NUMBER 13-11-00762-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

NEW WAVE PROPERTIES, INC., Appellant,

v.

KIMBERLY WIKOFF, Appellee.

On appeal from the County Court at Law 

of San Patricio County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Garza and Vela

Memorandum Opinion by Chief Justice Valdez

By two issues, appellant, New Wave Properties, Inc., appeals from the judgment 

of the County Court at Law of San Patricio County, denying appellant’s claims for 

eviction and past due rent and ordering appellant to return to appellee, Kimberly Wikoff, 

personal property removed from her apartment. We affirm.
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I. BACKGROUND

Appellant is a management company for several apartment units. Appellee was 

leasing an apartment managed by appellant. Appellee’s lease expired in August 2011,

and appellant sent notice of non-renewal. Appellee did not move out of the property, 

and appellant filed an eviction suit and suit for rent in the justice court. The justice court 

granted judgment in favor of appellant. Appellee filed a notice of appeal along with a 

pauper’s affidavit. Appellee filed no other written pleadings.

The County Court at Law of San Patricio County called the case for trial on 

October 20, 2011. Appellee appeared pro se, and appellant appeared by its corporate 

representative, Jessica Lopez. The following exchange occurred:

The Court: Okay. [Appellant] filed a complaint for eviction with a Suit for 

Rent on August 1, 2011, and got a judgment in JP Court No. 

4. Possession of the premises described as 12 C 

Commonsway South, for delinquent rent in the amount of 

$417, late fees of $185, court costs of $121, interest at 5% 

per annum, and a writ of possession of the property for 

September 7, 2011.

That was done on August 29, 2011. [Appellee] you filed a 

Notice of Appeal, September 14, 2011.

. . .

The Court: Okay. Has [appellee] been paying rent into the registry of 

the Court?

The Clerk: No, sir.

Appellee: We moved.

The Court: Okay. Well, it is your appeal. What are you asking me to 

do?

Appellee: Well, I was bringing proof we did pay the rent. And also, the 

owner of the property has - - he came to my home when we 

were still living in it and took multiple amounts of items from 

our home and he was spotted running from our apartment.
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The Court: He was what?

Appellee: Running from our apartment.

. . . 

The Court: So what, basically, you are saying is that you don’t owe any 

money?

Appellee: No. I have receipts for my last month’s rent for August.

The Court: Well, I am asking: You are saying you don’t owe any money 

to [appellant]?

Appellee: No.

. . . 

The Court: What about all these things you have on the list, things 

stolen from your townhouse by [appellant], did you get them 

back?

Appellee: No. And I asked where they are located and they won’t tell 

me. They took them while we were moving.

The Court: Ms. Lopez, what do you have to say about that?

. . . 

Ms. Lopez: Their lease, Your Honor, expired in August and we did send 

them a non-renewal. We weren’t going to be renewing 

them. And since it was abandoned, they removed the 

property, which they have in their possession.

The Court: You are saying [appellant] doesn’t have these things?

Ms. Lopez: I have never seen that list, so, I don’t - - and I didn’t pull the 

property from the property, so I don’t know. I wouldn’t even 

be able to - - to say.

The Court: Well, did [appellant] take those things?

Ms. Lopez: Again, sir, I don’t know. I am just here for nonpayment for 

September.
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. . . 

The Court: What do you do for appellant?

Ms. Lopez: I work in the office. I am the – usually I do the leasing. 

Leasing agent.

Appellee: Also, if I can add, the maintenance people knew that we 

were still there, because they had been seeing us moving 

stuff. And they said, “Well when are you moving?” And we 

said, “We are moving now.”

They knew that it wasn’t abandoned.

The Court: Okay. I am ordering all of this personal property listed in 

Exhibit A returned to [appellee]. And I am denying 

[appellant’s] petition for delinquent rent and late fees.

