                             NUMBER 13-10-00629-CV

                               COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


EDYA GERALDINE LEAL,                                                       Appellant,

                                          v.

ASAS, LTD.,                                                                Appellee.


               On appeal from the County Court at Law No. 5
                        of Hidalgo County, Texas.


                             MEMORANDUM OPINION

     Before Chief Justice Valdez and Justices Rodriguez and Garza
               Memorandum Opinion by Chief Justice Valdez

       By four issues, appellant, Edya Geraldine Leal, challenges a judgment entered

by the county court at law, granting a forcible detainer to appellee, ASAS, Ltd. For the

reasons set forth below, we affirm the judgment in part and reverse and render in part.

See TEX. R. APP. P. 43.2(a), (c).
                                     I. Background

      This case arises from a transaction involving the sale of certain real property.

Appellant and appellee are parties to an “Agreement for Sale of Real Estate.” Under

the terms of the contract, appellant agreed to purchase the property from appellee for a

total purchase price of $725,000 to be paid according to the following schedule: (1) one

initial payment of $20,000; (2) a second payment of $60,000; (3) twelve monthly

payments of $3,500; and (4) one final payment of $603,000 to be paid after twelve

months.   Appellant did not remit the final payment because of disputes that arose

between the parties concerning appellee’s performance under the contract.

      On May 4, 2010, appellee filed its original petition for forcible detainer in the

Justice Court, Precinct 4, Place 2, Hidalgo County, Texas. A trial was held on June 17,

2010. On June 21, 2010, the justice court denied appellee’s prayer for relief. Appellee

appealed to County Court at Law Number 5, Hidalgo County, Texas. The county court

at law held a trial de novo on September 14, 2010. On October 7, 2010, the county

court entered an order granting appellee’s forcible detainer. In its order, the county

court found that title to the property was never at issue and concluded as a matter of

law that appellant became a tenant at sufferance on April 1, 2010. The county court

rendered a judgment for unpaid rent in the amount of $17,500. The county court also

awarded appellee reasonable attorney’s fees in the amount of $5,000.

      Subsequently, on November 7, 2010, the parties entered into a Rule 11

agreement. See TEX. R. CIV. P. 11. The terms of the agreement provided as follows:

(1) appellant would relinquish possession of the premises immediately; (2) appellee

would forego seeking a writ of possession; (3) appellant would appeal only those

portions of the final order constituting judgment for attorney’s fees, rents, court costs,

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and all other monetary damages granted therein; and (4) appellant would appeal

provisions of the order granting appellee possession of the premises.

       On November 24, 2010, the county court at law denied appellant’s motion for a

new trial. This appeal ensued.

                                   II. Issues Presented

       Appellant raises four issues on appeal: (1) the justice court lacked jurisdiction

over the case, and the county court lacked jurisdiction to conduct a trial de novo on

appeal from the justice court, because the case involves issues of title and because the

contract did not provide for creation of a landlord-tenant relationship under the

circumstances of the case; (2) assuming a tenancy was created, the county court

miscalculated the amount of rent owed to appellee; (3) the county court erred in

rendering judgment for unpaid rent because appellant in fact remitted to appellee more

than the amount of rent due for the relevant period; and (4) the county court erred in

awarding attorney’s fees and costs because (a) the county court lacked authority to

make any award of costs or fees, (b) appellee failed to provide the necessary notice,

and (c) no expert testimony was presented as to the necessity of the attorney’s fees

awarded.

                                        III. Analysis

                               A. Subject Matter Jurisdiction

       In her first issue, appellant challenges the jurisdiction of the justice court over the

subject matter of this case and, by extension, the jurisdiction of the county court over

the appeal from the ruling of the justice court. See Hong Kong Dev., Inc. v. Nguyen,

229 S.W.3d 415, 433 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (“On Appeal in a

forcible-detainer suit, the county court exercises appellate, not original jurisdiction, . . .

                                              3
and the county court has no jurisdiction over a forcible-detainer appeal unless the

justice court did.”). Appellant contends that the underlying proceeding was not a valid

action for forcible detainer and therefore could not be tried in the justice court because

the case involves issues of title and because the contract at issue did not provide for the

creation of a landlord-tenant relationship under the circumstances of the case. See

Aguilar v. Weber, 72 S.W.3d 729, 735 (Tex. App.—Waco 2002, no pet.) (stating that “a

forcible detainer action must be based on a landlord-tenant relationship”).

