Giovanny Laguan, Appellant v. LSF8

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Court of Appeals of Texas, Houston (14th Dist.).

Giovanny Laguan, Appellant v. U.S. Bank Trust, N.A. as Trustee for LSF8 Master Participation Trust, Appellee

NO. 14-14-00577-CV

Decided: February 25, 2016

Panel consists of Chief Justice Frost and Justices Christopher and Donovan.

MEMORANDUM OPINION

A defendant in a forcible-detainer action appeals the judgment of the county court at law following a trial de novo on appeal from the justice court.  We conclude that (1) the first appellate issue is moot, (2) error was not preserved in the trial court regarding the fourth issue, and (3) even if the trial court erred as asserted in the second and third issues, any such error is harmless.  We affirm.

I. Factual and Procedural Background

After a bench trial in a forcible-detainer action, the justice court rendered judgment in favor of the plaintiff Appellant/defendant Giovanny Laguan appealed the justice court's judgment to a county court at law.  After a trial de novo, the county court at law rendered judgment that appellee/plaintiff U.S. Bank Trust, N.A. as Trustee for LSF8 Master Participation Trust is entitled to possession of certain real property located in Missouri City, Texas (the “Property”).  Laguan, acting pro se, now challenges the county court at law's judgment in this appeal.

II. Issues and Analysis

A. Appellant's complaints alleging error in the justice court are moot.

In his first issue, Laguan asserts that his due process rights were violated when U.S. Bank offered testimony that allegedly constituted perjury during the justice-court trial.  When Laguan perfected his appeal to the county court at law from the justice court for a trial de novo, the judgment of the justice court was vacated and annulled.  See Mullins v. Coussins, 745 S.W.2d 50, 50 (Tex.App.— Houston [14th Dist.] 1987, no writ) (stating that perfection of appeal to the county court at law from justice court for a trial de novo vacates and annuls the judgment of the justice court).  Because the justice court's judgment has been vacated and annulled and Laguan has received a trial de novo in the county court at law, Laguan's complaint is moot.  See Emesowum v. Morgan, No. 14–13–00397–CV, 2014 WL 3587385, at *1 (Tex.App.—Houston [14th Dist.] July, 22, 2014, pet. dism'd) (concluding that complaints about small-claims-court judgment were moot in light of the trial de novo on appeal in county court at law) (mem.op.);  Stevenson v. Housing Auth. of the City of Austin, 385 S.W.3d 684, 687 (Tex.App.—El Paso 2012, no pet.) (holding that complaint that appellant's due-process rights were violated in the justice court was moot in light of trial de novo on appeal in county court at law).

B. Any error in denying the request for a jury trial is harmless.

After the county court at law called the case for trial, the court denied Laguan's request for a jury trial, concluding that the request was untimely.  In Laguan's second issue he asserts that the trial court abused its discretion when it ruled that he failed to timely request a jury trial.  In his third issue Laguan asserts that his constitutional rights were violated when the trial court denied him a jury trial.  We presume for the sake of argument that the county court at law erred in denying Laguan's request for a jury trial, and we move directly to the harm analysis.

A refusal to grant a jury trial is harmless error if the record shows that no material issues of fact existed and an instructed verdict would have been justified.  Halsell v. Dehoyos, 810 S.W.2d 371, 372 (Tex.1991) (per curiam);  Maxwell v. U.S. Bank Nat. Ass'n, No. 14–12–00209–CV, 2013 WL 3580621, at *6 (Tex.App.—Houston [14th Dist.] July 11, 2013, pet. dism'd w.o.j.) (mem.op.).  To evaluate harm, we examine the trial evidence to determine whether an instructed verdict would have been appropriate.  See Halsell, 810 S.W.2d at 372;  Maxwell, 2013 WL 3580621, at *6.

