REVERSE and REMAND; Opinion issued February 6, 2013




                                                             S     In The
                                            Court of Appeals
                                     Fifth District of Texas at Dallas
                                         ────────────────────────────
                                                No. 05-11-00024-CV
                                         ────────────────────────────

                  ELIZABETH A. FLACK-BATIE AND LISA A. BATIE, Appellants
                                                                       V.

                                             CAMDEN CIMARRON, Appellee

    ═════════════════════════════════════════════════════════════
                 On Appeal from the County Court at Law No. 5
                             Dallas County, Texas
                      Trial Court Cause No. 10-06786-E
    ═════════════════════════════════════════════════════════════

                                           MEMORANDUM OPINION

                                        Before Justices Bridges, Francis, and Lang
                                               Opinion By Justice Bridges

           In a suit for forcible detainer, appellee Camden Cimarron (Landlord) sought possession of

premises in Irving, Texas and unpaid rent from appellant Elizabeth A. Flack-Batie. Appellant

Lisa A. Batie intervened in the suit, joining in Flack-Batie=s answer and counterclaim. After a

jury trial, the justice court granted judgment for Landlord. Appellants 1 filed an appeal to county

court. When appellants did not appear for trial, the county court granted possession of the

premises to Landlord, as well as unpaid rent, attorney=s fees, court costs, and interest. Appellants

filed this appeal, alleging among other issues that they did not receive notice of the trial setting in


       1
           Although for clarity we refer to appellee as ALandlord,@ we do not refer to appellants as ATenants@ because the parties dispute whether
Lisa Batie was a party to the lease. Because of our disposition of this appeal, we do not decide this question.
county court. We reverse the portion of the trial court=s judgment awarding rent, attorney=s fees,

interest, and costs to Landlord because appellants established that they did not receive notice of the

trial setting. We remand the cause to the trial court for consideration of these issues. The portion

of appellants= appeal regarding possession of the leased premises is moot. Because the only

issues before the trial court were the right to possession of the premises and the amount of rent due,

we overrule all of appellants= other issues. See TEX. R. CIV. P. 746 (only issue in forcible detainer

suit under Sections 24.001B24.008 of Texas Property Code shall be right of actual possession);

TEX. R. CIV. P. 738 (suit for rent may be joined with action of forcible detainer). Because the

issues are well-settled, we issue this memorandum opinion. See TEX. R. APP. P. 47.4.

                                               ISSUES

       Appellants assert five issues. Issue three has six subparts. All of appellants= issues,

however, arise from their complaint that they did not receive notice of the trial setting or the

judgment in county court. They argue that the trial court abused its discretion in entering the

default judgment and overruling their motion for new trial by operation of law. They argue that

the lack of notice violated their due process and equal protection rights, and that the judgment was

the result of fraud and retaliation by the landlord.

                                       STANDARD OF REVIEW

       The decision whether to grant a motion for new trial is addressed to the trial court=s

discretion, and the court=s ruling will not be disturbed on appeal absent a showing of an abuse of

discretion. See Continental Carbon Co. v. Sea-Land Serv., Inc., 27 S.W.3d 184, 188 (Tex.

App.CDallas 2000, pet. denied) (citing Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984)).

This abuse of discretion standard also applies in cases where the motion for new trial is overruled

by operation of law, in which case the issue is whether the trial court abused its discretion by not

granting the motion for new trial and allowing the motion to be overruled by operation of law. Id.



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(citing Dir., State Emps. Workers= Comp. Div. v. Evans, 889 S.W.2d 266, 269 (Tex. 1994), and

Bank One v. Moody, 830 S.W.2d 81, 81, 85 (Tex. 1992)).

                                        PENDING MOTIONS

       On May 1, 2012, we granted appellants= motion for extension of time to file a reply brief,

and ordered that appellants= reply brief be filed on or before May 7, 2012. No reply brief was

received or filed, nor was any motion requesting additional time received on or before May 7,

2012. In a letter dated May 1, 2012, we also notified the parties that this case would be submitted

without oral argument to a panel of this Court on June 20, 2012. On the date of submission, we

received appellants= AMotion for Leave to File Appellant(s): Amended Motion for Extension of

Time to File Reply Brief and Motion to Supplement Appellant(s) Final Brief on the Merits.@ In

this motion, appellants requested an extension of time to file a reply brief and a supplemental brief

on the merits until June 25, 2012. On July 6, 2012, appellants filed their ASecond Motion for

Leave to Amend Motion for Extension of Time to File Appellants= Reply Brief and Amended

Motion for Leave to Supplement Appellants= Final Brief on the Merits,@ requesting an extension of

time to file a reply brief and supplemental brief until July 6, 2012. This motion was accompanied

by a reply brief and a supplemental brief on the merits.

