MELANIA ESTELA RIVERA BONILLA v. SHAFAII INVESTMENTS LTD (2025)

SUBSTITUTE OPINION 1

Motion for Rehearing Denied; Affirmed; Opinion of June 20, 2024 Withdrawn, and Substitute Opinion filed February 27, 2025.

In this appeal from a county civil court at law's judgment in the de novo appeal of a forcible-detainer action, appellant argues that (1) this court lacks appellate jurisdiction because the county court's order purporting to rule on two post-judgment motions is unenforceable; and (2) the evidence is legally and factually insufficient to support a finding that appellee complied with statutory notice requirements. Concluding that we have appellate jurisdiction and that appellant's insufficiency arguments lack merit, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellee/plaintiff Shafaii Investments, Ltd. (“Shafaii”) filed a forcible-detainer action in the justice of the peace court against appellant/defendant Melania Estela Rivera Bonilla (“Rivera”) for possession of the property located at 766-B Coolwood Drive, Houston, Texas 77013 (the “Property”). The justice of the peace court rendered judgment that Shafaii have possession of the Property. Rivera appealed to the county civil court at law (“county court”) for a trial de novo. A jury found that Shafaii is entitled to possession of the Property. The county court rendered a final judgment on the verdict, ordering that Shafaii have possession of the Property.

Rivera timely filed a motion for new trial (“New Trial Motion”) and a motion for judgment notwithstanding the verdict (“JNOV Motion”). Within sixty days of the date of judgment, the county court signed a proposed order that Rivera had submitted containing language granting either of her motions (the “Order”). The word “DENIED” appears in red ink on the Order next to the county court's signature. Rivera superseded the county court's judgment and timely perfected this appeal.

II. ISSUES AND ANALYSIS

A. Does this court lack appellate jurisdiction?

Although Rivera filed this appeal, in her first issue, she asserts that this court lacks appellate jurisdiction because the Order (1) granted the JNOV Motion and vacated the judgment, (2) granted the New Trial Motion, and (3) also denied these two motions. Rivera argues that the Order is patently ambiguous and unenforceable, thus depriving this court of appellate jurisdiction. We interpret an order or judgment as a whole in an effort to harmonize and give effect to the entire instrument. See Hagen v. Hagen, 282 S.W.3d 899, 901 (Tex. 2009). If the instrument is unambiguous, this court must adhere to the literal language used, without considering extrinsic evidence. See id. If an order or judgment is ambiguous and uncertain, and its terms are contradictory and cannot be harmonized, the order or judgment is unenforceable. See Harper v. Wellchem, 799 S.W.2d 492, 496 (Tex. App.—Houston [14th Dist.] 1990, no writ); Roberts v. Brittain, 659 S.W.2d 750, 750–51 (Tex. App.—Tyler 1983, no writ).

The Order reads as follows:

Order

The Court has reviewed and considered Defendant Melania Estela Rivera Bonilla's Motion for Judgment Notwithstanding the Verdict and Alternative Motion for New Trial, and the Court makes the following rulings:

1. Defendant Melania Estela Rivera Bonilla's Motion for Judgment Notwithstanding the Verdict is GRANTED. The Court's May 18, 2022 Final Judgment and Order for Possession is VACATED and SET ASIDE. Shafaii investments, Ltd. shall take nothing on its forcible detainer claim. All costs shall be taxed against Shafaii Investments, Ltd.

