Opinion
NO. 03-16-00046-CV
05-04-2017
Edward Banks, Appellant v. Bank of America, N.A., Appellee
FROM THE COUNTY COURT AT LAW NO. 4 OF WILLIAMSON COUNTY, NO. 15-1230-CC4, HONORABLE JOHN B. MCMASTER, JUDGE PRESIDING MEMORANDUM OPINION
In this forcible-detainer case, appellant challenges the trial court's final judgment of possession in favor of Bank of America, N.A. In two issues, appellant asserts that the trial court should have dismissed the case because Bank of America's pleadings were not properly verified and that the trial court improperly excluded evidence challenging Bank of America's title to the property. For the reasons discussed below, we will affirm the judgment of the trial court.
Background
Appellant Edward Banks purchased the subject property on October 4, 2002, at which time he executed a promissory note and deed of trust with lender CH Mortgage Company I, Ltd. The deed of trust provided that upon foreclosure, appellant must surrender the property to the purchaser or he would become a tenant at sufferance who could be removed by writ of possession. Appellant defaulted on payment of the note, and the property was sold to Bank of America in a non-judicial foreclosure sale on September 4, 2012. On April 9, 2015, Bank of America, through its counsel, sent appellant a notice to vacate the property, but appellant did not surrender possession. Bank of America subsequently brought this forcible-detainer action in justice court. The justice court granted Bank of America possession on July 28, 2015, and appellant then appealed to the county court at law. Appellant filed a "First Amended Answer and Motion to Dismiss" challenging the verification of Bank of America's petition and the validity of the foreclosure and asking the trial court to dismiss or abate the proceedings. On December 17, 2015, the county court at law denied appellant's motion to dismiss, held a bench trial on the merits, and awarded possession to Bank of America. This appeal followed.
Discussion
Appellant brings two challenges to the trial court's final judgment of possession. First, he asserts Bank of America's pleadings were not properly verified because the accompanying affidavit sworn by Bank of America's counsel contained facts not within the Saucedo's personal knowledge and therefore the trial court erred in denying his motion to dismiss. Second, appellant asserts the trial court improperly excluded evidence that contradicted Bank of America's proof of title. We address each issue in turn.
Affidavit by Bank of America's Counsel
In his first issue, appellant contends that the trial court should have granted his motion to dismiss because Bank of America's original petition was not properly verified. Although the petition had an attached affidavit from Israel Saucedo, identified in the affidavit as Bank of America's counsel, swearing that he had personal knowledge of the facts in the petition and that they were "true and correct," appellant contends Saucedo did not have personal knowledge of the facts. Specifically, he asserts that the mere statement of personal knowledge is insufficient and that the affidavit contains no facts supporting the basis for his personal knowledge that "[appellant] actually lives in the residence." Accordingly, appellant argues, the pleading was not properly verified as required under Texas Rule of Civil Procedure 510.3(a), and the court should have dismissed the case. We disagree.
We note that appellant's "First Amended Answer and Motion to Dismiss" included its objection to the verification as a "Specific Denial" and requested that the trial court "dismiss, or, in the alternative, abate the proceedings." The motion also requested that the trial court "grant summary judgment for [appellant] on the pleadings." In his brief, appellant states that "the court must grant summary judgment for [appellant] on the pleadings" and that this Court "must reverse the trial court's summary judgment for [Bank of America]." However, there was no motion for summary judgment filed in the trial court by either party, and appellant's challenge to the pleadings was heard as a "motion to dismiss" prior to the court's conducting a bench trial. So to the extent appellant challenges "the trial court's summary judgment for [Bank of America]," this issue is overruled.
Appellant acknowledges that an attorney may sign a verification under Rule 510.3(a) when they have personal knowledge of the facts and that his challenge is not a jurisdictional one. See Norvelle v. PNC Mortg., 472 S.W.3d 444, 446, 449 (Tex. App.—Fort Worth 2015, no pet.); see also Lenz v. Bank of Am., N.A., 04-16-00031-CV, 2016 WL 4772350, at *3 (Tex. App.—San Antonio Sept. 14, 2016, pet. filed) (mem. op.) (following Norvelle); Rodriquez v. Midfirst Bank, No. 08-15-00104-CV, 2016 WL 4208102 (Tex. App.—El Paso Aug. 10, 2016, no pet.) (mem op.) (same); Randle v. Deutsche Bank Nat'l Trust Co., No. 05-14-01439-CV, 2016 WL 308711 (Tex. App.—Dallas Jan. 26, 2016, no pet.) (mem. op.) (same); cf. Shutter v. Wells Fargo Bank, N.A., 318 S.W.3d 467, 469 (Tex. App.—Dallas 2010, pet. dism'd w.o.j.) (op. on reh'g) (holding that attorney could sign under predecessor to Rule 510.3(a) and that lack of verification was not jurisdictional).
