Salaymeh v. Plaza Centro, LLC (Tex.App.- Houston [1st Dist.] Aug. 26, 2008)(Seymore)
(lease law, damages for unpaid rent reversed for lack of sufficient proof, consolidated appeals in two forcible
detainer suits)(evidence is legally insufficient to support the awards of lost rents).
After reviewing the evidence in the light most favorable to the verdict, we conclude the
evidence is legally insufficient to prove appellant occupied the premises during the
pendency of the appeal. Therefore, the trial court erred by awarding lost rents. ...
Accordingly, we modify the judgment against appellant, Mohammed Salaymeh d/b/a
Muebleria Y Bazar Tierrablanca, to delete the award of lost rents in the amount of
$34,200.00 and affirm as modified.
AFFIRMED [AND REFORMED IN PART]: Opinion by Justice Seymore
Before Justices Fowler, Seymore and Guzman)
14-07-00394-CV Mohammad Salaymeh d/b/a Rainbow Seafood v. Plaza Centro, LLC
Appeal from County Civil Court at Law No 2 of Harris County
Trial Court Judge: Judge Gary Michael Block
O P I N I O N
We are presented with consolidated appeals in two forcible detainer suits. Appellee, Plaza Centro, LLC, is owner
of the property. During the relevant period of time, the property was purportedly occupied by appellant,
Mohammad Salaymeh, who operated two businesses identified as Muebleria Y Bazar Tierrablanca and Rainbow
Seafood. Plaza Centro named Mohammed Salaymeh d/b/a Muebleria Y Bazar Tierrablanca [Tierrablanca] and
Mohammad Salaymeh d/b/a Rainbow Seafood [“Rainbow Seafood”] as defendants, respectively, in two forcible
detainer suits.[1] The trial court rendered judgment in each suit, awarding possession of the premises and lost
rents to Plaza Centro. Appellant challenges only those portions of the judgments awarding lost rents. In three
issues, appellant contends (1) the trial court lacked subject-matter jurisdiction over these suits, (2) the evidence
is legally insufficient to support the awards of lost rents, and (3) the trial court applied an incorrect accrual date
when awarding lost rents.
We conclude the evidence is legally insufficient to support the awards of lost rents. Accordingly, we modify the
judgment against Tierrablanca to delete the award of lost rents in the amount of $34,200.00 and affirm as
modified. We modify the judgment against Rainbow Seafood to delete the award of lost rents in the amount of
$22,799.43 and affirm as modified.
I. Background
In an unrelated suit, a default judgment was rendered against appellant's brother, the former owner of the
commercial property at issue. The court authorized a receiver to sell the property. By special warranty deed
dated November 16, 2005, the receiver conveyed the property to Plaza Centro.
On February 28, 2006, Plaza Centro sent identical letters to Tierrablanca and Rainbow Seafood. In the letters,
Plaza Centro expressed its understanding that Tierrablanca and Rainbow Seafood were occupying the property
without a written lease. Plaza Centro considered Tierrablanca and Rainbow Seafood to be occupying the
property as tenant-at-will or tenant-by-sufferance. The entities were instructed that, to the extent they were
paying rent, they were now to forward all rental payments to Plaza Centro's address.
Neither entity paid rent to Plaza Centro for the month of March 2006. On March 14, 2006, Plaza Centro again
sent identical letters to Tierrablanca and Rainbow Seafood. Plaza Centro notified the entities that Plaza Centro
was terminating their tenancies and right to possession of the premises, effective March 19, 2006. Plaza Centro
further demanded that the entities vacate the premises within three days. On April 26, 2006, Plaza Centro filed
separate forcible detainer suits against Tierrablanca and Rainbow Seafood in the Justice Court of Harris
County. Plaza Centro sought possession of the property, unpaid rent, unspecified damages, and attorney's
fees. The Justice Court awarded possession, attorney's fees, and costs to Plaza Centro.
Appellant timely appealed to the Harris County Court at Law Number Two. The Honorable Gary Michael Block
conducted one trial de novo for both suits. On September 6, 2006, the trial court rendered two separate
judgments. Relative to Tierrablanca, the court awarded possession to Plaza Centro,$34,200.00 for unpaid rent,
interest, costs, and attorney's fees. Relative to Rainbow Seafood, the court awarded possession to Plaza
Centro, $22,799.43 for unpaid rent, interest, costs, and attorney's fees. The trial court filed findings of fact and
conclusions of law in each suit.
