                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-12-00416-CV


MARVIN BRITTINGHAM,                                              APPELLANTS
AND ALL OTHER OCCUPANTS
OF 3402 JAYWOOD COURT,
ARLINGTON, TEXAS 76017

                                       V.

FEDERAL HOME LOAN                                                   APPELLEE
MORTGAGE CORPORATION


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          FROM COUNTY COURT AT LAW NO. 1 OF TARRANT COUNTY

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                        MEMORANDUM OPINION1

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                               I. INTRODUCTION

      Appellant Marvin Brittingham and All Other Occupants of 3402 Jaywood

Court, Arlington, Texas 76017,2 (Brittingham) appeal the county court’s judgment



      1
      See Tex. R. App. P. 47.4.
in a forcible detainer action in which the court awarded possession of real estate

to Federal Home Loan Mortgage Corporation (Freddie Mac).3 In three issues,

Brittingham argues that the county court erred by granting judgment for Freddie

Mac because (1) Freddie Mac failed to meet its burden of proof for a forcible

detainer, (2) Freddie Mac did not give Brittingham proper notice to vacate, and

(3) the county court improperly prevented Brittingham from introducing evidence

of his superior right to title to the property. We will affirm.

                                   II. BACKGROUND

      Brittingham purchased real property located at 3402 Jaywood Court,

Arlington, Texas 76017, and executed a deed of trust with Wells Fargo to secure

a note on May 18, 2007. When Brittingham defaulted under the terms of the

instrument, Wells Fargo sold the property at a non-judicial foreclosure sale by a

substitute trustee to Freddie Mac on February 1, 2011.            Brittingham failed to

vacate the property after Freddie Mac sent him a notice to vacate by first-class

and certified mail. The business records affidavit of Mario Valverde, the eviction

coordinator at Freddie Mac’s law firm, shows that the certified letter was returned


      2
        The original petition filed in the justice court, the citation, Freddie Mac’s
notice of appeal to the county court, the county court’s judgment, the deed of
trust, and the substitute trustee’s deed list the property’s zip code as 76017,
while Brittingham’s original answer, notice of appeal to this court, and other
documents filed with this court list the zip code as 75034. We use the zip code
76017 because that is the zip code listed in the deed of trust and substitute
trustee’s deed.
      3
       See Tex. Prop. Code Ann. § 24.002 (West 2000).


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to the sender, but it does not indicate that the first-class mail was ever returned.

As a result, Freddie Mac filed a forcible detainer action in a justice court to obtain

immediate possession of the property. In response, Brittingham filed a motion to

dismiss the case for lack of subject-matter jurisdiction, or in the alternative, a plea

in abatement. The justice court dismissed the case, but the record does not

indicate the reason for the dismissal. Freddie Mac appealed to the county court

at law and after conducting a de novo bench trial, the county court awarded

Freddie Mac possession of the property. Later, Brittingham filed a motion for

new trial, which the county court denied by written order. This appeal followed.

                                   III. DISCUSSION

      A.     Forcible Detainer

      A forcible detainer action is the procedure by which the right to immediate

possession of real property is determined.           See Cattin v. Highpoint Vill.

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

w.o.j.). Forcible detainer actions are intended to be a summary, speedy, and

inexpensive remedy for resolving the question of who is entitled to immediate

possession of the real property. Id. To prevail in a forcible detainer action under

section 24.002 of the Texas Property Code, the plaintiff must show the following:

(1) the plaintiff owns the property, (2) the defendant became a tenant at

sufferance when the property was purchased under the deed of trust, (3) the

plaintiff gave proper notice to defendant to vacate the premises, and (4) the

defendant refused to vacate the premises. See Tex. Prop. Code Ann. § 24.002;


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see also Elwell v. Countrywide Home Loans, Inc., 267 S.W.3d 566, 568–69 (Tex.

App.—Dallas 2008, pet dism’d w.o.j.).

       B.     Notice to Vacate

       We first address Brittingham’s second issue in which he argues that the

trial court erred by finding that Freddie Mac provided him with the statutorily

required notice to vacate. See Tex. Prop. Code Ann. §§ 24.002, 24.005 (West

Supp. 2012).       Specifically, Brittingham contends that Freddie Mac failed to

establish that it made a written demand to vacate because it offered no evidence

showing that the notice was given to him in person or delivered to his address.