We first note that, traditionally, two vehicles have been used to challenge defective pleadings: a special exception, which addresses a pleading defect apparent on the face of the pleading, and a plea in abatement, which addresses a defect in the pleading that requires the introduction of evidence outside of the pleading. In both instances, Texas law states that the trial court must afford the party who filed the defective pleading an opportunity to cure the defect by repleading. See, e.g., County of Cameron v. Brown, 80 S.W.3d 549, 559 (Tex. 2002) (special exception); KSNG Architects, Inc. v. Beasley, 109 S.W.3d 894, 898 (Tex. App.—Dallas 2003, no pet.) (plea in abatement); see also Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 49 (Tex. 2002) (if defective pleading could be cured by amendment, summary judgment is improper without first sustaining special exception because it does not offer opportunity to replead). Accordingly, we will treat appellant's motion as if it were properly designated as a plea in abatement. See Tex. R. Civ. P. 71 ("When a party has mistakenly designated any plea or pleading, the court, if justice so requires, shall treat the plea or pleading as if it had been properly designated.").
We review the trial court's decision on a plea in abatement for abuse of discretion. Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex. 1988). A trial court abuses its discretion when it acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). A plea in abatement "cannot be used to determine the merits of an action" but rather asserts facts outside the record that "prevent the suit from going forward until the problem can be cured." Shutter v. Wells Fargo Bank, 318 S.W.3d 467, 470 (Tex. App.—Dallas 2010, pet. dism'd w.o.j.). The defendant must identify an impediment to the suit as well as its cure and ask the court to abate the suit until the impediment is corrected. Id.
Saucedo's affidavit clearly states his position as counsel and asserts that the facts stated in the petition and the affidavit are "within [his] personal knowledge and are true and correct." There is no qualifying language within the affidavit. See Mekeel v. U.S. Bank Nat'l Ass'n, 355 S.W.3d 349, 355 (Tex. App.—El Paso 2011, no pet.) (upholding verification affidavit as sufficient under Rule 510.3 when there is no qualifying language about personal knowledge). Further, assuming that a mere recitation that an affidavit is based on personal knowledge is insufficient to verify a forcible-detainer pleading, there is information in the pleadings and affidavit from which the trial court could have reasonably concluded that Saucedo had personal knowledge of the facts asserted. Appellant challenges only Saucedo's knowledge that appellant "actually lives" in the property; however nowhere in the petition or affidavit does Bank of America or Saucedo assert that appellant "actually lives" in the property. Rather, the petition states that the property was the only known address for appellant, that appellant was in possession of the property, and that Bank of America, through Saucedo, sent a notice to vacate to appellant via certified mail at the property. Attached to Saucedo's affidavit is the notice to vacate, sent by Saucedo to appellant at the address listed, and the certified-mail return receipt signed by appellant, which was returned to Saucedo's office. Based on this evidence, which was incorporated by reference to Saucedo's affidavit, we cannot conclude that the trial court abused its discretion by determining that Saucedo had personal knowledge that appellant was in possession of the property.
See, e.g., Hinojosa Auto Body & Paint, Inc. v. FinishMaster, Inc., No. 03-08-00361-CV, 2008 WL 5210871 (Tex. App.—Austin Dec. 12, 2008, no pet.) (mem. op.) (holding counsel's affidavit verifying denial of sworn account must demonstrate basis of personal knowledge); Priesmeyer v. Pacific Sw. Bank, 917 S.W.2d 937, 939 (Tex. App.—Austin 1996, no writ.) (stating that summary-judgment affidavit is inadequate if it does not show affiant's basis for personal knowledge). We note that, unlike this case, the above cases, which are cited by appellant, include affidavits that are offered as summary-judgment evidence. To constitute summary-judgment evidence, affidavits must be based on personal knowledge and otherwise satisfy the requirements of Rule 166a(f). Tex. R. Civ. P. 166a(f). However, there are no similar personal-knowledge requirements in the rules governing forcible-detainer proceeding, see Tex. R. Civ. P. 510.3, and the requirement that a pleading be verified does not mean that it must meet the requirements of Rule 166a. Cf. Laidlaw Waste Sys. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995) (sworn pleadings could not constitute summary-judgment evidence because pleadings, although sworn, did not satisfy requirements of Rule 166a); Hidalgo v. Surety Sav. & Loan Ass'n, 462 S.W.2d 540, 543-44 (Tex.1971) (same).
