                                      IN THE
                              TENTH COURT OF APPEALS

                                      No. 10-18-00211-CV

JOELLA D. PRUITT AND ALL OCCUPANTS
OF 425 TIERRA LANE, WAXAHACHIE, TX 75167,
                                       Appellants
 v.

PAMELA D. SCOTT,
                                                                       Appellee



                               From the County Court at Law
                                    Ellis County, Texas
                                 Trial Court No. 18-C-3399


                               MEMORANDUM OPINION


        In this forcible-entry-and-detainer action, appellants, Joella D. Pruitt and all

occupants of 425 Tierra Lane, Waxahachie, Texas 75167, challenge a judgment entered in

favor of appellee, Pamela D. Scott. Because we overrule all of appellants’ issues on

appeal, we affirm.1



        1As this is a memorandum opinion and the parties are familiar with the facts, we only recite those
necessary to the disposition of the case. See TEX. R. APP. P. 47.1, 47.4.
                             I.     THE SUBSTITUTE TRUSTEE’S DEED

         In their first issue, appellants complain that the trial court abused its discretion by

overruling their objection and admitting a conclusory portion of appellee’s substitute

trustee’s deed. Specifically, appellants argue that the following portion of the substitute

trustee’s deed was conclusory and, thus, should not have been admitted: “Lender and

Substitute Trustee have satisfied all requirements of the Deed of Trust and applicable law

for enforcement of the power of sale contained in the Deed of Trust and for the sale of the

Property . . . .”

A.       Applicable Law

         The admission or exclusion of evidence rests in the sound discretion of the trial

court and will not be disturbed absent an abuse of that discretion. Owens-Corning

Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). In determining whether there was

an abuse of discretion, we must ascertain whether the trial court acted without reference

to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,

241-42 (Tex. 1985).

         For the admission or exclusion of evidence to constitute reversible error, the

complaining party must show that: (1) the trial court committed error; and (2) the error

probably caused the rendition of an improper judgment. TEX. R. APP. P. 44.1; State v. Cent.

Expressway Sign Assocs., 302 S.W.3d 866, 870 (Tex. 2009). We review the entire record to

determine if the error probably resulted in the rendition of an improper judgment. Cent.


Pruitt, et al. v. Scott                                                                   Page 2
Expressway Sign Assocs., 302 S.W.3d at 870. Typically, a successful challenge to a trial

court’s evidentiary ruling requires the complaining party to demonstrate that the

judgment turns on the particular evidence excluded or admitted. Tex. Dep’t of Transp. v.

Able, 35 S.W.3d 608, 617 (Tex. 2000); City of Brownsville v. Alvarado, 897 S.W.2d 750, 753-54

(Tex. 1995).

B.       Discussion

         Assuming, without deciding, that the trial court erred by admitting the

complained-of portion of the substitute trustee’s deed, we cannot say that appellants have

adequately explained how the admission of this evidence caused the rendition of an

improper judgment in this forcible-detainer action.

         To prevail and obtain possession in a forcible-detainer action, the law requires

appellees to show: (1) the substitute trustee conveyed the property by deed to appellees

after the foreclosure sale; (2) the deed of trust signed by appellants established a landlord-

tenant relationship between appellants and appellees; (3) appellees gave proper notice to

appellants to vacate the premises; and (4) appellants refused to vacate the premises. U.S.

Bank Nat’l Assoc. v. Freeney, 266 S.W.3d 623, 625 (Tex. App.—Dallas 2008, no pet.); see TEX.

PROP. CODE ANN. §§ 24.002(a)(2), (b), 24.005 (West 2014 & Supp. 2018).

         Furthermore, the First Court of Appeals has stated the following in a substantially-

similar situation:

         A plaintiff in a forcible detainer action is not required to prove title, but is
         only required to show sufficient evidence of ownership to demonstrate a
Pruitt, et al. v. Scott                                                                     Page 3
         superior right to immediate possession. Under well-settled law, a deed of
         trust that establishes a landlord-tenant relationship between the borrower
         and the purchaser of the property at the foreclosure sale demonstrates such
         a superior right to possession. . . .

                 The deed of trust makes Bierwirth a tenant at sufferance in the event
         of foreclosure if she fails to surrender possession of the property. Although
         Bierwirth disputes the propriety of the foreclosure, there is no dispute that
         HSBC did foreclose and that Bierwirth failed to surrender the property.
         Thus, Bierwirth became a tenant at sufferance, and this landlord-tenant
         relationship gives AH4R a basis for its forcible detainer action independent
         of its claim to title in the property. The justice court and county court
         therefore did not need to determine whether HSBC satisfied all conditions
         precedent to the tenancy-at-sufferance clause or properly executed the
         foreclosure sale.

