                            NUMBER 13-11-00762-CV

                              COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG


NEW WAVE PROPERTIES, INC.,                                                 Appellant,

                                           v.

KIMBERLY WIKOFF,                                                            Appellee.


                  On appeal from the County Court at Law
                      of San Patricio County, Texas.


                            MEMORANDUM OPINION

        Before Chief Justice Valdez and Justices Garza and Vela
               Memorandum Opinion by Chief Justice Valdez
      By two issues, appellant, New Wave Properties, Inc., appeals from the judgment

of the County Court at Law of San Patricio County, denying appellant’s claims for

eviction and past due rent and ordering appellant to return to appellee, Kimberly Wikoff,

personal property removed from her apartment. We affirm.
                                      I. BACKGROUND

       Appellant is a management company for several apartment units. Appellee was

leasing an apartment managed by appellant. Appellee’s lease expired in August 2011,

and appellant sent notice of non-renewal. Appellee did not move out of the property,

and appellant filed an eviction suit and suit for rent in the justice court. The justice court

granted judgment in favor of appellant. Appellee filed a notice of appeal along with a

pauper’s affidavit. Appellee filed no other written pleadings.

       The County Court at Law of San Patricio County called the case for trial on

October 20, 2011. Appellee appeared pro se, and appellant appeared by its corporate

representative, Jessica Lopez. The following exchange occurred:

       The Court:    Okay. [Appellant] filed a complaint for eviction with a Suit for
                     Rent on August 1, 2011, and got a judgment in JP Court No.
                     4.   Possession of the premises described as 12 C
                     Commonsway South, for delinquent rent in the amount of
                     $417, late fees of $185, court costs of $121, interest at 5%
                     per annum, and a writ of possession of the property for
                     September 7, 2011.

                     That was done on August 29, 2011. [Appellee] you filed a
                     Notice of Appeal, September 14, 2011.
       ...

       The Court:    Okay. Has [appellee] been paying rent into the registry of
                     the Court?

       The Clerk:    No, sir.

       Appellee:     We moved.

       The Court:    Okay. Well, it is your appeal. What are you asking me to
                     do?

       Appellee:     Well, I was bringing proof we did pay the rent. And also, the
                     owner of the property has - - he came to my home when we
                     were still living in it and took multiple amounts of items from
                     our home and he was spotted running from our apartment.

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The Court:   He was what?

Appellee:    Running from our apartment.

             ...

The Court:   So what, basically, you are saying is that you don’t owe any
             money?

Appellee:    No. I have receipts for my last month’s rent for August.

The Court:   Well, I am asking: You are saying you don’t owe any money
             to [appellant]?

Appellee:    No.

             ...

The Court:   What about all these things you have on the list, things
             stolen from your townhouse by [appellant], did you get them
             back?

Appellee:    No. And I asked where they are located and they won’t tell
             me. They took them while we were moving.

The Court:   Ms. Lopez, what do you have to say about that?

             ...

Ms. Lopez:   Their lease, Your Honor, expired in August and we did send
             them a non-renewal. We weren’t going to be renewing
             them. And since it was abandoned, they removed the
             property, which they have in their possession.

The Court:   You are saying [appellant] doesn’t have these things?

Ms. Lopez:   I have never seen that list, so, I don’t - - and I didn’t pull the
             property from the property, so I don’t know. I wouldn’t even
             be able to - - to say.

The Court:   Well, did [appellant] take those things?

Ms. Lopez:   Again, sir, I don’t know. I am just here for nonpayment for
             September.



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                    ...

      The Court:    What do you do for appellant?

      Ms. Lopez:    I work in the office. I am the – usually I do the leasing.
                    Leasing agent.

      Appellee:     Also, if I can add, the maintenance people knew that we
                    were still there, because they had been seeing us moving
                    stuff. And they said, “Well when are you moving?” And we
                    said, “We are moving now.”

                    They knew that it wasn’t abandoned.

      The Court:    Okay. I am ordering all of this personal property listed in
                    Exhibit A returned to [appellee].          And I am denying
                    [appellant’s] petition for delinquent rent and late fees.

                                     II. DISCUSSION

      Appellant raises two issues on appeal:        (1) the trial court erred in denying

judgment for appellant and granting a judgment for appellee, as there was no written

pleading filed by appellee to support granting of a judgment; and (2) the judgment of the

trial court was against the great weight and preponderance of the evidence.

