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Date: 06-08-2017

Case Style: Nora S. Guiterrez v. Eloisa Garcia

Case Number: 13-16-00564-CV

Judge: Gina M. Benavides

Court: Texas Court of Appeals, Thirteenth District on appeal from the County Court of Law No. 5, Nueces County

Plaintiff's Attorney: Eloisa Garcia, pro se

Defendant's Attorney: Nora S. Gutierrez, pro se


Belinda G. Pompa and Belinda G. Pompa, pro se

Description: This is an appeal from a judgment of eviction rendered in favor of appellee Eloisa
Garcia (Eloisa) following a de novo appeal from the justice court to the trial court. By three
issues, which we address out of order, appellants Nora Gutierrez, Belinda G. Pompa, and
Jorge Ruben Pompa assert that: (1) the trial court lacked jurisdiction over this matter; (2)
the trial court committed harmful error by failing to respond to their request for findings of
2
facts and conclusions of law; and (3) the trial court erred by ordering them to vacate the
premises. We affirm.
I. BACKGROUND
In approximately June of 2016, Eloisa allowed her sisters Nora and Belinda, and
Belinda’s husband Jorge (collectively the appellants) to move into her house located on
Acushnet Drive in Corpus Christi in order to give “them time to fix their house and save
money so they could eventually move back to” their own home on Kasper Street.1 Eloisa
testified that “after a while” she saw that the appellants had no intention of moving back to
their home. According to Eloisa, she paid “all the bills,” and therefore, the appellants had
“no claim to the house.” Eloisa wanted to evict them because she felt “like a prisoner in
[her] own house.” Nora testified that she has not paid “any rent per se” to Eloisa for her
stay at the Acushnet house, but had contributed to “the upkeep of the house.” When asked
by the trial court what legal basis the appellants have to stay at the Acushnet home, Nora
testified that she was not served a proper notice to vacate under the Texas Property Code.
Eloisa filed a forcible detainer suit in the justice court, in which she asserted that
she gave the appellants written notice to vacate on September 1, 2016 by personal
delivery, as well as a verbal notice to vacate the premises by September 1, 2016. On
September 21, 2016, the justice court held a hearing and ordered the appellants to vacate
the Acushnet property by September 26, 2016. The appellants subsequently appealed to
the trial court. After holding a de novo hearing, the trial court likewise granted Eloisa relief
and ordered the appellants to vacate the premises. This appeal followed.2
1 The record is devoid of any lease agreement between the parties.
2 All parties to this appeal appeared pro se in the proceedings below and proceed pro se on appeal.
3
II. JURISDICTION OF COUNTY COURT
By their third issue, the appellants assert that the trial court lacked jurisdiction to
hear this case because they lacked the assistance of counsel.
A. Jurisdiction in Eviction Cases
An appeal taken from an eviction suit in the justice court is tried de novo in the
county court. See TEX. R. CIV. P. 510.10. A trial de novo is a new trial in which the entire
case is presented as if there had been no previous trial. Id. The trial, as well as any
hearings and motions, is entitled to precedence in the county court. Id. An appeal is
perfected from the justice court on an eviction case when a bond, cash deposit, or
statement of inability to afford payment of court costs is filed in accordance with rule of
civil procedure 510.9. See id. R. 510.9.
Here, the appellants perfected their appeal on September 26, 2016 from the justice
court. Accordingly, the trial court properly acquired jurisdiction over this matter on that
date. See id. R. 510.9–.10.
B. Assistance of Counsel
The appellants argued to the trial court and now on appeal that they were not
represented by counsel and wanted such representation before continuing, which was
denied by the trial court. On appeal, the appellants argue that they needed an attorney,
and as a result, their lack of legal representation made the judgment void. We disagree.
Absent limited constitutional and statutory exceptions, neither the Texas nor United
States Constitutions guarantees a right to counsel in a civil suit. See Stokes v. Puckett,
972 S.W.2d 921, 927 (Tex. App.—Beaumont 1998, pet. denied). In fact, the Texas
Property Code expressly states that in eviction proceedings before the justice courts, “the
4
parties may represent themselves or be represented by their authorized agents, who need
not be attorneys.” TEX. PROP. CODE ANN. § 24.011 (West, Westlaw through 2015 R.S.).
We find no authority, and the appellants provide none, which entitle appellants to legal
representation at the de novo eviction hearing before the trial court. Furthermore, no
authority supports the proposition that lack of representation by counsel in this case
rendered the trial court’s judgment void. Accordingly, we overrule the appellants’ third
issue.
III. FINDINGS OF FACT AND CONCLUSIONS OF LAW
By their second issue, the appellants assert that the trial court committed harmful
error by failing to respond to their timely request for findings of fact and conclusions of law.
A. Applicable Law and Standard of Review
Rule of civil procedure 296 states in relevant part:
In any case tried in the district or county court without a jury, any party may
request the court to state in writing its findings of fact and conclusions of law.
Such request shall be entitled “Request for Findings of Fact and Conclusions
of Law” and shall be filed within twenty days after judgment is signed with
