Affirmed and Memorandum Opinion filed October 2, =
2007.
In The
Fourteenth Court=20
of Appeals
____________
NO. 14-06-00491-CV
____________
ROBERT LEE=20
ARMSTRONG, JR., =
Appellant
V.
EDDIE MAE=20
HARRIS, =
Appellee
On Appeal from the =
County Court at Law No. 1
Galveston County, =
Texas
Trial Court Cause =
No. 54,180
M E M O R=20
A N D U M O P I N I O N
In a=20
single issue, appellant Robert Lee Armstrong, Jr. challenges the =
legal and=20
factual sufficiency of the evidence to support the trial =
court=3Ds finding=20
in favor of appellee Eddie Mae Harris in her forcible detainer=20
action. We affirm.
I. =20
Factual and Procedural Background
On=20
February 1, 2005, Harris and Armstrong executed a contract in =
which=20
Armstrong agreed to purchase a residence Harris owned in =
Hitchcock, Texas=20
for $40,000 plus six percent annual interest. The contract =
and=20
accompanying financing addendum provided the following: =
$ =
; =20
Harris=20
would owner-finance the sale pursuant to a promissory note that =
was=20
Asecured by =
vendor=3Ds and deed of trust =
liens.@
$ =
; =20
The note=20
would be payable by Armstrong in 120 installments of $534 =
Abeginning 01 =
February 2005 .=20
. . and continuing at monthly intervals thereafter for 10 years =
when the=20
balance on the Note will be due and payable.@
$ =
; =20
The note=20
would contain a five percent late fee provision for any =
installment not=20
paid within ten days of the Adue =
date,@ which was not =
expressly=20
defined.
$ =
; =20
Upon the=20
closing date, Aon or before =
February 1,=20
2015,@ Armstrong would =
pay the=20
ASales =
Price@ and Harris would=20
Aexecute and deliver =
a general=20
warranty deed conveying title to the Property to =
[Armstrong].@
$ =
; =20
Pursuant=20
to an Aacceleration=20
clause,@ if Armstrong =
Amisse[d]@ two months of =
payments,=20
Harris would foreclose and all payments will be treated as =
A[r]ent.@
$ =
; =20
Armstrong=20
must pay property taxes and Insurance.
$ =
; =20
AAny possession by =
[Armstrong]=20
prior to closing or by [Harris] after closing which is not =
authorized by a=20
written lease will establish a tenancy at sufferance relationship =
between=20
the parties.@
Neither=20
party ever executed a promissory note pursuant to the sales =
contract.=20
The=20
primary disputes in this appeal include (1) whether the contract =
required=20
payment due on the first of each month, (2) whether time was of =
the=20
essence of the contract, and (3) thus whether Armstrong =
Amisse[d]@ =
two=20
monthly payments under the acceleration clause by making them =
beyond the=20
first of the month, thereby defaulting under the contract and =
committing=20
forcible detainer after refusing to surrender possession of the=20
property. As payment for the February 2005 installment, =
Harris=20
testified that Armstrong tendered only $150 two to three weeks =
after=20
February 1, which she accepted. =20
As payment for the August 2005 installment, Armstrong tendered =
$200 on=20
August 15,=20
$300 on August 23, and $34 on August 31. With the August 15 =
payment,=20
Armstrong included a handwritten note addressed to Harris =
describing the=20
payment as Alate.@ =20
Harris accepted each of these payments. Armstrong then =
similarly=20
failed to make the September 2005 installment payment on September =
1. Thereafter, on September 6, Harris=3Ds=20
daughter, Shirley Louis, sent a letter to Armstrong informing him =
that she=20
would now collect payments for Harris under the agreement and =
stating=20
that, as of September 1, Harris would charge a $50 late fee for =
all=20
payments received after the fifteenth of the month and $10 per day =
Auntil the=20
note is caught up.@ =20
Louis specified that payments Aha[d] to=20
be in my mail box on or before the 15th of each month.@ =20
Thereafter,=20
at some point in early to middle October, Armstrong tendered =
payment to=20
Louis for the October installment but did not include any payment =
for the=20
September 2005 installment or any late fees allegedly incurred =
pursuant to=20
Louis=3Ds=20
September 6 letter. On October 21, Louis sent Armstrong a=20
Anotice of=20
acceleration@ =
pursuant=20
to the contract=3Ds=20
acceleration clause, in which Louis stated she was returning=20
Armstrong=3Ds=20
Apartial=20
payment@ =
and that=20
Armstrong had Amissed=20
