Opinion issued September 27, 2016




                                     In The

                              Court of Appeals
                                    For The

                          First District of Texas
                            ————————————
                              NO. 01-15-00344-CV
                           ———————————
               ROLAND JACKSON, Appellant/Cross-Appellee
                                       V.
              DONALD JEFFERSON, Appellee/Cross-Appellant


             On Appeal from the County Civil Court at Law No. 1
                           Harris County, Texas
                       Trial Court Case No. 1058307


                         MEMORANDUM OPINION

      Donald Jefferson sued Roland and Kimbanesha (“Kim”) Jackson to evict

them from his rental property and for delinquent rent. The justice court entered a

judgment of possession in Jefferson’s favor and assessed $10,000 in delinquent

rent against Kim only. Roland appealed to the county court at law, and after a de
novo trial, the county court entered a judgment of possession in Jefferson’s favor,

with no delinquent rent award. Roland appealed to this court, but we dismiss his

appeal for failure to pay the filing fee. Jefferson also appealed, contending that the

county court erred in failing to award a money judgment against Kim and Roland

for delinquent rent in the amount of $19,200. We affirm.

                                    Background

      In December 2012, Kim leased residential property in Spring, Texas from

Jefferson. Kim executed a two-year lease effective December 8, 2012 through

December 8, 2014, which obligated her to pay $1,600 monthly rent.

      On December 18, 2014, Jefferson sued in justice court to evict Kim and her

ex-husband Roland from the property. Jefferson’s petition alleged that monthly

rent had not been paid on the property since November 2013. The justice court

entered a judgment of eviction in Jefferson’s favor and also awarded Jefferson

delinquent rent in the amount of $10,000 from Kim only. Roland, acting pro se,

appealed to the county court at law.

      On March 30, 2015, the county court conducted a trial de novo. Jefferson

testified that, at the time of trial, he had received $16,000 in monthly rent payments

from Kim for December 2012 through September 2013, and zero dollars from

Roland in the months since Kim’s last payment. According to Jefferson, Kim

terminated the lease and Roland assumed the terms and conditions of the lease



                                          2
when Kim moved out and Roland moved in.                  Jefferson, however, also

unequivocally testified that Roland never signed a lease.           By Jefferson’s

calculations, he was owed $19,200 in delinquent rent from the Jacksons—

representing 12 months’ occupancy at $1,600 per month.

      Roland, on the other hand, testified that he had not assumed Kim’s lease and

instead, that he had made an oral agreement with Jefferson to fix up the property in

lieu of paying rent.    Roland testified that Kim had been “overwhelmed” by

problems with the property, which included rodents in the attic, foundation cracks

and plumbing leaks, a poorly maintained pool, and an unkempt yard. Roland

maintained that all of these problems existed at the start of Kim’s lease and that

Jefferson had agreed but failed to address them before Kim moved in. Roland

testified that he and Kim agreed that she would move out of the home and that he

would move in with their children so that the children would not have to move and

change schools.

      According to Roland, when he and Kim decided she would move out, he and

Jefferson discussed the many problems at the property and agreed that Roland

would repair the property to make it livable in lieu of paying monthly rent. Roland

testified that, pursuant to this verbal agreement, he immediately starting repairing

the property, with some help from Jefferson. And though there were subsequent

conversations between Roland and Jefferson about when Roland would start



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paying rent and in what amount, Roland testified that Jefferson never presented

him with a lease. Roland speculated that Jefferson agreed to let Roland work on

repairing the house so that he could sell the property.

      On cross-examination, Jefferson acknowledged that he received a letter

threatening fines because the house’s front yard was unkempt. After receiving the

letter, Jefferson worked with Roland’s cousin, Martin Harris, to improve the front

yard. Jefferson maintained that alleged problems with the pool and pool filter were

just issues of “normal upkeep.” Jefferson agreed that Roland had told him via text

that there was a crack in the house’s foundation which ran from the pool area to the

living room and wash room, that plumbing issues caused the wash room to flood,

and that there were rodents in the attic. Notwithstanding Roland’s reporting of

such issues, Jefferson testified that the house was “one-hundred percent” move-in

ready when Kim entered into the written lease. Contrary to Roland’s claims of

having made property improvements, Jefferson testified that he visited the house

while Roland lived there and found it “incredibly filthy.”

      On April 2, 2015, the county court entered a judgment that Jefferson “does

have and recover possession of the premises from Defendant Kim Jackson et al.”

The county court’s judgment did not award Jefferson any money damages.

