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Moore v. Subia

Court of Appeals of Texas, Fourth District, San Antonio

May 16, 2018

Anthony MOORE and Joann Moore, Appellants
v.
David SUBIA, Appellee

          From the County Court at Law No. 3, Bexar County, Texas Trial Court No. 2016CV04165 Honorable David J. Rodriguez, Judge Presiding

          Sitting: Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Irene Rios, Justice

          MEMORANDUM OPINION

          Irene Rios, Justice

         David Subia brought a forcible detainer action against Anthony and Joann Moore ("the Moores"). The trial court rendered judgment of possession for Subia and awarded Subia attorney's fees. The Moores appealed, contending the trial court's judgment was not supported by sufficient evidence. We modify the judgment to delete the award of attorney's fees and otherwise affirm the remainder of the judgment.

         Background

         On January 29, 2015, the Moores entered into a six-month lease with Subia to rent a parcel of real property owned by Subia that is adjacent to Subia's residence. At the end of the six-month term, the Moores became holdover tenants by remaining on the property without entering into a new lease. In the following months, the Moores continued to possess the property and pay monthly rent, which Subia accepted. In early February 2016, however, Subia informed Mr. Moore that he planned to move his parents onto the subject property, and that the Moores needed to move out by April 2016. The Moores did not surrender possession of the property.

         On June 9, 2016, Subia filed a forcible detainer action in the justice court. On July 7, 2016, the justice court rendered judgment of possession for Subia and found the Moores owed Subia $400 in delinquent rent and $191 in court costs. The Moores appealed to the county court at law ("trial court") for a de novo trial. At trial, the jury heard testimony from Subia, Subia's wife, and Mr. Moore.

         The jury found the Moores committed forcible detainer of the property and owed Subia $5, 591 in attorney's fees. On December 1, 2016, the trial court signed a final judgment granting Subia possession of the property and awarding Subia $5, 591 in attorney's fees. The Moores, acting pro se, filed this appeal. The Moores' pro se brief lists thirty-five "points of dispute." Upon reviewing these "points of dispute" and the argument section of their brief, we conclude the Moores have raised the following issues: (1) the evidence was legally and factually insufficient to support the trial court's judgment rendering possession of the property to Subia; (2) the evidence was legally and factually insufficient to support the trial court's judgment awarding Subia attorney's fees; (3) the evidence was legally and factually insufficient to support the justice court's judgment awarding rent arrearage to Subia; (4) the justice court erred by allowing alternate service of citation; and (5) Subia's trial counsel should be sanctioned for displaying unprofessional and unethical conduct.

         Standard of Review

         In a legal sufficiency review, we consider the evidence in the light most favorable to the fact-finder's decision and indulge every reasonable inference in support of that decision. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). "When a party attacks the legal sufficiency of an adverse finding on an issue on which it did not have the burden of proof, it must demonstrate on appeal that no evidence supports the adverse finding." Graham Cent. Station, Inc. v. Pena, 442 S.W.3d 261, 263 (Tex. 2014) (per curiam). Such a legal sufficiency challenge will be sustained when (1) "there is 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 conclusively establishes the opposite of the vital fact." Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). "More than a scintilla of evidence exists when the evidence 'rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.'" King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting Havner, 953 S.W.2d at 711). However, "[e]vidence does not exceed a scintilla if it is 'so weak as to do no more than create a mere surmise or suspicion' that the fact exists." Akin, Gump, Strauss, Hauer & Feld, LLP v. Nat'l Dev. & Research Corp., 299 S.W.3d 106, 115 (Tex. 2009) (citations omitted).

         In a factual-sufficiency review, we examine the evidence both supporting and contrary to the judgment. 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). "A factual sufficiency attack on an issue on which the appellant did not have the burden of proof requires the complaining party to demonstrate there is insufficient evidence to support the adverse finding." Flying J Inc. v. Meda, Inc., 373 S.W.3d 680, 690-91 (Tex. App.-San Antonio 2012, no pet.). In reviewing a factual-sufficiency challenge, we consider and weigh all the evidence and will not reverse the judgment unless the evidence supporting the finding is so weak as to make the finding clearly wrong and manifestly unjust. Lowry v. Tarbox, __S.W.3d__ No. 04-16-00416-CV, 2017 WL 4801677, at *2 (Tex. App.-San Antonio Oct. 25, 2017, pet. filed); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam).

         Subia was Entitled to Possession

         The Moores contend the evidence is legally and factually insufficient to support the trial court's judgment of possession for Subia because Subia failed to show he complied with the notice requirements under the Texas Property Code.

         Nature of the ...


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