                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-14-00305-CV
                           ____________________

          D & K TRANSMISSION SPECIALTIES, INC., DARRELL
          WESTERKAMP, AND KELLY WESTERKAMP, Appellants

                                        V.

          F. MICHAEL DAVIS AND DEBORAH F. DAVIS, Appellees
_______________________________________________________            ______________

                On Appeal from the County Court at Law No. 2
                        Montgomery County, Texas
                       Trial Cause No. 14-28106 CV
________________________________________________________            _____________

                          MEMORANDUM OPINION

      D & K Transmission Specialties, Inc., Darrell Westerkamp, and Kelly

Westerkamp (collectively, Westerkamp) appeal the trial court’s judgment granting

possession of the premises to F. Michael Davis and Deborah F. Davis (collectively,

Davis)1 in an action for forcible detainer. The trial court awarded Davis a judgment

of $9,166 for attorney fees, with a conditional award of $20,000 in the event of an

      1
         F. Michael Davis and Deborah F. Davis are divorced, but they jointly filed
their pleadings and briefs in the litigation.
                                         1
unsuccessful appeal, together with additional conditional amounts in the event of

proceedings before the Texas Supreme Court. In four issues on appeal,

Westerkamp contends: (1) the justice court did not sign an appealable judgment;

(2) the prior breach of a modification of a contract for deed nullified the existence

of a landlord-tenant relationship; (3) the lower courts lack subject matter

jurisdiction to determine the right of possession absent a resolution of a title

dispute; and (4) equitable estoppel prevents Davis from assuming possession of the

property pending the outcome of a title dispute that is pending in district court.

Finding no reversible error by the trial court on any of the issues raised in this

appeal, we affirm the trial court’s judgment.

                                   BACKGROUND

      In 1999, Davis and Westerkamp signed a contract for deed for property

located at 9277 State Highway 242, Conroe, Texas (the property). The contract

required the Buyer, Westerkamp, to make monthly payments of $5,192 to the

Seller, Davis. In the event of a default, including a default in making prompt

payment, the contract permitted Davis to cancel the contract and declare

Westerkamp’s interest in the property forfeited. The contract provided, as follows:

            As long as Buyer promptly performs all obligations in this
      contract, Buyer has the right to possession of the property. If this
      contract is canceled because of Buyer’s default, Buyer will
      immediately surrender possession of the property to Seller. If Buyer
                                          2
      fails to do so, Buyer will become a tenant at sufferance of Seller,
      subject to an action for forcible detainer.

      In November 2012, Michael Davis and Westerkamp discussed a buy-out of

the contract for deed. In March 2013, a lawyer prepared a warranty deed with

vendor’s lien, deed of trust, and promissory note for a seller-financed transaction,

but Davis did not appear for the closing and the transaction did not close.

Westerkamp stopped making payments in April 2013. On February 27, 2014,

Davis sent Westerkamp a notice of cancellation and demanded immediate

possession. On March 7, 2014, Davis sent Westerkamp a notice to vacate.

      On March 21, 2014, Davis filed a forcible detainer action in the justice

court. On April 10, 2014, the justice court signed an order granting a motion to

dismiss without prejudice.2 On April 14, 2014, Davis filed an appeal with the

county court at law. On July 3, 2014, the county court at law conducted a bench

trial that resulted in a judgment granting a forcible detainer and writ of possession

to Davis. Westerkamp appealed.

                      DISPOSITION OF THE CASE IN JUSTICE COURT

      Westerkamp contends the county court at law lacked jurisdiction to hear an

appeal from the justice court because the justice court disposed of the case by

granting Davis’s motion for non-suit. A judgment rendered without a conventional
      2
          No written motion appears in the record.
                                           3
trial on the merits is final for the purpose of appeal if it disposes of all pending

parties and claims in the record. See Lehmann v. Har-Con Corp., 39 S.W.3d 191,

192-93, 195 (Tex. 2001). When the justice court granted Davis’s motion for non-

suit, the judgment was final for purposes of perfecting an appeal because no

pending claims or parties were before the court. See id.

