Date: 04-06-2015

Case Style: Ira W. Brewer, Eugenia Brewer and all other occupants v. U.S. Bank, N.A., as Trustee for the Certificateholders of the Bear Sterns Arm Trust, et al.

Case Number: 05-14-00045-CV

Judge: Whitehill

Court: Texas Court of Appeals, Fifth Court of Appeal from County Court at Law No. 5 of Collin County

Plaintiff's Attorney: Daron Janis, Kurt M. Wolber and Thomas G. Yoxall for U.S. Bank, N.A.

Defendant's Attorney: David M. Vereeke, Jack B. Peacock Jr. and Laura L. Pickens for Ira W. Brewer, Eugenia Brewer and all other occupants

Description: Appellants appeal a summary judgment rendered against them. They argue that
appellee’s evidence regarding one element of appellee’s claim was inadmissible and thus there
was no evidence supporting the appellee on that element. We affirm.
I. BACKGROUND
This case began in justice court when appellee U.S. Bank filed an original petition for
forcible detainer against appellants (collectively the “Brewers”). The Bank alleged that it bought
the subject property at a foreclosure sale, the Brewers were occupying the property as tenants at
sufferance, and the Bank was entitled to a judgment of possession. The justice court rendered
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judgment for the Brewers, and the Bank appealed to the county court at law. The Bank then
moved for summary judgment, seeking a decree that the Brewers were guilty of forcible detainer
and that the Bank was entitled to possession of the property.
The Brewers filed a summary-judgment response in which they (i) objected to the Bank’s
evidence proving that notice to vacate was given and (ii) argued that the Bank had failed to prove
its ownership of the note, its right to foreclose, or its ownership of the property. The trial judge
signed a general order granting summary judgment for the Bank.
The Brewers timely appealed.
II. ANALYSIS
The Brewers assert one issue on appeal, urging that the trial court should have sustained
their objections to one of U.S. Bank’s summary-judgment exhibits. This, they argue, would have
left the Bank with no evidence of an essential element of its claim—that the statutorily required
notice to vacate was given. We resolve the Brewers’ issue against them for the following
reasons.
First, we review the Bank’s summary-judgment evidence of notice. As Exhibit C to its
motion, the Bank attached:
• An affidavit by Arianna L. Black purporting to prove up five attached
pages as business records;
• A two-page “Notice to Vacate and Demand for Possession” addressed to
the Brewers at the property’s address;
• A two-page “Exhibit A to Affidavit of Mailing” listing the Brewers and
the property’s address;
• A one-page “Affidavit of Mailing,” executed by Clifton McBride, in
which he testifies, “[A]t the request of TX Evictions on 11/28/2012, I
deposited in the United States mail a copy of the attached document, in
separate sealed envelopes, in accordance with the checked mailing classes
defined below, postage prepaid, to the address list on exhibit A, attached
hereto and made a part hereof.” Below that paragraph, boxes labeled
“First Class” and “Certified Return” are checked.
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Thus, the McBride affidavit and its attachments independently proved that notice to vacate was
sent to the Brewers at the property’s address on November 28, 2012. The Black affidavit
actually adds nothing to the Bank’s proof of notice.
In the trial court, the Brewers objected to the Black affidavit on the ground that it was
insufficient to prove up its attachments as business records and to the McBride affidavit on the
ground that it was prepared in anticipation of litigation. But on appeal, the Brewers make no
complaint about the McBride affidavit. Instead, they argue only that the Black affidavit was
insufficient as a business-records affidavit and was prepared in anticipation of litigation. Based
on this argument, they conclude that “there exists a complete lack of evidence of a vital fact,
namely that Appellants were served proper notice of the eviction.”
Because the Brewers have not raised any argument on appeal attacking the McBride
affidavit, which independently proves that the required notice to vacate was given, any challenge
to that affidavit has not been preserved. See State Bar of Tex. v. Evans, 774 S.W.2d 656, 658 n.5
(Tex. 1989) (per curiam) (appellate court erred by reversing judgment based on arguments not
raised by the appellant); accord Adams v. State Farm Mut. Auto. Ins. Co., 264 S.W.3d 424, 429
n.3 (Tex. App.—Dallas 2008, pet. denied). In light of their issue on appeal, which attacks only
the Black affidavit, we cannot agree with the Brewers that there is no evidence to support the
notice element of the Bank’s claim.

Outcome: For the foregoing reasons, we resolve the Brewers’ sole issue against them and affirm the trial court’s judgment.

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