Anitra M. Carter v. Shaun Gormley

Affirmed and Memorandum Opinion filed October 19, 2021.

In The

Fourteenth Court of Appeals

NO. 14-20-00117-CV

ANITRA M. CARTER, Appellant

V.
SHAUN GORMLEY, Appellee

On Appeal from the County Civil Court at Law No. 1
Harris County, Texas
Trial Court Cause No. 1147128

MEMORANDUM OPINION

Appellant Anitra M. Carter appeals an adverse judgment in a forcible
detainer action. Carter’s property was sold at a foreclosure sale, and the purchaser
later filed this proceeding after Carter refused to vacate the property. The trial
court awarded immediate possession to the purchaser. Carter challenges the
judgment on three grounds: (1) the purchaser lacked standing; (2) there is
insufficient evidence to support one of the trial court’s implied findings; and
(3) the trial court erred in excluding certain evidence. Finding no merit to Carter’s
appellate contentions, we affirm the judgment.

Background

In 2007, Carter executed a deed of trust securing repayment of a note in
connection with a purchase of real property in Harris County. Carter allegedly
defaulted on the mortgage note, and the lender foreclosed the property. The Bank
of New York Mellon f/k/a The Bank of New York, as Trustee (CWALT
2007-4CB) (referred to as “the Bank”) purchased the property at the non-judicial
foreclosure sale and sent Carter a notice to vacate. Carter allegedly did not vacate
the property.

The Bank initiated this forcible detainer action in a Harris County justice
court to obtain possession of the property from Carter.1 The justice court signed a
judgment awarding possession to the Bank. Carter appealed to the county civil
court at law, which conducted a bench trial.2 At trial, the Bank introduced:
Carter’s 2007 deed of trust; the substitute trustee’s deed showing the Bank’s
purchase of the property at the foreclosure sale; and the notice to vacate sent to
Carter (as well as mailing records indicating delivery). The county civil court at

1
The Bank filed suit in justice court against “Anitra M Carter and All Other Occupants,”
but the justice court in its final judgment only granted the Bank relief to Carter, who is the only
plaintiff to post security to appeal de novo. See Tex. R. Civ. P. 510.9(a). Carter and the Bank
are the only parties to the county civil court at law’s final judgment, leaving Carter as the only
appellant before us.
2
An appeal of an eviction case is by trial de novo. Tex. R. Civ. P. 510.10(c). Eviction
suits include forcible entry and detainer and forcible detainer suits. Tex. Prop. Code § 24.004(a).
The only issue in forcible detainer actions is the right to actual and immediate possession; title is
not adjudicated. See Tex. R. Civ. P. 510.3(e); Marshall v. Hous. Auth. of City of San Antonio,
198 S.W.3d 782, 787 (Tex. 2006); see also Tex. Gov’t Code § 27.031(b)(4) (providing that a
justice court does not have jurisdiction of a suit for title to land).

2
law signed a final judgment awarding possession of the property to the Bank, and
this appeal followed.3

Analysis

In this court, Carter is self-represented. Carter’s brief lacks citation to the
record or to legal authority. Under our rules of appellate procedure, briefs must
contain “a clear and concise argument for the contentions made with appropriate
citations to authorities and to the record.” Tex. R. App. P. 38.1(i). In the absence
of any citation to the record or legal authority, we would be justified in concluding
that Carter failed to adequately brief any argument in support of her appellate
issues.4 See id.; Buggelli v. Feltis, No. 14-07-00027-CV, 2008 WL 4308333, at *2
(Tex. App.—Houston [14th Dist.] Aug. 28, 2008, no pet.) (mem. op.) (although
courts liberally construe briefing, failure to identify evidence, explain contentions,
or support argument with legal authority in brief constitutes waiver of issue on
appeal). Nevertheless, we will consider those arguments we can reasonably
discern in the interest of justice. See Arellano v. Don McGill Toyota of Katy, Inc.,
No. 14-09-00961-CV, 2011 WL 345869, at *1 n.1 (Tex. App.—Houston [14th
Dist.] Feb. 3, 2011, no pet.) (mem. op.).

As we construe her brief, Carter asserts three issues. First, she argues that
the Bank lacked standing at the time it filed suit. Second, Carter contends that the

3
While the appeal was pending, appellee Shaun Gormley filed a motion to substitute
party, asserting that Gormley purchased the property from the Bank and obtained the Bank’s
interest in the judgment by assignment. This court granted the motion, and Gormley is now the
named appellee defending the trial court’s judgment.
4
Though Carter proceeds in this court pro se, she is held to the same standards as a
licensed attorney and must comply with all applicable rules of procedure. See Canton-Carter v.
Baylor Coll. of Med., 271 S.W.3d 928, 930 (Tex. App.—Houston [14th Dist.] 2008, no pet.). A
pro se litigant must properly present her case on appeal; if this were not the rule, pro se litigants
would benefit from an unfair advantage over those parties represented by counsel. Id. We do
not apply different standards simply because a case is presented by a pro se litigant. Id.