      Westerkamp argues the trial court lacked subject matter jurisdiction because

Davis’s non-suit mooted the controversy. After voluntarily non-suiting a case filed

in a district or county court, a plaintiff may seek a new trial, and the trial court has

discretion to permit reinstatement when appropriate. See Hoskins v. Gulf Stream

Coach, Inc., No. 14-11-00703-CV, 2012 WL 2394055, at *4 (Tex. App.—Houston

[14th Dist.] June 26, 2012, no pet.) (mem. op.). In contrast, the Texas Rules of

Civil Procedure expressly do not permit the filing of a motion for new trial in a

justice court eviction suit. See Tex. R. Civ. P. 510.8(e). However, an appeal of an

eviction case may be taken by any party by filing with the justice court a bond,

making a cash deposit, or filing a sworn statement of inability to pay within five

days after the judgment is signed. See Tex. R. Civ. P. 510.9(a).

      Davis perfected an appeal to the county court at law by filing a $500 cash

bond within five days after the justice court signed the order dismissing the case.

Davis’s appeal to the county court at law brought the controversy to the county

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court at law on the entire case as if there had been no previous trial. See Tex. R.

Civ. P. 510.10(c). No notice of non-suit appears in the record, no suggestion of

mootness was filed with the trial court, and the record on appeal indicates that the

county court at law tried the eviction suit on the merits. Under these circumstances,

where the record does not contain a notice of non-suit, and the plaintiff pursued a

resolution of the merits of the controversy by presenting evidence on its original

petition in a trial on the merits in the county court at law after filing a notice of

appeal and filing an appeal bond, we conclude that the trial court did not determine

a moot controversy. See id. (When an eviction case is appealed to the county court,

the case must be tried de novo.). We overrule issue one.

                             TENANCY AT SUFFERANCE

      In issue two, Westerkamp contends no landlord-tenant relationship existed

because prior to April 2013, when Westerkamp ceased making payments to Davis

as required by the contract for deed, the parties made an oral agreement to convert

the contract for deed into a seller-financed conveyance. Westerkamp argues Davis

breached the agreement by failing to execute the warranty deed with vendor’s lien

at the scheduled closing on March 24, 2013.

      According to the record on appeal, findings of fact and conclusions of law

were neither requested nor filed. Therefore, it is implied that the trial court made

                                         5
all the necessary findings to support its judgment. Sixth RMA Partners, L.P. v.

Sibley, 111 S.W.3d 46, 52 (Tex. 2003). A contract for the sale of real estate is

subject to the statute of frauds. See Tex. Bus. & Com. Code Ann. § 26.01(a), (b)(4)

(West 2009). Westerkamp concedes that the seller-financed transaction did not

close. There is no evidence in the record regarding any communication between

Westerkamp and Deborah Davis. Westerkamp provided no evidence to the trial

court that Westerkamp had an oral agreement with Deborah Davis. To the

contrary, the trial evidence established that Deborah Davis refused to sign papers

converting the contract for deed into a seller-financed conveyance. Michael Davis

testified that he would have been willing to close on the transaction but that he did

not sign the documents because it would have been futile to do so absent the

agreement of all of the parties. Without an agreement by both Michael Davis and

Deborah Davis to modify or convert the contract for deed into a seller-financed

conveyance, no modification of the contract for deed could occur. Therefore, we

imply that the trial court found there was neither an oral nor a written modification

of the contract for deed. Sibley, 111 S.W.3d at 52.

      The plain language within the contract for deed provides that in the event of

a default in payment Westerkamp would become a tenant at sufferance of Davis.

Darrell Westerkamp testified that since March 2013 no payment had been made to

                                          6
Davis at the address stated in the contract. Davis’s notice of cancellation was

admitted into the trial evidence. Accordingly, we further imply that the trial court

found that Westerkamp was a tenant at sufferance and that the alleged oral

modification did not convert the contract for deed into a seller-financed

conveyance and there was no breach by Davis. We overrule issue two.

