                            NUMBER 13-12-00451-CV

                               COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG


KARL F. HECKENDORN,                                                               Appellant,

                                               v.

FIRST MORTGAGE COMPANY, LLC,                                                      Appellee.


                On appeal from the County Court at Law No. 2
                         of Denton County, Texas.


                            MEMORANDUM OPINION

            Before Justices Rodriguez, Benavides, and Longoria
                Memorandum Opinion by Justice Rodriguez
       This is a forcible detainer case.1 Appellant Karl F. Heckendorn appeals from a

judgment of possession entered in favor of appellee First Mortgage Company, LLC. By

       1
          This case is before the Court on transfer from the Second Court of Appeals in Fort Worth
pursuant to an order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West
2005).
three issues, Heckendorn contends the trial court erred in granting judgment for First

Mortgage because: (1) First Mortgage’s live pleading was not valid; (2) there was no

evidence that Heckendorn continued to occupy the property after demand was made to

vacate; and (3) the evidence was insufficient to support a claim of superior right of

possession. We affirm.

                                     I. BACKGROUND

       On January 3, 2012, First Mortgage purchased the property located at 5408 Sun

Meadow Drive, Flower Mound, Texas 75022 at a substitute trustee’s sale.                First

Mortgage sent a notice of eviction to Heckendorn explaining that it had purchased the

property at a foreclosure sale and that, pursuant to the deed of trust, Heckendorn, who

had been the owner in possession of the property, was now a tenant-at-sufferance. See

TEX. PROP. CODE ANN. § 24.002 (West 2000); id. § 24.005 (West Supp. 2011). Pursuant

to section 24.005 of the property code, First Mortgage made a demand that Heckendorn

vacate the premises, along with his personal property, within three days from the delivery

date of the eviction notice. See id. § 24.005.

       On March 29, 2012, First Mortgage filed its petition for forcible detainer in the

Justice Court, Precinct 4, of Denton County, Texas, seeking immediate possession of the

property. See Mekeel v. U.S. Bank N.A., 355 S.W.3d 349, 352 (Tex. App.—El Paso

2011, pet. dism’d w.o.j.) (“A forcible detainer action is designed to determine the right to

immediate possession of real property where there is no claim of unlawful entry.”); Cattin

v. Highpoint Vill. Apartments, 26 S.W.3d 737, 738–39 (Tex. App.—Fort Worth 2000, pet.

dism’d w.o.j.) (same).    Heckendorn answered, challenging First Mortgage’s right to

immediate possession of the property.       He alleged, among other things, that “any
                                            2
Trustee’s Sale was defective,” and “[a]ny Trustee’s Sale of the property is void as a matter

of law.” Following a bench trial, at which Heckendorn did not appear, the justice court

entered a post-answer default judgment for possession in favor of First Mortgage and

ordered Heckendorn to surrender possession of the property. Heckendorn appealed to

the County Court at Law No. 2 of Denton County, Texas. The county court heard the

case de novo and again entered judgment in favor of First Mortgage. Heckendorn did

not appear at the county court hearing. Heckendorn appeals the judgment of the county

court.

                              II. PLEADING DEFECT CHALLENGE

         By his first issue, Heckendorn contends that the trial court erred in hearing the

case because First Mortgage’s unsworn petition does not support a judgment for

possession. See TEX. R. CIV. P. 739 (providing that a forcible detainer action is initiated

by filing a “written sworn complaint” with a justice of the peace). Conceding that he did

not raise this issue in the trial court, Heckendorn argues that this defect is jurisdictional

and may be raised at any time.

         Our sister courts have addressed this issue, holding that a defective verification

does not deprive the county court of jurisdiction to hear a forcible detainer action and that

defects in the verification of the petition for forcible detainer are waived if not challenged in

the trial court. See, e.g., Shutter v. Wells Fargo Bank, N.A., 318 S.W.3d 467, 469 (Tex.

App.—Dallas 2010, pet. dism’d w.o.j.) (“[T]he defective verification did not deprive the

county court of jurisdiction to hear the forcible detainer action. Therefore, to the extent

appellant is raising a jurisdictional challenge, the argument is overruled.”) (citing Reagan

v. NPOT Partners I, L.P., No. 06-08-00071-CV, 2009 Tex. App. LEXIS 2045, at *6–7 (Tex.
                                           3
App.—Texarkana Mar. 25, 2009, pet. dism’d w.o.j.) (mem. op.) (determining that defects

in the verification of the petition for forcible detainer are waived if not challenged in the trial

court)); see also Sherry Lane Nat’l Bank v. Bank of Evergreen, 715 S.W.2d 148, 149, 151

(Tex. App.—Dallas 1986, writ ref’d n.r.e.) (finding that the failure to properly verify a

petition for garnishment could not be challenged in the appeal of a post-answer default

judgment because the defect was waived upon appeal); Mekeel, 355 S.W.3d at 353

(stating that “objections to pleadings—including objections to an affidavit based on the

affiant’s knowledge, information, and belief, when objectionable in form—must be raised

prior to trial”); Fleming v. Fannie Mae, No. 02-09-00445-CV, 2010 Tex. App. LEXIS 9393,

at *5 (Tex. App.—Fort Worth Nov. 24, 2010, no pet.) (mem. op.) (“Accordingly, assuming

that the verification was defective, we hold that, to the extent Fleming raises a

jurisdictional challenge to the trial court’s judgment in favor of Fannie Mae, such a

challenge is without merit.”).