See id. § 24.005(f). In response, Freddie Mac asserts that it presented sufficient

evidence to show that it sent the proper notice to vacate, arguing that Brittingham

failed to rebut the presumption of delivery because he did not introduce any

substantive proof negating receipt of the first-class notice.

       Section 24.005(b) entitles Brittingham to three days’ written notice to

vacate before Freddie Mac filed a forcible detainer suit. Id. § 24.005(b). Under

section 24.005(f), notice ―shall be given in person or by mail at the premises in

question. . . .   Notice by mail may be by regular mail . . . or by certified mail,

return receipt requested, to the premises in question.‖ Id. § 24.005(f). When a

letter, properly addressed and postage prepaid, is mailed, there exists a

presumption that the notice was duly received by the addressee. Thomas v.

Ray, 889 S.W.2d 237, 238 (Tex. 1994) (orig. proceeding [mand. granted]). This

presumption may be rebutted by an offer of proof of non-receipt. Id. In the


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absence of proof to the contrary, the presumption has the force of a rule of law.

Id.

      Brittingham relies on a copy of the certified mail envelope that says

―RETURN TO SENDER UNCLAIMED UNABLE TO FORWARD‖ and his own

sworn testimony that he never received the notice to argue that Freddie Mac

failed to give him proper notice to vacate. In addition, Brittingham cites Gore v.

Homecomings Fin. Network, Inc., No. 05-06-01701-CV, 2008 WL 256830, at *2

(Tex. App.—Dallas Jan. 31, 2008, no pet.) (mem. op., not designated for

publication) where the court held that Homecomings failed to establish that it

gave the statutory notice to vacate because ―the record affirmatively show[ed] the

demand letters sent to Gore were returned unopened and undelivered.‖ Gore,

however, is distinguishable from this case because in Gore, the first-class mail

envelope contained notations that affirmatively demonstrated the notice was not

delivered. Id.

      Here, the business records affidavit, which contained an attached copy of

the notice letter and copies of the first-class and certified mail envelopes,

provided evidence that the letter was sent to Brittingham. See Fashakin v. Fed.

Home Loan Mortg. Corp., No. 14-11-01079-CV, 2013 WL 1316694, at *3 (Tex.

App.—Houston [14th Dist.] Apr. 2, 2013, pet. filed) (mem. op., not designated for

publication) (holding that Freddie Mac established delivery of notice to vacate

because the business records affidavit with a copy of the attached letter

evidenced that notice was sent to Fashakin by certified and first-class mail).


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Furthermore, the county court was free to disbelieve Brittingham’s testimony that

he did not receive the first-class mail; thus, the court did not err by finding that

Freddie Mac provided proper notice to vacate. See Kaldis v. U.S. Bank Nat’l

Ass’n, No. 14-11-00607-CV, 2012 WL 3229135, at *3 (Tex. App.—Houston [14th

Dist.] Aug. 9, 2012, pet. dism’d w.o.j.) (mem. op., not designated for publication)

(holding that landlord established delivery of notice to vacate by proving that

while letters sent to tenant by certified mail were returned unclaimed, letters sent

by first-class mail were not, and trial court was free to disbelieve tenant’s

testimony during bench trial that he did not receive the first-class letters). For

these reasons, we overrule Brittingham’s second issue.

      C.    Sufficiency of Evidence of Refusal to Vacate

      In his first issue, Brittingham challenges the sufficiency of the evidence to

support the county court’s judgment of possession, arguing that Freddie Mac did

not meet the required elements of a forcible detainer because it offered no

evidence showing his refusal to leave the property.       Additionally, Brittingham

claims that because of this lack of evidence, he is not a tenant at sufferance

under the deed of trust and no landlord-tenant relationship exists. Freddie Mac

claims that Brittingham tacitly conceded that he remained in possession of the

property by appealing the county court’s judgment in favor of Freddie Mac. We

hold that there is sufficient evidence to conclude that Freddie Mac met the

required elements of a forcible detainer.




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      We may sustain a legal sufficiency challenge only when (1) the record

discloses a complete absence of evidence of a vital fact, (2) the court is barred

by rules of law or of evidence from giving weight to the only evidence offered to

prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a

mere scintilla, or (4) the evidence establishes conclusively the opposite of a vital

fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998),

cert. denied, 526 U.S. 1040 (1999).