Appellant does not contest the portions of the judgments awarding possession of the property to Plaza Centro.
See Tex. Prop. Code Ann. ' 24.007 (Vernon 2000). (“A final judgment of a county court in an eviction suit may
not be appealed on the issue of possession unless the premises in question are being used for residential
purposes only.") Appellant challenges only those portions of the trial court's judgments awarding lost rents.
II. Subject-Matter Jurisdiction
In his first issue, appellant contends the trial court lacked subject-matter jurisdiction over both suits. Subject-
matter jurisdiction is fundamental and may be raised for the first time on appeal. See Tex. Ass'n of Bus. v. Tex.
Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993). Subject-matter jurisdiction is a question of law, subject to de
novo review. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).
A justice court in the precinct in which real property is located has jurisdiction over a forcible detainer suit. See
Tex. Prop. Code Ann. ' 24.004 (Vernon 2000); Tex. Gov't Code Ann. ' 27.031(a)(2) (Vernon 2007 & Supp.
2008). However, a justice court is expressly deprived of jurisdiction to determine or adjudicate title to land. See
Tex. Gov't Code Ann. ' 27.031(b) (Vernon 2007 & Supp. 2008). The appellate jurisdiction of the county court is
confined to the jurisdictional limits of the justice court. Rice v. Penney, 51 S.W.3d 705, 708B09 (Tex. App.-
Dallas 2001, no pet.); Goggins v. Leo, 849 S.W.2d 373, 375 (Tex. App.- Houston [14th Dist.] 1993, no writ).
Accordingly, notwithstanding the grant of general jurisdiction to a county court, it has no jurisdiction to adjudicate
title to real property in a de novo trial on appeal of a forcible detainer suit from justice court. Rice, 51 S.W.3d at
708-09.
The only issue in an action for forcible detainer is the right to actual and immediate possession; the merits of title
are not adjudicated. Tex. R. Civ. P. 746; Haginas v. Malbis Mem. Found., 163 Tex. 274, 277, 354 S.W.2d 368,
371 (1962); Hong Kong Dev., Inc. v. Nguyen, 229 S.W.3d 415, 434 (Tex. App.- Houston [1st Dist.] 2007, no
pet.). 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. Rice, 51 S.W.3d at
709. However, where the right to immediate possession necessarily requires resolution of a title dispute, a
justice court has no jurisdiction to enter a judgment. Id. Accordingly, a justice court is not deprived of jurisdiction
merely by the existence of a title dispute; it is deprived of jurisdiction only if resolution of a title dispute is a
prerequisite to determination of the right to immediate possession. See id.; cf. Dass, Inc. v. Smith, 206 S.W.3d
197, 200B01 (Tex. App.- Dallas 2006, no pet.) (holding that, where relationship between parties was one of
buyer-seller, rather than lessor-lessee, determination of right to immediate possession of property necessarily
required resolution of title dispute and jurisdiction lay in district court).
It has been long settled in Texas jurisprudence that a forcible detainer action is not exclusive. Scott v. Hewitt,
127 Tex. 31, 35, 90 S.W.2d 816, 818B19 (1936). Forcible detainer actions are cumulative of any other remedy
that a party may have in the courts of this state. Id. The displaced party is entitled to bring a separate suit in the
district court to determine questions of title. Id. Forcible detainer suits in justice court may run concurrently with
an action in another court - even if the other action involves adjudication of matters that could result in a different
determination of possession from the decision rendered in the forcible detainer suit. Hong Kong Dev., Inc., 229
S.W.3d at 437.
Appellant contends the trial court did not have jurisdiction because the justice court lacked jurisdiction over the
underlying suits. As appellant notes, the receiver conveyed the property to Plaza Centro by special warranty
deed on November 16, 2005 - before Plaza Centro filed these forcible detainer suits. However, sale of the
property was not confirmed by the court until August 2, 2006 - after the justice court rendered judgment.