OR

2. Defendant Melania Estela Rivera Bonilla's Motion for New Trial is GRANTED for the following reasons:

7/6/2022 DENIED

Honorable Judge Presiding

The Order purports to make rulings regarding Rivera's New Trial Motion and her JNOV Motion. The JNOV Motion is a timely filed, post-judgment motion in which Rivera sought a substantive change in the county court's existing final judgment. Therefore, the JNOV Motion qualifies as a motion to modify under Texas Rule of Civil Procedure 329b(g), and the JNOV Motion and the New Trial Motion are both subject to Texas Rule of Civil Procedure 329b(c). See Tex. R. Civ. P. 329b (c), (g); Ryland Enterprise, Inc. v. Weatherspoon, 355 S.W.3d 664, 666 (Tex. 2011); Lane Bank Equip. Co. v. Smith Southern Equip., Inc., 10 S.W.3d 308, 314 (Tex. 2000). To determine a motion subject to Rule 329b(c) the trial court must sign a written order that explicitly rules on the motion. See Tex. R. Civ. P. 329b(c); In re Lovito-Nelson, 278 S.W.3d 773, 776 (Tex. 2009) (concluding that “a motion for new trial is not granted without a signed, written order explicitly granting the motion”). If the trial court fails to do so within seventy-five days after the judgment was signed, the motion is overruled by operation of law on expiration of that time period. See Tex. R. Civ. P. 329b(c); In re Lovito-Nelson, 278 S.W.3d at 774–75. In this context “explicitly” means “expressed without ambiguity or vagueness.” See Explicit, Black's Law Dictionary (11th ed. 2019) (defining “explicit” as “[e]xpressed without ambiguity or vagueness”); see also New Oxford American Dictionary 610 (Angus Stevenson & Christine Lindberg, eds., 3d ed. 2010) (defining “explicit” as “stated clearly and in detail”).

In the Order the county court does not express a ruling on either of the motions without ambiguity or vagueness. The language of the Order is ambiguous. No party moved for clarification of the Order, although Rivera's counsel emailed the court coordinator of the county court three times requesting that the court clarify its intended ruling in the Order. The county court did not attempt to clarify the Order. An entry on the court's docket sheet says, “Order Denied ․ Defendants Motion for New Trial,” but this docket entry does not constitute a signed, written order ruling on the New Trial Motion. See In re Lovito-Nelson, 278 S.W.3d at 775; Harper, 799 S.W.2d at 494.

In the Order the court states that it is (1) granting the JNOV Motion, vacating its judgment, and rendering judgment that Shafaii take nothing, or (2) granting the New Trial Motion. Already the judgment is conflicting and contradictory as to whether the court is granting a judgment notwithstanding the verdict or a new trial. But then, next to the county court's signature is the word “DENIED,” without any explicit statement as to what is being denied. There is no way to determine whether the county court (1) granted the JNOV Motion, (2) granted the New Trial Motion, or (3) denied both motions. Interpreting the Order as a whole we conclude that the county court does not explicitly rule on the JNOV Motion or the New Trial Motion because the county court does not express a ruling without ambiguity or vagueness. See In re Lovito-Nelson, 278 S.W.3d 775–76. Because the county court did not rule on the JNOV Motion or the New Trial Motion within 75 days after the court signed the final judgment, the JNOV Motion and the New Trial Motion were overruled by operation of law 75 days after the judgment was signed, and the county court had plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment until thirty days after the motions were overruled by operation of law.² See Tex. R. Civ. P. 329b(c); id. 329b(e); Valdez v. Hamilton, No. 14-16-00124-CV, 2017 WL 421992, at *1 (Tex. App.—Houston [14th Dist.] Jan. 31, 2017, no pet.).