       In support of these contentions, appellant relies on the contract between the

parties, arguing that it contains neither specific language creating a tenancy at

sufferance in the event of a default nor a right for appellee to demand possession of the

property upon default. For these reasons, appellant argues that the justice court lacked

jurisdiction to try the underlying cause as an action for forcible detainer and that the

county court erred in exercising jurisdiction over the appeal from the ruling of the justice

court. See 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.) (“If the question of title is so intertwined

with the issue of possession, then possession may not be adjudicated without first

determining title. . . . In such a case . . . neither the justice court, nor the county court

on appeal, has jurisdiction.”).

       Jurisdiction is a question of law, which we review de novo. See Tex. Dept. of

Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); El Paso Nat. Gas Co. v.

Minco Oil & Gas, Inc., 8 S.W.3d 309, 312 (Tex. 1999). Jurisdiction of forcible detainer

actions is expressly given to the justice court of the precinct where the property is

located and, on appeal, to county courts for a trial de novo. See TEX. PROP. CODE ANN.

§ 24.004 (West 2010); Weber, 72 S.W.3d at 731.

                                             4
       The appellate jurisdiction of a statutory county court is confined to the

jurisdictional limits of the justice court, and the county court has no jurisdiction over an

appeal unless the justice court had jurisdiction.       See Weber, 72 S.W.3d at 731;

Crumpton v. Stevens, 936 S.W.2d 473, 476 (Tex. App.—Fort Worth 1996, no writ). A

justice court is expressly denied jurisdiction to determine or adjudicate title to land. See

TEX. GOV’T CODE ANN. § 27.031(b) (West 2010); Weber, 72 S.W.3d at 732. Thus,

neither a justice court, nor a county court on appeal, has jurisdiction to determine the

issue of title to real property in a forcible detainer suit. See Weber, 72 S.W.3d at 732

(citing TEX. R. CIV. P. 746).

       We disagree with the arguments made by appellant in her first issue for two

reasons. First, although appellant contends that title was at issue, there is nothing in

the record to support that contention. In fact, the record is to the contrary. The lower

courts did not resolve any disputes concerning title to the property. In a finding of fact

that appellant has not challenged on appeal, the county court at law found, “At all times

[appellee] was the owner of the property and [appellant] did not raise any issues as to

title.” The finding is consistent with the terms of the contract, under which appellant’s

rights upon default are limited to seeking to refinance the transaction. Specifically, the

contract provides, “After 12 months, if buyer cannot close on the property the seller may

consider refinancing the house with another down payment and an additional $50,000

to the original sales price for one more year paid in advance.” In light of the foregoing,

there is no basis to conclude that the lower courts adjudicated issues of title and thereby

exceeded their jurisdiction.

       Second, we disagree with appellant’s contention that appellee has no contractual

right to take possession of the property upon default. In relevant part, the contract

                                             5
provides, “If buyer defaults from non-payment seller has the right after 60 days, to take

possession of the property and all monies collected from the buyer up to date become

non-refundable.”    This language creates a clear right allowing appellee “to take

possession of the property.”

       Moreover, the language of the contract distinguishes the instant case from the

situation presented to the Waco Court of Appeals in Weber, the primary authority on

which appellant relies. See Weber, 72 S.W.3d at 732. Weber involved a similar set of

facts. As in this case, there was a breach of a contract for the sale of real property,

which became the subject of a suit for forcible detainer in justice court, followed by an

appeal to a county court at law. See id. at 731. Following the entry of a final judgment

in the county court, the case was appealed to the Waco Court of Appeals, which held

that the lower courts lacked jurisdiction. See id. at 735. Appellant argues that the same

result should be reached in this case. We disagree.

       In Weber, the court explained that “determining the right of possession

necessarily involved a title inquiry into the contract to purchase land, unless the contract

created a landlord-tenant relationship or other independent basis for determining

possession upon default.”      Id. at 734-35. In holding that the lower courts lacked

jurisdiction, the court specifically relied on the fact that “the contract does not provide

that in the event of default the Webers can institute a detainer suit to establish

possession.” Id. at 732. In contrast, the contract in this case gives Appellee the right

“to take possession of the property” upon default, a right which is properly asserted

through an action for forcible detainer. See Yarto v. Gilliland, 287 S.W.3d 83, 89 (Tex.