Appellant cites authority recognizing that a receiver's sale of property is not valid until it is confirmed by the
receivership court. See Baumgarten v. Frost, 143 Tex. 533, 539, 186 S.W.2d 982, 986 (Tex. 1945). Therefore,
appellant asserts that the justice court lacked jurisdiction because Plaza Centro obtained title to the property at
issue after proceedings in the justice court were concluded.
However, we hold the justice court was not required to resolve issues of title to determine the parties' rights to
immediate possession of the property. Here, Plaza Centro presented a duly executed and recorded special
warranty deed reflecting conveyance of the premises to Plaza Centro, and Plaza Centro asserted that appellant
was occupying the premises as a tenant-at-will or a tenant-at-sufferance and held over following a written
demand to vacate the premises. This alleged landlord-tenant relationship presented an independent basis on
which the trial court could determine the right to immediate possession without resolving underlying title issues.
See e.g., Rice, 51 S.W.3d at 712. Accordingly, the justice court had subject-matter jurisdiction to determine
whether Plaza Centro or appellant had superior right to immediate possession of the property. Because the
justice court had subject-matter jurisdiction over the underlying forcible detainer suits, the county court had
subject-matter jurisdiction over the appeal. See id. at 708B09. If we were to hold otherwise - that a justice court
is deprived of jurisdiction when a party merely challenges validity of title - we would ignore the long-established
procedure for parallel resolution of immediate possession and title issues. See id. at 711. Appellant's first issue
is overruled.
III. Legal Sufficiency
In his second issue, appellant contends the evidence is legally insufficient to support the trial court's awards of
lost rents.[2] Specifically, appellant contends Plaza Centro failed to prove (1) appellant occupied the premises or
(2) the amount of lost rents.
A. Standard of Review
Findings of fact in a bench trial have the same force and dignity as a jury verdict. Haas v. Ashford Hollow Cmty.
Improvement Ass'n, 209 S.W.3d 875, 887 (Tex. App.- Houston [14th Dist.] 2007, no pet.). If the findings are
challenged, we review sufficiency of the evidence supporting the findings by applying the same standards that
we use to review the legal sufficiency of the evidence supporting jury findings. Catalina v. Blasdel, 881 S.W.2d
295, 297 (Tex. 1994). As a reviewing court, we are bound by any unchallenged findings of fact unless the
contrary is established as a matter of law or the finding is not supported by any evidence. McGalliard v.
Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986).
The test for legal sufficiency is “whether the evidence at trial would enable reasonable and fair-minded people to
reach the verdict under review." City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). When examining a
legal sufficiency challenge, we review the evidence in the light most favorable to the challenged finding and
indulge every reasonable inference that would support it. Id. We credit favorable evidence if reasonable jurors
could and disregard contrary evidence unless reasonable jurors could not. Id. So long as the evidence falls
within the zone of reasonable disagreement, we may not substitute our judgment for that of the fact-finder. Id. at
822.
B. Forcible Detainer
An action for forcible detainer is intended to be a speedy, simple, and inexpensive means to regain possession
of property. Marshall v. Hous. Auth. of City of San Antonio, 198 S.W.3d 782, 787 (Tex. 2006). Under the
Property Code, a person who refuses to surrender possession of real property on demand commits a forcible
detainer if the person: wilfully and without force holds-over after termination of the right of possession; or is a
tenant at will or by sufferance, including an occupant at the time of foreclosure of a lien superior to the tenant's
lease. See Tex. Prop. Code Ann. ' 24.002(a) (Vernon 2000).
Here, the trial court awarded lost rents pursuant to Texas Rule of Civil Procedure 752, which provides in
pertinent part:
On the trial of the cause in the county court the appellant or appellee shall be permitted to plead, prove and
recover his damages, if any, suffered for withholding or defending possession of the premises during the
pendency of the appeal. Damages may include but are not limited to loss of rentals during the pendency of the
appeal . . .
Tex. R. Civ. P. 752.[3] To support an award of lost rents under rule 752, the plaintiff must prove the defendant
occupied the leased premises during the pendency of the appeal. See Powell v. Mel Powers Inv. Builder, 590 S.
W.2d 837, 839 (Tex. App.- Houston [14th Dist.] 1979, no writ) (holding evidence was insufficient to support trial
court's award of lost rents under Rule 752 because no evidence showed tenant occupied premises during
pendency of appeal).