       We agree with the reasoning and conclusions reached by these courts, including

Fleming, a memorandum opinion out of the transfer court in this case,2 and conclude that

Heckendorn waived his unsworn-petition jurisdictional challenge to the trial court’s

judgment in favor of First Mortgage. See Shutter, 318 S.W.3d at 469 (citing Reagan,

2009 Tex. App. LEXIS 2045, at *6–7); see also Sherry Lane Nat’l Bank, 715 S.W.2d at

149, 151; Mekeel, 355 S.W.3d at 353; Fleming, 2010 Tex. App. LEXIS 9393, at *5. We

overrule Heckendorn’s first issue.


       2
          Given that the case originated in the Second Court of Appeals, we are bound by the rules of
appellate procedure to apply the precedent of the Second Court of Appeals in this appeal. See TEX. R.
APP. P. 41.3.

                                                 4
                              III. EVIDENTIARY CHALLENGES

       By his remaining issues, Heckendorn challenges the sufficiency of the evidence to

establish that he refused to vacate the premises and that First Mortgage had a superior

right to possession.

A. Standard of Review and Applicable Law

       “A post-answer ‘default’ constitutes neither an abandonment of defendant’s

answer nor an implied confession of any issues thus joined by the defendant’s answer.”

Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979). To obtain a post-answer default

judgment, a plaintiff must offer evidence to prove all aspects of his case.        Bradley

Motors, Inc. v. Mackey, 878 S.W.2d 140, 141 (Tex. 1994) (per curiam) (citing Stoner, 578

S.W.2d at 682) (“Judgment cannot be entered on the pleadings, but the plaintiff in such a

case must offer evidence and prove his case as in a judgment upon a trial.”)). So a legal

sufficiency challenge to the evidence supporting a post-answer default judgment can be

brought on appeal. Norman Commc’n v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex.

1997) (per curiam).

       “The test for legal sufficiency is ‘whether the evidence at trial would enable

reasonable and fair-minded people to reach the verdict under review.’ In our review of

the evidence, we ‘credit favorable evidence if reasonable jurors could, and disregard

contrary evidence unless reasonable jurors could not.’” Armstrong v. Benavides, 180

S.W.3d 359, 362 (Tex. App.—Dallas 2005, no pet.) (quoting City of Keller v. Wilson, 168

S.W.3d 802, 827 (Tex. 2005)). “If there is more than a scintilla of evidence to support the

verdict, we uphold the judgment. Evidence is no more than a scintilla when it is ‘so weak

as to do no more than create a mere surmise or suspicion of the fact’s existence.’” Id.
                                         5
(internal citations omitted).

       “In an action of forcible detainer, the only issue shall be as to the right to actual

possession, and the merits of the title shall not be adjudicated.” U.S. Bank Nat'l Ass'n v.

Freeney, 266 S.W.3d 623, 625 (Tex. App.—Dallas 2008, no pet.) (citing TEX. R. CIV. P.

746); see Rice v. Pinney, 51 S.W.3d 705, 709 (Tex. App.—Dallas 2001, no pet.)). “‘To

prevail in a forcible detainer action, a plaintiff is not required to prove title, but is only

required to show sufficient evidence of ownership to demonstrate a superior right to

immediate possession.’” Id. (quoting Rice, 51 S.W.3d at 709). By statute, a claim for

forcible detainer requires the plaintiff to prove that it gave proper notice to the tenant at will

or by sufferance and that the tenant refused to vacate the premises. TEX. PROP. CODE

ANN. § 24.002; id. § 24.005.

B. Refusal to Vacate Property

       By his second issue, Heckendorn complains that there was no evidence or

stipulation establishing that he refused to vacate the premises.             See id. § 24.005.

Heckendorn asserts that there was no proof that he disregarded any demand to vacate

and that he continued to occupy the property.

       We note, however, that Heckendorn appeared in the justice court after being

served with notice to vacate and denied First Mortgage’s right to possession of the

property. In his pro se answer and motion to dismiss, Heckendorn listed his address as

5408 Sun Meadow Dr., Flower Mound, Texas 65022.                       In his affidavit for the

postponement of trial, Heckendorn avowed that he was the named defendant and resided

with his family at that address. The clerk’s record also includes Heckendorn’s appeal of

the justice court’s decision to the county court, in which he contests First Mortgage’s right
                                              6
to possess the property. And after the county court determined that First Mortgage was

entitled to possession of the property, Heckendorn appealed that judgment to this Court.

He also sought to supersede the trial court’s judgment and prevent eviction by

transferring the appeal bond that he had filed in the justice court and applying it as a

supersedeas bond in this Court. In his motion to transfer the bond, Heckendorn stated

the following: “This case in [sic] on appeal[,] and to remove the Defendant from the

premises pending the appeal would be contrary to Texas Law.”

