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Date: 04-26-2012

Case Style: Edna Gayle Bovey v. Caren J. Coffey

Case Number: 09-11-00445-CV

Judge: Steve McKeithen

Court: Texas Court of Appeals, Ninth District on appeal from the County Court at Law No. 2, Montgomery County

Plaintiff's Attorney: Kenna M. Seiler for Edna Gayle Bovey

Defendant's Attorney: J. Kevin Raley for Caren J. Coffey

Description: Caren J. Coffey, Independent Executrix of the Estate of Elton Bovey, obtained a default judgment against Edna Gayle Bovey (“Bovey”) and the trial court awarded certain property to the estate. Coffey filed a complaint for forcible entry and detainer to remove Bovey from the property, but the Justice of the Peace granted judgment in favor of Bovey. Coffey appealed to the County Court at Law No. 2 and that court granted judgment in favor of Coffey. The trial court subsequently granted Bovey’s request for a temporary restraining order and ordered a new trial. After a bench trial, the trial court again granted judgment in favor of Coffey. In five appellate issues, Bovey challenges the trial court’s decision to order a new trial and the findings underlying the trial court’s judgment. We affirm the trial court’s judgment.

Factual Background

Bovey testified that she married Elton Bovey in 2006, and Elton sold his home in California and purchased a home in Shenandoah, Texas. Bovey testified that the Shenandoah home was her homestead. In 2008, Elton died and Bovey stayed with her daughter in Conroe, Texas, but traveled between Conroe and Shenandoah. She testified that her pets and most of her belongings remained in Shenandoah, which she considered to be her permanent residence. Bovey admitted that court documents reflect the Conroe home as her current address.

A temporary restraining order, dated November 7, 2008, prohibited Bovey from transferring assets of the estate. That same day, Bovey conveyed the Shenandoah home to Daniel and Tiffany Gallehugh, but she testified that the Gallehughs were supposed to later re-convey the property to her. Bovey testified that she never received any money from the Gallehughs and never expected to receive any money. Bovey explained that the conveyance was intended to enable Daniel to acquire a loan and was not intended to be an abandonment of her homestead rights. After the conveyance, she resided with her daughter in Conroe. In 2009, the Gallehughs moved into the Shenandoah home. Bovey subsequently attempted to return to the Shenandoah home, but the locks had been changed. She did not pay taxes on the Shenandoah home, maintain the home, or fight to return to the home. She was forced to reside at a women’s shelter and in her vehicle. In 2010, Bovey remarried and lived with her new husband in Ovalo, Texas. When she later learned the Shenandoah home had become vacant, she returned to that home in December 2010 and testified that she has lived there continuously since that time. She denied abandoning or intending to abandon the Shenandoah home. Bovey testified that the Shenandoah home is her homestead and she has always regarded this home as her homestead.

The trial court found, in pertinent part, that: (1) the estate is the fee simple owner of the Shenandoah home; (2) Bovey ceased using, residing on, or occupying the home before August 2008; (3) Bovey executed a deed in November 2008, which purported to convey all of her right, title, and interest in the home to the Gallehughs; (4) Bovey did not pay taxes on the home after Elton’s death; (5) Bovey abandoned any homestead rights in the home; (6) a final, valid, and subsisting judgment, dated September 2010, exists and states that Bovey “had and has no past, present, or future interest” in the home; (7) Bovey’s claims, including a homestead assertion, are the same as those raised or those that could have been raised in the first suit; (8) after the Gallehughs were evicted from the home, Bovey began residing in the home without permission; (9) Bovey entered and occupied the home without legal authority and refused to surrender possession; and (10) Bovey abandoned the premises with no intent of returning. The trial court concluded that the doctrines of res judicata and estoppel by deed preclude Bovey from asserting a homestead right in the home, that Bovey is a tenant at sufferance, and that Bovey committed forcible entry and detainer.

New Trial

In issue one, Bovey challenges the trial court’s decision to sua sponte order a new trial “in the interest of justice.” Bovey contends that Coffey failed to establish that she provided a demand to vacate before filing suit and that, consequently, the trial court lacked good cause to grant a new trial. See Tex. Prop. Code Ann. § 24.005 (West Supp. 2011) (Requiring a notice to vacate before suit). Coffey responds that Bovey failed to preserve her complaint for appeal.