[the] September payment and [the] October payment Late fees [were] =
$50.00=20
plus $10.00 a day for 45 days as of October 31, 2005.@ =20
Louis further asserted that AHarris . .=20
. will [only] accept from you . . . the balance of what is owed on =
the=20
house . . . due by November 1, 2005.@ =20
Although=20
the record does not reveal the exact date, Armstrong thereafter =
attempted=20
to make the September and October payment. On October 31, =
Harris=20
sent Armstrong a three-day notice to vacate the premises. =20
On November 6, 2005, Louis sent Armstrong a handwritten note =
returning his=20
money orders and stating that he was Anow 3=20
months behind plus all late fees@ =
and that=20
Harris Ais now=20
asking that you vacate [the property].@ =
On November 29, =
Harris filed=20
suit against Armstrong in justice court alleging that he committed =
forcible detainer by Afailing to pay =
house notes=20
for the period beginning the 1st day of September, and running =
through=20
[November 29]@ and specifying =
that=20
Armstrong breached the real estate sales contract by Anot paying as=20
agreedCin default of=20
payment.@ Harris =
sought=20
possession of the property, back rent for $2,136, Adaily rentals that =
may accrue=20
between the time of filing [the] petition and [Armstrong] vacates =
the . .=20
. premises,@ and $600 in late =
fees=20
Athru November 2005 =
and $10.00=20
thereafter.@ On December =
6,=20
Armstrong tendered the full payment for the September, October, =
and=20
November installments, which Harris characterized as Arent@ payments pursuant =
to the=20
sales contract=3Ds acceleration =
clause. =20
The justice court subsequently entered a default judgment against=20
Armstrong on December 19 for his failure to appear. =
Armstrong=20
thereafter appealed to the County Court at Law No. 1 of Galveston=20
County. Following a trial de novo,=20
the county court found that Armstrong committed forcible detainer, =
granted=20
Harris a writ of possession on the property, and awarded her past =
due rent=20
to the date of trial, attorney=3Ds fees of $1,600, =
and=20
costs. The county court made the following relevant findings =
of fact=20
and conclusions of law:
$ =
; =20
Armstrong=20
failed to pay as required on August 1, September 1, October 1, and =
November 1 of 2005.
$ =
; =20
Harris=20
gave notice to vacate on October 31, 2005.
$ =
; =20
All=20
payments on the property after August 1, 2005 constituted rent=20
payments.
$ =
; =20
Armstrong=20
did not pay taxes due for 2005 and did not furnish proof of=20
insurance.
$ =
; =20
All rent=20
payments were due to Harris by April 11, 2006.
This=20
appeal followed.
II. =20
Standard of Review
In=20
reviewing a trial court=3Ds findings=20
of fact for legal and factual sufficiency, we apply the same =
standards=20
that we apply in reviewing jury findings. Ulmer v. =
Ulmer, 130=20
S.W.3d 294, 299 (Tex. App.CHouston=20
[14th Dist.] 2004, no pet.). In a legal sufficiency or =
no-evidence=20
review, we determine whether the evidence would enable reasonable =
and=20
fair‑minded people to reach the finding under review. =
See City of=20
Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). In =
conducting=20
this review, we credit favorable evidence if reasonable =
factfinders could=20
and disregard contrary evidence unless reasonable factfinders =
could=20
not. See id. We must consider the evidence in =
the light=20
most favorable to the finding under review and indulge every =
reasonable=20
inference that would support it. See id. at =
822. We=20
must, and may only, sustain no-evidence points when either the =
record=20
reveals a complete absence of evidence of a vital fact, the court =
is=20
barred by rules of law or of evidence from giving weight to the =
only=20
evidence offered to prove a vital fact, the evidence offered to =
prove a=20
vital fact is no more than a mere scintilla, or the evidence =
establishes=20
conclusively the opposite of the vital fact. Id. at=20
810. Evidence is no more than a scintilla when it is so weak =
as to=20
do no more than create a mere surmise or suspicion of its =
existence. =20
Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. =
2004). =20
The factfinder is the sole judge of the credibility of the =
witnesses and=20
the weight to give their testimony. See City of =
Keller, 168=20
S.W.3d at 819.