      A. Trial without Pleading

      In its first issue, appellant complains about the trial court’s judgment, arguing that

it was reversible error for the court to enter a judgment for appellee in the absence of

written pleadings. As noted above, this case was originally brought by appellant in the

justice court, which entered a judgment in appellant’s favor. Appellee subsequently

perfected an appeal to the county court at law. After holding a trial de novo, the county

court entered judgment in favor of appellee.

      Appellant argues that, because appellee had no claim for affirmative relief before

the justice court, Rule 574a of the Texas Rules of Civil Procedure precluded her from



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asserting a new claim for affirmative relief. See TEX. R. CIV. P. 574a. The rule provides

as follows:

       Either party may plead any new matter in the county or district court which
       was not presented in the court below, but no new ground of recovery shall
       be set up by the plaintiff, nor shall any set-off or counterclaim be set up by
       the defendant which was not pleaded in the court below. The pleading
       thereof shall be in writing and filed in the cause before the parties have
       announced ready for trial.

Id.

       As other courts of appeals have noted, rule 574a has “little practical effect” in

light of Civil Practice and Remedies Code sections 31.004 and 31.005, “which allow a

party to circumvent Rule 574a by bringing the new claim in a separate action in county

court or district court.” Houtex Ready Mix Concrete & Materials v. Eagle Constr. &

Environmental Servs. L.P, 226 S.W.3d 514 (Tex. App.—Houston [1st Dist.] 2006, no

pet.); see also Harrill v. A.J.’s Wrecker Service, Inc., 27 S.W.3d 191, 194-195 (Tex.

App.—San Antonio 2000, no pet.).

       Thus, the remedy when a party asserts a new matter not previously pled in the

justice court is severance, not dismissal for lack of jurisdiction. See Harrill, 27 S.W. 3d

at 195 (“Because [the party appealing to county court] could have brought any

additional claims constituting new grounds of recovery in county court, the trial court

should have severed any such claims from the appeal of the original judgment instead

of dismissing the claims.”); D’Tel Communications v. Roadway Package Serv., Inc., 987

S.W.2d 213, 214 (Tex. App.—Eastland 1999, no pet.) (holding that new counterclaim

pleaded in appeal from county court to justice court was improperly brought under rule

574a; remedy was not dismissal but severance).




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       Here, appellant neither objected to the new matter being asserted for the first

time in county court nor requested that the court sever the counterclaim from the appeal

from justice court.   Appellant also did not file a motion for new trial.        Under such

circumstances, our rules of appellate procedure provide that appellant is barred from

complaining about this for the first time on appeal:

       As a prerequisite to presenting a complaint for appellate review, the record
       must show that the complaint was made to the trial court by a timely
       request, objection, or motion that stated the grounds for the ruling that the
       complaining party sought from the trial court with sufficient specificity to
       make the trial court aware of the specific complaint . . . and the trial court
       ruled on the request, objection, or motion, either expressly or implicitly . . .
       or refused to rule on the request, objection, or motion and the complaining
       party objected to the refusal.

See TEX. R. APP. P. 33.1(a)(1).

       Furthermore, although appellant complains that appellee failed to assert her

counterclaim in written pleadings, the rules of procedure permit such matters to be tried

by consent, whether express or implied:

       When issues not raised by the pleadings are tried by express or implied
       consent of the parties, they shall be treated in all respects as if they had
       been raised in the pleadings. In such case such amendment of the
       pleadings as may be necessary to cause them to conform to the evidence
       and to raise these issues may be made by leave of court upon motion of
       any party at any time up to the submission of the case to the Court or jury,
       but failure so to amend shall not affect the result of the trial of these
       issues; provided that written pleadings, before the time of submission,
       shall be necessary to the submission of questions, as is provided in Rules
       277 and 279.

TEX. R. CIV. P. 67.

       In its brief, appellant acknowledges the foregoing rules, but nonetheless

maintains that appellee’s counterclaim was not tried by consent. While we agree with

appellant that trial by consent should never be applied haphazardly, we do not agree



                                              6
with appellant that the situation in this trial was “unclear to the parties,” as appellant

suggests.

