Opinion issued July 15, 2014.




                                      In The

                               Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-13-00307-CV
                            ———————————
                         W.M. ROBERSON, Appellant
                                        V.
                        AARON CHEVALIER, Appellee



               On Appeal from County Civil Court at Law No. 1
                            Harris County, Texas
                       Trial Court Case No. 1027595



                             MEMORANDUM OPINION

      This is an eviction case. The county court at law, in an appeal from the

justice court, determined that Aaron Chevalier had a superior right to possession of

a residence. W.M. Roberson appeals the county court’s take-nothing judgment in
Chevalier’s favor, contending that the evidence is legally and factually insufficient

to support it. Roberson also complains that Chevalier failed to comply with the

service rules and that the county court erred by failing to file findings of fact and

conclusions of law. We affirm.

                                   Background

      In 2011, Chevalier lived in a single-family residence located in northwest

Houston. According to Chevalier, he resided at the property as its caretaker at the

behest of Ronald Curtis, the grandson and sole heir to the estate of the now-

deceased record title owner, Ella Francis Townsend. Chevalier recounted that

Roberson appeared on the property in May 2012 and told Chevalier that he was

taking the property from Curtis “due to a misplacement of the deceased owner’s

will.” Initially believing him, Chevalier executed a written rental agreement with

Roberson. In June 2012, Chevalier paid Roberson $1,025 for the deposit and the

first month’s rent.   After contacting Roberson to repair storm damage to the

carport, Chevalier discovered that Roberson did not have insurance on the

property. Roberson’s lack of insurance made Chevalier suspicious of Roberson’s

claim of ownership. Chevalier learned through a search of the Harris County

Appraisal District (HCAD) website that the estate of Ella Francis Townsend—not

Roberson—was listed as the property owner.




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      Chevalier stopped paying rent in November 2012, whereupon Roberson

petitioned for forcible entry and detainer in the justice court. In the justice court,

Chevalier denied that Roberson owned the property or represented the property’s

owner. The justice court ruled that Roberson was entitled to possession of the

premises. The justice court’s judgment did not assess delinquent rent, but it

ordered Chevalier to pay Roberson $550 monthly during the pendency of the

appeal.

      Chevalier appealed the ruling to the county civil court at law. The county

court conducted a bench trial, and the court reporter has certified that no record

was made of the proceedings. After the trial de novo, the county civil court at law

signed a take-nothing judgment in Chevalier’s favor.

                                 Forcible Detainer

      A landlord may file a forcible detainer action to reclaim possession of

property when a tenant refuses to surrender possession of the subject property on

demand. See TEX. PROP. CODE ANN. § 24.002(a) (West 2000). A forcible detainer

action is dependent on proof of a landlord-tenant relationship. Rice v. Pinney, 51

S.W.3d 705, 712 (Tex. App.—Dallas 2001, no pet.).             The only issue to be

determined in a forcible detainer action is the entitlement to actual and immediate

possession of real property. Marshall v. Hous. Auth. of San Antonio, 198 S.W.3d

782, 787 (Tex. 2006).        A determination of title, however, “shall not be

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adjudicated.” Pina v. Pina, 371 S.W.3d 361, 364–65 (Tex. App.—Houston [1st

Dist.] 2012, no pet.); accord Williams v. Bank of N.Y. Mellon, 315 S.W.3d 925,

927 (Tex. App.—Dallas 2010, no pet.) (“To maintain simplicity, the applicable

rule of procedure provides that ‘the only issue shall be as to the right to actual

possession; and the merits of the title shall not be adjudicated.’” (quoting TEX. R.

CIV. P. 746)); see also TEX. GOV’T CODE ANN. § 27.031(b)(4) (West Supp. 2013)

(declaring that “[a] justice court does not have jurisdiction of . . . a suit for trial of

title to land”); Dormady v. Dinero Land & Cattle Co., L.C., 61 S.W.3d 555, 557

(Tex. App—San Antonio 2001, pet. dism’d w.o.j.) (noting justice courts are

without jurisdiction to adjudicate title to land).       A forcible detainer action is

cumulative of any other legal remedy that a party may have. See Bruce v. Fed.

Nat’l Mortg. Ass’n, 352 S.W.3d 891, 893 (Tex. App.—Dallas 2011, pet. denied);

Rice, 51 S.W.3d at 708.