The record does not indicate that Bovey objected to the trial court’s order granting a new trial. At the beginning of trial, Bovey’s counsel asked the trial court to vacate its order and reopen the case for additional evidence. This objection was not sufficiently specific to preserve the complaint Bovey now raises on appeal. See Tex. R. App. P. 33.1(a)(1)(A). Under these circumstances, we conclude that Bovey has failed to preserve her complaint for appellate review.1 We overrule issue one.

Legal Sufficiency

In issues two, three, and four, Bovey challenges the legal sufficiency of the evidence to support several of the trial court’s findings underlying its conclusion that Bovey committed forcible entry and detainer. See Tex. Prop. Code Ann. § 24.001 (West Supp. 2011). Under a legal sufficiency standard, we consider “whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review.” City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We review the evidence in the light most favorable to the finding and indulge every reasonable inference that would support it. Id. at 822. We credit favorable evidence if a reasonable factfinder could and disregard contrary evidence unless a reasonable factfinder could not. Id. at 807, 827.

In issue two, Bovey challenges the trial court’s finding that she abandoned the Shenandoah home. Bovey argues that the evidence shows only temporary absences from the home and not an abandonment of the homestead. To establish abandonment of a homestead, the party asserting abandonment must show an intent not to return to the homestead and an intent not to claim a homestead exemption on that property. McKee v. Wilson, 174 S.W.3d 842, 844 (Tex. App.—Waco 2005, no pet.). Intent must be accompanied by overt acts of preparation consistent with intent. Id. “Where no homestead dedicated by actual occupancy exists, effect may be given to ownership, intention[,] and preparation to use for a home[.]” Id.

The trial court heard Bovey’s testimony that the Shenandoah home was her homestead and she never intended to abandon the homestead. The record indicates that Bovey was absent from the home for a significant period of time, used an address other than the Shenandoah home on court documents, did not pay taxes on the home, and did not maintain the home. Most importantly, Bovey conveyed the home to the Gallehughs. Bovey contended that this conveyance was not an abandonment of her homestead rights and that she intended to later return to the home.

As the sole judge of the weight and credibility of the witnesses, the trial court was entitled to disbelieve Bovey’s testimony, and expressly found that Bovey was not a credible witness. See Woods v. Woods, 193 S.W.3d 720, 726 (Tex. App.—Beaumont 2006, pet. denied). In doing so, the trial court could reasonably conclude that (1) Bovey had no intent to return to the homestead, (2) the acts of executing a deed to the Gallehughs, remaining absent from the home, failing to pay taxes on the home or maintain the home, and failing to take action to recover the home, are overt acts consistent with that intent, and (3) Bovey’s intent coupled with overt acts evidences abandonment. See McKee, 174 S.W.3d at 844; see also In re Cole, 205 B.R. 382, 385 (Bankr. E.D. Tex. 1997) (“In the case of abandonment, there can be no more convincing proof that abandonment occurred than the sale of a homestead.”). Viewing the evidence in the light most favorable to the trial court’s findings, we conclude that the evidence is legally sufficient to support the trial court’s finding that Bovey abandoned her homestead rights in the Shenandoah home. See City of Keller, 168 S.W.3d at 827. We overrule issue two.

In issue three, Bovey challenges the trial court’s finding that she is a tenant at sufferance. “A party that holds over after an adverse judgment has been rendered against it is merely a permissive tenant or a tenant at sufferance.” Phillips v. Willy, No. 01-07-00159-CV, 2010 Tex. App. LEXIS 542, at *43 (Tex. App.—Houston [1st Dist.] Jan. 28, 2010, pet. denied) (mem. op.); see Tex-Wis Co. v. Johnson, 534 S.W.2d 895, 899 (Tex. 1976). Bovey maintains that she did not abandon the Shenandoah home and so retained a right to possess the home.