Appellant argues there is no evidence in the record that he was withholding or defending possession of the
premises because there is no evidence he occupied the premises during the pendency of the appeal.[4] In
contrast, Plaza Centro contends the evidence is legally sufficient to prove appellant occupied the premises
because (1) Plaza Centro mailed letters to the entities at the address of the premises on February 28, 2006 and
March 14, 2006 and appellant personally signed for one March 14 letter, (2) Giorgio Lofti, Plaza Centro's
representative, testified that appellant did not vacate the premises, and (3) appellant believed he was entitled to
occupy and was defending his right to possession of the premises. However, we conclude this evidence is
insufficient to establish appellant occupied the premises during the pendency of the appeal.
1. February 28 and March 14 Letters
On February 28, 2006, Plaza Centro mailed letters to the entities at the address of the premises informing them
that it had purchased the property and instructing them to make rental payments to Plaza Centro. On March 14,
2006, Plaza Centro again sent identical letters to the entities at the address of the premises giving notice
regarding termination of their tenancies and exercise of Plaza Centro's right to possession. Appellant personally
acknowledged receipt of one of the March 14 letters. As Plaza Centro notes, a finding of occupation will stand if
the evidence allows the fact-finder to reasonably infer the tenant occupied the property for a period of time.
Clarke v. Whitehead, 874 S.W.2d 282, 285 (Tex. App.- Houston [1st Dist.] 1994, writ denied). Further, proof of
continuous use of the property is not required. Id.
However, we must distinguish between an award of rent by a justice court in a forcible detainer suit under Rule
738 and an award by a county court for lost rents accruing during pendency of an appeal under Rule 752. As
stated above, a justice court may award lost rents to a property owner when such a request is joined with a
forcible detainer suit and the amount is within the jurisdiction of the justice court. Tex. R. Civ. P. 738. However,
in this case, the justice court did not award lost rents, and Rule 752 provided the only basis for the county court
to award lost rents. Rule 752 specifically allows the owner to plead, prove and recover its lost rents due to the
defendant's withholding possession “during the pendency of the appeal.” Tex. R. Civ. P. 752 (emphasis added).
It is axiomatic that the owner must prove it incurred these lost rents due to the defendant's possession of the
property after judgment was rendered in the justice court. See id.; Powell, 590 S.W.2d at 839. Accordingly,
Plaza Centro's proof that appellant was sent, and signed for, letters at the premises before suit was filed in the
justice court is insufficient, without more, to establish appellant's occupation of the premises after judgment was
rendered in the justice court.
2. Giorgio Lofti's Testimony
Giorgio Lofti, a member of Plaza Centro and its representative at trial, was the only person to testify at trial.
Plaza Centro argues that Lofti's uncontroverted testimony that appellant did not vacate the premises is sufficient
to support the trial court's awards of lost rents. However, after reviewing the evidence in the light most favorable
to the verdict, we cannot conclude Lofti's testimony established appellant occupied the premises during the
pendency of the appeal. Although Plaza Centro correctly notes Lofti testified that appellant did not vacate the
premises, Lofti also testified that he had not been on the property, did not know whether the premises had been
occupied since Plaza Centro purchased the property, and did not know whether Tierrablanca or Rainbow
Seafood were ever open for business. Additionally, Lofti was unaware of anyone living on the premises. A bare
conclusion with no basis in fact cannot support a judgment even when no objection was made to the statements
at trial. See Cas. Underwriters v. Rhone, 134 Tex. 50, 53-54, 132 S.W.2d 97, 99 (Tex. Comm'n App. 1939,
judgm't adopted) (holding that “bare conclusions" did not “amount to any evidence at all," and “the fact that they
were admitted without objection adds nothing to their probative force."); see also Tex R. Evid. 602 (“A witness
may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has
personal knowledge of the matter"); Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 418 (Tex. 1998) (providing
generally that incompetent testimony will not support a judgment).
Accordingly, because Lofti did not know whether Tierrablanca or Rainbow Seafood had been open for business
or whether anybody occupied the premises, his assertion that appellant did not vacate the premises is nothing
but a bare conclusion without any factual basis and does not prove occupation. See Cas. Underwriters, 132 S.W.
2d at 99. Therefore, we cannot conclude that Lofti's testimony would enable reasonable and fair-minded people
to reach the conclusion that appellant occupied the premises during the pendency of the appeal.
