                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-06-414-CV


LESLIE M. ELLIS AND                                              APPELLANTS
ALL OTHER OCCUPANTS
                                             V.

FREMONT INVESTMENT AND LOAN                                          APPELLEE

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         FROM COUNTY COURT AT LAW NO. 2 OF DENTON COUNTY

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                         MEMORANDUM OPINION 1

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                                  I. Introduction

     In two issues, Appellants Leslie M. Ellis and All Other Occupants (“Ellis”)

assert, as best we can surmise,2 that they improperly lost possession of

property they occupied because (1) a notice requirement of Texas Property


     1
         … See T EX. R. A PP. P. 47.4.
     2
       … Ellis appears pro se, as she did in the justice court and the county
court at law.
Code section 24.005 was not complied with 3 and (2) the property was

inadequately described in the “petition.”

                        II. Factual and Procedural History

      On May 2, 2006, Appellee Fremont Investment and Loan (“Fremont”)

purchased a foreclosure property, 1400 Oakcrest, Aubrey, Denton County,

Texas (“the Property”), described more specifically as:

      LOT 63, BLOCK “W,” OF PROVIDENCE, PHASE 4, AN ADDITION
      TO THE CITY OF AUBREY, DENTON COUNTY, TEXAS,
      ACCORDING TO THE MAP THEREOF RECORDED IN CABINET “V,”
      PAGE 246, OF THE MAP RECORDS OF DENTON COUNTY, TEXAS.

On August 10, 2006, Fremont filed suit against Ellis in the Justice of the Peace

Court, Precinct 5, Denton County, for forcible detainer under chapter 24 of the

Texas Property Code, seeking possession of the Property.          On August 21,




      3
          … Section 24.005 of the property code provides in relevant part:

      (b) If the occupant is a tenant at will or by sufferance, the landlord
      must give the tenant at least three days’ written notice to vacate[.]

               ....

      (f) The notice to vacate shall be given in person or by mail at the
      premises in question. . . . Notice by mail may be by regular mail, by
      registered mail, or by certified mail, return receipt requested, to the
      premises in question.

T EX. P ROP. C ODE A NN. § 24.005(b), (f) (Vernon 2000).


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2006, Ellis, without filing a written answer, appeared for a trial to the bench,

wherein a judgment for possession in favor of Fremont was signed. Ellis then

appealed the decision and the case was assigned to County Court at Law No.

2, Denton County.

      On September 12, 2006, the Denton County Clerk gave notice, through

a letter, to Ellis that the transcript from the Justice of the Peace case had been

filed in the County Court at Law No. 2 and that Ellis should file a written

answer within eight days. Ellis never filed a written answer. On November 8,

2006, the case was called to trial in the County Court of Law No. 2. Ellis

appeared but failed to contest any part of Fremont’s case. Specifically, Ellis

failed to object to the evidence offered by Fremont, and the county court

admitted into evidence Fremont’s “Trustee’s Deed” and “Notice to Vacate.”

      On examination, and after the county court admitted Fremont’s exhibits,

Ellis testified as follows:

      Q: Would you introduce yourself for the record?

      A: Leslie M. Ellis.

      Q: And you live at this property in question; is that correct?

      A: Yes, sir.

      Q: And the property was foreclosed on; is that right?

      A: Yes, sir.

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            ....

      Q: Did you receive a notice to vacate the property?

      A: Yes, sir.

      The county court granted the relief sought by Fremont and signed a

judgment in favor of Fremont for possession of the Property.         This appeal

followed.

                                  III. Analysis

      As previously recounted, although she appeared at the trials, Ellis did not

file a written answer and did not contest the evidence Fremont presented in the

county court.

      Strictly speaking, a judgment rendered against a defendant who
      appears but does not file an answer is . . . a judgment nihil dicit.
      Nihil dicit literally means “he says nothing,” that is, “defendant
      says nothing.” A defendant who appears, but does not put the
      merits of the plaintiff’s case at issue, is subject to judgment nihil
      dicit. . . . A judgment nihil dicit is, in its effect, similar to a
      no-answer default judgment. However, a judgment nihil dicit
      “carries an even stronger confession than the default judgment.”
      The submission to a judgment nihil dicit “is an abandonment of
      every known defense or any defense which ordinary diligence could
      have disclosed.”

Rose v. Rose, 117 S.W.3d 84, 88 (Tex. App.—Waco 2003, no pet.) (citations

omitted).

      An examination of the record first leads us to the “Complaint for Forcible

Detainer and Original Petition.”     This petition describes the Property in

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accordance with the legal description found in the deed of trust (Exhibit A to

the petition), which identifies the Property as 1400 Oakcrest Drive, Aubrey,

Texas 76227, the same address where Ellis was served with the petition.

Exhibits B and C to the petition are each a “Notice to Vacate Premises” sent by

certified mail and first class mail to “Mr. Leslie M. Ellis” and to “All Other

Occupants,” at 1400 Oakcrest Drive, Aubrey, Texas. In one part of Ellis’s brief

to this court, Ellis complains of receiving no notice at all and in another place,

complains that “[p]laintiff did not give [d]efendants written notice pursuant to

24.001 et eq. [sic] of the Texas Property Code,” without describing what the

statutory deficiency may be. The documentary evidence, however, belies these

complaints because, in the county court, Ellis admitted receiving notice to

vacate the property.

      Ellis cites to two cases in Texas jurisprudence. Granberry v. Storey, 127

S.W . 1122 (Tex. Civ. App. 1910, no writ), Ellis informs us, stands for the

proposition that “[a]n objection that the property sought to be recovered in

forcible entry and detainer was insufficiently described in the complaint can be

first made on appeal.” Not so. The case actually says that:

      [t]he objection to the judgment, made for the first time in the
      motion now being considered, that the description in appellee’s
      complaint of the premises in controversy was insufficient, if
      meritorious, which we do not concede it to be, comes too late. It
      should have been made, in the first instance, by an exception to

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      complaint urged in the trial court, where, had it been found to be
      well taken, the complaint could have been amended.

Id. at 1125 (op. on reh’g).

      Ellis also cites Steele v. Steele, 2 Willson 299, 1884 WL 8338 (Tex. Ct.

App. 1884), apparently for some proposition concerning an exhibit attached to

a “complaint for forcible detainer,” which “did not contain a full and specific

description of the premises.” In Steele, the court found nothing objectionable

where the complaint described the premises by referring to an exhibit which

contained a full and specific description of the premises, and “[t]he description

of the premises [was] merely for identification, and [was] not such matter as

is required to be formally averred.” Id. at *2. Whatever point Ellis is trying to

make through this citation, it is not relevant to the facts before us because

there is a complete legal description in the petition. The issues which appear

to be raised by Ellis are without merit. We overrule them.

                                IV. Conclusion

      Having overruled the issues raised by Ellis, we affirm the judgment of the

trial court.

                                           PER CURIAM

PANEL F:       MCCOY, J.; CAYCE, C.J.; and WALKER, J.

DELIVERED: May 22, 2008


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