In a=20
factual sufficiency review, we consider all the evidence =
supporting and=20
contradicting the finding. Plas‑Tex, Inc. v. U.S. =
Steel=20
Corp., 772 S.W.2d 442, 445 (Tex. 1989). We set aside the =
finding=20
only if the finding is so contrary to the overwhelming weight of =
the=20
evidence as to be clearly wrong and unjust. See Cain v. =
Bain,=20
709 S.W.2d 175, 176 (Tex. 1986).
III. =20
Analysis
The thrust=20
of Armstrong=3Ds legal=20
and factual sufficiency complaint is that the evidence fails to =
support=20
the trial court=3Ds finding=20
that he committed forcible detainer. A forcible detainer =
suit is an=20
action to determine the right to immediate possession of real =
property=20
where there was no unlawful entry. See Rice v. =
Pinney, 51=20
S.W.3d 705, 709 (Tex. App.CDallas=20
2001, no pet.). The only issue in such an action is the =
right to=20
actual possession of the property, and the merits of title may not =
be=20
adjudicated. See Tex.=20
R. Civ. P. 746. AA person=20
who refuses to surrender possession of real property on demand =
commits a=20
forcible detainer if the person . . . is a tenant or a subtenant =
wilfully=20
and without force holding over after the termination of the=20
tenant=3Ds right of=20
possession . . . .@ =20
Tex. Prop. Code Ann.=20
' =
24.002(a)(1) (Vernon 2000). =20
A notice to vacate constitutes a demand for possession in this=20
context. See id. ' =
24.005(h). Thus, to prevail in a forcible detainer action, a =
plaintiff is not required to prove title but is only required to =
show=20
sufficient evidence of ownership to demonstrate a superior right =
to=20
immediate possession. See Rice, 51 S.W.3d at 709; =
Goggins=20
v. Leo, 849 S.W.2d 373, 377 (Tex. App.CHouston=20
[14th Dist.] 1993, no writ).
Specifically,=20
Armstrong challenges the trial court=3Ds findings=20
that he defaulted under the contract by failing to make payments =
on August=20
1 through November 1, 2005 Aas=20
required,@ =
which=20
gave rise to Harris=3Ds=20
foreclosure and acceleration of the contract pursuant to the =
acceleration=20
clause and her subsequent action for forcible detainer upon his =
failure to=20
surrender possession of the property. Armstrong argues that =
the=20
evidence is insufficient to establish that he defaulted under the=20
contract=3Ds=20
acceleration clause by Amiss[ing]@ =
two=20
installment payments because (1) the contract did not have a =
specific due=20
date for payments, and he attempted to make full payment for =
September and=20
October, (2) time was not expressly or impliedly made of the =
essence of=20
the contract, and (3) Harris=3Ds attempt=20
to impose a due date on the fifteenth of the month via =
Louis=3Ds=20
September 6 letter constituted an invalid unilateral modification =
to the=20
contract.
We=20
disagree with Armstrong=3Ds=20
assertions and conclude that there is legally and factually =
sufficient=20
evidence to support the trial court=3Ds=20
findings. First, the evidence supports the court=3Ds express=20
finding that payments were due on the first of the month. =
The=20
contract provision stating that the note would require payments of =
120=20
installments of $534 Abeginning=20
01 February 2005 . . . and continuing at monthly intervals =
thereafter for=20
10 years@ =
contemplates a due date on the first of the month. Moreover, =
Armstrong himself described his August 15 payment as Alate@ =
in his=20
letter to Harris.
Second,=20
the evidence supports the court=3Ds implied=20
finding that time was impliedly of the essence of the =
contract. =20
Ordinarily, time is not of the essence in contracts. See =
Kennedy=20
Ship & Repair, L.P. v. Pham, 210 S.W.3d 11, 19 (Tex.=20
App.CHouston=20
[14th Dist.] 2006, no pet.). Moreover, a date stated for =
performance=20
does not mean time is of the essence. Id. =
Instead, the=20
contract must expressly make time of the essence or there must be=20
something in the nature or purpose of the contract and the =
circumstances=20
surrounding it making it apparent that the parties intended that =
time be=20
of the essence. Id. Unless the contract =
expressly makes=20
time of the essence, the issue is a question of fact. =20
Id. Although not conclusive, the first of the month =
due date=20
in the contract constitutes some evidence that time was of the=20
essence. See Builders Sand, Inc. v. Turtur, 678 =
S.W.2d 115,=20
118 (Tex. App.CHouston=20
[14th Dist.] 1984, no writ) (holding that designation of a =
particular date=20
for performance is some indication that time is of the =
essence). =20
Additionally, while there was evidence that Harris accepted some =
late=20
payments, she testified that she told Armstrong from the outset =
and=20
repeatedly thereafter that she would not accept partial or late =
payments=20
because she needed his house payments to pay her own house note on =
time. As such, based upon all the evidence in the record, we =
find=20
sufficient evidence that the parties intended time to be of the =
essence. =20
See Pham, 210 S.W.3d at 19; see, e.g., =
Turtur,=20
678 S.W.2d at 118B19=20
(finding sufficient evidence that time was of essence of contract =
for sale=20
of land where contract provided that Aclosing=20
will be within seven (7) days of this contract@ =
and=20
appellee testified that he told other parties in transaction that =
it was=20
important to close promptly in order to secure price offered and =
because=20
appellee was leaving for vacation and had many things to take care =
of=20
before departure).