Bierwirth v. AH4R I TX, LLC, No. 01-13-00459-CV, 2014 Tex. App. LEXIS 11925, at **11-13

(Tex. App.—Houston [1st Dist.] Oct. 30, 2014, no pet.) (mem. op.).

         The evidence complained about in this issue was not essential in this forcible-

detainer action. Rather, the complained-of evidence is more relevant to appellants’

wrongful-foreclosure suit, not this forcible-detainer action. Accordingly, we cannot

conclude that the trial court’s purportedly erroneous evidentiary ruling regarding the

substitute trustee’s deed caused the rendition of an improper judgment. See TEX. R. APP.

P. 44.1; see also Cent. Expressway Sign Assocs., 302 S.W.3d at 870; Able, 35 S.W.3d at 617;

Alvarado, 897 S.W.2d at 753-54. Therefore, any error in this issue is harmless. See TEX. R.

APP. P. 44.1; see also Cent. Expressway Sign Assocs., 302 S.W.3d at 870; Able, 35 S.W.3d at

617; Alvarado, 897 S.W.2d at 753-54. We overrule appellants’ first issue.




Pruitt, et al. v. Scott                                                                  Page 4
                  II.     APPELLANTS’ MOTION FOR JUDGMENT AS A MATTER OF LAW

         In their second issue, appellants assert that the trial court erred by denying their

motion for judgment as a matter of law. Specifically, appellants argue that appellee failed

to present sufficient evidence that: (1) she provided fair notice of intent to terminate

appellants’ right of occupancy; (2) she provided appellants with notice prior to

acceleration; (3) she satisfied the condition precedent under the deed of trust; and (4) a

landlord-tenant relationship existed between appellee and appellants.

A.       Applicable Law

         At trial, appellants moved for judgment in the form of a directed verdict. We

review the grant or denial of a directed verdict under the same standard that we review

a legal-sufficiency point. See U.S. Invention Corp. v. Betts, 495 S.W.3d 20, 23 (Tex. App.—

Waco 2016, pet. denied). In reviewing the legal sufficiency of the evidence, we consider

the evidence in the light most favorable to the verdict, crediting favorable evidence if

reasonable jurors could and disregarding contrary evidence unless reasonable jurors

could not. See City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). To sustain a legal-

sufficiency challenge, we must find that: (1) there is a complete lack of evidence of a vital

fact; (2) the court is barred by the rules of evidence or law from giving weight to the only

evidence offered to prove a vital fact; (3) there is no more than a scintilla of evidence to

prove a vital fact; or (4) the evidence conclusively establishes the opposite of a vital fact.

Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 903 (Tex. 2004).


Pruitt, et al. v. Scott                                                                 Page 5
         A directed verdict is proper when: (1) a defect in the opponent’s pleading makes

the pleading insufficient to support a judgment; (2) the evidence conclusively proves a

fact that establishes a party’s right to judgment as a matter of law; or (3) the evidence

offered on a cause of action is insufficient to raise an issue of fact. Encina P’ship v.

Corenergy, L.L.C., 50 S.W.3d 66, 68 (Tex. App.—Corpus Christi 2001, pet. denied). The

trial court should enter a directed verdict when reasonable minds can only draw one

conclusion from the evidence. Vance v. My Apartment Steak House of San Antonio, Inc., 677

S.W.2d 480, 483 (Tex. 1984).

B.       Discussion

         Notwithstanding that this issue is arguably multifarious, we will address

appellants’ argument that the notice terminating the right of occupancy did not provide

fair notice to appellants. See In re S.K.A., 236 S.W.3d 875, 894 (Tex. App.—Texarkana 2007,

pet. denied) (observing that a multifarious issue or point of error is one that raises more

than one specific ground of error); see also Rich v. Olah, 274 S.W.3d 878, 885 (Tex. App.—

Dallas 2008, no pet.) (noting that courts may disregard any assignment of error that is

multifarious; however, courts may consider a multifarious issue if it can be determined,

with reasonable certainty, the error about which appellant wants to complain).