       Upon motion complying with Texas Rule of Appellate Procedure 10.5, we may extend the

time for filing briefs. TEX. R. APP. P. 38.6(d). Rule 10.5 requires that a motion for extension of

time include Athe facts relied on to reasonably explain the need for an extension.@            Here,

appellants contend that their indigence and Flack-Batie=s age and chronically ill health prevented

their filing the brief by the Court=s deadline. Appellants are appearing pro se. They apparently

understood the Court=s letter setting the submission date as an additional extension of time for

filing their reply brief. While we do not condone appellants= failure to comply with this Court=s




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order of May 1, we will consider their reply brief. See TEX. R. APP. P. 38.9 (briefing rules to be

construed liberally).

           We reach a different conclusion regarding appellants= request to file a supplemental brief

raising Athree issues erroneously omitted@ from their original brief. We may permit a party to

amend or supplement a brief Awhenever justice requires.@ TEX. R. APP. P. 38.7; see also Standard

Fruit & Vegetable Co., Inc. v. Johnson, 985 S.W.2d 62, 65 (Tex. 1998) (appellate court has

discretion whether to allow filing of amended or supplemental brief in interest of justice).

Although we permitted a late filing of appellants= reply brief, we did not grant permission to file a

brief containing new issues. Additional issues raised only in a reply brief or post-submission

brief will not be considered because they are untimely. Haynes v. McIntosh, 776 S.W.2d 784, 788

(Tex. App.CCorpus Christi 1989, writ denied) (post-submission brief); Collin Cnty. v. Hixon

Family P=ship, Ltd., 365 S.W.3d 860, 877 (Tex. App.CDallas 2012, pet. denied) (reply brief); see

also Rogers v. City of Fort Worth, 89 S.W.3d 265, 284 (Tex. App.CFort Worth 2002, no pet.)

(considering new issue only because it had granted leave to file a post-submission brief).

Appellants argue in the alternative that their supplemental brief only clarifies existing issues,

rather than raising new ones. We will consider the issues timely raised in appellants= original

brief and relevant to a forcible detainer action. 2 We deny appellants= motion to file their

supplemental brief.

                                                     TIMELINESS OF APPEAL

           We next address Landlord=s arguments regarding our jurisdiction over this appeal.

Landlord argues that we lack jurisdiction because appellants failed to file their motion for new trial

on or before November 11, 2010. Landlord also complains that we lack jurisdiction because

       2
          We note that we do not consider the numerous attachments to appellants= briefs that were not part of the trial court record. In re
Guardianship of Winn, 372 S.W.3d 291, 297 (Tex. App.CDallas 2012, no pet.) (appellate court cannot consider document cited in brief and
attached as appendix if it is not formally included in record on appeal).




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appellants failed to obtain a hearing or ruling on their motion for new trial and to extend

post-judgment deadlines. We disagree. The default judgment was signed on October 12, 2010.

Appellants= motion for new trial was due on November 11, 2010. See TEX. R. CIV. P. 329b(a)

(providing for thirty-day period). November 11, 2010, however, was a legal holiday, extending

the filing period to the next day that was not a Saturday, Sunday, or legal holiday. See TEX.

GOV=T CODE ANN. '' 662.003(a)(7), 662.021 (West 2012) (November 11 is national holiday;

legal holiday includes national holiday); TEX. R. CIV. P. 4 (extending filing period on legal

holiday). Accordingly, appellants= filing date was extended to November 12, 2010. 3 With the

filing of a timely motion for new trial, appellants= notice of appeal filed on December 2, 2010, was

timely. See TEX. R. APP. P. 26.1(a)(1) (notice of appeal must be filed within 90 days after

judgment signed if any party timely files motion for new trial).

           Landlord also argues that appellants= failure to obtain a hearing on their motion for new

trial prevents this court from considering appellants= issues on appeal. We have held that Ano

abuse of discretion occurs when the defaulting defendant fails to call his motion to the judge=s

attention and allows the motion to be overruled by operation of law.@ Fluty v. Simmons Co., 835

S.W.2d 664, 666 (Tex. App.CDallas 1992, no writ); see also Shamrock Roofing Supply, Inc. v.