      Roland filed a notice of appeal. Jefferson filed a motion to reform the

judgment to include a money judgment against both Roland and Kim in the amount



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of $19,200 for delinquent rent.       After Jefferson’s motion was overruled by

operation of law, he also filed a notice of appeal.

                    Involuntary Dismissal of Roland’s Appeal

      On October 15, 2015, this Court notified Roland that his appeal was subject

to involuntary dismissal owing to a failure to pay the required appellate fees or

establish indigence for purposes of appellate costs and notifying Roland that his

appeal would be dismissed unless he responded within 10 days. See TEX. R. APP.

P. 5 (requiring payment of fees in civil cases unless indigent and allowing

enforcement of rule); 42.3(c) (allowing involuntary dismissal). The Court’s notice

was returned with the following marked on the envelope: “RETURN TO

SENDER[,]      NOT     DELIVERABLE         AS     ADDRESSED[,]      UNABLE     TO

FORWARD.”

      To date, Roland has neither paid the required fees nor attempted to establish

indigence for purposes of appellate costs, nor has he provided the Clerk of this

Court with any other address. See TEX. R. APP. P. 9.1(b) (“A party not represented

by counsel must sign any document . . . and give the party’s mailing address,

telephone number, fax number, if any, and email address.”). Accordingly, we

dismiss Roland’s appeal for failing to either pay the required fees or establish

indigence for purposes of appellate costs. See TEX. R. APP. P. 5; 42.3(c).




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                            County Court’s Jurisdiction

      As a threshold matter, in his first issue, Jefferson suggests the county court

may have lacked jurisdiction to render a judgment of eviction against both Kim

and Roland, since only Roland filed a notice of appeal from the justice court to the

county court. Although typically a notice of appeal filed by one party does not

serve to perfect an appeal for another, “it is well-settled that perfection of an appeal

to county court from a justice court for trial de novo vacates and annuls the

judgment of the justice court.” Villalon v. Bank One, 176 S.W.3d 66, 69–70 (Tex.

App.—Houston [1st Dist.] 2004, pet. denied). “Once a county court acquires

jurisdiction by perfection of an appeal from justice court, the rules of procedure

permit only that the county court try the case de novo or dismiss it if it is not

prosecuted.” Id. at 70 (citing Hall v. McKee, 179 S.W.2d 590, 593 (Tex. App.—

Fort Worth 1944, no writ)). “A trial de novo is a new trial in which the entire case

is presented as if there had been no previous trial.” TEX. R. CIV. P. 510.10(c).

      Thus, Roland’s appeal to the county court at law vacated and annulled the

justice court judgment in Jefferson’s favor. See Villalon, 176 S.W.3d at 69–70. In

the de novo trial in county court, Jefferson was to present his entire case as if there

had been no previous trial on his petition to evict Kim and Roland. See TEX. R.

CIV. P. 510.10. Jefferson’s petition named Kim and Roland as defendants, and the

record contains returns of service reflecting that each of Kim and Roland was



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served with process. See Villalon, 176 S.W.3d at 69–70 (jurisdiction of county

court in de novo appeal is co-extensive with justice court’s jurisdiction over

defendants obtained by virtue of service of citation in justice court). Accordingly,

the county court at law acquired jurisdiction over and properly rendered judgment

binding Kim and Roland. See id.

                           Sufficiency of the Evidence

      In his second issue, Jefferson argues that the trial court erred in failing to

award him delinquent rent in the amount of $19,200 because, according to

Jefferson, he conclusively established his entitlement to such an award with respect

to each of Kim and Roland.

A.    Standard of Review

      When a plaintiff challenges the judgment entered against him following a

bench trial and argues that he established his cause of action as a matter of law, we

will apply the same standard of review applicable to the denial of a plaintiff’s

motion for directed verdict. Olanipekun v. Omokaro, No. 01-13-00888-CV, 2014

WL 5410058, at *2 (Tex. App.—Houston [1st Dist.] Oct. 23, 2014, no pet.) (mem.

op.). We review a trial court’s decision to deny a motion for directed verdict under

the legal sufficiency standard of review. City of Keller v. Wilson, 168 S.W.3d 802,

823 (Tex. 2005); see KMG Kanal-Muller-Gruppe Deutschland GmbH & Co. KG v.

Davis, 175 S.W.3d 379, 393 (Tex. App.—Houston [1st Dist.] 2005, no pet.).



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When a party attacks the legal sufficiency of an adverse finding on which he had

the burden of proof, he must demonstrate on appeal that the evidence establishes,

as a matter of law, all vital facts in support of his proposed disposition. Dow

Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001); see Rosenblatt v. Freedom

Life Ins., 240 S.W.3d 315, 318 (Tex. App.—Houston [1st Dist.] 2007, no pet.).