App.—Corpus Christi 2009, no pet.) (“To prevail in a forcible detainer action, a plaintiff is

not required to prove title, and is required only to show sufficient evidence of ownership

                                             6
to demonstrate a superior right to immediate possession.”); see also Ward v. Malone,

115 S.W.3d 267, 270 (Tex. App.—Corpus Christi 2003, pet. denied) (“The forcible

detainer action is the procedure by which the right to immediate possession of the

premises is determined.”).       This is precisely “the other independent basis for

determining possession upon default” which the court found to be absent in Weber.

See Weber, 72 S.W.3d at 734. The inclusion of the language in the parties’ contract in

this case leads to a different result than the conclusion reached by the court in Weber.

       Appellant argues further that the provision should not be given force or effect.

Appellant points out that the language is found in the paragraph containing her

obligation to make monthly payments in the amount of $3,500 and not in the paragraph

containing her obligation to make a lump sum payment of $603,000. Under appellant’s

interpretation, appellee’s right to take possession of the property is limited solely to

defaults involving monthly payments and does not include default on the final payment

of $603,000. We disagree.

       Although the location of the contract provision is relevant, this factor alone is

insufficient to outweigh the plain meaning of the contract’s language. See Piper, Stiles

& Ladd v. Fid. & Deposit Co., 435 S.W.2d 934, 939 (Tex. App.—Houston [1st Dist.]

1968, writ ref’d n.r.e.) (“Rules of construction as applied to contracts are for the purpose

of enabling the court to ascertain from the language used the manner and extent to

which the parties intended to be bound. It is the duty of the court to look to the entire

instrument so that the effect or meaning of one part on any other part may be

determined.”). Appellant’s reading of the contract leads to an incongruous result that

cannot be reconciled with the contract as a whole. Under appellant’s interpretation of

the contract, appellee is entitled to take possession of the property in the event

                                             7
appellant fails to make one or more of the twelve monthly payments, but not entitled to

take possession in the event of default involving the final payment in the amount of

$603,000. This is inconsistent with the contract as a whole.

       Furthermore, appellant’s interpretation is inconsistent with the plain meaning of

the language in the contract. Appellee’s right to take possession is triggered if appellant

“defaults from non-payment.”      The default provision is not limited to “non-payment”

involving the monthly installments of $3,500, but is open-ended and unqualified.

Therefore, it includes any “non-payment” under the contract. Thus, based on the plain

meaning of the contract language, appellant’s failure to make the lump sum payment of

$603,000 is a “non-payment” event sufficient to trigger the default provision relied upon

by appellee. See DeWitt Cty. Elec. Coop. v. Parks, 1 S.W.3d 96, 101 (Tex. 1999) (“The

language in an agreement is to be given its plain grammatical meaning unless to do so

would defeat the parties intent.”). Moreover, once the default provision is triggered,

appellant forfeits “all monies collected,” including all monthly payments as well as the

two initial payments totaling $80,000.     This further supports the conclusion that the

default provision is triggered not solely by non-payment of the monthly installments but

by any non-payment of monies due under the contract. This interpretation gives effect to

all provisions of the contract and is consistent with the findings of fact and conclusions

of law entered by the county court.

       Accordingly, for the reasons set forth above, we conclude that the lower courts

had jurisdiction over the case and overrule appellant’s first issue.

                               B. Calculation of Rent Owed

       In her second issue, appellant argues that the county court miscalculated the

amount of rent owed to appellee. Specifically, appellant contends that the county court

                                             8
erred by including “two months’ rent to which appellee would in no event be entitled.”

Because appellant contends that there is no evidence to support the award, we

construe this as a challenge to the legal sufficiency of the evidence to support the award

of damages. See TEX. R. APP. P. 33.1(d) (“In a nonjury case, a complaint regarding the

legal or factual sufficiency of the evidence . . . include[s] a complaint that the damages

found by the court are excessive or inadequate”).