      Applying the reasoning of the Austin Court in Rodriguez v. Citimortgage, Inc., No.

03-10-00093-CV, 2011 Tex. App. LEXIS 171, at *18–19 (Tex. App.—Austin Jan. 6, 2011,

no pet.) (mem. op.), we conclude that Heckendorn has tacitly conceded that he refused to

vacate the premises upon receiving his notice of eviction and has remained in possession

of the property. We reach our conclusion on facts we cannot ignore. Heckendorn

identified the Sun Meadow property either as his mailing address or as his residence in

numerous documents that he filed in this case. And in an attempt to supersede lower

court judgments awarding First Mortgage possession, Heckendorn continued to

prosecute appeals, arguing that “to remove the Defendant from the premises pending the

appeal would be contrary to Texas Law.” We overrule Heckendorn’s second issue.

C. Superior Right of Possession

      By his third issue, Heckendorn generally contends that “[n]o evidence appears in

the   record   that   a   substitute   trustee’s   deed   or   a   properly   certified   or

otherwise-authenticated copy of a substitute trustee’s deed was placed into evidence.

Therefore, there was no sufficient evidentiary basis for the trial court’s judgment.” We

construe this as a challenge to the legal sufficiency of the evidence to support a
                                        7
determination that First Mortgage had a superior right to immediate possession of the

property. See TEX. R. CIV. P. 746; see Freeney, 266 S.W.3d at 625 (citing Rice, 51

S.W.3d at 709).

      The reporter’s record does not appear in the appellate record. Because there is

no reporter’s record, we must presume the missing record would support the trial court’s

decision. 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 Insurance Exchange, 950 S.W.2d 370, 370–71 (Tex. 1997)); Bryant v.

United Shortline Inc. Assurance Servs., N.A., 972 S.W.2d 26, 31 (Tex. 1998) (“We

indulge every presumption in favor of the trial court's findings in the absence of a

statement of facts.”); see also Onwubuche v. Olowolayemo, No. 01-10-00945-CV, 2012

Tex. App. LEXIS 2447, at *7–9 (Tex. App.—Houston [1st Dist.] May 29, 2012, no pet.)

(mem. op.) (concluding, in a Craddock review of a 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”) (citing Smith v. I-30 Bus. Park, Ltd., 2010 Tex. App. LEXIS

9472, at *18 (Tex. App.—Texarkana Dec. 1, 2010, no pet.) (mem. op.) (noting, in an

appeal from a default eviction and rent judgment in county court, that the appellate court

must presume that a missing reporter’s record would contain evidence to support the trial

court’s rulings); In re C.K.C., No. 12-10-00366-CV, 2011 Tex. App. LEXIS 10201, at *3

(Tex. App.—Tyler Dec. 30, 2011, no pet.) (mem. op.) (“When no reporter’s record is filed,

we must presume the missing evidence supports the trial court’s ruling.”); Brazle v.
                                     8
Meadows on the Mews Owners Ass’n, No. 14-10-01016-CV, 2011 Tex. App. LEXIS

9618, at *3 (Tex. App.—Houston [14th Dist.] Dec. 8, 2011, no pet.) (per curiam) (mem.

op.) (“Appellant failed to file a reporter’s record from the trial de novo in the county court.

Unless an appellant arranges for the filing of a complete reporter’s record . . . , we must

presume that the proceedings support the trial court’s judgment.”)).

        So in the absence of a reporter’s record in this case, we must presume that the

evidence supports the trial court’s ruling. Doing so, we conclude that there is more than

a scintilla of evidence to show that the substitute trustee conveyed the property by deed

to First Mortgage after the foreclosure sale and that First Mortgage had a superior right to

possession of the property. See TEX. R. CIV. P. 746; see Freeney, 266 S.W.3d at 625

(citing Rice, 51 S.W.3d at 709); Armstrong, 180 S.W.3d at 362 (quoting City of Keller, 168

S.W.3d at 827). We overrule Heckendorn’s third issue.

                                           IV. CONCLUSION

        We affirm the judgment of the trial court.3



                                                                          NELDA V. RODRIGUEZ
                                                                          Justice

Delivered and filed the
29th day of July, 2013.


        3
            On July 10, 2013, Heckendorn filed an emergency motion to dissolve a writ of possession and to
determine the amount of a bond, deposit, or security. That same day, we stayed the writ, pending further
order of the Court, and carried the remainder of his motion with the case. On July 15, 2013, First Mortgage
filed a response to Heckendorn’s motion. It also filed an expedited motion to dissolve the July 10 stay.

         Having affirmed the trial court’s judgment, we grant First Mortgage’s expedited motion and lift our
stay of the writ of possession issued to the Constable of Precinct Four, Denton County, Texas. We also
deny the portion of Heckendorn’s July 10 motion that we carried with the case—specifically his request that
we conduct a hearing and determine the amount of bond, deposit, or security. That matter is now moot.
                                                     9