Rivera asserts that this court lacks appellate jurisdiction because the Order is patently ambiguous and unenforceable under cases applicable to orders and judgments in general. See Harper, 799 S.W.2d at 496. Under the general rules for interpreting an order or judgment, if the instrument is ambiguous, extrinsic evidence in the record may be considered in interpreting the instrument. See Lone Star Cement v. J. Roll Fair, Dist. Judge, 467 S.W.2d 402, 404–05 (Tex. 1971); Hatfield v. Solomon, 316 S.W.3d 50, 58 (Tex. App.—Houston [14th Dist.] 2010, no pet.). Though the general rules for interpreting an ambiguous order or judgment instruct a court to consider and potentially give effect to extrinsic evidence in the record pertaining to the interpretation of the instrument, these rules are not structured to answer the question of whether a motion was determined by a signed, written order. See Tex. R. Civ. P. 329b(c); May v. Gonzalez, 696 S.W.3d 274, 279 (Tex. App.—Houston [14th Dist.] 2024, no pet.). In any event, we presume, without deciding, that the general interpretation rules apply to the Order and that after applying these rules the Order is unenforceable because it is ambiguous and uncertain and its terms are contradictory and cannot be harmonized. See Harper, 799 S.W.2d at 496; Roberts, 659 S.W.2d at 750–51. Even under this presumption the unenforceability of the Order would not deprive this court of appellate jurisdiction. Instead, the unenforceability of the Order would provide another basis for concluding that the county court did not rule on the JNOV Motion or the New Trial Motion in the Order. Because the county court did not rule on either motion in another order within 75 days of the final judgment, the JNOV Motion and the New Trial Motion were overruled by operation of law 75 days after the judgment was signed. See Tex. R. Civ. P. 329b(c); Valdez, 2017 WL 421992, at *1. Rivera timely appealed the trial court's judgment, and thus we have appellate jurisdiction.

Rivera relies on the McGuyer and Harper cases and argues that the Order's unenforceability means that this court lacks appellate jurisdiction and must dismiss the appeal. See McGuyer Homebuilders, Inc. v. Hastings, 613 S.W.3d 358, 359–60 (Tex. App.—Houston [14th Dist.] 2020, no pet.); Harper, 799 S.W.2d at 494–96. Though these cases involve orders that are unenforceable due to conflicting language in the order that cannot be harmonized, the attempted appeal in each of these cases was from the unenforceable order. See McGuyer Homebuilders, 613 S.W.3d at 359– 60; Harper, 799 S.W.2d at 494–96. Rivera appeals from the county court's final judgment, and the Order is not appealable, although the appeal from the final judgment gives this court jurisdiction to rule on a challenge to any ruling on the JNOV Motion or New Trial Motion. See Johnson v. Harris County, 610 S.W.3d 591, 594 (Tex. App.—Houston [14th Dist.] 2020, no pet.). Rivera also relies on In re Lakeside Resort JV, LLC, but that case involved a mandamus proceeding as to whether a default judgment was final or interlocutory, not an order on a post-judgment motion. See 689 S.W.3d 916, 918–20 (Tex. 2024). Even presuming that the Order is unenforceable, we still have jurisdiction over Rivera's timely filed appeal. Therefore, we overrule the first issue.

B. Is the evidence legally or factually insufficient to support a finding that Shafaii gave Rivera notice to vacate the Property that strictly complied with the requirements of Property Code section 24.005?

In her second issue Rivera asserts in the alternative that the trial evidence is legally and factually insufficient to support the county court's judgment because the evidence is legally and factually insufficient to support a finding that Shafaii strictly complied with the notice requirements of Property Code section 24.005. One of the essential elements of Shafaii's forcible-detainer action is that Shafaii gave notice to Rivera to vacate the Property in compliance with the requirements of Property Code section 24.005. See Tex. Penal Code Ann. § 24.002 (West, Westlaw through 2023 4th C.S.); Shields Limited Partnership v. Bradberry, 526 S.W.3d 471, 478 (Tex. 2017). Because forcible detainer is a statutory action, Shafaii must strictly comply with its requirements. See Fashakin v. Federal Home Loan Mort. Corp., No. 14-11-01079-CV, 2013 WL 1316694, at *2 (Tex. App.—Houston [14th Dist.] Apr. 2, 2013, pet. denied) (mem. op.).

The county court rendered a final judgment on the verdict, in which the jury found that Shafaii is entitled to possession of the Property. Rivera preserved error on her second issue by (1) asserting in the JNOV Motion that the evidence is legally insufficient to support a finding that Shafaii provided the requisite notice under the Property Code, and (2) asserting in her New Trial Motion that the evidence is factually insufficient to support a finding that Shafaii provided the requisite notice under the Property Code.