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trial court erred in impliedly finding that the foreclosure deed accurately reflected a
purchase by the Bank.5 Third, Carter challenges the trial court’s exclusion of
certain evidence. We address each in turn, beginning with the jurisdictional
question.

A. The Bank’s Standing

Carter challenges the Bank’s standing to prosecute the forcible detainer suit.

Standing is an unwaivable component of subject matter jurisdiction and may
be raised at any time and in any manner. See Waco Indep. Sch. Dist. v. Gibson, 22
S.W.3d 849, 851 (Tex. 2000); Blum v. Lanier, 997 S.W.2d 259, 261 (Tex. 1999).
A defendant may challenge the court’s jurisdiction either on the pleadings or by
evidence negating jurisdictional facts. Tex. Dep’t of Parks & Wildlife v. Miranda,
133 S.W.3d 217, 225-26 (Tex. 2004). We first look to the pleadings to determine
if the plaintiff has alleged facts that affirmatively demonstrate the court’s
jurisdiction to hear the cause. See id. Whether a plaintiff has satisfied that burden
is a question of law we review de novo. Id. at 226. Standing is determined at the
time suit is filed. See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440,
446 n.9 (Tex. 1993); Turner v. Robinson, 534 S.W.3d 115, 123 (Tex. App.—
Houston [14th Dist.] 2017, pet. denied); John C. Flood of DC, Inc. v. SuperMedia,
L.L.C., 408 S.W.3d 645, 650 (Tex. App.—Dallas 2013, pet. denied). We construe
the pleadings liberally in favor of the plaintiff, look to the pleader’s intent, and
accept as true the unchallenged factual jurisdictional allegations in the pleadings.
See Miranda, 133 S.W.3d at 226. If the pleading is sufficient to demonstrate

5
When, as here, no findings of fact or conclusions of law are filed or properly requested
after a bench trial, it is implied that the trial court made all findings necessary to support its
judgment. See Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992); Cochran
Invs., Inc. v. Chicago Title Ins. Co., 550 S.W.3d 196, 201 (Tex. App.—Houston [14th Dist.]
2018), aff’d, 602 S.W.3d 895 (Tex. 2020).

4
jurisdiction, and if the defendant does not challenge the plaintiff’s factual
allegations with supporting evidence, then our inquiry ends. See id. at 227-28; see
also City of Jacksboro v. Two Bush Cmty. Action Grp., No. 03-10-00860-CV, 2012
WL 2509804, at *5 (Tex. App.—Austin June 28, 2012, pet. denied) (mem. op.)
(“[B]ecause [plaintiff] pleaded facts sufficient to affirmatively demonstrate the
district court’s subject-matter jurisdiction [and] because [defendant] has not
challenged [plaintiff’s] pleadings or its alleged jurisdictional facts . . . it was not
necessary for [plaintiff] to produce evidence supporting its jurisdictional
assertions.”).

The Bank sued for forcible detainer, which is a “summary, speedy, and
inexpensive remedy for the determination of who is entitled to the possession of
premises.” Scott v. Hewitt, 90 S.W.2d 816, 818 (Tex. 1936). The Bank’s petition
in justice court alleged that it “acquired the Property at a foreclosure sale on March
6, 2018,” that the Bank gave Carter written notice to vacate, and that Carter refused
to vacate the property. These factual allegations establish the Bank’s standing.
See Stroman v. Martinez, No. 14-13-01143-CV, 2015 WL 2090497, at *4 (Tex.
App.—Houston [14th Dist.] May 5, 2015, no pet.) (mem. op.) (“[I]it is undisputed
that Martinez demonstrated that she acquired the Property at a tax sale and gave
Stroman notice to vacate, but he refused. Therefore, Martinez has standing to
bring an eviction suit against Stroman.”); see also Williams v. Bayview-Realty
Assocs., 420 S.W.3d 358, 362 (Tex. App.—Houston [14th Dist.] 2014, no pet.);
McGuire v. Fannie Mae, No. 02-11-00312-CV, 2012 WL 955377, at *2 (Tex.
App.—Fort Worth Mar. 22, 2012, pet. dism’d w.o.j.) (mem. op.) (plaintiff’s status
as grantee under substitute trustee’s deed sufficient to confer standing to assert
forcible detainer action regarding property).

5
 The Bank’s pleading alleges sufficient jurisdictional facts to demonstrate
standing. Miranda, 133 S.W.3d at 225-26. As Carter presented no evidence
negating the Bank’s pleaded jurisdictional facts, our inquiry ends once we
conclude, as we have, that its pleading is sufficient. Id. at 227-28.

We overrule Carter’s first issue.

