Summary
considering whether there was sufficient evidence that demand for possession was sent pursuant to statutory provision governing mailing requirements, such as requiring "return receipt requested"
Summary of this case from Ocwen Loan Servicing, L.L.C. v. Reoam, L.L.C.Opinion
No. 05-06-01194-CV
Opinion Filed May 9, 2007.
On Appeal from the County Court at Law No. 5 Dallas County, Texas Trial Court Cause No. cc-06-04764-E.
MEMORANDUM OPINION
AMC Mortgage Services, Inc. appeals the directed verdict in this forcible entry and detainer suit. In a single issue, appellant contends the trial court erred by granting appellees' motion for directed verdict because it met its burden under section 24.002 of the Texas Property Code. We overrule appellant's sole issue and affirm the trial court's judgment.
A trial court may instruct a verdict if no evidence of probative force raises a fact issue on the material questions in the suit. Prudential Ins. Co. of Am. v. Fin. Review Serv. Inc., 29 S.W.3d 74, 77 (Tex. 2000); Szczepanik v. First S. Trust Co., 883 S.W.2d 648, 649 (Tex. 1994). A directed verdict for a defendant is proper when the plaintiff fails to present evidence raising a fact issue essential to the plaintiff's right of recovery. See Prudential, 29 S.W.3d at 77 (citing Latham v. Castillo, 972 S.W.2d 66, 67-68 (Tex. 1998)). We may affirm a directed verdict on any basis supported by the record. See Villarreal v. Art Inst. of Houston, Inc., 20 S.W.3d 792, 796 (Tex.App.-Corpus Christi 2000, no pet.).
To prevail in this forcible entry and detainer suit, appellant was required to prove, among other things, that it made a statutorily sufficient written demand for possession. See Tex. Prop. Code Ann. § 24.002 (Vernon 2000). Such a demand requires three days written notice to vacate before suit is filed. The notice may be given in person or by regular mail, registered mail, or certified mail, return receipt requested, to the premises in question. See Tex. Prop. Code Ann. § 24.005 (Vernon 2000).
In this case, appellant's attorney introduced Plaintiff's Exhibit 2, a letter notifying appellees to vacate the premises. The letter states AMC Mortgage Services, Inc. is the attorney in fact for WM Speciality Mortgage, L.L.C. It further states AMC Mortgage Services, Inc. acquired title to the property at a non-judicial foreclosure sale and demanded that Mr. and Mrs. Edwin Shields vacate the property within three days. The letter contains the following notation: "Certified Mail Return Receipt No. 716 3901 9849 1553 3970 and First Class Mail, Postage Prepaid." According to appellant, this letter alone is sufficient to prove it made a statutorily sufficient written demand for possession. However, because nothing in the record proves the letter was delivered in person or by mail, we cannot agree.
Appellant's attorney was the only witness in this case. She testified that she was the custodian of records for her law firm and the letter was a business record made in the ordinary course of business. She also testified that she had no personal knowledge of the letter and did not prepare it. She did not testify the notice was personally delivered to appellees or that the original letter had been placed into the U.S. mail with the proper address and postage. And, although the letter contains a certified mail number, the record does not contain evidence such as a certified mail return receipt or tracking document showing the original letter was actually received or sent by certified mail. After reviewing the record in this case, we cannot conclude appellant met its burden to prove notice to vacate was "given in person or by mail at the premises in question" to appellees. See Tex. Prop. Code Ann. § 24.005. Thus, we conclude the trial court did not err by granting appellees' motion for directed verdict. We overrule appellant's sole issue.
Accordingly, we affirm the trial court's judgment.