David Wethy v. Federal National Mortgage Association ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-17-00329-CV
___________________________
DAVID WETHY, Appellant
V.
FEDERAL NATIONAL MORTGAGE ASSOCIATION, Appellee
On Appeal from County Court at Law No. 1
Tarrant County, Texas
Trial Court No. 2017-003751-1
Before Sudderth, C.J.; Gabriel and Bassel, JJ.
Memorandum Opinion by Justice Gabriel
MEMORANDUM OPINION
In two issues, appellant David Wethy appeals from the county court at law’s
judgment in this forcible detainer action awarding appellee Federal National Mortgage
Association (Fannie Mae) possession of a residence located in Crowley.1 We affirm.
I. BACKGROUND
Fannie Mae filed a forcible detainer petition in the justice court, naming as
defendants Danny Ortiz, Betty Ortiz, and “all other occupants” of the residence. It is
undisputed that Wethy was an occupant of the residence. The petition alleged that
Fannie Mae had purchased the residence at issue at a non-judicial foreclosure sale.
The petition further alleged that in accordance with section 24.005 of the Texas
Property Code, Fannie Mae had made written demand upon the defendants to vacate
the residence but that the defendants had not done so. The justice court rendered
judgment in favor of Fannie Mae.
1
In its response brief, Fannie Mae construed Wethy’s brief as raising four issues
and responded accordingly. An appellant’s brief must state concisely all issues or
points presented for review and must contain a clear and concise argument for the
contentions made, with appropriate citations to authorities. See Tex. R. App. P.
38.1(f), (i). Applying that standard to a liberal construction of Wethy’s brief, we
cannot say that Wethy’s brief raises any issues for our consideration other than those
we address. See id; see also ERI Consulting Eng’rs, Inc. v. Swinnea, 318 S.W.3d 867, 880
(Tex. 2010) (recognizing that “[t]he Texas Rules of Appellate Procedure require
adequate briefing”); Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284–
85 (Tex. 1994) (observing that appellate court has discretion to deem issues waived
due to inadequate briefing).
2
The Ortizes and Wethy appealed the justice court’s judgment to the county
court at law. On September 15, 2017, the county court held a bench trial, after which
it signed a final judgment awarding Fannie Mae possession of the residence, attorney’s
fees, and court costs. Wethy, pro se, appealed.2
II. SECTION 24.005 NOTICE
In his first issue, Wethy appears to challenge the justice court’s judgment.
However, we do not have jurisdiction over direct appeals from a justice court’s final
judgment in a forcible detainer suit. See Beard v. JP Morgan Chase Bank, No. 02-05-
00420-CV, 2006 WL 1920995, at *1 (Tex. App.—Fort Worth July 13, 2006, no pet.)
(per curiam) (mem. op.). And in any event, Wethy appealed the justice court’s
judgment to the county court, which tried the case de novo. See Tex. R. Civ. P.
510.10(c). We therefore construe Wethy’s argument as an attack on the county
court’s judgment.
Section 24.005 generally requires landlords to provide occupants with a written
notice to vacate the premises at least three days prior to filing a forcible detainer suit.
See Tex. Prop. Code Ann. § 24.005. Wethy argues that the justice court erred in
awarding judgment in favor of Fannie Mae because there is insufficient evidence to
show that Fannie Mae provided timely notice to vacate the residence in accordance
with property code section 24.005.
Danny Ortiz and Betty Ortiz did not appeal the county court’s final judgment.
2
3
On appeal, it is the burden of the appellant to bring forward a sufficient record
to show error by the trial court. Callejas v. Fed. Nat’l Mortg. Ass’n, No. 01-10-00932-
CV, 2011 WL 2923759, at *1 (Tex. App.—Houston [1st Dist.] July 21, 2001, pet.
dism’d w.o.j.) (mem. op.). Here, Wethy has not furnished us with a reporter’s record.
When a party raises an issue on appeal relying on evidence presented to the trial court,
absent any record of what evidence the trial court considered, we must presume the
trial court had before it and passed on all necessary facts to support its judgment.
Public, Inc. v. County of Galveston, 264 S.W.3d 338, 341 (Tex. App.—Houston [14th
Dist.] 2008, no pet.). Accordingly, an appellant cannot prevail on any evidentiary
issues in the absence of a sufficient record on appeal. Id.
Proof of proper notice under section 24.005 is inherently a fact issue. Callejas,
2011 WL 2923759, at *2. Because we do not have a reporter’s record or any findings
of fact from the proceedings in the county court, we must presume that the county
court had before it and passed on all necessary facts to support its judgment and that
sufficient evidence supports the judgment. See Public, 264 S.W.3d at 341–42.
Accordingly, we must reject Wethy’s argument that there was insufficient evidence to
show that Fannie Mae complied with section 24.005’s notice requirements. See
Callejas, 2011 WL 2923759, at *2 (presuming evidence was sufficient to support
county court’s judgment where appellant argued the appellee failed to provide notice
under section 24.005 but failed to provide reporter’s record).
