Jimenez v. McGeary, 542 S.W.3d 810

Background

MetLife foreclosed on the Jimenezes' home in Aug. 2010; FNMA acquired title and later sought possession; earlier forcible-detainer proceedings resulted in FNMA obtaining possession, and the Jimenezes' appeal was affirmed.
While that appeal was pending, FNMA sold the property to David McGeary and his son in June 2016; McGeary demanded possession in Aug. 2016 after the Jimenezes refused to leave.
McGeary filed a forcible-detainer action in justice court, obtained an eviction order, and the Jimenezes appealed to county court; after a trial de novo the county court awarded possession to McGeary.
The Jimenezes raised four appellate issues: (1) trial court’s failure to file requested findings/conclusions; (2) improper verification of McGeary’s petition by his attorney; (3) failure to join McGeary’s co-owner son and insufficiency of notices to vacate; (4) insufficiency of evidence to show tenancy at sufferance and lack of privity.
The record included a special warranty deed showing McGeary (and his son) as grantees and notices to vacate addressed on behalf of "David McGeary."

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
1. Trial court failed to file findings/conclusions after timely request	Jimenez: Requested findings under Tex. R. Civ. P. 296; court did not file them	McGeary: Jimenezes failed to file the required notice of past-due findings under Rule 297	Waived — failure to file notice of past-due findings forfeits appellate complaint; issue overruled
2. Petition verification invalid because attorney, not McGeary, swore to it	Jimenez: Rule 510.3(a) requires plaintiff to swear; attorney verification renders pleading invalid and deprives court of jurisdiction	McGeary: Attorney acted as plaintiff’s agent; precedent allows attorney verification; even defective verification does not deprive court of jurisdiction	Overruled — attorney verification valid as agent; alternative ground that defective verification would not divest jurisdiction
3a. Failure to join McGeary’s son as indispensable party	Jimenez: Son is co-owner and indispensable for just adjudication; his absence deprives court of jurisdiction	McGeary: Forcible-detainer determines superior right to immediate possession between parties before court; son not indispensable	Overruled — son not indispensable; absence does not render judgment void
3b. Notices to vacate were insufficient because not on behalf of both owners	Jimenez: Notices were sent on son’s behalf, not McGeary’s, therefore invalid under Property Code	McGeary: Deed and testimony show McGeary as grantee and notices were sent on his behalf	Overruled — evidence showed notices were on behalf of David McGeary
4. Insufficient proof of tenancy at sufferance / lack of privity prevents reliance on security instrument	Jimenez: McGeary didn't introduce the security agreement and lacks privity, so cannot rely on tenancy-at-sufferance clause	McGeary: Title evidence plus post-demand retention establishes tenancy at sufferance; no contract required to be subject to forcible-detainer	Overruled — special warranty deed and refusal to vacate after notice established tenancy at sufferance and superior right to immediate possession

Key Cases Cited

Browning v. Placke, 698 S.W.2d 362 (Tex. 1985) (failure to join an "indispensable" party rarely deprives court of jurisdiction)
Norvelle v. PNC Mortg., 472 S.W.3d 444 (Tex. App.—Fort Worth 2015) (attorney may verify eviction petition as agent; rule 510.3 construed with other eviction rules)
Rice v. Pinney, 51 S.W.3d 705 (Tex. App.—Dallas 2001) (plaintiff need only show sufficient evidence of ownership to demonstrate superior right to immediate possession in forcible-detainer)
Williams v. Bank of New York Mellon, 315 S.W.3d 925 (Tex. App.—Dallas 2010) (forcible-detainer addresses right to immediate possession, not title)
ICM Mortg. Corp. v. Jacob, 902 S.W.2d 527 (Tex. App.—El Paso 1994) (tenancy at sufferance arises from wrongful continuation in possession after right ends)