Mercantile Nat=l Bank, 703 S.W.2d 356, 358 (Tex. App.CDallas 1985, no writ) (where record fails

to show any attempt to obtain timely hearing, no abuse of discretion by trial court). But where the


       3
           The clerk=s record shows a file-stamp of November 18, 2010, on the motion. Under Rule 5 of the rules of civil procedure, if a document
is deposited in the first class United States mail on or before the last date for filing, in a properly-addressed and stamped envelope or wrapper, and
the clerk receives it Anot more than ten days tardily,@ the document Ashall be filed by the clerk and be deemed filed in time.@ TEX. R. CIV. P. 5.
Although there is no postmark on the motion, there is some evidence in the record that the motion was mailed on November 12. Both of the
appellants= affidavits were sworn to before a notary on November 12. Appellants= cover letter to the county clerk, included in the clerk=s record and
file-stamped November 18, is dated November 12. Appellants signed verifications for the motion in addition to their affidavits, and these
verifications were sworn to before a notary on November 12. The certificate of service on the motion states that Batie served the motion by
certified mail to Landlord=s counsel on November 12. In Cooper v. Litton Loan Servicing, L.P., 325 S.W.3d 766, 770 (Tex. App.CDallas 2010,
pet. denied), we concluded that a certificate of service on opposing counsel that did not state either the method of service or the method of filing was
insufficient under Rule 5. Here, in contrast, we conclude that there is some evidence that the motion was mailed on November 12. See Alvarez v.
Thomas, 172 S.W.3d 298, 302B03 (Tex. App.CTexarkana 2005, no pet.) (rules and caselaw provide for other forms of prima facie evidence which
may be considered in absence of postmark; certificate of service and attorney=s affidavit and testimony were sufficient). We also note that
Landlord did not contest appellants= motion in the trial court by filing a response or any controverting affidavits.




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defendant uses some diligence in attempting to obtain a hearing, there is no waiver of error.

Continental Carbon Co.., 27 S.W.3d at 188. Here, the record reflects that appellants not only

included in their motion a Anotice of hearing@ to be filled out by the trial court, but also included a

separate paragraph in their motion entitled ARequest for Hearing@ which presented argument and

authorities about the necessity of a hearing. We conclude that appellants used some diligence in

attempting to obtain a hearing. See id.

           Landlord also argues that under Rule 306a, Texas Rules of Civil Procedure, and Rule 4.2,

Texas Rules of Appellate Procedure, appellants were required to obtain a finding from the trial

court of the date appellants actually received notice of the trial court=s judgment. See TEX. R. CIV.

P. 306a(4), (5) (no notice of judgment); TEX. R. APP. P. 4.2 (same). Rule 306a and Rule 4.2,

however, apply if a defendant does not receive notice of the trial court=s judgment and desires to

extend the period for filing a motion for new trial or other post-judgment motion. See TEX. R.

CIV. P. 306a(1), (4). Here, even though appellants filed affidavits stating that they did not receive

notice of the judgment until November 11, 2010, they filed a timely motion for new trial the

following day. Therefore, it was not necessary for them to obtain a ruling from the trial court

regarding their actual receipt of notice of the trial court=s judgment in order to extend the deadline

for filing their motion for new trial. We reject Landlord=s argument that we lack jurisdiction over

this appeal. 4




       4
            Citing Illinois case law as well as Texas and federal opinions addressing bills of review, collateral attacks on judgments, and pleas to the
jurisdiction, appellants also argue that the trial court Alacked jurisdiction@ over Landlord=s suit. None of these circumstances exist in this appeal of
a forcible detainer judgment in a Texas county court at law. The county court had appellate jurisdiction over Landlord=s suit. See TEX. R. CIV. P.
749 (either party may appeal from final judgment in justice court in forcible detainer case, to county court of county in which judgment rendered);
see also Rice v. Pinney, 51 S.W.3d 705, 708B09 (Tex. App.CDallas 2001, no pet.) (discussing county court=s appellate jurisdiction in forcible
detainer actions). The county court, however, did not have jurisdiction over most of appellants= claims, as we discuss in more detail below.