3. Appellant's Defense of Right to Possession
Finally, Plaza Centro argues that the evidence is legally sufficient to support a finding of occupancy because
appellant believed he had possessory rights to the premises and was defending his right to possession.
Although its argument is somewhat unclear, Plaza Centro seems to assert that appellant made a judicial
admission of occupancy by defending his right to possession, thus relieving Plaza Centro of its burden of proof.
See Henningan v. I.P. Petroleum Co., 858 S.W.2d 371, 372 (Tex. 1993). A judicial admission is a formal waiver
of proof, usually found in pleadings or stipulations of the parties. Id. However, to constitute a judicial admission
and bar the admitting party from later disputing the admitted fact, the admission must be clear and unequivocal.
See Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001).
Plaza Centro cites three statements by appellant's counsel made during trial that purportedly constituted judicial
admissions of occupation:
* a statement that appellant was disputing Plaza Centro's right to possession
* statements that Plaza Centro was attempting to terminate appellant's right to possession for failure
to pay rent in compliance with the February 28 letter
* a question to Lofti: “[Plaza Centro] filed suit - - against both of the pieces of property possessed by
my client with a forcible detainer, right?"
However, appellant did not admit to occupying the property during the pendency of the appeal in any of the cited
statements. Further, throughout trial, appellant contested Plaza Centro's claims that appellant was occupying
the premises. Accordingly, we cannot conclude the cited statements are so clear and unequivocal as to
constitute judicial admissions of occupancy, and the statements do not relieve Plaza Centro of its burden to
prove occupancy to recover lost rents. See Wolf, 44 S.W.3d at 568.
After reviewing the evidence in the light most favorable to the verdict, we conclude the evidence is legally
insufficient to prove appellant occupied the premises during the pendency of the appeal. Therefore, the trial
court erred by awarding lost rents. We sustain appellant's second issue.[5]
Accordingly, we modify the judgment against appellant, Mohammed Salaymeh d/b/a Muebleria Y Bazar
Tierrablanca, to delete the award of lost rents in the amount of $34,200.00 and affirm as modified. We modify
the judgment against appellant, Mohammad Salaymeh d/b/a Rainbow Seafood, to delete the award of lost rents
in the amount of $22,799.43 and affirm as modified.
/s/ Charles W. Seymore
Justice
Judgment rendered and Opinion filed August 26, 2008.
Panel consists of Justices Fowler, Seymore and Guzman.
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[1] We will refer to Salaymeh as “appellant" with respect to both suits, except where necessary to separately
identify the parties.
[2] In his stated issue, appellant asserts only that the evidence is legally insufficient to support the lost-rents
awards. At one point in his argument, appellant contends the evidence is both legally and factually insufficient to
support the awards. However, appellant did not present any controverting evidence at trial, and his entire
argument is based on the contention that there is no evidence supporting the awards. Accordingly, we construe
his issue as a legal-sufficiency challenge.
[3] A justice court may award lost rents when such a request is joined with a forcible detainer suit, if the amount
thereof is within the jurisdiction of the justice court. Tex. R. Civ. P. 738. However, in this case, the justice court
did not award lost rents. Plaza Centro did not appeal the justice court's judgment to the county court and did not
raise issues regarding the justice court's refusal, if any, to award lost rents. Appellant is the only party who
appealed the judgment of the justice court. Accordingly, Rule 752 was the only basis on which the county court
was permitted to award lost rents. See Tex. R. Civ. P. 752.
[4] Generally, an appellant challenging legal sufficiency of the evidence presented in a non-jury trial must
challenge specific findings of fact. See Zagorski v. Zagorski, 116 S.W.3d 309, 319 (Tex. App.- Houston [14th
Dist.] 2003, pet. denied). Further, if the trial court's findings of fact are not challenged by a point of error on
appeal, they are binding upon the appellate court. See McGalliard, 722 S.W.2d at 696. However, the trial court
made no explicit finding that appellant occupied the premises during the pendency of the appeal. Nevertheless,
the trial court implicitly found occupation because it awarded lost rents. In his brief, appellant argues there is no
evidence to support this implicit finding.
[5] Having sustained appellant's second issue regarding occupancy, appellant's remaining issues are rendered
moot.