Opinion issued August 12, 2014




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                            ————————————
                               NO. 01-13-00237-CV
                            ———————————
              RUBEN GARCIA AND JOSE GARCIA, Appellants
                                         V.
                        JAVIER E. PERRETT, Appellee


               On Appeal from County Civil Court at Law No. 3
                            Harris County, Texas
                       Trial Court Case No. 1025209


                          MEMORANDUM OPINION

      Appellants, Ruben Garcia and Jose Garcia (the “Garcias”), challenge the

trial court’s judgment of possession of real property in favor appellee, Javier E.

Perrett, in Perrett’s forcible-detainer action against them.     In two issues, the

Garcias contend that the evidence is legally and factually insufficient to support the
trial court’s finding that they committed a forcible detainer of the real property and

the sale of the property to Perrett should be set aside.

      We affirm.

                                    Background1

      Perrett filed, in a Harris County justice court, a sworn complaint for eviction,

seeking to evict the Garcias and all occupants from a home at 1802 Dominic Lane

in Sonoma Ranch, a subdivision located in Houston. In his complaint, Perrett

identified himself as the owner of the property, having purchased it at an execution

sale foreclosing on a lien held by the Sonoma Ranch Homeowner’s Association

(the “Association”). Perrett asserted that he delivered “in person” to the Garcias a

written notice to vacate and demand for possession of the property. The justice

court entered a judgment of possession in favor of Perrett, and the Garcias

appealed to the county court for a trial de novo.

      At trial in the county court, Perrett, proceeding pro se, testified that he had

purchased the property at “auction.” And the trial court admitted into evidence a

certified copy of Perrett’s “Deed Under Execution,” which shows that he

purchased the property on June 5, 2012 for $7,000 at a public sale conducted by

1
      The Garcias present in their appellate brief what they assert are “[f]acts not
      apparent from the record in this cause,” and they have attached various exhibits to
      their brief. However, we must hear and determine a case on the record as filed; we
      may not consider documents attached to briefs as exhibits if they are not included
      in the record. See Till v. Thomas, 10 S.W.3d 730, 733 (Tex. App.—Houston [1st
      Dist.] 1999, no pet.).


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the Harris County Precinct 3 Constable, by virtue of a writ issued pursuant to a

judgment and decree of sale. 2 Perrett further testified that he gave the Garcias

notice to vacate, and he referred the trial court to a “Vacate Notice Request” that he

had submitted to the constable. The trial court responded,

      That’s [a] request. Let me look through the court file and see if it’s in
      there. If you requested the constable to do it, it might be in here.
      Sometimes the constable attaches it to the original pleadings. Okay.
      Date of the 30-day notice, 9/6/12. According to this, the 30-day
      notice was sent by the constable on 9/6/12 . . . . Owner desires
      possession of property for [sic] 30 days. 3

Finally, Perrett testified that despite notice, the Garcias had refused to vacate the

property.

      Ruben Garcia, also proceeding pro se, explained that the Association had

sold the property because of a “problem that [he] had on a bill.” Since the sale,

however, he “paid the amount” to the Association, and it had released its lien.

Garcia asserted, thus, Perrett was no longer entitled to possession of the property.

      The trial court concluded that Perrett’s deed was “good” and the Garcias’

payment to the Association after the foreclosure sale did not invalidate the effect of

Perrett’s deed on this proceeding. Accordingly, it rendered judgment of possession

in favor of Perrett.


2
      Sonoma Ranch Homeowner’s Ass’n, Inc. v. Ruben Garcia, No. 2011-05162, in the
      270th District Court of Harris County.
3
      Only the “Vacate Notice Request” appears in the appellate record.


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                                Standard of Review

      In a nonjury trial, when no findings of fact or conclusions of law are filed,4

we imply that the trial court made all necessary findings to support its judgment.

Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992). When a

reporter’s record is filed, as in this case, the implied findings are not conclusive,

and a party may challenge both the legal and factual sufficiency of the evidence

supporting those findings. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d

789, 795 (Tex. 2002). When legal- and factual-sufficiency issues are raised, the

applicable standards of review are the same as those applied to review jury

findings. Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989). The judgment

must be affirmed if it can be upheld on any legal theory supported by the evidence.

Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).

      We will sustain a legal-sufficiency or “no-evidence” challenge if the record

shows one of the following: (1) a complete absence of evidence of a vital fact, (2)

rules of law or evidence bar the court 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 scintilla, or (4) the evidence establishes conclusively the opposite of

the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). In

4
      The record does not show that the Garcias filed the requisite notice of past due
      findings of fact and conclusions of law. See TEX. R. CIV. P. 297; Alpert v. Crain,
      Caton & James, P.C., 178 S.W.3d 398, 410 (Tex. App.—Houston [1st Dist.]
      2005, pet. denied).