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                                              POST-ANSWER DEFAULT JUDGMENT

           In their motion for new trial and on appeal, appellants contend that they did not receive

timely notice of either the trial setting in county court or the trial court=s judgment. 5 Appellants

never obtained a hearing on their motion for new trial, and the motion was overruled by operation

of law. TEX. R. CIV. P. 329b (c). Generally, a default judgment may be set aside if the defaulting

party establishes the three elements set forth in Craddock v. Sunshine Bus Lines, Inc., 134 Tex.

388, 392B93, 133 S.W.2d 124, 126 (Tex. 1939). See Mathis v. Lockwood, 166 S.W.3d 743, 744

(Tex. 2005) (stating elements as (1) nonappearance was not intentional or the result of conscious

indifference; (2) a meritorious defense; and (3) new trial would cause neither delay nor undue

prejudice). When the first Craddock element is established by proof that the defaulted party was

not given notice of a trial setting, however, the supreme court has Adispensed with the second

element for constitutional reasons.@ Id. (citing Lopez v. Lopez, 757 S.W.2d 721, 722 (Tex.

1988) (per curiam)); see also Mosser v. Plano Three Venture, 893 S.W.2d 8, 12 (Tex.

App.CDallas 1994, no writ) (party who does not receive notice of summary judgment hearing is

not required to comply with second and third Craddock elements).

           With their motion for new trial, appellants filed sworn affidavits stating that they did not

receive notice of the trial setting or the judgment until November 11, 2010. Appellants testified

that they made inquiries at the justice court about the status of their appeal because they had

received nothing from the court after filing their answer and counterclaims. They were told by a

court clerk that the case had been closed. They made an appointment with a legal aid attorney,

who obtained a copy of the judgment and showed it to appellants on November 11. The

       5
            Appellants also complain that the justice court did not provide notice. Because the justice court=s judgment was annulled by the appeal
to the county court, however, we have no jurisdiction to review complaints about it. See Stewart v. C.L. Trammell Props., Inc., No.
05-04-01027-CV, 2005 WL 2234607 at *2 (Tex. App.CDallas Sept. 15, 2005, no pet.) (mem. op.). Further, appellants waived any defects in
service in justice court by appealing the judgment of the justice court and filing an answer. TEX. R. CIV. P. 120, 121; see also Montgomery v. Chase
Home Finance, LLC, No. 05-08-00888-CV, 2009 WL 2784587, at *1B2 (Tex. App.CDallas Sept. 2, 2009, no pet.) (mem. op.) (appeal bond operates
as answer and appearance in county court; waives complaints as to defects in service).




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documents supplied by the attorney and attached to appellants= affidavits showed that notice had

been sent to appellants at the Landlord=s apartment complex. Appellants stated that they had

supplied the court with a new address in their county court pleading, and did not receive the notice

sent by the court to Landlord=s apartment complex.

       When applying the Craddock test, the trial court looks to the knowledge and acts of the

defendant as contained in the record before the court. Holt Atherton Indus., Inc. v. Heine, 835

S.W.2d 80, 82 (Tex. 1992).           Where factual allegations in a movant=s affidavits are

uncontroverted, it is sufficient that the motion for new trial and accompanying affidavits set forth

facts which, if true, would satisfy the Craddock test. Id. Here, the record does not contain a

response by Landlord to appellants= motion for new trial or any controverting affidavits. In

addition, at a hearing on a motion for new trial, affidavits attached to the motion do not have to be

offered into evidence in order to be considered by the trial court regarding the elements of the

Craddock test. Evans, 889 S.W.2d at 268. It is sufficient that the affidavits are attached to the

motion for new trial and are part of the record. Id. Appellants established that they did not

receive notice of the trial setting, and therefore established the first element of the Craddock test.

See Mathis, 166 S.W.3d at 744. Thus, the trial court should have heard and granted appellants=

motion for new trial. Evans, 889 S.W.2d at 270 (where motion for new trial and uncontroverted

attached affidavits satisfied Craddock test, trial court=s denial of motion for new trial was abuse of

discretion).

                                             MOOTNESS

       Landlord contends that appellants= appeal on the issue of possession of the premises is

moot. Landlord=s suit in the justice and county courts was for forcible detainer. The sole question

presented to the trial court in a forcible entry and detainer suit is the right to immediate possession

of the property. Rice v. Pinney, 51 S.W.3d 705, 709 (Tex. App.CDallas 2001, no pet.). A



                                                 B8B
forcible detainer action is a special proceeding created to provide a speedy, simple, and

inexpensive means for resolving the question of the right to possession of premises.                                                               Id.