We further note that appellant has "tacitly conceded" that he is in possession of the property by prosecuting this appeal because if he were not in possession of the premises, the case would be moot. Rodriguez v. Citimortgage, Inc., 03-10-00093-CV, 2011 WL 182122, at *6 (Tex. App.—Austin Jan. 6, 2011, no pet.) (holding evidence of possession in lower court was sufficient, in part, because of continued prosecution of appeal) (citing Marshall v. Housing Auth. of City of San Antonio, 198 S.W.3d 782, 787 (Tex.2006)); see also Tex. Prop. Code § 24.007 ("A final judgment of a county court in an eviction suit may not be appealed on the issue of possession unless the premises in question are being used for residential purposes only.").
Additionally, even if we were to hold that the affidavit was deficient, appellant has not argued, and the record does not reflect, that the defective verification or pleading posed any impediment to the trial court's determination of possession or otherwise resulted in harm to appellant. See Fleming v. Fannie Mae, 02-09-00445-CV, 2010 WL 4812983, at *2 (Tex. App.—Fort Worth Nov. 24, 2010, no pet.); Shutter, 318 S.W.3d at 469. For the foregoing reasons, we overrule appellant's first issue.
Exclusion of Evidence Challenging Bank of America's Title
In his second issue, appellant contends that the trial court erroneously excluded evidence and prevented him from offering any evidence challenging Bank of America's ownership of the property. Specifically, appellant offered two documents that were excluded by the trial court: (1) the 2002 deed for the property and (2) a "Prepayment Regulatory Amendment Notice" sent to appellant from Bank of America. After Bank of America's objection, the court excluded the evidence as not relevant and told appellant that it would not admit "any evidence that tends to controvert the assertion of title made by Bank of America."
Appellant's brief also includes a 2016 Annual Disclosure from Bank of America as "Exhibit 1." This document is not part of the appellate record, and therefore, we may not consider this document on appeal. See Tex. R. App. P. 34.1 (describing contents of appellate record); Save Our Springs All., Inc. v. City of Dripping Springs, 304 S.W.3d 871, 892 (Tex. App.—Austin 2010, pet. denied) ("We are limited to the appellate record provided."); Burke v. Insurance Auto Auctions Corp., 169 S.W.3d 771, 775 (Tex. App.—Dallas 2005, pet. denied) (noting that documents cited in brief and attached as appendices generally may not be considered by appellate courts if not formally included in appellate record).
We review the admission or exclusion of evidence under an abuse-of-discretion standard. Southwestern Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 721 (Tex. 2016); ICON Benefit Adm'rs II, L.P. v. Abbott, 409 S.W.3d 897, 906 (Tex. App.—Austin 2013, pet. denied). A trial court abuses its discretion when it acts without reference to any guiding rules or principles. Downer, 701 S.W.2d at 241-42. An appellate court must uphold the trial court's evidentiary ruling if there is any legitimate basis for the ruling. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). Trial courts may exclude even relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. See Tex. R. Evid. 403; Owens-Corning Fiberglas Corp., 972 S.W.2d at 43. If an appellant establishes error, we reverse a judgment based on an erroneous evidentiary ruling only if the error probably resulted in an improper judgment. Tex. R. App. P. 44.1; Owens-Corning Fiberglas Corp., 972 S.W.2d at 43. This generally requires the complaining party to show that the judgment turns on the particular evidence in question. H20 Sols., Ltd. v. PM Realty Grp., 438 S.W.3d 606, 621 (Tex. App.—Houston [1st Dist.] 2014, pet. denied); Codner v. Arrellano, 40 S.W.3d 666, 674-75 (Tex. App.—Austin 2001, no pet.).