      We sustain a no-evidence complaint if the record shows one of the following: (1)

there is no evidence supporting the challenged element; (2) the evidence offered to

prove the challenged element is no more than a scintilla; (3) the evidence establishes

the opposite of the challenged element; or (4) the court is barred by law or the rules of

evidence from considering the only evidence offered to prove the challenged element.

See City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005).

      The evidence offered at trial establishes that appellant retained possession of the

property after April 1, 2010, when she failed to make the final payment of $603,000.

Appellant’s possession of the property continued until September 14, 2010, for a total of

approximately five months and two weeks. In its findings of fact, the county court noted

that appellee “put on evidence that [appellant] owed $3,500 per month for remaining in

possession of the property after [appellant] defaulted under the Agreement for Purchase

of Real Estate” and that appellant “did not offer evidence indicating that $3,500 was not

correct or was an unreasonable amount per month for remaining in possession after

April 1, 2010.” The court concluded that “[a] reasonable amount of rent for the period of

sufferance is $17,500.”    Based on the foregoing, it appears that the county court

accepted the monthly rate of $3,500 and calculated the amount due based on five

months, rather than five months and two weeks. Appellant contends that the court

                                            9
should have calculated the amount due based on three months. Appellant argues that

she did not become a tenant at sufferance until 60 days after April 1, 2010, when she

defaulted on the final payment of $603,000. We disagree.

       The evidence adduced at trial supports the conclusion of the county court that

appellant became a tenant at sufferance after April 1, 2010. At that time, appellant

remained in possession of the premises, even though she had breached the contract by

failing to make the final payment of $603,000. There is no evidence in the record to

indicate that appellant sought appellee’s agreement to refinance the transaction, as the

contract provides. More importantly, there is no evidence that the parties agreed to

allow appellant to continue possessing the premises without paying rent.             In the

absence of a new agreement, appellant was in a situation similar to a tenant who

remains in possession of the premises after termination of a lease. See Bockelmann v.

Marynick, 788 S.W.2d 569, 571 (Tex. 1990). Under such circumstances, the tenant

occupies the premises “wrongfully and is said to have a tenancy at sufferance,” which is

exactly what the county court ruled in this case. Id. Accordingly, we find the evidence

legally sufficient to support the trial court’s award and overrule appellant’s second issue.

                         C. Reasonable Rental Value of Premises

       In her third issue, appellant argues that the trial court erred in rendering judgment

for unpaid rent because appellant in fact remitted to appellee more than the amount of

rent due for the relevant period. We find this issue to be largely duplicative of the

arguments raised in appellant’s second issue.       As set forth above, the evidence is

legally sufficient to support the trial court’s award.   Appellant has merely added an

argument that the payments she made pursuant to the contract prior to her breach

should be deemed sufficient rent for the period when she was a tenant at sufferance.

                                            10
“Appellant concedes . . . that appellee was entitled to payment for the reasonable rental

value of the premises during the period of possession . . . . Appellant further stipulates

that the premises at issue had a reasonable monthly rental value of $3,500.”            In

exchange for these concessions, appellant asks this Court to consider that she remitted

to appellee $122,000 during the parties’ course of dealing, whereas the rental value of

the premises for the time period was only $67,308.31. Based on these calculations,

appellant argues that the county court erred in awarding the rental value of the premises

during the period of possession. We disagree.

      Courts cannot make new contracts for the parties, nor can they revise a contract,

while professing to construe it, so as to impose upon one party an obligation not

assumed by him under the plain language of the contract. See Piper, Stiles & Ladd,

435 S.W.2d at 939. Under the plain language of the contract in this case, the parties

agreed that in the event of default all payments made by appellant would be non-

refundable.   Appellant argues that the county court should have credited the non-

refundable amounts she paid under the contract toward the rental value of the premises

for the period of time that she possessed the property without a contractual right to do

so. This would have been improper because it is tantamount to revising the existing

contract and would have thereby imposed new obligations on appellee. The county

court did not err by construing the contract as written and enforcing it according to the

plain meaning of its language. We therefore overrule appellant’s third issue.