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 v. Housing Auth. of San Antonio, 198 S.W.3d 782, 787 (Tex. 2006). To prevail in a

forcible entry and detainer action, a plaintiff is only required to show sufficient evidence of

ownership to demonstrate a superior right to immediate possession. Rice, 51 S.W.3d at 709.

             We agree with Landlord that the issue of possession is moot. Appellants are no longer

living on the premises; they contend that they moved out before Landlord attempted to serve notice

of the trial setting in county court. Their only claim to possession of the premises would arise

under the lease, which has expired. Without Aa potentially meritorious claim of right to current,

actual possession of the apartment,@ there is Ano live controversy between the parties as to the right

of current possession.@ Marshall, 198 S.W.3d at 787. Under these circumstances, the issue of

possession of the premises is moot. Id.

           Landlord, however, also joined a claim for rent due, as permitted by the rules of civil

procedure. See TEX. R. CIV. P. 738. Appellants pleaded retaliation by the landlord as a defense

to the suit for rent. See TEX. PROP. CODE ANN. ' 92.335 (West 2007). 6 There is a live controversy

between the parties as to the rent due. See Brown v. Apex Realty, 349 S.W.3d 162, 164 (Tex.

App.CDallas 2011, pet. dism=d) (where tenant=s issues addressed the trial court=s damage award,

appeal not moot). We do not consider the merits of this controversy; we conclude only that

appellants were entitled to a hearing on the issues that are not moot.



       6
          As Landlord points out, however, section 92.335 provides Aa defense . . . for nonpayment of rent to the extent allowed by this chapter.@
Section 92.335 explicitly provides that A[o]ther judicial actions under this chapter may not be joined with an eviction suit or asserted as a defense or
crossclaim in an eviction suit.@ Therefore appellants may not assert an affirmative claim for damages for retaliation in this lawsuit. Id.




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        We reject appellants= arguments, however, that we or the trial court should consider their

tort claims or any other claims that may not be asserted in a forcible detainer case. The county

court had no jurisdiction over these claims, and cannot consider them on remand. TEX. R. CIV. P.

746 (Aonly issue@ in forcible detainer is right to possession). Appellants cite to Texas Property

Code section 24.008, which provides that Aan eviction suit does not bar a suit for trespass [or]

damages . . . .@ TEX. PROP. CODE ANN. ' 24.008 (West 2000). But these causes of action may be

asserted only in a separate lawsuit, not in a forcible detainer action. See, e.g., Williams v. Bank of

New York Mellon, 315 S.W.3d 925, 926B27 (Tex. App.CDallas 2010, no pet.) (whether sale of

property under deed of trust invalid may not be determined in forcible detainer but must be brought

in separate suit); Krull v. Somoza, 879 S.W.2d 320, 322 (Tex. App.CHouston [14th Dist.] 1994,

writ denied) (damages for causes of action not related to maintaining or obtaining possession of

premises not recoverable in forcible detainer action); Rushing v. Smith, 630 S.W.2d 498, 499 (Tex.

App.CAmarillo 1982, no writ) (appellee could pursue claims for damages in separate proceeding,

not in forcible entry and detainer suit).

                                             CONCLUSION

        We reverse the trial court=s judgment. We remand the cause for consideration of matters

within the trial court=s jurisdiction that are not moot.



                                                              /David L. Bridges/
                                                           DAVID L. BRIDGES
                                                           JUSTICE

110024F.P05




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                                            S
                                 Court of Appeals
                          Fifth District of Texas at Dallas

                                         JUDGMENT


ELIZABETH A. FLACK-BATIE AND                           Appeal from the County Court at Law No. 5
LISA A. BATIE, Appellants                              of Dallas County, Texas. (Tr. Ct. No.
                                                       10-06786-E).
No. 05-11-00024-CV                     V.              Opinion delivered by Justice Bridges,
                                                       Justices Francis and Lang, participating.
CAMDEN CIMARRON, Appellee
        In accordance with this Court=s opinion of this date, the portion of the trial court=s judgment
awarding rent, attorney=s fees, interest, and costs to appellee Camden Cimarron is REVERSED
and this cause is REMANDED to the trial court for further proceedings. It is ORDERED that
appellant Elizabeth A. Flack-Batie and Lisa A. Batie recover their costs of this appeal from
appellee Camden Cimarron.


Judgment entered February 6, 2013.



                                                       /David L. Bridges/
                                                       DAVID L. BRIDGES
                                                       JUSTICE




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