Federal Home Loan Mortgage Corporation v. Trinh Pham, Katherine Crawford & Gary Block
2014 Tex. App. LEXIS 11191
| Tex. App. | 2014Background
- Freddie Mac filed three substantively identical forcible detainer (eviction) suits (2010, 2011, 2012) to obtain possession of a Houston residential property; earlier suits resulted in a take-nothing judgment and a dismissal/nonsuit on appeal.
- In the 2012 action Freddie Mac alleged it acquired title by foreclosure and that occupants were tenants at sufferance who failed to vacate after written notice.
- Katherine Crawford (occupant) moved for summary judgment asserting res judicata based on the two prior forcible detainer actions and attached pleadings and judgments from the earlier suits.
- Freddie Mac responded that a new forcible detainer claim accrues each time a new written notice to vacate is delivered and that it had served new notices in Feb. and May 2012; it relied on a business-records affidavit filed later (attached to its motion for new trial) but did not present that affidavit with its summary-judgment response.
- The trial court granted Crawford’s summary judgment; on appeal the court of appeals affirmed, holding (1) a new forcible detainer claim arises whenever a proper written notice to vacate is delivered and the occupant refuses to surrender possession, but (2) Freddie Mac failed to produce admissible evidence showing it served new notices before filing the 2012 suit, so res judicata barred the 2012 action.
Issues
| Issue | Plaintiff's Argument (Freddie Mac) | Defendant's Argument (Crawford) | Held |
|---|---|---|---|
| Whether res judicata bars the 2012 forcible detainer action | A new forcible detainer accrues each time a new notice to vacate is sent and occupant fails to vacate, so prior judgments do not bar a later suit based on new notices | The 2012 suit is the same claim as the 2010/2011 suits; prior final judgments preclude re-litigation because Freddie Mac pleaded nothing showing a subsequent notice and forcible detainer | Res judicata applies because Freddie Mac failed to produce admissible evidence of new notices pre-filing, so Crawford entitled to summary judgment |
| Whether a new forcible detainer claim can arise after an earlier judgment | New cause of action can arise when a new proper written demand to surrender is delivered and occupant refuses; possession claims are time-specific | (Implicit) If no new demand is alleged/shown, prior adjudication of possession precludes the later suit | Court agrees: a new and independent forcible detainer may arise with each new compliant notice to vacate |
| Admissibility/timing of Freddie Mac’s business-records affidavit | The affidavit and mailed-notice documents prove notices were sent in Feb./May 2012 | The affidavit was not timely presented with the summary-judgment response and thus cannot create a fact issue | The trial court considered the affidavit on motion for new trial but found the affidavit and documents, as presented, insufficient to prove proper delivery; appellate court treated the record as considered but found no probative evidence of receipt |
| Burden on summary-judgment movant asserting res judicata | Freddie Mac argued it was not barred because a subsequent forcible detainer occurred | Crawford argued she met the movant’s burden by producing prior pleadings and judgments and that Freddie Mac failed to raise a genuine issue | Court held Crawford met her burden with the earlier pleadings/judgments; Freddie Mac failed to raise a fact issue with admissible evidence, so summary judgment was proper |
Key Cases Cited
- Puentes v. Fannie Mae, 350 S.W.3d 732 (Tex. App.—El Paso 2011) (second forcible detainer was a new, time-specific action when new notice was sent)
- Coinmach Corp. v. Aspenwood, 417 S.W.3d 909 (Tex. 2013) (forcible detainer is a speedy special proceeding limited to immediate possession)
- Travelers Ins. Co. v. Joachim, 315 S.W.3d 860 (Tex. 2010) (movant asserting affirmative defense must establish every element as a matter of law)
- Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195 (Tex. 1995) (once movant establishes entitlement to summary judgment, burden shifts to nonmovant to raise a genuine fact issue)