                          SUBJECT MATTER JURISDICTION

      In the third issue on appeal, Westerkamp challenges the subject matter

jurisdiction of the justice court and the county court at law. According to

Westerkamp, the trial of the right to possession necessarily involves a title dispute

presently being litigated in a suit for specific performance filed in district court.

Although legal title does not pass under a contract for deed until the signed deed is

actually delivered to the buyer, a purchaser can acquire equitable title by paying

the purchase price and fully performing the contract. Yarto v. Gilliland, 287

S.W.3d 83, 90 n.11 (Tex. App.—Corpus Christi 2009, no pet.). Westerkamp did

not claim that the contract for deed had been fully performed; instead, Darrell

Westerkamp testified that payments on the contract were being paid into an

account as they became due. Westerkamp contends that they fully performed the

contract by arranging for financing and expressing their willingness to close, but

the record lacks the documents or other specific evidence in the record to support

                                         7
their contention. Darrell Westerkamp’s testimony concerning the performance of

the contract was subject to a credibility determination by the trial court. See

Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). The trial

court could have determined that Westerkamp asserted an equitable right to title,

rather than equitable or legal title that could preclude the trial court from exercising

subject matter jurisdiction in the forcible detainer suit. See Lugo v. Ross, 378

S.W.3d 620, 623 (Tex. App.—Dallas 2012, no pet.). There is an absence of any

written agreement to modify or replace the contract for deed that was either agreed

to or signed by all necessary parties. The oral testimony from Westerkamp

regarding an oral agreement made with only Mr. Davis to modify or replace the

contract for deed fails, on its face, and does not constitute competent evidence.

Southeast Tex. Homecare Specialists, Inc. v. Triangle Billing, Inc., 43 S.W.3d 106,

109 (Tex. App.—Beaumont 2001, no pet.) (absent a written contract satisfying

statute of frauds, testimony regarding terms of contract constituted legally

insufficient evidence to support judgment on breach of contract claim). We

overrule issue three.

                                EQUITABLE ESTOPPEL

      In issue four, Westerkamp contends that equitable estoppel prevents Davis

from assuming possession of the property pending the outcome of Westerkamp’s

                                           8
suit for specific performance in district court. Estoppel is an affirmative defense

that must be pleaded and proven at trial. See Tex. R. Civ. P. 94. Westerkamp’s

pleadings in the eviction suit do not assert equitable estoppel as an affirmative

defense. Westerkamp did ask the trial court as an equity consideration to allow

Westerkamp to remain in possession of the property until the parties resolved the

suit for specific performance in district court. Generally, the trial court’s decision

to grant or to deny a request for equitable relief is reviewed for an abuse of

discretion. See Wagner & Brown, Ltd. v. Sheppard, 282 S.W.3d 419, 428-29 (Tex.

2008). Westerkamp’s assertion that Michael Davis perpetrated a fraud by falsely

agreeing to transfer title to Westerkamp does not have a direct bearing on Davis’s

right to immediate possession. See Wells Fargo Bank, N.A. v. Young, No. 02-10-

00428-CV, 2011 WL 3672033, at *3 (Tex. App.—Fort Worth Aug. 18, 2011, no

pet.) (mem. op.). Westerkamp has not established an abuse of discretion by the trial

court in awarding immediate possession of the property to Davis. See Euler v.

Marks, No. 09-09-00344-CV, 2011 WL 378972, at **2-3 (Tex. App.—Beaumont

Feb. 3, 2011, pet. dism’d w.o.j.) (mem. op.) (in a forcible detainer action, the trial

court determines only a right to immediate possession). We overrule issue four.




                                          9
                                  CONCLUSION

      Having overruled all of the appellants’ issues, we affirm the trial court’s

judgment.

      AFFIRMED.


                                               ________________________________
                                                        LEANNE JOHNSON
                                                             Justice


Submitted on December 1, 2014
Opinion Delivered December 18, 2014

Before Kreger, Horton, and Johnson, JJ.




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