The jury charge did not require that Shafaii have provided any notice, whether under Property Code section 24.005 or any other type of notice, for Shafaii to be entitled to possession of the Property. At the charge conference, counsel for Shafaii and counsel for Rivera each stated that his client had no objection to the charge. If the Osterberg line of authority applies to our analysis of the second issue, this court would measure the sufficiency of the evidence using the charge given, which did not require that Shafaii have complied with any notice requirement, and the absence of any evidence that Shafaii complied with the notice requirements of Property Code section 24.005 would not make the trial evidence legally or factually insufficient to support the jury's verdict. See Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000) (holding that appellate court could not review the sufficiency of the evidence based on a particular legal standard because that standard was not submitted to the jury and no party objected or requested that the jury be charged using this standard); Hirschfeld Steel Co. v. Kellogg Brown & Root, 201 S.W.3d 272, 283–86 (Tex. App.—Houston [14th Dist.] 2006, no. pet.) (reviewing sufficiency of evidence based on unobjected-to jury instruction and rejecting various arguments based on different legal standards).

On rehearing Rivera asserts that the Osterberg line of authority does not apply to our analysis of the second issue. Rather, Rivera argues that because the notice-to-vacate element of Shafaii's forcible-detainer action was an omitted element under Texas Rule of Civil Procedure 279, it was deemed found by the trial court given that one or more elements of this action were submitted to and found by the jury and the notice element was omitted from the charge without request or objection. See Tex. R. Civ. P. 279. Rivera argues that in this situation the Osterberg line of authority does not apply, and Rivera may challenge the sufficiency of the evidence supporting this deemed finding. In support of this argument Rivera cites Service Corporation International v. Guerra, a case in which the Supreme Court of Texas stated:

When an element of a claim is omitted from the jury charge without objection and no written findings are made by the trial court on that element then the omitted element is deemed to have been found by the court in such manner as to support the judgment. Tex. R. Civ. P. 279; In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). Here there was no objection to the charge on the basis that it omitted the element nor did the trial court make findings on it, so there is a deemed finding in support of the judgment. But just as with any other finding, there must be evidence to support a deemed finding. Thus, we next address whether legally sufficient evidence supports the finding here.

348 S.W.3d 221, 228–29 (Tex. 2011). In Guerra no party asserted that the Osterberg line of authority applied, and the Guerra court nowhere mentioned this line of authority. See id. at 227–31. However, we need not decide whether the Osterberg line of authority applies. Rather, even presuming that this line of authority does not apply, we conclude that there is legally and factually sufficient evidence to support a finding that Shafaii gave Rivera notice to vacate the Property that strictly complied with the requirements of Property Code section 24.005. See Tex. Penal Code Ann. § 24.005 (West, Westlaw through 2023 4th C.S.).

Under Property Code section 24.005(b), Shafaii was required to give Rivera “at least three days' written notice to vacate” before filing a forcible-detainer action. See id. § 24.005(b). Shafaii elected to give notice by mail under section 24.005(f) and thus its notice to vacate was required to be given “by regular mail, by registered mail, or by certified mail, return receipt requested, to the premises in question.” Id. § 24.005(f).

When reviewing the legal sufficiency of the evidence, we consider the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005). We must credit favorable evidence if a reasonable factfinder could and disregard contrary evidence unless a reasonable factfinder could not. See id. at 827. We must determine whether the evidence at trial would enable reasonable and fair-minded people to find the facts at issue. See id. The jury is the only judge of witness credibility and the weight to give to testimony. See id. at 819. When reviewing a challenge to the factual sufficiency of the evidence, we examine the entire record, considering both the evidence in favor of, and contrary to, the challenged finding. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). After considering and weighing all the evidence, we set aside the fact finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). The jury is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. Teel v. Shifflet, 309 S.W.3d 597, 603 (Tex. App.—Houston [14th Dist.] 2010, pet. denied). We may not substitute our own judgment for that of the jury, even if we would reach a different answer on the evidence. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998). The amount of evidence necessary to affirm a judgment is far less than that necessary to reverse a judgment. Teel, 309 S.W.3d at 603.