      First, the record shows that from the beginning of the trial, appellee clearly

asserted a counterclaim for affirmative relief. Second, appellee was permitted to put on

evidence of her counterclaim without any objection by appellant. Third, to the extent

appellant’s corporate representative subsequently advised the county court that she had

no knowledge of appellee’s counterclaim, it is clear that she was speaking as a fact

witness and corporate representative responding to the court’s inquiries, not as an

attorney for appellant making an objection to appellee’s counterclaim being tried without

written pleadings. She told the court she was a leasing agent for appellant and made

no claim to being an attorney or counsel of record for appellant in this trial. Although

representation by a non-lawyer is permissible in a hearing on a landlord’s sworn motion

that the tenant failed to pay rent during the appeal as required, appellant filed no such

motion and this trial was not a hearing on such a motion. See TEX. PROP. CODE ANN. §

24.0054(e) (West Supp. 2011) (“In a motion or hearing in county court under Subsection

(a), the parties may represent themselves or be represented by their authorized agents,

who need not be attorneys.”).

      In sum, this was not a “doubtful situation” where appellant had no knowledge of

appellee’s counterclaim being tried without a written pleading. See White v. Sullins, 917

S.W.2d 158, 161 (Tex. App.—Beaumont 1996, writ denied) (“It is a rule that should be

applied with care and not in a doubtful situation.”). Rather, this was an exceptional case

where appellant, through its corporate representative, had actual knowledge of

appellee’s counterclaim but did not make a valid and timely objection to the trial of the



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counterclaim.   Under these circumstances, appellant is prohibited from complaining

about the no-pleading issue on appeal. See Elliott v. Hamilton, 767 S.W.2d 262, 263

(Tex. App.—Beaumont 1989, writ denied) (“Appellants never voiced any objections nor

raised the ‘no pleading’ issue prior to a motion for new trial. Had the jury issues been

answered adverse to appellees, they would have been bound by res judicata.

Appellants were willing to allow appellees to proceed to the jury and litigate the issues.

They cannot, at this juncture, complain.”) (citation omitted). Accordingly, appellant’s first

issue is overruled.

       B. Factual Sufficiency of the Evidence

       In its second issue, appellant complains that the evidence was factually

insufficient to support the trial court’s judgment denying appellant’s claim for rent during

the pendency of the appeal.

       1. Standard of Review

       In reviewing a factual insufficiency point, this court must weigh all of the evidence

in the record. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996) (per curiam). We will

set aside the verdict only if the evidence supporting the verdict is so weak or so against

the overwhelming weight of the evidence that the verdict is clearly wrong and unjust.

Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998); Cain v. Bain, 709

S.W.2d 175, 176 (Tex. 1986) (per curiam). We may not pass upon the witnesses’

credibility or substitute our judgment for that of the fact-finder, even if the evidence

would clearly support a different result. Mar. Overseas Corp., 971 S.W.2d at 407. The

amount of evidence necessary to affirm a judgment is far less than necessary to reverse




                                             8
a judgment. Thomas v. Uzoka, 290 S.W.3d 437, 452 (Tex. App.—Houston [14th Dist.]

2009, pet. denied).

       When reviewing factual sufficiency issues, we are mindful that the fact finder is

the sole judge of the credibility of the witnesses. Canal Ins. Co. v. Hopkins, 238 S.W.3d

549, 557 (Tex. App.—Tyler 2007, pet. denied) (citing Santa Fe Petroleum, L.L.C. v. Star

Canyon Corp., 156 S.W.3d 630, 637 (Tex. App.—Tyler 2004, no pet.)). The trial court

may take into consideration all of the facts and surrounding circumstances in connection

with the testimony of each witness and accept or reject all or any part of that testimony.

Id. at 557-58. Where enough evidence is before the trial court so that reasonable minds

could differ on the meaning of the evidence, or the inferences and conclusions to be

drawn from the evidence, we may not substitute our judgment for that of the trial court.

Id. at 558.

       When the party who had the burden of proof on an issue in a bench trial

complains about the absence of a finding of fact by the trial court, we treat the absence

of the finding as a refusal by the trial court to find the fact from a preponderance of the

evidence. Santa Fe Petroleum, L.L.C., 156 S.W.3d at 637 (citing Sterner v. Marathon

Oil Co., 767 S.W.2d 686, 690 (Tex. 1989)). When the party who had the burden of

proof on an issue asserts that the trial court’s refusal to find the fact is contrary to the

evidence, we must overrule the complaint unless, considering all the evidence, the

refusal is so contrary to the great weight and preponderance of the evidence that it is

manifestly unjust.    See Ramsey v. Lucky Stores, Inc., 853 S.W.2d 623, 632 (Tex.