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conducting a legal-sufficiency review, a “court must consider evidence in the light

most favorable to the verdict, and indulge every reasonable inference that would

support it.” Id. at 822. The term “inference” means,

      [i]n the law of evidence, a truth or proposition drawn from another
      which is supposed or admitted to be true. A process of reasoning by
      which a fact or proposition sought to be established is deduced as a
      logical consequence from other facts, or a state of facts, already
      proved . . . .

Marshall Field Stores, Inc. v. Gardiner, 859 S.W.2d 391, 400 (Tex. App.—

Houston [1st Dist.] 1993, writ dism’d w.o.j.) (quoting BLACK’S LAW DICTIONARY

700 (5th ed. 1979)). For a factfinder to infer a fact, “it must be able to deduce that

fact as a logical consequence from other proven facts.” Id.

      If there is more than a scintilla of evidence to support the challenged finding,

we must uphold it.        Formosa Plastics Corp. USA v. Presidio Eng’rs &

Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998). “[W]hen the evidence offered

to prove a vital fact is so weak as to do no more than create a mere surmise or

suspicion of its existence, the evidence is no more than a scintilla and, in legal

effect, is no evidence.” Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.

2004). However, if the evidence at trial would enable reasonable and fair-minded

people to differ in their conclusions, then factfinders must be allowed to do so.

City of Keller, 168 S.W.3d at 822; see also King Ranch, Inc. v. Chapman, 118

S.W.3d 742, 751 (Tex. 2003). “A reviewing court cannot substitute its judgment



                                          5
for that of the trier-of-fact, so long as the evidence falls within this zone of

reasonable disagreement.” City of Keller, 168 S.W.3d at 822.

       In conducting a factual-sufficiency review, we must consider, weigh, and

examine all of the evidence that supports or contradicts the factfinder’s

determination. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001);

Plas–Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). In a bench

trial, the trial court is the sole judge of the witnesses’ credibility, and it may choose

to believe one witness over another; a reviewing court may not impose its own

opinion to the contrary. See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d

757, 761 (Tex. 2003); Howeth Invs., Inc. v. City of Hedwig Vill., 259 S.W.3d 877,

894 (Tex. App.—Houston [1st Dist.] 2008, pet. denied). We may set aside the

verdict only if the evidence is so weak or the finding is so against the great weight

and preponderance of the evidence that it is clearly wrong or manifestly unjust.

Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).

                                  Forcible Detainer

       In their first issue, the Garcias argue that the evidence is legally and

factually insufficient to support the trial court’s finding that they committed a

forcible detainer because they had a superior right to possess the real property and

Perrett failed to make a timely written demand for possession of the property prior

to filing suit.



                                           6
      A person who “purchases occupied property at a sale foreclosing a property

owners’ association’s assessment lien must commence and prosecute a forcible . . .

detainer action . . . to recover possession of the property.” TEX. PROP. CODE ANN.

§.209.011(a) (Vernon Supp. 2013). A forcible-detainer action is intended to be a

speedy, simple, and inexpensive method to obtain immediate possession of

property. Marshall v. Hous. Auth. of San Antonio, 198 S.W.3d 782, 787 (Tex.

2006). It is “cumulative” of any other legal remedy that a party may have. Hong

Kong Dev., Inc. v. Nguyen, 229 S.W.3d 415, 437 (Tex. App.—Houston [1st Dist.]

2007, no pet.). The only issue to be determined in a forcible-detainer action is

which party is entitled to immediate possession of the real property at issue, and

the merits of whether a party has title shall not be adjudicated. See TEX. R. CIV. P.

510.3(e); Marshall, 198 S.W.3d at 787.

      To prevail in his forcible-detainer action, Perrett had to show that (1) he was

the owner of the property at issue, (2) the Garcias were occupants of the property

at the time of foreclosure, (3) the foreclosure was of a lien superior to the Garcias’

right to possession, (4) Perrett made a sufficient written demand for possession,

and (5) the Garcias refused to vacate. See TEX. PROP. CODE ANN. § 24.002

(Vernon 2000); Murphy v. Countrywide Home Loans, Inc., 199 S.W.3d 441, 445

(Tex. App.—Houston [1st Dist.] 2006, pet. denied).