         Section 24.005(b) of the Property Code provides that “the landlord must give the

tenant at least three days’ written notice to vacate before the landlord files a forcible

detainer suit unless the parties have contracted for a shorter or longer notice period in a


Pruitt, et al. v. Scott                                                              Page 6
written lease or agreement.” TEX. PROP. CODE ANN. § 24.005(b) (West Supp. 2018). In the

instant case, the record demonstrates that appellee provided appellants with a notice to

vacate on February 26, 2018, but did not file this forcible-detainer action until more than

a month later on April 4, 2018. As such, we cannot say that appellee violated the notice

requirement of section 24.005(b) of the Property Code. See id.

         With regard to appellants’ remaining three arguments in the second issue, we note

that none of them are relevant in a forcible-detainer action. As noted above, the sole issue

in a forcible-detainer action involves who has the right to immediate possession of the

premises. See TEX. R. CIV. P. 510.3(e); Aguilar, 72 S.W.3d at 732. Appellants’ remaining

three arguments in this issue address the propriety of the foreclosure sale, which is not at

issue in a forcible-detainer action. Moreover, the deed of trust made appellants tenants

at sufferance in the event they refused to surrender the property after a foreclosure sale.

There is no dispute that the property was sold at a foreclosure sale and that appellants

refused to surrender the property. As such, appellants became tenants at sufferance, and

this landlord-tenant relationship gave appellees a basis for their forcible-detainer action

independent of any claim to title in the property. See TEX. R. CIV. P. 510.3(e); Williams v.

Bank of New York Mellon, 315 S.W.3d 925, 927 (Tex. App.—Dallas 2010, no pet.) (holding

that allegations concerning defects in the foreclosure process or with title to the property

“are not relevant in [a] forcible detainer action.”); Aguilar, 72 S.W.3d at 732; see also

Bierwirth, 2014 Tex. App. LEXIS 11925, at **11-13. Accordingly, the trial court did not


Pruitt, et al. v. Scott                                                               Page 7
need to determine the propriety of the foreclosure sale or the satisfaction of all conditions

precedent to the tenancy-at-sufferance clause in this forcible-detainer action. See TEX. R.

CIV. P. 510.3(e); Williams, 315 S.W.3d at 927; Aguilar, 72 S.W.3d at 732; see also Bierwirth,

2014 Tex. App. LEXIS 11925, at **11-13. Thus, we cannot conclude that the trial court

erred by failing to direct a verdict in appellants’ favor. See City of Keller, 168 S.W.3d at

822; Ramirez, 159 S.W.3d at 903; Betts, 495 S.W.3d at 23; Encina P’ship, 50 S.W.3d at 68. We

overrule appellants’ second issue.

                              III.     THE TRIAL COURT’S JUDGMENT

         In their third issue, appellants contend that the trial court erred by entering

judgment in favor of Ronald Scott, despite the fact that it was only appellee who

purchased the property at the foreclosure sale. Assuming, without deciding, that the trial

court erred by including Ronald as a party to the judgment, the error would be harmless

as it could not possibly have caused any harm to appellants. See TEX. R. APP. P. 44.1(a)(1).

As such, we overrule appellants’ third issue.

                                 IV.     APPELLANT’S REPLY BRIEF

         In their reply brief, appellants reargue the issues raised in their original appellate

brief and add a new argument—that the issue of possession is intertwined with the issue

of title. We need not address this argument because an issue raised for the first time in a

reply brief is ordinarily waived and need not be considered. See TEX. R. APP. P. 38.3; see

also In re Roy, 249 S.W.3d 592, 595 (Tex. App.—Waco 2008, pet. denied) (citing Zamarron


Pruitt, et al. v. Scott                                                                  Page 8
v. Shinko Wire Co., 125 S.W.3d 132, 139 (Tex. App.—Houston [1st Dist.] 2003, pet. denied)).

However, even if this issue had been properly raised in appellants’ original appellate

brief, for the reasons expressed in Roberts v. HRL Procurement LLC, this contention lacks

merit. See No. 10-18-00275-CV, 2019 Tex. App. LEXIS 2888 at **14-16 (Tex. App.—Waco

Apr. 10, 2019, no pet. h.) (mem. op.).

                                     V.      CONCLUSION

         Having overruled all of appellants’ issues on appeal, we affirm the judgment of

the trial court.




                                                 JOHN E. NEILL
                                                 Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Neill
Affirmed
Opinion delivered and filed April 24, 2019
[CV06]




Pruitt, et al. v. Scott                                                              Page 9