B. Evidence of Purchase

The purchaser at foreclosure who brings a forcible detainer action must
show sufficient evidence of ownership to demonstrate a superior right to
immediate possession by establishing that: (1) it has a landlord-tenant relationship
with the borrower; (2) it purchased the property at foreclosure; (3) it gave proper
notice to the occupants of the property to vacate; and (4) the occupants refused to
vacate the premises. See Wells Fargo Bank, N.A. v. Ezell, 410 S.W.3d 919, 921-22
(Tex. App.—El Paso 2013, no pet.). In her second issue, Carter challenges the
second element and argues that there is no evidence that the Bank purchased the
property.6 See Tex. R. App. P. 33.1(d) (allowing sufficiency of evidence
complaints in civil nonjury cases).

In Carter’s deed of trust, she agreed that “recitals in the Trustee’s deed
[following a foreclosure sale] shall be prima facie evidence of the truth of the
statements made therein.” The substitute trustee’s deed recited that the substitute

6
Carter does not specify whether she challenges the legal or factual sufficiency of the
evidence, nor does she include in her brief any applicable standard of review. Because she
asserts that no evidence supports the implied finding, we apply a legal sufficiency review. Under
this familiar standard, we view the evidence and possible inferences in the light most favorable
to the verdict, crediting evidence supporting the verdict if reasonable jurors could and
disregarding contrary evidence unless reasonable jurors could not. Gharda USA, Inc. v. Control
Sols., Inc., 464 S.W.3d 338, 347 (Tex. 2015); City of Keller v. Wilson, 168 S.W.3d 802, 823, 827
(Tex. 2005).

6
trustee sold the property at a foreclosure sale and the Bank was the highest bidder,
for the sum of $140,000.00.

These recitals “set forth the facts on which the foreclosure sale was based.”
Mason v. Wells Fargo Bank, N.A., No. 05-12-01590-CV, 2013 WL 5948077, at *3
(Tex. App.—Dallas Nov. 5, 2013, no pet.) (mem. op.). Recitals in a deed “are
evidence against the parties to such deed and their privies, but not against
strangers.” Tex. Co. v. Lee, 157 S.W.2d 628, 631 (Tex. 1941). Thus, there was at
least some evidence before the trial court of the Bank’s purchase of the property,
including the purchase price. See Venzor v. AMG BT Note One LLC,
No. 08-19-00007-CV, 2020 WL 4915590, at *4 (Tex. App.—El Paso Aug. 21,
2020, pet. denied) (mem. op.) (“Venzor and Munoz agreed in the deed of trust that
the facts recited in the trustee’s deed would be prima facie evidence of the truth of
the statements made therein. Thus, the record contains evidence that AMG
acquired the property and is now the record owner.”).

We conclude that there is legally sufficient evidence to support the only
challenged element of the Bank’s forcible detainer cause of action, and we overrule
Carter’s second issue.

C. Exclusion of Evidence

The gist of Carter’s third complaint is that the trial court erroneously
excluded evidence of a settlement agreement, involving the Bank but not Carter,
that purportedly “nullified” Carter’s promissory note.7 The trial court refused to

7
Carter phrases her third argument in terms of a lack of factually sufficient evidence, but
she does not brief any applicable standard of review for factual sufficiency, nor does she argue
that the trial court’s judgment is against the great weight and preponderance of the evidence at
trial. We therefore decline to engage in a factual sufficiency review of the evidence, and we
instead construe Carter’s third issue as complaining about the trial court’s exclusionary ruling,
which we review for abuse of discretion. See Harpst v. Fleming, 566 S.W.3d 898, 904 (Tex.
App.—Houston [14th Dist.] 2018, no pet.).

7
admit the alleged settlement agreement, stating, “It’s not relevant” and “the
settlement agreement has not been verified.”

The settlement agreement about which Carter complains is not in the record
from the bench trial. The trial court did not admit the document Carter offered at
trial on the basis of improper authentication, and Carter did not include it in an
offer of proof. Accordingly, Carter has not preserved a claim of error for appeal.
See Tex. R. Evid. 103(a) (preserving claim of error of excluded evidence by offer
of proof); Tex. R. App. P. 33.1(a)(1)(B) (requiring compliance with Texas Rules of
Evidence).8

We overrule Carter’s third issue.

Conclusion

We affirm the trial court’s judgment.

/s/ Kevin Jewell
Justice

Panel consists of Justices Jewell, Spain, and Wilson.

8
For this reason, we do not address Carter’s appellate argument that the trial court could
have and should have taken judicial notice of the agreement. Furthermore, Carter did not ask the
trial court to take judicial notice of the agreement and thus failed to preserve any such argument
for review. E.g., Green Mountain Energy Co. v. Kela, No. 05-18-01330-CV, 2019 WL 5128168,
at *3 (Tex. App.—Dallas Oct. 7, 2019, no pet.) (mem. op.) (“The record includes no request that
the court take judicial notice and no objection to the alleged failure to take judicial notice. Green
Mountain, therefore, has not preserved error on this issue.”).

8