by an affidavit

from Berain, who averred that she was the custodian of those records. She further

averred that she was providing the records as the custodian; that she had personal

knowledge of the information contained in the records; that the records were made

in the regular course of business; and that it was the regular practice of the business

to keep such records. The affidavit therefore substantially complies with Texas

Rule of Evidence 902(10) by averring to facts that satisfy Rule 803(6). See Fullick,

820 S.W.2d at 944. We hold that the trial court did not abuse its discretion in

admitting this evidence under the business records exception to the hearsay rule.

II. Summary Judgment

A. Standard of Review

We review de novo the trial court’s ruling on a motion for summary

judgment. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d

844, 848 (Tex. 2009). In a traditional motion for summary judgment, the movant

must establish that no genuine issue of material fact exists and the movant is thus

entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c). When reviewing a

summary judgment, we take as true all evidence favorable to the nonmovant and

indulge every reasonable inference and resolve any doubts in the nonmovant’s

favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005);

Provident Life & Accid. Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003).

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 Traditional summary judgment is proper only if the movant establishes that

there is no genuine issue of material fact and that the movant is entitled to

judgment as a matter of law. TEX. R. CIV. P. 166a(c). The motion must state the

specific grounds relied upon for summary judgment. Id. A genuine issue of

material fact exists if the non-movant produces more than a scintilla of probative

evidence regarding the challenged element. See Ford Motor Co. v. Ridgway, 135

S.W.3d 598, 600 (Tex. 2004); see also Forbes Inc. v. Granada Bioscis, Inc., 124

S.W.3d 167, 172 (Tex. 2003) (“More than a scintilla of evidence exists if it would

allow reasonable and fair minded people to differ in their conclusions.”). A

defendant moving for traditional summary judgment must conclusively negate at

least one essential element of each of the plaintiff’s causes of action. Sci.

Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).

When, as here, “a trial court’s order granting summary judgment does not

specify the grounds relied upon, [we] affirm the summary judgment if any of the

summary judgment grounds are meritorious.” FM Props. Operating Co. v. City of

Austin, 22 S.W.3d 868, 872–73 (Tex. 2000). If the appellant fails to negate every

possible ground upon which the judgment may have been granted, an appellate

court must uphold the summary judgment. See Star-Telegram, Inc. v. Doe, 915

S.W.2d 471, 473 (Tex. 1995); Ellis v. Precision Engine Rebuilders, Inc., 68

S.W.3d 894, 898 (Tex. App.—Houston [1st Dist.] 2002, no pet.).

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 B. Proper Notice to Vacate

Behzad contends that FHLMC failed to show that he had received the notice

to vacate, and further that the notice to vacate failed to name Olga, who had been

named in the earlier lease. A person entitled to possession of the property must

comply with the requirements for notice to vacate under Property Code Section

24.005. TEX. PROP. CODE ANN. § 24.002(b) (West 2011). Section 24.005 provides

that the owner give the notice in person to any person residing at the premises or

send it by mail to the premises in question. TEX. PROP CODE ANN. § 24.005(f).

Such a notice may be sent by regular mail, by registered mail, or by certified mail

to the premises in question. Id. A letter, properly addressed, stamped, and mailed,

raises a rebuttable presumption that the addressee received the letter. Southland

Life Ins. Co. v. Greenwade, 159 S.W.2d 854, 857 (Tex. 1942); Mayad v. Rizk, 554

S.W.2d 835, 838 (Tex. App.—Houston [14th Dist.] 1977, writ ref’d n.r.e.). To

rebut the presumption, a tenant must adduce evidence that the letter was not

delivered. Sudduth v. Commw. Cnty. Mut. Ins. Co., 454 S.W.2d 196, 198 (Tex.

1970).

Berain averred that she mailed the notice by both certified and first class

mail. In her affidavit, she incorporated and attached a copy of the first class mailer

used to mail the notice. The first class mailer is properly addressed to Behzad and

stamped with prepaid postage. Berain further averred that the first class mailer was

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unreturned. Taken together, the affidavit and attachments reflect that the notice

letter was properly addressed, stamped, and mailed, raising a rebuttable

presumption that Behzad received it. See Greenwade, 159 S.W.2d at 857. Behzad

has presented no evidence to rebut that presumption. As a result, he has not raised

a fact issue about delivery. See Sudduth, 454 S.W.2d at 198.

His second contention, that the notice did not identify his wife as a tenant, is

similarly without merit. A notice to vacate need not be so specific. The Texas

Property Code instead permits notice to be personally delivered “to the tenant or

any person residing at the premises” or delivered by mail “to the premises in

question.” TEX. PROP. CODE ANN. § 24.005(f). Neither method requires that a

notice specifically address particular occupants. Rather, the statute’s broad

language about the acceptable recipients of notice permits a general notice to the

occupants of the property.

The notice that FHLMC sought possession of its property was addressed to

the property and was presumed delivered, and it was addressed not solely to

Behzad, but to “all occupants.” Accordingly, we hold that Behzad has failed to

raise a fact issue about the delivery or sufficiency of the notice to vacate.