According to the record, Coffey filed suit against Bovey and the Gallehughs to seek title to the Shenandoah home. In September 2010, Coffey obtained a default judgment against Bovey, in which the trial court awarded the home to the estate and found that Bovey had “no past, present, or future interest in such property.” The judgment divested Bovey of her title to the Shenandoah home and vested title and possession in the estate. See Tex. Prop. Code Ann. § 22.003 (West 2000) (“A final judgment that establishes title or right to possession in an action to recover real property is conclusive against the party from whom the property is recovered and against a person claiming the property through that party by a title that arises after the action is initiated.”); see also City of Fort Worth v. Taylor, 162 Tex. 341, 346 S.W.2d 792, 794 (1961). The trial court could reasonably conclude that Bovey subsequently entered the home under the estate’s title and held over after the default judgment divested her of title to the Shenandoah home. See Phillips, 2010 Tex. App. LEXIS 542, at *43 (“Phillips has remained on the estate notwithstanding the 1976 judgment; therefore, he is a tenant at sufferance.”). Viewing the evidence in the light most favorable to the trial court’s findings, we conclude that the evidence is legally sufficient to support the trial court’s finding that Bovey is a tenant at sufferance. See City of Keller, 168 S.W.3d at 827. We overrule issue three.

In issue four, Bovey challenges the trial court’s finding that the doctrine of estoppel by deed precludes her from asserting a homestead right in the Shenandoah home. She contends that the conveyance was intended to be temporary, and that estoppel does not apply because the deed was not supported by consideration.

The doctrine of estoppel by deed binds all parties to a deed to the recitals therein, and prevents a party to the deed from denying the truth of the recitals in a valid deed. Angell v. Bailey, 225 S.W.3d 834, 841-42 (Tex. App.—El Paso 2007, no pet.). As previously discussed, Bovey lost her homestead interest in the Shenandoah home by conveying the home to the Gallehughs. See Cole, 205 B.R. at 385. Lack of consideration does not prevent a deed from conveying title, and the trial court was entitled to disregard Bovey’s testimony that the conveyance was not an abandonment. See Woods, 193 S.W.3d at 726; see also Watson v. Tipton, 274 S.W.3d 791, 801 (Tex. App.—Fort Worth 2008, pet. denied). Viewing the evidence in the light most favorable to the trial court’s ruling, we conclude that the evidence is legally sufficient to support the trial court’s finding that the doctrine of estoppel by deed precluded Bovey from asserting a homestead right in the Shenandoah home. See City of Keller, 168 S.W.3d at 827; see also Angell, 225 S.W.3d at 841-42. We overrule issue four.

Res Judicata

In issue five, Bovey maintains that the default judgment did not adjudicate her homestead rights and that, consequently, the doctrine of res judicata does not preclude her assertion of a homestead right in the Shenandoah home. The doctrine of res judicata bars the retrial of claims pertaining to the same cause of action which has been finally adjudicated. Coal. of Cities for Affordable Util. Rates v. Pub. Util. Comm’n of Tex., 798 S.W.2d 560, 562-63 (Tex. 1990). The affirmative defense of res judicata is established by proof of (1) a prior final determination on the merits by a court of competent jurisdiction; (2) identity of parties or those in privity with them; and (3) a second action based on the same claims as those that were or could have been raised in the first action. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010).

In this case, the record does not indicate that the trial court lacked jurisdiction to enter the default judgment, and the record indicates that Bovey and Coffey were both parties to that action. If a homestead right is relied upon, it must be pleaded. Bouldin v. Woosley, 525 S.W.2d 276, 280 (Tex. Civ. App.—Waco 1975, no pet.). Bovey failed to plead the homestead exemption in response to Coffey’s lawsuit, and she lost her homestead rights when the trial court entered the default judgment that vested title and possession in the estate and divested Bovey of any title and right to possession in the Shenandoah home. See H.D. Snow Housemoving, Inc. v. Moyers, 581 S.W.2d 809, 811 (Tex. Civ. App.—Fort Worth 1979, no pet.); see also Bouldin, 525 S.W.2d at 280. Accordingly, the trial court could reasonably conclude that the default judgment adjudicated Bovey’s homestead rights in the Shenandoah home and that Bovey’s homestead assertion was based on claims that were or could have been raised in the first action. See Joachim, 315 S.W.3d at 862; see also Reliance Capital, Inc. v. G.R. Hmaidan, Inc., No. 14-07-01059-CV, 2009 Tex. App. LEXIS 3283, at *13 (Tex. App.—Houston [14th Dist.] May 14, 2009, pet. denied) (mem. op.) (“[A] default judgment can constitute a determination on the merits for res judicata purposes.”); Moyers, 581 S.W.2d at 811. We overrule issue five and affirm the trial court’s judgment.

* * *

See: http://www.9thcoa.courts.state.tx.us/opinions/PDFOpinion.asp?OpinionId=12371

Outcome: AFFIRMED.

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