MICHELLE SMITH v. BETTY CONNOR (2017)

MEMORANDUM OPINION

This is an appeal from a judgment in a forcible detainer action awarding Betty Connor possession of and past-due rent for a house Michelle Smith was leasing from Connor. In a single issue, Smith, appearing pro se, asserts that the evidence is legally insufficient to support the judgment. We affirm.

BACKGROUND

Smith entered into a one-year lease agreement with Connor in May 2007. Under the terms of the agreement, rent was due the first of the month. If default in the payment of rent occurred, the agreement provided that, at the option of Connor and upon notice to Smith, the lease would terminate and Connor could take possession of the house. Upon expiration of the agreement, “a new month-to-month tenancy [was] created ․ subject to all the terms and conditions” in the agreement. No problems appeared to occur over the next several years, but beginning in December 2015, timely rent payments became “an issue.”

Connor gave Smith notice to vacate on several occasions, but did not file suit to evict Smith until June 2016. The lawsuit, filed in justice court, alleged that Smith had failed to pay rent for May, had failed to maintain the property, and had allowed “unauthorized tenants.” The justice court found for Connor, and Smith appealed to the county court.

At the de novo bench trial on July 22, 2016, Connor testified that she owned the house Smith was leasing and that Smith paid $239 in rent per month, after a subsidy from “Section 8.” Connor further testified that Smith had failed to pay the rent due for May, June, and July. Connor sought possession of the house and unpaid rent in the amount of $717.

Smith did not deny that she had not paid rent for May through July. She explained, however, that she did not pay May's rent because Connor had told her she did not need to pay rent for that month if she moved out of the house by May 10. Smith testified that she was unable to find a place to move, so she stayed in the house. Asked what her defense was, she replied, “It's really no defense. I just haven't found anything, you know. I've been looking, you know, since she told me to move, and I just haven't found anything. There is no excuse. Just haven't found anything.” Asked if she believed Connor was her landlord, she replied she did.

The county court “found for” Connor and awarded her possession of the house and the delinquent rent.

APPLICABLE LAW AND STANDARD OF REVIEW

To prevail in a forcible detainer action, a plaintiff is required to demonstrate (1) a superior right to immediate possession of the property; (2) proper notice to the tenant to vacate the property; and (3) the tenant's refusal to vacate. See TEX. PROP. CODE ANN. §§ 24.002, 24.005 (West 2014 & Supp. 2016); Rice v. Pinney, 51 S.W.3d 705, 709 (Tex. App.—Dallas 2001, no pet.).

When, as here, a party attacks the legal sufficiency of an adverse finding on an issue on which she did not have the burden of proof, she must show no evidence exists to support the finding. See Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194, 215 (Tex. 2011). When direct evidence of a vital fact exists, a legal sufficiency challenge fails. See Serv. Corp. Int'l v. Guerra, 348 S.W.3d 221, 228 (Tex. 2011).

DISCUSSION

In claiming the evidence is legally insufficient to support the judgment, Smith does not dispute that her rent was $239 per month, she was given notice to vacate, or that she did not move out of the house. See TEX. PROP. CODE ANN. §§ 24.002, 24.005. Her contention is that no evidence exists of non-payment of rent or “lack of maintenance” and that this case “does not present one of those narrow band of cases where the right of possession is determined by simpl[e] ‘right of possession.’ ”

Although no evidence was introduced showing that Smith did not maintain the property, the evidence showed that Smith failed to pay rent in May, June, and July. Additionally, contrary to Smith's contention that this case “does not present one of those narrow band of cases where the right of possession is determined by simpl[e] ‘right of possession,’ ” the lease provided that if default in the payment of rent occurred, Connor could take possession of the house. This demonstrated Connor had a superior right to immediate possession of the property. Given the record before us, we conclude Smith has failed to show no evidence exists to support the judgment. See Exxon Corp., 348 S.W.3d at 215. We decide Smith's sole issue against her and affirm the judgment.

ELIZABETH LANG-MIERS JUSTICE