App.—Houston [1st Dist.] 1993, writ denied) (citing Cropper v. Caterpillar Tractor Co.,

754 S.W.2d 646, 649 (Tex.1988)).



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       2. Applicable Law

       Justice courts have original jurisdiction over forcible detainer suits. TEX. PROP.

CODE ANN. § 24.004 (West Supp. 2011); TEX. GOV’T CODE ANN. § 27.031(a)(2) (West

Supp. 2011).     Because a forcible detainer suit is intended to ensure a “speedy,

summary, and inexpensive” determination regarding the right to immediate possession

of real property, generally the sole issue is entitlement to actual and immediate

possession. See Hong Kong Dev., Inc. v. Nguyen, 229 S.W.3d 415, 434 (Tex. App.—

Houston [1st Dist.] 2007, no pet.) (citing TEX. R. CIV. P. 746; Haginas v. Malbis Mem'l

Found., 163 Tex. 274, 354 S.W.2d 368, 371 (Tex. 1962)). However, a justice or county

court in such suits is vested with jurisdiction over a few other limited matters. See TEX.

R. CIV. P. 738, 752; Nguyen, 229 S.W.3d at 415. In particular, a claim for rent may be

joined with a forcible entry or detainer action as long as the claim falls within the justice

court’s jurisdiction. TEX. R. CIV. P. 738; see Nguyen, 229 S.W.3d at 415 (citing Haginas,

354 S.W.2d at 371).

       A party may appeal the justice-court judgment to a county court for trial de novo.

See TEX. R. CIV. P. 591 (“The cause shall be tried de novo in the county or district court;

and judgment shall be rendered as in cases appealed from justice courts.”); id. at R.

749 (“In appeals in forcible entry and detainer cases, no motion for new trial shall be

filed. Either party may appeal from a final judgment in such case, to the county court of

the county in which the judgment is rendered by filing with the justice within five days

after the judgment is signed, a bond to be approved by said justice, and payable to the

adverse party, conditioned that he will prosecute his appeal with effect, or pay all costs

and damages which may be adjudged against him.”).



                                             10
       On appeal in a forcible detainer suit, the county court exercises appellate, not

original, jurisdiction, which is generally confined to the jurisdictional limits of the justice

court. Nguyen, 229 S.W.3d at 434 (citing Ward v. Malone, 115 S.W.3d 267, 269 (Tex.

App.—Corpus Christi 2003, pet. denied)).

       On appeal to the county court, “the appellant or appellee shall be permitted to

plead, prove and recover his damages, if any, suffered for withholding or defending

possession of the premises during the pendency of the appeal,” although only the party

prevailing in the county court may recover these damages. TEX. R. CIV. P. 752. Such

damages include, but are not limited to, loss of rents during pendency of the appeal and

reasonable attorneys’ fees in the justice and county courts.             Id.   The damages

recoverable under Rule 752 are only those “suffered as a direct result of withholding or

defending possession.” Nguyen, 229 S.W.3d at 415 (quoting Hanks v. Lake Towne

Apartments, 812 S.W.2d 625, 627 (Tex. App.—Dallas 1991, writ denied)). The justice

and county courts lack subject-matter jurisdiction in a forcible detainer suit to adjudicate

matters other than those set forth above. Id.

       3. Analysis

       Appellant did not plead a claim for damages, if any, suffered from the withholding

of possession of the premises during the pendency of the appeal. See TEX. R. CIV. P.

752. Appellant did not file a sworn motion for unpaid rent during the pendency of the

appeal, as provided for in the property code. See TEX. PROP. CODE ANN. § 24.054.

Most importantly, appellant did not prevail in the county court on the claim being

appealed from the judgment of the justice court, namely, the claim for delinquent rent for

the month of August. Nor has appellant challenged the sufficiency of the evidence to



                                              11
support the county court’s judgment on that claim.     Accordingly, appellant was not

entitled to recover on a claim for unpaid rent during the pendency of the appeal. See

TEX. R. CIV. P. 752 (“Only the party prevailing in the county court shall be entitled to

recover damages against the adverse party.”). Appellant’s second issue is overruled.

                                    III. CONCLUSION

      The judgment of the trial court is affirmed.

                                                      __________________
                                                      ROGELIO VALDEZ
                                                      Chief Justice


Delivered and filed the
19th day of July, 2012.




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