the clerk of the court, who shall immediately call such request to the attention
of the judge who tried the case.
TEX. R. CIV. P. 296. Furthermore,
If the court fails to file timely findings of fact and conclusions of law, the party
making the request shall, within thirty days after filing the original request,
file with the clerk . . . a “Notice of Past Due Findings of Fact and Conclusions
of Law” which shall be immediately called to the attention of the court by the
clerk.
Id. 297.
Because the trial court's duty to file findings and conclusions is mandatory, the
failure to respond when all requests have been properly made is presumed harmful, unless
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“the record before [the] appellate court affirmatively shows that the complaining party has
suffered no injury.” Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989)
(internal quotations omitted). Error is harmful if it prevents a party from properly presenting
a case to the appellate court. TEX. R. APP. P. 44.1; Elliot v. Kraft Foods N. Am., Inc., 118
S.W.3d 50, 54 (Tex. App.—Houston [14th Dist.] 2003, no pet.).
B. Discussion
A person commits a forcible entry and detainer if the person enters the real property
of another without legal authority or by force and refuses to surrender possession on
demand. TEX. PROP. CODE ANN. § 24.001 (West, Westlaw through 2015 R.S.). A forcible
detainer action is a special proceeding governed by particular statutes and rules. Rice v.
Pinney, 51 S.W.3d 705, 709 (Tex. App.—Dallas 2001, no pet.). It was created to provide
a speedy, simple, and inexpensive means for resolving the question of the right to
possession of premises. Id. To preserve the simplicity and speedy nature of the remedy,
the applicable rule of civil procedure provides that the court must solely adjudicate the right
to actual possession and not title. TEX. R. CIV. P. 510.3(e). Thus, the sole issue in a
forcible detainer suit is who has the right to immediate possession of the premises. Rice,
51 S.W.3d at 709. Accordingly, to prevail in a forcible detainer action, a plaintiff is not
required to prove title, but is only required to show sufficient evidence of ownership to
demonstrate a superior right to immediate possession. Id.
Here, the evidence shows that Eloisa owned the Acushnet Drive property, Eloisa
wanted the appellants to vacate the premises, the appellants refused, and the appellants
had no right to possession of the premises. Furthermore, Nora testified that she had not
even paid rent to stay at the Acushnet Drive property. We hold that there is sufficient
6
evidence to support the trial court’s judgment ordering the appellants to vacate the
premises, and as a result, the record affirmatively shows that appellants have suffered no
injury as a result of the trial court’s failure to file their timely requested findings of fact and
conclusions of law. We overrule the appellants’ second issue.
IV. EVICTION JUDGMENT
By their first issue, the appellants claim that the trial court erred by rendering an
eviction judgment in this case because they were not provided written notice to vacate by
Eloisa prior to her filing the forcible detainer suit.
A. Applicable Law
The property code states in relevant part:
If the occupant is a tenant under a written lease or oral rental agreement, the
landlord must give a tenant who defaults or holds over beyond the end of the
rental term or renewal period at least three days' written notice to vacate the
premises before the landlord files a forcible detainer suit, unless the parties
have contracted for a shorter or longer notice period in a written lease or
agreement.
TEX. PROP. CODE ANN. § 24.005 (West, Westlaw through 2015 R.S.). Because forcible
detainer is a statutory cause of action, a landlord must strictly comply with its requirements,
including providing written notice to vacate under section 24.005. See Briones v. Brazos
Bend Villa Apts., 438 S.W.3d 808, 811 (Tex. App.—Houston [14th Dist.], no pet.).
B. Discussion
The appellants argue that the trial court erred by rendering an eviction judgment in
this case because they were not provided written notice to vacate by Eloisa prior to her
filing the forcible detainer suit. We disagree.
7
In the eviction petition filed in the justice court, Eloisa checked a box stating that
she had given the appellants written notice to vacate the property by September 1, 2016
pursuant to chapter 24.005 of the Texas Property Code. Eloisa further noted on the
petition, which was filed on September 6, 2016, that her daughter and “a friend” also gave
the appellants “a verbal deadline” of September 1, 2016. We note that at the hearing,
Nora testified that she never received written notice pursuant to chapter 24.005.
In a bench trial such as the one in this case, the trial court, as fact finder, is the sole
judge of the credibility of the witnesses. Nelson v. Najm, 127 S.W.3d 170, 174 (Tex.
App.—Houston [1st Dist.] 2003, pet. denied). In sitting as fact finder, the judge may take
into consideration all the facts and surrounding circumstances in connection with the
testimony of each witness and accept or reject all or any part of that testimony. Id. Here,
the trial court chose to find Nora’s testimony asserting that she did not receive written
notice not credible and found that Eloisa properly complied with the statutory requirements
of the forcible detainer action by asserting those facts in her pleadings. See Briones, 438
S.W.3d at 811. Accordingly, we overrule the appellants’ first issue.

Outcome: We affirm the trial court’s judgment.

Plaintiff's Experts:

Defendant's Experts:

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