C. Superior Right to Possession

Behzad next contends that, because FHLMC did not identify Olga in its

notice to terminate the lease, the lease remains in effect as to her. Olga is not a

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party to this suit, but Behzad contends that he may occupy the home as Olga’s

guest and derives a right of possession from her. The construction of an

unambiguous lease is a question of law for the court. Coker v. Coker, 650 S.W.2d

391, 393 (Tex. 1983). We interpret a lease according to the general rules of

construction of written instruments, and use the plain and ordinary meaning of the

lease to determine the parties’ intent. Id. We will not construe a contract to achieve

an absurd result. Lane v. Travelers Indem. Co., 391 S.W.2d 399, 402 (Tex. 1965).

Section four of the lease agreement requires written notice of termination at

least thirty days before the date of termination, and the lease further provides that

all notices are to be sent to the “Tenant at the Property.” Together, these provisions

require that the landlord provide adequate notice of its intent to terminate the lease.

The provisions do not require a separate notice expressly naming each tenant at the

property or that each tenant be named in the notice. Absent any evidence that Olga

lacked actual notice that FHLMC had terminated the lease, we will not strain to

interpret the lease to provide for separate notice requirement when the tenants are

married and reside at the same address. See Lane, 391 S.W.2d at 402. The notice

provided that it was terminating the lease as to “all occupants” of the property and

specified that it was a notice of termination within the meaning of section four of

the lease agreement. Because the notice of termination satisfies the requirements of

section four of the lease agreement, Olga has no greater right to possession than

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Behzad. We therefore reject Behzad’s contention that he may occupy the property

as Olga’s guest.

III. Necessary Party

Behzad next contends that his wife Olga was a necessary party to this suit,

and thus, the trial court lacked jurisdiction in light of FHLMC’s failure to

specifically name Olga as a party or move to join her. A party must object to the

absence of a necessary party either by a verified plea in abatement, or, if the error

is apparent on the face of the petition, by special exception. Citizens Bldg., Inc. v.

Azios, 590 S.W.2d 569, 572 (Tex. Civ. App.—Houston [1st Dist.] 1979, writ ref’d

n.r.e.). Failure to do so waives any defect in the parties. Azios, 590 S.W.2d at 572;

Seaman v. Neel, 480 S.W.2d 430, 438 (Tex. Civ. App.—Corpus Christi 1972, writ

ref’d n.r.e.) (“A defendant may not complain on appeal of the non-joinder of a

proper party when he could have impleaded the party himself.”). Raising a parties

defect challenge in the response to a motion to dismiss does not preserve the issue

for review. Truong v. City of Houston, 99 S.W.3d 204, 216–17 (Tex. App.—

Houston [1st Dist.] 2002, no pet.).

Behzad made no attempt to join Olga, either in the justice court or in the

county court at law. He raised the challenge to her non-joinder only in his response

to FHLMC’s motion for summary judgment. Therefore, Behzad waived any

objection to her non-joinder and cannot complain of it on appeal. See Truong, 99

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S.W.3d at 216–17; Seaman, 480 S.W.2d at 438. Regardless, the question of joinder

is not one of jurisdiction but of whether the court ought to proceed with those who

are present. Cooper v. Tex. Gulf Indus., Inc., 513 S.W.2d 200, 203–04 (Tex. 1974);

McCarthy v. George, 618 S.W.2d 762, 763 (Tex. 1981).

IV. Scope of the Judgment

Finally, Behzad contends that the trial court erred in failing to modify the

judgment to award FHLMC possession only against Behzad, and not Olga.

Behzad’s argument is based on section 24.0061(d)(2)(B) of the Texas Property

Code, which provides that a writ of possession should order an officer executing

the writ to “instruct the tenant and all persons claiming under the tenant to leave

the premises immediately.” TEX. PROP. CODE ANN. § 24.0061(d)(2)(B). The same

section provides that the writ of possession should order the officer to “deliver

possession of the premises to the landlord.” See TEX. PROP. CODE ANN.

§ 24.0061(d)(2)(A). On execution, therefore, a writ of possession extinguishes all

but the landlord’s right to possess the premises. Behzad’s contention—that tenants

who are not identified in the judgment may retain possession of the premises after

the landlord is granted a writ of possession—is contrary to the statute. Section

24.0061(a) provides that a “landlord who prevails in an eviction suit is entitled to a

judgment for possession of the premises.” TEX. PROP. CODE ANN. § 24.0061(a).

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The judgment in this case thus properly orders that FHLMC is granted a judgment

of possession of the property.

Conclusion

We conclude that the trial court properly considered the notice to vacate and

the copies of the envelopes in which it was sent as valid summary judgment

evidence, and properly granted summary judgment. We further conclude that

Behzad waived any objection to the lack of joinder of his spouse. Finally, we

conclude that the trial court’s judgment was proper and not too broad. We

therefore affirm the judgment of the trial court.

Jane Bland
Justice

Panel consists of Justices Jennings, Bland, and Massengale.

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