In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-18-00360-CV
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RONNIE FURRER AND GENEVA MAE SCHNELLE, Appellants
V.
FAY ELAINE FURRER, Appellee
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On Appeal from the County Court at Law No. 2
Montgomery County, Texas
Trial Cause No. 18-30808
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MEMORANDUM OPINION
Ronnie Furrer and Geneva Mae Schnelle (“the Appellants”) appeal from a
judgment finding them guilty of forcible detainer and awarding Ronnie’s ex-wife,
Fay Elaine Furrer, possession of property. We affirm the trial court’s judgment.
Background
Ronnie and Fay divorced in 2006, and the divorce judgment awarded Fay the
property located on Newton Circle in Conroe, Texas. In 2018, Fay filed a suit for
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eviction against the Appellants in the Justice Court, Precinct 1, Montgomery County,
Texas. Prior to filing suit, Fay attached a notice to vacate to the exterior of the front
door of the property located on Newton Circle. See Tex. Prop. Code Ann. § 24.005
(West Supp. 2018). The justice court dismissed Fay’s suit for lack of subject matter
jurisdiction.
Fay appealed to the county court, exercising her right to obtain a trial de novo.
See Tex. R. Civ. P. 510.9, 510.10(c). Fay filed a petition alleging that (1) she was
the owner of the real property that is the subject of the suit by virtue of having been
granted title to the property in a 2006 divorce judgment, (2) the Appellants took
possession of and occupied the property, (3) she served the Appellants a notice to
vacate the property, (4) the Appellants have failed and refused to vacate the property,
and (5) she has the right to immediate possession of the property. The Appellants
filed an answer and a plea to the jurisdiction, arguing that the county court did not
acquire subject matter jurisdiction of the eviction suit because the justice court did
not have jurisdiction. The Appellants also argued that the property was not located
in Precinct 1.
The county court conducted a bench trial. Fay testified that when she and
Ronnie divorced in 2006, she was awarded the property at issue, and Ronnie’s
counsel stipulated that the divorce decree awarded the property to Fay as her separate
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property. Fay explained that she gave Ronnie permission to move back in with her
in 2008, and Fay left in 2009 because of family violence. Fay testified that in 2018,
she posted a notice to vacate on the front door of the house, and Ronnie has refused
to move out of her house. Fay further testified that she is afraid of Ronnie because
he has been violent in the past, and she posted the notice to vacate on the outside of
the door because she was scared that he would be violent if she tried to go inside the
house. Fay explained that Ronnie is living in her house with Geneva, and Fay asked
the court to grant her a writ of possession and have them both removed. Fay testified
that she had not made any payments on the land or the mobile home since she left
the property in 2009, and that she considered the payments Ronnie made to be rental
payments. According to Fay, Ronnie is not leasing the property from her and does
not have her permission to be there, and she has asked Ronnie to leave several times.
Ronnie testified that he is currently in possession of the property that Fay had
had been awarded in the divorce, and that he received a notice to vacate the property,
which was posted on the outside of the front door. According to Ronnie, he never
received a copy of the notice to vacate in the mail. Ronnie testified that he contested
the removal because he made payments while living at the property. Ronnie testified
that he had never paid Fay rent.
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The county court denied the Appellants’ plea to the jurisdiction, found the
Appellants guilty of forcible detainer, and rendered a judgment that Fay have
possession of the property. The Appellants filed a motion to set aside the judgment,
for a new trial, or to modify the judgment, arguing that the county court did not have
subject matter jurisdiction and that the evidence was insufficient to support the
county court’s judgment. The Appellants argued that the justice court did not have
jurisdiction because Fay failed to give proper notice to vacate the property and to
provide the required information in her petition, and that the county court should
have deferred to the judgment of the justice court and determined that it also did not
have jurisdiction. The county court denied the Appellants’ motion for new trial.
The county court issued findings of fact and conclusions of law, in which the
court found, among other things, that the Appellants stipulated that Fay owned the
property, the property is located in Precinct 1, Montgomery County, Texas, Fay
placed a notice to vacate on the outside of the front door of the mobile home attached
to the property, Ronnie admitted receipt of the notice to vacate, and the Appellants
refused to vacate. The county court concluded, among other things, that: (1) it had
jurisdiction; (2) the statutory notice requirements in an eviction case do not affect
the court’s jurisdiction; (3) the lack of explanation in the pleading as to why the
eviction was sought does not deprive the court of jurisdiction; (4) Fay had a greater
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right to possession of the property; (5) the Appellants committed a forcible detainer;
(6) Fay made a proper demand for the property; (7) the manner of notice was legally
sufficient; and (8) the Appellants had actual notice. The Appellants appealed.
Analysis
In issue one, the Appellants complain that the county court did not have
subject matter jurisdiction. According to the Appellants, the justice court’s order of
dismissal based upon lack of jurisdiction deprived the county court of jurisdiction.
Fay appealed the justice court’s judgment dismissing her eviction suit for lack of
subject matter jurisdiction to the county court, exercising her right to obtain a trial
de novo. See Tex. R. Civ. P. 510.9, 510.10(c). The Appellants now appeal the
judgment entered by the county court at law. The county court at law has jurisdiction
to conduct a trial de novo, which is a new trial in which the entire case is presented
as if there had been no previous trial. See id. 510.9, 510.10(c). We overrule issue
one.
