Jennie Larry Johnson v. Freo Texas LLC
01-15-00398-CV
| Tex. App. | Sep 14, 2015Background
- FREO Texas LLC purchased 1907 Doliver Circle, Missouri City, TX at a nonjudicial foreclosure sale and received a Substitute Trustee’s Deed dated November 4, 2014.
- The borrower, Jennie Larry Johnson, had executed the Deed of Trust containing a landlord/tenant-at-sufferance clause requiring surrender of possession after foreclosure.
- FREO's counsel sent a Notice to Vacate and Demand for Possession on November 17, 2014 and filed a forcible detainer suit in justice court on December 2, 2014.
- The justice court awarded possession to FREO; that judgment was appealed to the Fort Bend County Court at Law No. 3, which held a de novo trial and again awarded possession to FREO on January 28, 2015.
- Johnson appealed the county-court judgment to the First Court of Appeals, contesting (1) adequacy/delivery of the notice to vacate, (2) admissibility of FREO’s Exhibit 3 (business-records affidavit and notice), (3) sufficiency of evidence to support forcible detainer, and (4) the court’s jurisdiction given alleged title disputes.
Issues
| Issue | Plaintiff's Argument (FREO) | Defendant's Argument (Johnson) | Held |
|---|---|---|---|
| 1. Sufficiency of evidence for forcible detainer | FREO: Substitute trustee’s deed, deed of trust (tenant-at-sufferance clause), and notice to vacate prove superior right to immediate possession | Johnson: Evidence was insufficient to establish right to possession | Court: Judgment affirmed; evidence (deed, trustee’s deed, notice) legally sufficient to show superior right to possession |
| 2. Admissibility of Exhibit 3 (business records affidavit + notice) | FREO: Exhibit 3 authenticated via custodian affidavit under the business-records exception (Tex. R. Evid. 803(6)) | Johnson: Exhibit 3 was inadmissible hearsay/not properly proven delivered | Court: Exhibit properly admitted; appellant failed to preserve complaint by providing reporter’s record and affidavit complied with rules |
| 3. Delivery of Notice to Vacate | FREO: Notice mailed by certified and first-class mail; signed green card and business-record affidavit establish mailing and receipt presumption | Johnson: Claims notice was not properly sent/received | Court: Presumption of receipt applies for properly mailed letter; evidence (green card/signature, no contradictory evidence) sufficed to show delivery |
| 4. Jurisdiction despite pending title dispute | FREO: Forcible detainer addresses immediate right to possession; deed’s tenant-at-sufferance clause allows possession determination without resolving title | Johnson: Title dispute (pending suit) deprives justice/county court of jurisdiction | Court: County court retained jurisdiction because possession could be decided via landlord/tenant-at-sufferance relationship without resolving title |
Key Cases Cited
- Moncrief Oil Int'l, Inc. v. OAO Gazprom, 414 S.W.3d 142 (Tex. 2013) (appellate presumption when record incomplete)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (legal-sufficiency standard: view evidence in light most favorable and indulge reasonable inferences)
- Rice v. Pinney, 51 S.W.3d 705 (Tex. App.—Dallas 2001) (forcible detainer is a speedy proceeding limited to right to immediate possession; title merits not adjudicated)
- Villalon v. Bank One, 176 S.W.3d 66 (Tex. App.—Houston [1st Dist.] 2004) (deed of trust can create landlord/tenant-at-sufferance relationship allowing possession determination separate from title)