A court may instruct a verdict if no evidence of probative force raises a fact issue on the material questions in the suit.  See Maxwell, 2013 WL 3580621, at *6. In determining whether the trial evidence raised material fact issues, we consider all the evidence in the light most favorable to Laguan, crediting evidence favorable to Laguan if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not.  See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.2006);  City of Keller v. Wilson, 168 S.W.3d 802, 823–24 (Tex.2005);  Envtl.  Procedures, Inc. v. Guidry, 282 S.W.3d 602, 626 (Tex.App.—Houston [14th Dist.] 2009, pet. denied).  The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions in light of all of the evidence.  See Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex.2007);  City of Keller, 168 S.W.3d at 823–24;  Envtl.  Procedures, Inc., 282 S.W.3d at 626.

The trial evidence includes a copy of a substitute trustee's deed, a deed of trust executed by Laguan, and a notice to vacate the Property.  The undisputed trial evidence showed that, in 2002, Laguan obtained a loan secured by a deed-of-trust lien on the Property.  The deed of trust recited:

If the Property is sold pursuant to [a trustee's sale], [Laguan] or any person holding possession of the Property through [Laguan] shall immediately surrender possession of the Property to the purchaser at that sale.  If possession is not surrendered, [Laguan] or such person shall be a tenant at sufferance and may be removed by writ of possession or other court proceeding.

Under this provision of the deed of trust, a foreclosure sale transforms Laguan from a borrower into a tenant at sufferance who must relinquish possession immediately to the foreclosure-sale purchaser.  See Maxwell, 2013 WL 3580621, at *3. This provision entitles U.S. Bank to possession of the Property if Laguan is subject to the provision and if U.S. Bank purchased the Property at a foreclosure sale.  See id.  The Substitute Trustee's Deed recites the following events, none of which were disputed at trial:

• Laguan executed the deed of trust regarding the Property to secure payment of a note.

• Default was made in the payment of the note, and after all required notices were given, the whole note was declared immediately due and payable.

• A substitute trustee was appointed to sell the Property in accordance with the provisions of the deed of trust in satisfaction of the indebtedness secured by that instrument.

• The substitute trustee conducted a foreclosure sale of the Property under the power of sale conferred by the deed of trust.

• U.S. Bank was the highest cash bidder at the foreclosure sale, and the Property was sold to U.S. Bank in accordance with the provisions of the deed of trust.

In the deed, the substitute trustee conveyed the Property to U.S. Bank. Laguan received a notice to vacate the Property, but he did not do so.

At trial, Laguan offered several documents that the trial court admitted into evidence.  Laguan also testified.  Laguan's evidence did not raise any genuine fact issues as to U.S. Bank's entitlement to possession of the Property.  See id. at *3. The only dispute that Laguan identified during trial was an alleged dispute as to who owns the Property.  Although the justice court and the county court at law on appeal have subject-matter jurisdiction over forcible-detainer actions, these courts lack subject-matter jurisdiction to resolve title disputes.  See id. at *2. Thus, a forcible-detainer action only addresses who has the right to possess the Property, not who has title to it.  See id.

Viewing the record under the applicable standard of review, we conclude that the trial evidence did not raise any material issues of fact and that an instructed verdict in U.S. Bank's favor would have been appropriate.  See Nelson v. Nelson, No. 01–13–00816–CV, 2015 WL 1122918, at *3–4 (Tex.App.—Houston [1st Dist.] Mar. 12, 2015, pet. filed) (concluding that no material issues of fact existed at trial and that an instructed verdict in the appellee's favor would have been appropriate) (mem.op.);  Maxwell, 2013 WL 3580621, at *3–6 (concluding no material issues of fact existed at trial and that an instructed verdict in the appellee's favor would have been appropriate).  Therefore, any error by the trial court in denying Laguan's request for a jury trial is harmless.  See Nelson, 2015 WL 1122918, at *3–4 (concluding that any error in denying a jury trial was harmless);  Maxwell, 2013 WL 3580621, at *3–6 (concluding that county court's error in denying request for a jury trial was harmless).  Accordingly, we overrule Laguan's second and third issues.

C. Appellant failed to preserve error as to his complaint that he was not given forty-five days' notice of the trial setting.