      We review the evidence in the light most favorable to the challenged finding

and indulge every reasonable inference that would support it. City of Keller, 168

S.W.3d at 822. If the evidence falls within the zone of reasonable disagreement,

we may not invade the role of the fact-finder, who alone determines the credibility

of the witnesses, the weight to give their testimony, and whether to accept or reject

all or any part of that testimony. Id.; see Dyer v. Cotton, 333 S.W.3d 703, 709

(Tex. App.—Houston [1st Dist.] 2010, no pet.) (in bench trial, as fact-finder, trial

court may believe one witness and disbelieve another and resolve inconsistencies

in any testimony); see also Esse v. Empire Energy III, Ltd., 333 S.W.3d 166, 177

(Tex. App.—Houston [1st Dist.] 2010, pet. denied) (“trial court acts as fact-finder

in a bench trial and is the sole judge of the credibility of the witnesses”).

B.    Applicable Law

      A lease is a type of contract. The essential elements to sustain a breach of

contract claim are: (1) existence of a valid contract; (2) performance or tendered

performance by the plaintiff; (3) breach of the contract by the defendant; and



                                           8
(4) damages to the plaintiff resulting from the breach. Dupree v. Boniuk Interests,

Ltd., 472 S.W.3d 355, 364 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (citing

Pagosa Oil & Gas, LLC v. Marrs & Smith P’ship, 323 S.W.3d 203, 213 (Tex.

App.—El Paso 2010, pet. denied)).

      Rule 510 of the Texas Rules of Civil Procedure addresses eviction

proceedings and provides that upon a judgment in favor of a plaintiff, “the judge

must render judgment for plaintiff for possession of the premises, costs, delinquent

rent as of the date of entry of judgment, if any, and attorney fees if recoverable by

law.” TEX. R. CIV. P. 510.8(b).

C.    Analysis

      Jefferson argues that Rule 510 states that upon judgment in favor of an

eviction plaintiff, the judge “must render judgment for . . . delinquent rent.” TEX.

R. CIV. P. 510.8(b). According to Jefferson, he conclusively proved a breach of the

lease and damages in the amount of $19,200 and, accordingly, the trial court erred

in failing to enter a judgment awarding delinquent rent in that amount against

Roland and Kim.

      The evidence at trial showed that the written lease was signed only by

Jefferson and Kim, but that no written lease agreement exists between Jefferson

and Roland. Jefferson testified that Kim terminated her lease and Roland assumed

the terms of the lease when Kim moved out and Roland moved in. But the county



                                         9
court heard conflicting evidence concerning the terms of Jefferson and Roland’s

oral agreement. According to Jefferson, Roland assumed the terms of Kim’s lease

agreement, including the terms regarding monthly rent. However, Roland testified

that he never agreed to pay any amount of rent and, instead, Jefferson agreed to let

Roland stay at the property rent-free while Roland invested his own resources in

improving the property. Roland testified that he and Jefferson orally agreed that

Roland would not pay rent until Roland had finished making improvements to the

property, at which point they would execute a new lease. Roland testified that

Jefferson decided to sell the property after Roland improved it, and the parties

never executed any lease or came to any alternative agreement about paying

monthly rent.

      Thus, the county court heard conflicting evidence regarding the terms on

which Jefferson agreed that Kim and Roland could occupy the property. See Esse,

333 S.W.3d at 177 (appellate court defers to trial court’s resolution of conflicts in

evidence); Dyer, 333 S.W.3d at 709 (same). It was undisputed that Kim paid the

rent according to the terms of the lease until September 2013. And Jefferson

testified that Kim terminated her lease and Roland moved in to the property on the

basis of his oral agreement with Jefferson. But the trial court was not required to

accept Jefferson’s testimony that the terms of that oral agreement were identical to

the terms of the written lease. The trial court reasonably could have credited



                                         10
Roland’s testimony that Jefferson agreed that Roland could occupy the property

rent free so long as he made repairs as agreed. Because the evidence falls within

the zone of reasonable disagreement, Jefferson has not established his entitlement

to delinquent rent as a matter of law. See City of Keller, 168 S.W.3d at 822.

Accordingly, we hold that the county court at law did not err in failing to award

delinquent rent in its judgment or in denying Jefferson’s motion to reform the

judgment. See id.

      We overrule Jefferson’s second and third issues.

                                   Conclusion

      We affirm the trial court’s judgment.




                                                  Rebeca Huddle



Panel consists of Chief Justice Radack and Justices Higley and Huddle.




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