Forcible detainer is intended to be a speedy, simple, and inexpensive procedure for obtaining possession without resorting to a suit on the title. Williams v. Bank of N.Y. Mellon, 315 S.W.3d 925, 926-27 (Tex. App.—Dallas 2010, no pet.) (citing Scott v. Hewitt, 90 S.W.2d 816, 818-19 (Tex. 1936)). Possession, not title, is the sole issue to be determined in a forcible-detainer suit. Marshall v. Housing Auth. of San Antonio, 198 S.W.3d 782, 787-88 (Tex. 2006); see Tex. R. Civ. P. 510.3(e). Any defects in the foreclosure process or with the plaintiff's title to the property may not be considered in a forcible detainer action. Shutter, 318 S.W.3d at 471; Williams, 315 S.W.3d at 927 ("Whether a sale of property under a deed of trust is invalid may not be determined in a forcible-detainer but must be brought in a separate suit."). To prevail, the plaintiff in a forcible-detainer suit does not need to prove title; rather, the plaintiff need only show evidence of ownership sufficient to demonstrate a superior right to immediate possession. Bierwirth v. Federal Nat'l Mortg. Ass'n, 03-12-00271-CV, 2014 WL 858677, at *2 (Tex. App.—Austin Feb. 27, 2014, no pet.) (mem. op.); Rice v. Pinney, 51 S.W.3d 705, 709 (Tex. App.—Dallas 2001, no pet.). A forcible-detainer action is cumulative of other remedies that a party may have; thus, the party may pursue both a forcible detainer action in justice court and a suit to quiet title in district court. Scott, 90 S.W.2d at 818-19. If the question of title is so intertwined with the issue of possession that the possession may not be adjudicated without first determining title, neither the justice court nor the county court has jurisdiction to enter a judgment in the suit for forcible detainer. Onabajo v. Household Fin. Corp. III, 03-15-00251-CV, 2016 WL 3917140, at *2 (Tex. App.—Austin July 14, 2016, no pet.) (citing Dormady v. Dinero Land & Cattle Co., L.C., 61 S.W.3d 555, 557 (Tex. App.—Dallas 2001, pet. dism'd w.o.j.)); Terra XXI, Ltd. v. AG Acceptance Corp., 280 S.W.3d 414, 417 (Tex. App.—Amarillo 2008, pet. denied). However, defects in the foreclosure process cannot be used either to negate a landlord—tenant relationship provision in a deed of trust or to raise a question of title depriving the justice or county courts of jurisdiction to resolve the question of immediate possession. See Onabajo, 2016 WL 3917140 at *2; Wilder v. Citicorp Trust Bank, F.S.B., No. 03-13-00324-CV, 2014 WL 1207979, at *2 (Tex. App.—Austin Mar. 18, 2014, pet. dism'd w.o.j.) (mem. op.) (citing cases); Jaimes v. Federal Nat'l Mortg. Ass'n, No. 03-13-00290-CV, 2013 WL 780974, at *3-4 (Tex. App.—Austin Dec. 4, 2013, no pet.) (mem. op.); see also Campbell v. Wells Fargo Bank, N.A., No. 03-12-00007-CV, 2013 WL 6805590, at *2-3 (Tex. App.—Austin Dec. 20, 2013, no pet.) (mem. op.) (explaining that it was not necessary to resolve title dispute to determine right to immediate possession because deed of trust created landlord and tenant-at-sufferance relationship).
As of the time of trial, appellant had not brought any suit to challenge the validity of the foreclosure sale or otherwise challenge Bank of America's title in district court.
At trial, appellant attempted to introduce evidence challenging Bank of America's ownership of the property. Both the statutes governing forcible-detainer actions and the case law make clear that the trial court does not have jurisdiction to resolve title disputes. See, e.g., Tex. R. Civ. P. 510.3(e); Marshall, 198 S.W.3d at 787-88. All of the evidence offered by appellant sought to challenge the validity of the foreclosure sale based on subsequent action by Bank of America. The trial court was well within its discretion to exclude such evidence. See Shutter, 318 S.W.3d at 471; Williams, 315 S.W.3d at 927. Moreover, the record contains evidence—specifically, the deed of trust, the substitute trustee's deed, and the notice to vacate—establishing the parties' landlord—tenant relationship after the foreclosure sale and, therefore, an independent basis on which the trial court could determine immediate possession. See Bruce v. Federal Nat'l Mortg. Ass'n, 352 S.W.3d 891, 893 (Tex. App.—Dallas 2011, pet. denied) (holding that immediate possession of property did not depend solely on validity of title because provision in deed of trust created a landlord-tenant relationship, providing an independent basis for trial court to determine immediate possession).
Appellant further asserts that the trial court's exclusion of evidence controverting Bank of America's title denied him due process of law. However, we are not persuaded that the current statutory structure preventing the justice courts and county courts from making title determinations in forcible-detainer proceedings in any way limits appellant's ability to have a fair and impartial trial on the issues. Appellant was free to present evidence relevant to the issue of possession in the forcible-detainer case, and he was free to challenge the validity of the foreclosure sale in a district-court proceeding. See Scott, 90 S.W.2d at 818-19.
For these reasons, we hold that the county court did not abuse its discretion by excluding appellant's evidence pertaining to title. We overrule appellant's second issue.
Conclusion
Having overruled both of appellants' issues, we affirm the judgment of the trial court.
/s/_________
Jeff Rose, Chief Justice Before Chief Justice Rose, Justices Goodwin and Bourland Affirmed Filed: May 4, 2017