Because it=20
is undisputed that Armstrong failed to make the September payment =
on the=20
first of the month, and he concedes he paid the October payments =
in the=20
Amiddle@ =
of=20
October, the evidence establishes that Armstrong Amisse[d]@ =
two=20
monthly payments under the contract=3Ds=20
acceleration clause, thereby triggering a foreclosure and =
acceleration by=20
Harris and entitling her to possession of the property. The =
evidence=20
further establishes that, upon Harris=3Ds demand=20
for possession via the notices to vacate, Armstrong failed to =
surrender=20
possession, which subject him to liability for forcible =
detainer. =20
Accordingly, under these circumstances, we conclude that the =
evidence=20
would enable reasonable and fair‑minded people to reach the =
trial=20
court=3Ds findings=20
regarding forcible detainer and that such findings are not so =
contrary to=20
the overwhelming weight of the evidence as to be clearly wrong and =
unjust.=20
We=20
therefore overrule Armstrong=3Ds sole=20
issue and affirm the trial court=3Ds=20
judgment.
/s/ =20
Leslie B. Yates
Justice
Judgment rendered =
and=20
Memorandum Opinion filed October 2, 2007.
Panel consists of =
Justices=20
Yates, Seymore, and Edelman.*
* =
Senior Justice=20
Richard H. Edelman sitting by assignment.
However, the record contains =
correspondence=20
from Harris to Armstrong noting that he paid the February =
installment in=20
full at some point.
The record contains conflicting=20
documentation as to whether Armstrong made the first August =
payment on=20
August 15 or 18.
Armstrong claims he sent the =
September and=20
October payments to Louis after receiving the October 21 notice of =
acceleration and before receiving the October 31 notice to =
vacate. =20
However, nothing in the record supports this assertion, and the =
record=20
contains only two money orders purportedly for September and =
October=20
payments that are dated November 4, 2005.
The record reveals that the =
county court=20
originally entered a default judgment against Armstrong for his =
failure to=20
appear. However, he thereafter timely filed a motion for new =
trial,=20
which the county court granted, and the case proceeded to a =
non-jury trial=20
de novo before the county court on April 11, 2006. =
Harris classifies Armstrong as a =
tenant at=20
sufferance, rather than a holdover tenant, based upon his refusal =
to=20
surrender possession of the land. See ICM Mortgage Corp. =
v.=20
Jacob, 902 S.W.2d 527, 530 (Tex. App.CEl Paso 1994, writ denied) (noting that =
a tenant=20
at sufferance is one who wrongfully continues in possession of =
property=20
after his right to possession has ceased and does not assert a =
claim to=20
superior title). Although the contract invokes tenancy at =
sufferance=20
language, the provision at issueCthe acceleration clauseCdoes not and speaks only in terms of =
Arent.@ In any case, because whether =
Armstrong=20
constituted a tenant at sufferance or a holdover tenant will not =
affect=20
the outcome of this appeal, we need not address this issue. =
See=20
generally McLain v. Lamb, No. 07‑95‑0251‑CV, =
1996 WL 721954, at *5 n.6=20
(Tex. App.CAmarillo Dec. 16, 1996, writ denied) =
(not=20
designated for publication) (noting the similarities between =
holdover=20
tenants and tenants at sufferance and that the law of holdover =
tenants is=20
instructive in issues regarding tenants at sufferance). =
We acknowledge that a time of the =
essence=20
provision may be waived. See Pham, 210 S.W.3d at =
20. =20
However, Armstrong did not present this argument to the trial =
court or to=20
this court. See Tex.=20
R. App. P. 33.1(a). =20
|