      A no-evidence challenge requires this court to review all evidence in the

light most favorable to the verdict, crediting favorable evidence if a reasonable

fact finder could, and disregarding contrary evidence unless a reasonable fact

finder could not. City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005).

In a bench trial, the trial court is the finder of fact and may take into consideration

all the facts and surrounding circumstances in connection with the testimony of

each witness and accept or reject all or any part of that testimony. Sw. Bell

Media, Inc. v. Lyles, 825 S.W.2d 488, 493 (Tex. App.—Houston [1st Dist.] 1992,

writ denied). If more than a scintilla of evidence exists in the record to support

the finding, then the no-evidence challenge fails. See Tarrant Reg’l Water Dist.

v. Gragg, 151 S.W.3d 546, 552 (Tex. 2004). A scintilla of evidence is evidence

so weak that it creates no more than a surmise or suspicion of the existence of

the fact sought to be proven. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598,

601 (Tex. 2004).




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      When a proper demand to vacate has been made and when more than a

scintilla of evidence has shown that the defendant refused to vacate, courts have

rejected the argument that a forcible detainer action fails because there is no

evidence of a defendant’s refusal to leave the property. See Mekeel v. U.S.

Bank Nat’l Ass’n, 355 S.W.3d 349, 358–59 (Tex. App.—El Paso 2011, pet.

dism’d) (holding that complaint, documents showing Mekeel received notice, and

continuing to pursue appeals provided more than a scintilla of evidence of

Mekeel’s refusal to vacate premises). In Rodriguez v. Citimortgage, Inc., No. 03-

10-00093-CV, 2011 WL 182122, at *6 (Tex. App.—Austin Jan. 6, 2011, no pet.)

(mem. op.), the court rejected Rodriguez’s argument that there was no evidence

that she refused to vacate the property after the demand was made.           First,

Citimortgage’s business records showed that proper notice to vacate was sent to

Rodriguez. Id. at *1. Second, Rodriguez tacitly conceded that she remained in

possession of the property by continuing to appeal the lower courts’ judgments

awarding Citimortgage possession.      Id. at *6.   The court also held that if

Rodriguez had relinquished possession over the property, her appeals

concerning competing claims to possession would be moot. Id. (citing Marshall

v. Housing Auth. of City of San Antonio, 198 S.W.3d 782, 787 (Tex. 2006)).

      Here, Brittingham received proper notice to vacate, and he tacitly

concedes that he remains in possession of the property by appealing the county

court’s judgment granting possession to Freddie Mac. The substitute trustee’s

deed further shows that Freddie Mac acquired the property through a foreclosure


                                       8
sale, terminating Brittingham’s right to possession of the property. See Russell v.

Russell, 865 S.W.2d 929, 933 (Tex. 1993) (noting that a fact may be proved by

circumstantial evidence when the fact may be fairly and reasonably inferred from

other facts proved in the case). Additionally, Freddie Mac provided sufficient

evidence to establish Brittingham’s status as a tenant at sufferance and its right

to immediate possession by submitting to the county court the deed of trust, the

substitute trustee’s deed showing that Freddie Mac acquired the property at a

foreclosure sale, and the business records affidavit containing the notice to

vacate. See Shutter v. Wells Fargo Bank, N.A., 318 S.W.3d 467, 471 (Tex.

App.—Dallas 2010, pet. dism’d w.o.j.) (holding that a deed of trust, substitute

trustee’s deed, and notices to defendant to vacate were sufficient to establish

plaintiff’s right to immediate possession); see also Stephens v. Federal Home

Loan Mortg. Corp., No. 02-10-00251-CV, 2011 WL 1532384, at *2 (Tex. App.—

Fort Worth Apr. 21, 2011, no pet.) (mem. op.) (holding that the notice to vacate

informed Stephens of her status as a tenant at sufferance and required her to

vacate and that the deed of trust evidenced her status as a tenant at sufferance

when she failed to vacate the property after Fannie Mae purchased it). Because

there is more than a scintilla of evidence that Brittingham refused to vacate the

property after notice was sent, we hold that the evidence in the record was

legally sufficient to establish the required elements in a forcible detainer action.

See Gragg, 151 S.W.3d at 552. We overrule Brittingham’s first issue.