Plaintiff's Exhibit 1, a Substitute Trustee's Deed, shows that Shafaii purchased the Property at a foreclosure sale on December 7, 2021, and that the substitute trustee conveyed the Property to Shafaii. Plaintiff's Exhibit 2 is a written notice to vacate dated December 9, 2021, and entitled “DEMAND FOR IMMEDIATE POSSESSION AND NOTICE TO VACATE PROPERTY MADE PURSUANT TO CHAPTER 24 OF THE TEXAS PROPERTY CODE” (“Notice”). The Notice is addressed to Rivera at 766-B Coolwood Drive, Houston, Texas 77013, which is the address of the Property. Above the address is the notation “CERTIFIED RRR and FIRST CLASS MAIL,” showing that the Notice was sent to this address by certified mail, return receipt requested, and by regular mail. The Notice was sent by attorney James Cuellar. Beneath Cuellar's signature is a notation showing that a copy of the Notice was sent by email to Rivera's attorney. The Notice also states:

SHAFAII INVESTMENTS, LTD. HEREBY DEMANDS THAT YOU IMMEDIATELY VACATE AND SURRENDER POSSESSION OF THE PROPERTY. IF YOU FAIL TO VACATE AND SURRENDER POSSESSION OF THE PROPERTY WITHIN THREE (3) DAYS FOLLOWING THIS NOTICE, SHAFAII INVESTMENTS, LTD. WILL, WITHOUT PREJUDICE TO ANY OTHER REMEDY WHICH IT MAY HAVE FOR POSSESSION AND DAMAGES, INSTITUTE LEGAL PROCEEDINGS AGAINST YOU FOR FORCIBLE DETAINER PURSUANT TO CHAPTER 24 OF THE TEXAS PROPERTY CODE.

Plaintiff's Exhibit 2 also contains a certified mail receipt. In the space for the postmark, there is no postmark, but there is a handwritten date of “12/9/21.” Other than that date, the receipt has not been filled out. It does not contain the name or address of the addressee, the amount of postage paid, or the type of certified mail service requested. The certified mail receipt has a preprinted tracking number, that is partially obscured by the file stamp from the justice of the peace court.

Plaintiff's Exhibit 3 is a printout from the internet purporting to show tracking information from the United States Post Office. This document shows a tracking number and indicates that the item with this number was delivered in Houston on December 11. The document does not describe the item delivered or state the address to which the item was delivered. The tracking number on this document appears to be consistent with the tracking number on the certified mail receipt in Plaintiff's Exhibit 2, although some of the numbers on the certified mail receipt are obscured.

At trial Raj Shafaii stated that he is the owner and registered agent of Shafaii Investments, Limited. He testified that Plaintiff's Exhibit 2 was sent by attorney James Cueller “two days after the foreclosure sale of December 7th.” Other evidence at trial showed that the foreclosure sale occurred on December 7, 2021, so two days later would be December 9, 2021. Raj Shafaii also testified that Rivera did not surrender possession or vacate the Property “within three days of this notice” and that she was still occupying the Property at the time of trial in the County Court. Shafaii filed this forcible-detainer action in the justice of the peace court on December 16, 2021. Rivera did not controvert Shafaii's evidence regarding the Notice. Rivera did not argue that she did not receive the Notice or submit any evidence showing that she did not receive it.

In Fashakin the only evidence regarding notice to vacate was (1) a business records affidavit that simply proved that the notice to vacate was a business record; (2) a copy of the notice to vacate, which, like the notice in today's case, recited that it was sent by both certified mail and first class mail; (3) a copy of the certified mail envelope; and (4) a printout from the United States Postal Service website regarding the delivery of the certified mail item. See Fashakin, 2013 WL 1316694, at *2. The only evidence that the notice to vacate was sent by regular mail was a notation in the notice itself that it was sent by “First Class Mail.” See id. at *3. In Fashakin this court concluded that this notation in the notice itself established delivery of the notice to vacate because (1) it provided evidence that the notice was sent to Fashakin by first class mail; and (2) there was no controverting evidence negating receipt of the notice by first class mail. See id.