                              D. Attorney’s Fees and Costs

      In her fourth issue, appellant argues that the county court at law erred in

awarding attorney’s fees and court costs to appellee. Appellant makes three arguments



                                           11
in support of this issue. As set forth below, we disagree with the first argument, agree

with the second, and do not reach the merits of the third.

       First, appellant contends that the county court at law erred in awarding attorney’s

fees and costs because this matter was not properly before the lower courts as an

action for forcible detainer. In support of this contention, appellant incorporates the

arguments raised in her first issue, which we have overruled for the reasons set forth

above. We have already concluded that the lower courts properly exercised jurisdiction

over this matter as an action for forcible detainer. Therefore, this argument presents the

Court with no additional matters to address.

       Second, appellant contends that appellee failed to meet the requirements of the

statutory notice provisions of section 24.006 of the property code, which states in

relevant part:

                 “[T]o be eligible to recover attorney’s fees in an eviction suit,
                 a landlord must give a tenant who is unlawfully retaining
                 possession of the landlord’s premises a written demand to
                 vacate the premises. The demand must state that if the
                 tenant does not vacate the premises before the 11th day
                 after the date of receipt of the notice and if the landlord files
                 suit, the landlord may recover attorney’s fees. The demand
                 must be sent by registered mail or by certified mail, return
                 receipt requested, at least 10 days before the date the suit is
                 filed.”

TEX. PROP. CODE ANN. § 24.006(a) (West 2010). Rule 752 of the Texas Rules of Civil

Procedure, which governs the award of damages in suits for forcible entry and detainer,

authorizes an award of attorney’s fees only if there has been compliance with section

24.006:

                 “Damages may include but are not limited to loss of rentals
                 during the pendency of the appeal and reasonable attorney
                 fees in the justice and country courts provided, as to attorney

                                                12
              fees, that the requirements of Section 24.006 of the Texas
              Property Code have been met.”

TEX. R. CIV. P. 752.

       Appellee concedes that its demand letter failed to include the required notice

concerning the recovery of attorney’s fees, but argues that because appellant did not

raise the issue before the county court, she is barred from raising the issue for the first

time on appeal. We disagree.

       The issue raised by appellant is in the nature of a challenge to the sufficiency of

the evidence supporting the award of attorney’s fees.        See French v. Moore, 169

S.W.3d 1, 17-18 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (holding attorney’s fees

were not recoverable in action for forcible detainer because evidence was not legally

sufficient to prove landlord’s compliance with mandatory notice requirements of section

24.006 of the Texas Property Code). In a nonjury case, such as this, no objection in the

trial court is necessary to appeal based on the legal or factual sufficiency of the

evidence. See TEX. R. APP. P. 33.1(d); SAVA Gumarska v. Advanced Polymer Sci.,

Inc., 128 S.W.3d 304, 317 (Tex. App.—Dallas 2004, no pet.).

       In order to award attorney’s fees, the county court was required to find either that

appellee complied with the property code’s mandatory notice requirements or that a

written lease entitled appellee to recover attorney’s fees.     See TEX. PROP. CODE §

24.006(a)-(b). The court did not make either of those findings. Nor was there any

evidence to support such findings.      Appellee did not satisfy the mandatory notice

requirements of the statute, and the parties’ contract does not entitle appellee to recover

attorney’s fees.




                                            13
      Accordingly, we conclude there was no basis for the county court at law to award

attorney’s fees. See TEX. R. CIV. P. 752 (authorizing award of attorney’s fees provided

“that the requirements of Section 24.006 of the Texas Property Code have been met”).

We therefore sustain appellant’s challenge to the sufficiency of the evidence to support

the award. Having concluded that appellee was not entitled to recover attorney’s fees,

we need not reach the merits of appellant’s third argument concerning the sufficiency of

the evidence to support the amount of the award. See TEX. R. APP. P. 47.1.

                                    IV. Conclusion

      We reverse the portion of the judgment of the county court at law awarding

attorney’s fees to appellee in the amount of $5,000 and render a take nothing judgment

on the claim for attorney’s fees. See TEX. R. APP. P. 43.2(c). We affirm the remainder

of the judgment. See TEX. R. APP. P. 43.2(a).

                                                      ____________________
                                                      ROGELIO VALDEZ
                                                      Chief Justice

Delivered and filed the
4th day of August, 2011.




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