Evidentiary sufficiency

      Roberson appeals the legal and factual sufficiency of the evidence to support

the trial court’s judgment. The court reporter has certified that no reporter’s record

exists of the county court bench trial. An appellant has the burden to bring forward

a sufficient record to show the trial court’s claimed error. Nicholson v. Fifth Third

Bank, 226 S.W.3d 581, 583 (Tex. App.—Houston [1st Dist.] 2007, no pet.). When

a party raises an issue on appeal relying on evidence presented to the trial court—

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as Roberson does here, in challenging the sufficiency of the evidence—we must

presume the trial court had before it and determined all facts necessary in support

of the judgment absent any record of what evidence the trial court considered. See

Bennett v. Cochran, 96 S.W.3d 227, 229–30 (Tex. 2002) (per curiam) (“‘The court

of appeals was correct in holding that, absent a complete record on appeal, it must

presume the omitted items supported the trial court’s judgment.’” (quoting

Gallagher v. Fire Ins. Exchange, 950 S.W.2d 370, 370–71 (Tex. 1997)); see also

Onwubuche v. Olowolayemo, No. 01-10-00945-CV, 2012 WL 1067950, at *3

(Tex. App.—Houston [1st Dist.] May 29, 2012, no pet.) (mem. op.) (concluding, in

Craddock review of default judgment, that because “Onwubuche did not file a

reporter’s record as part of his record on appeal,” the court “must presume that the

reporter’s record contains evidence to support the trial court’s rulings on all issues

of fact”). Accordingly, we presume the trial court found the necessary facts to

establish that Chevalier had the superior claim to immediate possession of the

property. Public, Inc. v. County of Galveston, 264 S.W.3d 338, 341–42 (Tex.

App.—Houston [14th Dist.] 2008, no pet.).          We therefore reject Roberson’s

evidentiary-sufficiency challenges.

Notice and compliance with Rule 21a

      Roberson also complains that Chevalier failed to comply with the service

rules when he filed his answer, exhibits, and notice of pauper status in the county

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court. See TEX. R. CIV. P. 21a. Nothing in the record, however, indicates that

Roberson raised these complaints before the trial court. Roberson did not move to

continue the trial, nor does he present any argument or discussion with respect to

how the trial court’s consideration of the purportedly belated filings probably

caused rendition of an improper judgment on his claims. See TEX. R. APP. P.

44.1(a)(1). In particular, Roberson does not explain whether any of the filings or

exhibits in the trial de novo differed so greatly from those presented in the justice

court that they constituted an unfair surprise. We hold that Roberson has failed to

demonstrate that any of the service issues he challenges provides a basis for

reversing the county court’s judgment.

Absence of findings of fact and conclusions of law

         Roberson contends the trial court erred by failing to make findings of fact

and conclusions of law. Under Texas Rule of Civil Procedure 296, when a party

makes a proper and timely request for findings of fact and conclusions of law and

the trial court fails to comply, harm is presumed unless the record affirmatively

shows that the requesting party was not harmed by their absence. TEX. R. CIV. P.

296; Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996) (per curiam); Haut v. Green

Cafe Mgmt., Inc., 376 S.W.3d 171, 182 (Tex.App.—Houston [14th Dist.] 2012, no

pet.).




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      Rule 296 requires a party to make a written request for findings of fact and

conclusions of law within twenty days after judgment is signed. TEX. R. CIV. P.

296. If the court does not file its findings and conclusions within twenty days after

a timely request, the party making the request “shall, within thirty days after filing

the original request, file with the clerk and serve on all other parties . . . a ‘Notice

of Past Due Findings of Fact and Conclusions of Law.” TEX. R. CIV. P. 297.

      Roberson filed his request for findings of fact and conclusion of law on May

3, 2013, one day before the county court signed the final judgment. Rule 306c

provides that premature requests for findings of fact and conclusions of law shall

be deemed filed on the date of, but subsequent to, the judgment. See TEX. R. CIV.

P. 306c; Echols v. Echols, 900 S.W.2d 160, 161 (Tex. App.—Beaumont 1995, writ

denied).   Roberson timely filed a notice of past due findings of fact and

conclusions of law on May 30, 2013. We therefore consider whether the record

affirmatively shows that Roberson was not harmed by the absence of findings of

fact and conclusions of law.

      The clerk’s record contains controverted evidence over the single issue of

whether Roberson was entitled to actual and immediate possession of the property.

Roberson presented a lease agreement signed by Chevalier and an affidavit

Roberson filed in the real property records claiming that he had adversely

possessed the property. Chevalier, for his part, provided the title to the property

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and a letter from the deceased record property owner’s putative heir explaining that

Chevalier had his permission to reside on the property as its caretaker. Chevalier

also provided a written statement explaining that Roberson fraudulently induced

him to sign the lease. The clerk’s record affirmatively shows that the possession

issue came down to a credibility determination, which the trial court necessarily

made in favor of Chevalier and to which we owe deference on appellate review.

See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406–07 (Tex. 1998); Dyer

v. Cotton, 333 S.W.3d 703, 709 (Tex. App.—Houston [1st Dist.] 2010, no pet.).

Because the only issue in the case is the right of possession of the property, and

Roberson failed to include a reporter’s record, the trial court’s judgment

determining possession is self-explanatory; we thus conclude that Roberson was

not harmed by the absence of findings of fact and conclusions of law.

                                    Conclusion

      We affirm the judgment of the county court at law.




                                             Jane Bland
                                             Justice

Panel consists of Justices Keyes, Bland, and Brown.




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