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      D.     Exclusion of Evidence Pertaining to Title

      In his third issue, Brittingham argues that the trial court erred by preventing

him from presenting evidence of his superior right to title to the property, claiming

that title was a central issue in determining who had an immediate right to

possession of the property. Freddie Mac contends that the excluded evidence

involving title is not relevant to any issue in this forcible detainer action. We

agree with Freddie Mac.

      On appeal, we review a trial court’s evidentiary decisions under an abuse

of discretion standard. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d

35, 43 (Tex. 1998). A trial court abuses its discretion if the court acts without

reference to any guiding rules or principles, that is, if the act is arbitrary or

unreasonable.     Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v.

Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). An appellate court cannot

conclude that a trial court abused its discretion merely because the appellate

court would have ruled differently in the same circumstances.          E.I. du Pont

de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); see also Low,

221 S.W.3d at 620. A trial court also abuses its discretion by ruling without

supporting evidence.    Ford Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex.

2012). A trial court’s decision must be upheld when it can be sustained upon any

legal theory supported by the evidence. Oak Hills Props. v. Saga Rests., Inc.,

940 S.W.2d 243, 245 (Tex. App.—San Antonio 1997, no writ).




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      The sole issue in a forcible detainer action is the right to actual possession,

and the merits of title shall not be adjudicated. Tex. R. Civ. P. 746. Any defects

in the foreclosure process or with appellee’s title to the property may not be

considered in a forcible detainer action. Shutter, 318 S.W.3d at 471; Williams v.

Bank of N.Y. Mellon, 315 S.W.3d 925, 927 (Tex. App.—Dallas 2010, no pet.)

(―Whether a sale of property under a deed of trust is invalid may not be

determined in a forcible detainer but must be brought in a separate suit.‖). A

forcible detainer action is cumulative, not exclusive, of other remedies that a

party may have; thus, the party may pursue both a forcible detainer action in

justice court and a suit to quiet title in district court. Scott v. Hewitt, 127 Tex. 31,

35, 90 S.W.2d 816, 818–19 (1936). There may exist, however, a question of title

so intertwined with the issue of possession as to preclude adjudication of the

right to possession without first determining title.         Terra XXI, Ltd. v. AG

Acceptance Corp., 280 S.W.3d 414, 417 (Tex. App.—Amarillo 2008, pet.

denied). In such a case, neither the justice court nor the county court on appeal

has jurisdiction. Id.

      At the county court, Brittingham attempted to introduce testimony

regarding an alleged dispute in title.       Freddie Mac objected, and the court

sustained it. As a result, Brittingham asked to make an offer of proof on the

issue of title. The court allowed Brittingham to make a brief statement of his

testimony, but when it became apparent that it involved issues of title and the

foreclosure, the court refused to hear any further testimony on it. Brittingham’s


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attempt to introduce evidence regarding title and defects in the foreclosure

process is beyond the scope of this forcible detainer proceeding. See Shutter,

318 S.W.3d at 471; Williams, 315 S.W.3d at 927. Moreover, the record contains

evidence—the deed of trust, the substitute trustee’s deed, and the business

records   affidavit—which   establishes    Freddie   Mac’s   right   to   immediate

possession. See Shutter, 318 S.W.3d at 471. Thus, the evidence allowed the

county court to determine possession.          See Morris v. Am. Home Mortg.

Servicing, Inc., 360 S.W.3d 32, 35 (Tex. App.—Houston [1st Dist.] 2011, no pet.)

(holding that deed of trust, substitute trustee’s deed, and notice to vacate

provided evidence that the county court could use to determine possession); see

also Bruce v. Fed. Nat’l Mortg. Ass’n, 352 S.W.3d 891, 893 (Tex. App.—Dallas

2011, pet. denied) (holding that immediate possession of property did not depend

solely on title because provision in deed of trust created a landlord-tenant

relationship, providing an independent basis for trial court to determine

immediate possession). For these reasons, we hold that the county court did not

abuse its discretion by excluding evidence pertaining to title. See Morris, 360

S.W.3d at 35. We therefore overrule Brittingham’s third issue.




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                               IV. CONCLUSION

      Having overruled all three of Brittingham’s issues, we affirm the county

court’s judgment.




                                          BILL MEIER
                                          JUSTICE

PANEL: DAUPHINOT, MCCOY, and MEIER, JJ.

DELIVERED: August 22, 2013




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