In issue two, the Appellants argue that the county court erred in overruling
their motion for new trial because the evidence established that Fay failed to follow
the required statutory procedure for providing notice to vacate and there was no
evidence that Ronnie received actual notice. See Tex. Prop. Code Ann. § 24.005(f).
The Appellants contend that the evidence is factually insufficient to support the
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court’s finding that Fay provided proper notice to vacate. According to the
Appellants, Fay attempted to give notice by posting it on the outside of the front
door, but she failed to put the notice in an envelope marked “IMPORTANT
DOCUMENT” and to send the notice by certified or regular mail.
In an appeal from a bench trial, we review legal and factually sufficiency
issues under the same standards that are applied to the review of a jury’s verdict.
Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991). We will sustain
a no-evidence point when
(1) the record discloses a complete absence of evidence of a vital fact[,]
(2) the court is barred by rules of law or of evidence from giving weight
to the only evidence offered to prove a vital fact[,] (3) the evidence
offered to prove a vital fact is no more than a mere scintilla[,] or (4) the
evidence establishes conclusively the opposite of the vital fact.
Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex. 2003) (citing Uniroyal
Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1996)); see also City of
Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005). In reviewing a factual
sufficiency complaint, we must consider, examine, and weigh the entire record,
considering both the evidence in favor of, and contrary to, the challenged findings.
Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406–07 (Tex. 1998). We will set
aside the disputed finding only if it is so contrary to the great weight and
preponderance of the evidence as to be clearly wrong and unjust. Id. at 407.
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A forcible detainer action is a special proceeding governed by particular
statutes and rules “created to provide a speedy, simple, and inexpensive means for
resolving the question of the right to possession of premises.” Rice v. Pinney, 51
S.W.3d 705, 709 (Tex. App.—Dallas 2001, no pet.) (citation omitted); see also Tex.
Prop. Code Ann. §§ 24.001-24.011 (West 2014 & Supp. 2018); Tex. R. Civ. P.
510.1–510.13. “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, 51 S.W.3d at 709.
Proper notice is an element of forcible detainer. Tex. Prop. Code Ann. § 24.002(b)
(West 2014). However, an alleged failure to comply with section 24.005(f) of the
Texas Property Code does not deprive the court of jurisdiction to consider the
eviction suit. See Tex. Prop. Code Ann. § 24.004 (West 2014); see also Tex. Prop.
Code Ann. § 24.005(f).
The Property Code provides that in situations where a landlord believes that
harm to any person would result from personal delivery of a notice to vacate to the
tenant or a person residing at the premises or from personal delivery to the premises
by affixing the notice to the inside of the main entry door, the landlord may deliver
the notice by securely affixing to the outside of the main entry door a sealed envelope
containing the notice and on which is written the tenant’s name, address, and
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“IMPORTANT DOCUMENT[.]” Tex. Prop. Code Ann. § 24.005 (f-1)(2). The trial
court found that Fay discontinued residing in the property due to family violence,
the Appellants are not tenants under a written lease or oral rental agreement, Fay
was afraid of Ronnie and to enter the property, Fay placed a notice to vacate on the
outside of the front door on June 6, 2018, and Ronnie admitted that he received the
notice to vacate that same day. The trial court concluded that the manner of notice
was legally sufficient, and the mailing requirement became moot because Ronnie
admitted to receiving actual notice.
The record shows that the Appellants filed an answer and a plea to the
jurisdiction in the county court at law, in which they argued that the county court did
not acquire subject matter jurisdiction from the justice court, which dismissed the
suit for lack of jurisdiction because the property was not located in Precinct 1. The
Appellants did not complain about the sufficiency of Fay’s notice in their answer,
which constitutes an appearance, and generally, the filing of any answer dispenses
with the necessity of service of citation. See Tex. R. Civ. P. 121, 510.12; see also
Burrow v. Arce, 997 S.W.2d 229, 246 (Tex. 1999). The Appellants also did not
object when the trial court admitted the notice to vacate into evidence. While Ronnie
testified that he did not receive a copy of the notice in the mail, he admitted that he
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received the notice to vacate that was posted on the outside of his front door, and
that he appeared in the justice court and contested being removed from the property.
Fay’s testimony that she posted the notice on Ronnie’s front door, together
with the notice and Ronnie’s testimony that he received the notice, are some
evidence from which the county court could reasonably conclude that Ronnie
received actual notice to vacate the property. See Pitzner, 106 S.W.3d at 727; see
also City of Keller, 168 S.W.3d at 807. Based on this record, the court’s conclusion
that the manner of the notice was sufficient is not so contrary to the great weight and
preponderance of the evidence as to be clearly wrong and unjust. See Ellis, 971
S.W.2d at 406–07.
In issue two, the Appellants also complain that Fay’s petition in the justice
court was facially defective because it failed to contain a description of the facts and
grounds for eviction or a description of when and how notice to vacate was delivered
as required by the Rules of Civil Procedure. See Tex. R. Civ. P. 510.3(a)(2), (3). We
hold that the Appellants’ argument lacks merit, because after Fay appealed, Fay’s
counsel filed a petition for forcible entry and detainer in the county court, which
contains a description of the property, the facts and grounds for eviction, and when
and how the notice to vacate was delivered. We overrule issue two. Having overruled
each of the Appellants’ issues, we affirm the trial court’s judgment.
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AFFIRMED.
______________________________
STEVE McKEITHEN
Chief Justice
Submitted on July 22, 2019
Opinion Delivered October 10, 2019
Before McKeithen, C.J., Kreger and Johnson, JJ.
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