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Hernandez v. First Bank

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

September 12, 2019

YVETTE HERNANDEZ, Appellant,
v.
FIRST BANK D/B/A FIRST BANK MORTGAGE, ITS SUCCESSORS AND ASSIGNS, Appellees.

          On appeal from the County Court of Willacy County, Texas.

          Before Justices Benavides, Hinojosa, and Perkes

          MEMORANDUM OPINION

          GREGORY T. PERKES JUSTICE

         Appellant Yvette Hernandez appeals from a final judgment rendered in favor of appellee First Bank d/b/a First Bank Mortgage, its Successors and Assigns, on its forcible detainer claim. By two issues, Hernandez contends the trial court erred by: (1) entering a final judgment that did not comply with statutory requirements; and (2) denying her request for a jury trial. We affirm.

         I. Background

         Hernandez resides at the property commonly known as 8620 Simo Road, Lyford, Texas 78569. First Bank purchased the property at a foreclosure sale and instituted a forceable detainer action against Hernandez in the local justice of the peace court. The justice of the peace entered a judgment in favor of First Bank, and Hernandez filed a notice of appeal to the Willacy County Court.

         The Willacy County Clerk sent Hernandez a notice that a $341 filing fee must be paid in order to perfect the appeal. The fee was paid, and an order was issued on March 15, 2018, setting the trial for April 11, 2018.

         Before the trial commenced, Hernandez requested a jury in open court. There is no written request for a jury in the clerk's record and the $341 filing fee paid by Hernandez did not include a jury fee. See Tex. R. Civ. P. 216. The trial judge denied the request.

         After conducting a bench trial, the trial court announced a judgment in favor of First Bank and informed Hernandez that she had ten days to vacate the property or a writ of possession would be issued. The court also set the appeal bond at $3, 600.

         Nine days after the trial, on April 20, 2018, the court signed a written judgment that awarded First Bank possession of the property and a conditional writ of possession if Hernandez did not vacate the property by April 21, 2018, the tenth day after the trial court rendered judgment in open court. Two days later, on April 23, 2018, First Bank requested that the Willacy County Clerk issue a writ of possession.

          The next day, on April 24, 2018, Hernandez filed a motion to modify the judgment, urging the trial court to postpone the writ's issuance date until April 30, 2018, the tenth day after the judgment was signed. See Tex. Prop. Code Ann. § 24.007. On April 30, 2018, the trial court ordered the writ to be issued the following day, the eleventh day after the judgment was signed, and denied Hernandez's motion as moot. Although a writ was issued the following day, there is no officer's return in the clerk's record indicating that the writ was executed.

         On May 3, 2018, Hernandez filed her notice of appeal to this Court. On August 17, 2018, this Court notified Hernandez that she had failed to request a reporter's record and arrange for payment of the record. See Tex. R. App. P. 37.3(c). The Court instructed Hernandez to cure the defect within ten days and provide proof of compliance or "the Court will consider and decide those issues or points that do not require a reporter's record for a decision." To date, the Court has no record of Hernandez requesting or paying for a reporter's record.

         In its brief to this Court, First Bank states Hernandez "is still currently living on the property." Hernandez did not claim in her brief that she has been dispossessed of the property, and she did not file a reply brief contesting First Bank's representation that she continues to reside at the property. See id. R. 38.3.

         II. ...


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