                                          7
      Regarding his ownership of the real property, Perrett, as the purchaser, was

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

demonstrate a superior right to immediate possession. See Murphy, 199 S.W.3d at

446. Perrett testified that he purchased the real property at auction, and the county

court admitted into evidence a certified copy of his “Deed Under Execution,”

which shows that he purchased the property at a public sale conducted by the

Harris County Precinct 3 Constable by virtue of a writ issued pursuant to the

judgment and decree of sale entered against Ruben Garcia in Sonoma Ranch

Homeowner’s Association, Inc. v. Ruben Garcia, No. 2011-05162, in the 270th

District Court of Harris County. Perrett further testified, and it is undisputed, that

the Garcias occupied the property at the time of foreclosure, and they refused to

vacate. See Murphy, 199 S.W.3d at 445. “Generally, an occupant of the property

holding over after execution of a deed is considered a permissive tenant whose

right to possession is inferior to that of the party holding title.” Id. (citing Tex–Wis

Co. v. Johnson, 534 S.W.2d 895, 899 (Tex. 1976)).

      Because it is undisputed that Perrett provided the trial court with a

foreclosure sale deed, which, on its face, purports to transfer the property to him,

and the foreclosure was of a lien superior to the Garcias’ right to possession, the

evidence demonstrates Perrett’s superior right to immediate possession. See id. at

445–47 (holding deed obtained at foreclosure sale established ownership in



                                           8
forcible-detainer action); see also Wells Fargo Bank, N.A. v. Ezell, 410 S.W.3d

919, 922 (Tex. App.—El Paso 2013, no pet.) (same); Villalon v. Bank One, 176

S.W.3d 66, 71 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (holding

purchaser established ownership of property by virtue of deed following

foreclosure sale); Goggins v. Leo, 849 S.W.2d 373, 377 (Tex. App.—Houston

[14th Dist.] 1993, no writ) (holding uncontroverted testimony and execution sale

deed constituted evidence of superior right to possession).

      The Garcias argue that “at the time Perrett filed this forcible detainer action

. . . , he did not have a superior right to possession of the property because [Ruben

Garcia] had already begun to exercise [his] right to redeem the property.”

      A residential-property owner or lienholder of record “may redeem” property

sold at a sale foreclosing on a property association’s assessment lien “not later than

the 180th day after the date the association mails written notice of the sale to the

owner and the lienholder.” TEX. PROP. CODE ANN. §.209.011(b) (Vernon Supp.

2013). To redeem property purchased at a foreclosure sale by a person other than

the property owners’ association, the owner or lienholder must pay the association

all amounts due at the time of the foreclosure sale, “less the foreclosure sales price

received by the association from the purchaser”; reimburse the purchaser the price

he paid at the foreclosure sale; and pay any new assessments, fees, and costs. Id.

§ 209.011(e). “If a lot owner or lienholder redeems the property under this section,



                                          9
the purchaser of the property at foreclosure shall immediately execute and deliver

to the redeeming party a deed transferring the property to the lot owner.” Id.

§ 209.011(f). “If a purchaser fails to comply with this section, the lot owner or

lienholder may file an action against the purchaser and may recover reasonable

attorney’s fees from the purchaser if the lot owner or the lienholder is the

prevailing party in the action.” Id. “If a lot owner makes partial payment of

amounts due the association at any time before the redemption period expires but

fails to pay all amounts necessary to redeem the property before the redemption

period expires, the association shall refund any partial payments to the lot owner

. . . .” Id. §.209.011(l).

       Here, the Garcias assert that they had taken the “first step toward redemption

by paying the amounts due to [the Association] and obtaining a release of lien.”

The clerk’s record contains the Association’s lien release, which is dated August

21, 2012 and shows that it was recorded in the county’s real property records on

September 4, 2012. However, the lien release does not reflect what sums were

paid or by whom. 5

       Even if we were to conclude that the Association’s lien release constitutes

evidence that the Garcias paid the Association in accordance with the statute, the
5
       We cannot discern whether the Association released its lien because Perrett
       satisfied the delinquent assessments through his purchase at the foreclosure sale;
       the Garcias paid their delinquent assessments, resulting in the Association having
       been paid twice; or the Garcias paid a deficiency that remained after the sale.


                                           10
Garcias do not assert, and there is nothing in the record that shows, that they paid

Perrett. See id. § 209.011(e). Rather, they make only a bare assertion for the first

time on appeal that they attempted to pay Perrett. Thus, the Garcias have not

demonstrated that the trial court erred in finding that Perrett demonstrated a

superior right to possession of the real property.