In his fourth issue, Laguan asserts that the trial court erred when it gave him less than forty-five days' notice of the first trial setting.  According to Laguan, Texas Rule of Civil Procedure 245 required the trial court to give him at least forty-five days' notice of the trial setting.  See Tex.R. Civ. P. 245.  On appeal, Laguan does not assert that he received no notice at all;  rather, he complains that he received less than forty-five days' notice of the trial setting.  This complaint does not fall within the narrow scope of the fundamental-error doctrine recognized by the Supreme Court of Texas.  See In re B.L.D., 113 S.W.3d 340, 350–52 (Tex.2003).  Therefore, preservation of error in the trial court is required for appellate review of the fourth issue.  See In re L.M.I., 119 S.W.3d 707, 711 (Tex.2003).

In its judgment, the trial court found that notice of the trial setting was served on Laguan in accordance with Texas Rule of Civil Procedure 21a.  Laguan has not challenged this finding on appeal.  Evidence regarding service of this notice was admitted at trial.  The record, however, reflects that Laguan received less than forty-five days' notice of the trial setting.  Two days before the date set for trial, Laguan filed a written request for a jury trial.  On the day of trial, Laguan filed a motion requesting the court to remove the case from the non-jury docket and place it on the jury docket.  Though Laguan asserted in this motion that he was not properly notified of the trial setting, he did not assert that he should have been given forty-five days' notice of the trial setting, nor did he cite Rule 245 or any other legal authority.

At trial, counsel for U.S. Bank submitted evidence showing that a notice of the trial setting was sent to Laguan's address by certified mail thirteen days before the trial date.  The evidence showed that no authorized recipient was available at Laguan's address and that a notice had been left at the address explaining how Laguan could obtain the certified mail.  The evidence reflects that Laguan had not received the certified mail at the time of trial.  Laguan told the county court at law that he did not receive the notice of trial setting sent to him by certified mail but that he had learned of the trial setting by reviewing the county clerk's website.

The record reflects that Laguan did not voice any complaint in the trial court that he was entitled to at least forty-five days' notice of the trial setting.  Laguan did not refer to Rule 245 or its requirements or any other legal authority.  Laguan did not complain that the trial court failed to abide by Rule 245.  In asserting that he was not properly notified of the trial setting, Laguan did not specify or explain the alleged impropriety in the notice.  Nor did Laguan state that the notice was improper because he did not receive forty-five days' notice or that the notice was untimely.  In light of the potential issues surrounding the service of notice by certified mail and Laguan's failure to claim the certified mail or receive the notice sent by U.S. Bank, Laguan's statements in the trial court were insufficient to alert the trial court to the complaint he now raises on appeal—that he was entitled to at least forty-five days' notice of the trial setting.  See Villalon v. Galindo, No. 14–14–00556–CV, 2015 WL 7456023, at *4 (Tex.App.—Houston [14th Dist.] Nov. 24, 2015, no pet.) (mem.op.);  Abend v. Fed. Nat'l Mortg.  Assoc., 466 S.W.3d 884, 886 (Tex.App.—Houston [14th Dist.] 2015, no pet.) (holding that appellant failed to preserve error in trial court as to appellate complaint that he did not receive fortyfive days' notice of the trial setting).

Because Laguan did not raise in the county court the complaint he asserts in the fourth issue, Laguan failed to preserve error as to this issue.1  See Tex.R.App. P. 33.1(a);  In re L.M.I., 119 S.W.3d at 711;  In re B.L.D., 113 S.W.3d at 350–52;  Abend, 466 S.W.3d at 886.  By failing to preserve error, Laguan has waived the complaint.  Accordingly, we overrule the fourth issue.

Having overruled all of Laguan's issues, we affirm the trial court's judgment.

FOOTNOTES

1.   We do not address the issue of whether Rule 245 applies to a forcible-detainer action in the county court at law because the complaint is not preserved for appellate review.  See Abend, 466 S.W.3d at 885–86 & n.l.

Kem Thompson Frost, Chief Justice