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As part of his issue, Wethy attempts to rely upon documents that do not
appear in the clerk’s record. Among these documents are affidavits executed by the
Ortizes and by Wethy averring that they never received the notice to vacate required
under section 24.005. In his brief, Wethy states that these affidavits were filed in the
justice court but that the justice court failed to forward them to the county court.
Wethy requested the county clerk to supplement the clerk’s record with these
affidavits. The county clerk informed this court that the requested affidavits were
from the justice court and that the county court did receive those affidavits from the
justice court. The county clerk further stated that he contacted the justice court,
which informed him that there were no additional documents in its case and that the
county court had the complete file.
Subsequently, Wethy attempted to file the affidavits directly with this court.
We informed him, however, that the trial court clerk is responsible for preparing,
certifying, and timely filing the clerk’s record. See Tex. R. App. P. 35.3(a). We further
informed Wethy that if he believed a filing designated for inclusion in the clerk’s
record had been lost, then he should follow the procedure for supplementing the
record contained in appellate rule 34.5(e). Wethy did not supplement the record
under rule 34.5(e). Instead, he attached the affidavits as exhibits to his appellant’s
brief and requested this court to consider them.
It is well established that we may not consider matters outside of the appellate
record, which includes documents attached to a brief as an exhibit. Greystar, LLC v.
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Adams, 426 S.W.3d 861, 865 (Tex. App.—Dallas 2014, no pet.). The affidavits Wethy
attached to his brief do not appear in the appellate record. Thus, we must decline his
request that we consider them in this appeal. In the absence of a reporter’s record, we
must presume that the county court had before it and passed on all necessary facts to
support its judgment and that sufficient evidence supports the judgment. See Public,
264 S.W.3d at 341–42.
We overrule Wethy’s first issue.
III. JURY TRIAL
In his second issue, Wethy argues the county court violated his right to a jury
trial by conducting a bench trial. We review a trial court’s refusal to grant a jury trial
for an abuse of discretion.
To invoke and perfect the right to a jury trial in a civil case, a party must
comply with the applicable rules of civil procedure. Singh v. Fed. Nat’l Mortg. Ass’n,
No. 03-14-00354, 2014 WL 6893696, at *3 (Tex. App.—Austin Dec. 5, 2014, no pet.)
(mem. op.). Rule 216 requires a party to make a jury request and pay the jury fee “a
reasonable time before the date set for trial of the cause on the non-jury docket, but
not less than thirty days in advance.” Tex. R. Civ. P. 216. The clerk’s record does not
reflect that a jury fee was paid, and Wethy has not directed us to any record or
evidence to the contrary. Nevertheless, for purposes of this appeal, we will assume
Wethy perfected his right to a jury trial.
6
Still, a party that has perfected its right to a civil jury trial may subsequently
waive that right. See In re M.P.B., 257 S.W.3d 804, 811 (Tex. App.—Dallas 2008, no
pet.); Addicks v. Sickel, No. 02-03-00218-CV, 2005 WL 737419, at *2–3 (Tex. App.—
Fort Worth Mar. 31, 2005) (mem op.). To preserve his complaint that he was denied
his perfected right to a trial by jury, Wethy was required to either object on the record
to the county court’s action or indicate affirmatively in the record that he intended to
stand on his perfected right to a jury trial. See M.P.B., 257 S.W.3d at 811; Addicks,
2005 WL 737419, at *2–3.
Showing preservation is a tall order here. In the absence of a reporter’s record,
we can only look to the clerk’s record to ascertain whether Wethy preserved his
complaint about the denial of a jury trial. Nothing in the clerk’s record shows that
Wethy objected to the lack of a jury trial or affirmatively indicated that he intended to
stand on his perfected right to a jury trial before the county court conducted the
bench trial. The clerk’s record reflects that Wethy’s post-judgment motion for
reconsideration was the first time he complained about the lack of a jury trial, and this
was too late to preserve error. See In re A.Ja.T., No. 05-18-00705-CV, 2018 WL
5993905, at *4 (Tex. App.—Dallas Nov. 15, 2018, no pet.) (mem. op.) (holding
objection to denial of a jury trial was untimely where parties did not object until after
the bench trial had already commenced). Further, a defendant’s failure to appear for
trial waives the perfected right to a jury trial. See Tex. R. Civ. P. 220; In re Marriage of
Harrison, 557 S.W.3d 99, 136–37 (Tex. App.—Houston [14th Dist.] 2018, pet. denied);
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Addicks, 2005 WL 737419, at *3. And the county court’s order here states that the
defendants failed to appear for trial. We conclude that Wethy failed to preserve his
complaint that the county court denied his right to a jury.
We overrule Wethy’s second issue.
IV. CONCLUSION
Having overruled all of Wethy’s issues, we affirm the county court’s judgment.
See Tex. R. App. P. 43.2(a).
/s/ Lee Gabriel
Lee Gabriel
Justice
Delivered: May 23, 2019
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