      Moreover, any defects in the foreclosure process or with title to the property

following foreclosure may not be considered in a forcible-detainer action, but must

be pursued in a separate suit in the district court for wrongful foreclosure or to set

aside the deed. See TEX. R. CIV. P. 510.3(e); Marshall, 198 S.W.3d at 787;

Salaymeh v. Plaza Centro, LLC, 264 S.W.3d 431, 435–36 (Tex. App.—Houston

[14th Dist.] 2008, no pet.); Villalon, 176 S.W.3d at 70–71 (holding because

forcible-detainer action not exclusive, but cumulative, “the displaced party is

entitled to bring a separate suit in the district court to determine the question of

title”); see also Rice v. Pinney, 51 S.W.3d 705, 708–09 (Tex. App.—Dallas 2001,

no pet.) (holding county courts are without jurisdiction to adjudicate title in de

novo trial of forcible-detainer action from justice court). “Judgment of possession

in a forcible detainer action is not intended to be a final determination of whether

the eviction is wrongful; rather, it is a determination of the right to immediate

possession.” Marshall, 198 S.W.3d at 787. Title issues must be brought in a

separate suit in district court, even if such action “involves adjudication of matters



                                          11
that could result in a different determination of possession from the decision

rendered in the forcible detainer suit.” Salaymeh, 264 S.W.3d at 436.

      The Garcias further assert that Perrett failed to make a written demand for

possession and he “produced no evidence” of any notice to vacate. A written

demand for possession must be made by a person entitled to possession of the

property and it must comply with the requirements for “notice to vacate” in Texas

Property Code section 24.005. TEX. PROP. CODE ANN. §.24.002(b) (Vernon 2000),

§.24.005 (Vernon Supp. 2013). Section 24.005 required Perrett, before filing a

forcible-detainer action, to give the Garcias “at least three days’ written notice to

vacate.” Id. §.24.005(b). “The notice to vacate shall be given in person or by mail

at the premises in question.” Id. §.24.005(f). Notice by mail “may be by regular

mail” or by certified mail, return receipt requested. Id.

      In his sworn petition filed in the justice court on October 5, 2012, Perrett

asserted that he made “demand for possession” and gave the Garcias “[w]ritten

notice to vacate” by “delivery in person” on September 6, 2012. The record

contains Perrett’s “Vacate Notice Request,” sent on September 6, 2012 to the

Harris County Constable by facsimile, asking that thirty days’ notice to vacate be

issued to “all occupants” at 1802 Dominic Lane. And it shows that it was received

by “HCCO Precinct 3” on September 6, 2012. The actual notice to vacate and

return receipt, if any, are not in the appellate record. See id. (allowing notice “by



                                          12
regular mail”).   However, the trial court indicated on the record that its file

contained a “30-day notice . . . sent by the constable on 9/6/12.” A trial court may

take judicial notice of the contents of its file. See TEX. R. EVID. 201 (providing

trial court may take judicial notice of matters generally known or easily proven and

cannot reasonably be disputed); Hunt Const. Grp., Inc. v. Konecny, 290 S.W.3d

238, 244 (Tex. App.—Houston [1st Dist.] 2008, pet. denied); see also In re

M.C.H., No. 01-02-00686-CV, 2003 WL 21470347, at *2 (Tex. App.—Houston

[1st Dist.] June 26, 2003, no pet.) (mem. op.) (holding reporter’s record showing

trial court took judicial notice of constable’s return constituted sufficient evidence

notice was given). The Garcias did not object to the trial court’s action, and they

do not assert that they did not receive notice.

      Viewing the evidence in the light most favorable to the trial court’s

judgment and indulging every reasonable inference that would support it, we

conclude that there is evidence to support the trial court’s implied findings that

Perrett demonstrated a superior right to immediate possession of the property,

Perrett made written demand for possession, and the Garcias refused to vacate. We

further conclude, after viewing all of the evidence neutrally, that the evidence

supporting these findings is not so weak as to render the trial court’s judgment

clearly wrong or manifestly unjust. Accordingly, we hold that the evidence is




                                          13
legally and factually sufficient to support the trial court’s judgment that the Garcias

committed a forcible detainer.

      We overrule the Garcias’ first issue.

                               Underlying Judgment

      In their second issue, the Garcias argue that the “sale of the property should

be set aside” because the Association did not provide proper notice “prior to

proceeding with their action to obtain the underlying judgment.” As noted above,

any defects in the underlying foreclosure process may not be considered in a

forcible-detainer action. See TEX. R. CIV. P. 510.3(e); Marshall, 198 S.W.3d at

787; Salaymeh, LLC, 264 S.W.3d at 435–36; Villalon, 176 S.W.3d at 70–71.

      We overrule the Garcias’ second issue.

                                     Conclusion

      We affirm the judgment of the trial court.




                                               Terry Jennings
                                               Justice

Panel consists of Justices Jennings, Higley, and Sharp.




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