In today's case (1) the Notice shows that it was sent by first class mail to Rivera at the premises in question; (2) Raj Shafaii testified that Cuellar sent the notice on December 9, 2021; and (3) Rivera did not submit any controverting evidence negating receipt of the Notice by first class mail. Under the Fashakin precedent this evidence shows that Shafaii gave Rivera notice to vacate the Property by regular mail that strictly complied with the requirements of Property Code section 24.005. See id. at *2–3. Considering the trial evidence in the light most favorable to the challenged finding, indulging every reasonable inference that would support the finding, crediting favorable evidence if a reasonable factfinder could, and disregarding contrary evidence unless a reasonable factfinder could not, we conclude that the trial evidence would enable reasonable and fair-minded people to find that (1) Shafaii gave Rivera at least three days' written notice to vacate before filing its forcible-detainer action; (2) Shafaii's notice to vacate was given by regular mail to the premises in question; and (3) Shafaii gave Rivera notice to vacate the Property that strictly complied with the requirements of Property Code section 24.005. See Tex. Penal Code Ann. § 24.005(b) & (f); City of Keller, 168 S.W.3d at 823, 827; Fashakin, 2013 WL 1316694, at *1–3. Examining the entire record, considering both the evidence in favor of, and contrary to, the challenged finding, and after considering and weighing all the evidence, we conclude that a finding that Shafaii gave Rivera notice to vacate the Property that strictly complied with the requirements of Property Code section 24.005 is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Tex. Penal Code Ann. § 24.005(b) & (f); Cain, 709 S.W.2d at 176; Teel, 309 S.W.3d at 603; Fashakin, 2013 WL 1316694, at *1–3. We further conclude that the evidence is legally and factually sufficient to support a finding that Shafaii gave Rivera notice to vacate the Property that strictly complied with the requirements of Property Code section 24.005.

Rivera cites Rose v. Pierre, but in that case the plaintiff did not submit a copy of the notice to vacate or any evidence that the notice was mailed, so that case is not on point. See No. 01-22-00418-CV, 2023 WL 3357658, at *4–5 (Tex. App.—Houston [1st Dist.] May 11, 2023, no pet.) (mem. op.).

Therefore, we overrule the second issue.

C. Has Rivera waived her issue her third issue, which she raises for the first time in her motion for rehearing?

On rehearing Rivera asserts for the first time in a new third issue that under Texas Rule of Civil Procedure 279, Shafaii waived any right to recover on its forcible-detainer action because none of the elements of that action were submitted to the jury and no party objected to the jury charge. See Tex. R. Civ. P. 279 (stating “[u]pon appeal all independent grounds of recovery or of defense not conclusively established under the evidence and no element of which is submitted or requested are waived.”). An appellant waives a non-jurisdictional issue that it raises for the first time in its motion for rehearing. See Coastal Liquids Transp., L.P. v. Harris Cnty. Appraisal Dist., 46 S.W.3d 880, 885 (Tex. 2001) (holding that appellant in court of appeals waived issues raised for the first time in appellant's motion for rehearing); FCLT Loans, L.P. v. Estate of Bracher, 93 S.W.3d 469, 485, n.14 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (holding that appellant waived an issue raised for the first time in appellant's motion for rehearing). Rivera is the appellant, and even liberally construing her briefing, she did not raise this non-jurisdictional issue on original submission. Thus, Rivera waived this issue. See Coastal Liquids Transp., L.P., 46 S.W.3d at 885; FCLT Loans, L.P., 93 S.W.3d at 485, n.14. We overrule the third issue.

We affirm the county court's judgment.

FOOTNOTES

2.   Neither the last day of the seventy-five-day period nor the last day of the thirty-day period was a Saturday, Sunday, or legal holiday. See Tex. R. Civ. P. 4.

Randy Wilson Justice