II. DISCUSSION

Appellant raises two issues on appeal: (1) the trial court erred in denying 

judgment for appellant and granting a judgment for appellee, as there was no written 

pleading filed by appellee to support granting of a judgment; and (2) the judgment of the 

trial court was against the great weight and preponderance of the evidence.

A. Trial without Pleading

In its first issue, appellant complains about the trial court’s judgment, arguing that 

it was reversible error for the court to enter a judgment for appellee in the absence of 

written pleadings. As noted above, this case was originally brought by appellant in the 

justice court, which entered a judgment in appellant’s favor. Appellee subsequently 

perfected an appeal to the county court at law. After holding a trial de novo, the county 

court entered judgment in favor of appellee. 

Appellant argues that, because appellee had no claim for affirmative relief before 

the justice court, Rule 574a of the Texas Rules of Civil Procedure precluded her from 
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asserting a new claim for affirmative relief. See TEX. R. CIV. P. 574a. The rule provides 

as follows:

Either party may plead any new matter in the county or district court which 

was not presented in the court below, but no new ground of recovery shall 

be set up by the plaintiff, nor shall any set-off or counterclaim be set up by 

the defendant which was not pleaded in the court below. The pleading 

thereof shall be in writing and filed in the cause before the parties have 

announced ready for trial. 

Id. 

As other courts of appeals have noted, rule 574a has “little practical effect” in 

light of Civil Practice and Remedies Code sections 31.004 and 31.005, “which allow a 

party to circumvent Rule 574a by bringing the new claim in a separate action in county 

court or district court.” Houtex Ready Mix Concrete & Materials v. Eagle Constr. & 

Environmental Servs. L.P, 226 S.W.3d 514 (Tex. App.—Houston [1st Dist.] 2006, no 

pet.); see also Harrill v. A.J.’s Wrecker Service, Inc., 27 S.W.3d 191, 194-195 (Tex. 

App.—San Antonio 2000, no pet.). 

Thus, the remedy when a party asserts a new matter not previously pled in the 

justice court is severance, not dismissal for lack of jurisdiction. See Harrill, 27 S.W. 3d 

at 195 (“Because [the party appealing to county court] could have brought any 

additional claims constituting new grounds of recovery in county court, the trial court 

should have severed any such claims from the appeal of the original judgment instead 

of dismissing the claims.”); D’Tel Communications v. Roadway Package Serv., Inc., 987 

S.W.2d 213, 214 (Tex. App.—Eastland 1999, no pet.) (holding that new counterclaim 

pleaded in appeal from county court to justice court was improperly brought under rule 

574a; remedy was not dismissal but severance). 
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Here, appellant neither objected to the new matter being asserted for the first 

time in county court nor requested that the court sever the counterclaim from the appeal 

from justice court. Appellant also did not file a motion for new trial. Under such 

circumstances, our rules of appellate procedure provide that appellant is barred from 

complaining about this for the first time on appeal:

As a prerequisite to presenting a complaint for appellate review, the record 

must show that the complaint was made to the trial court by a timely 

request, objection, or motion that stated the grounds for the ruling that the 

complaining party sought from the trial court with sufficient specificity to 

make the trial court aware of the specific complaint . . . and the trial court 

ruled on the request, objection, or motion, either expressly or implicitly . . . 

or refused to rule on the request, objection, or motion and the complaining 

party objected to the refusal.

See TEX. R. APP. P. 33.1(a)(1). 

Furthermore, although appellant complains that appellee failed to assert her 

counterclaim in written pleadings, the rules of procedure permit such matters to be tried 

by consent, whether express or implied:

When issues not raised by the pleadings are tried by express or implied 

consent of the parties, they shall be treated in all respects as if they had 

been raised in the pleadings. In such case such amendment of the 

pleadings as may be necessary to cause them to conform to the evidence 

and to raise these issues may be made by leave of court upon motion of 

any party at any time up to the submission of the case to the Court or jury, 

but failure so to amend shall not affect the result of the trial of these 

issues; provided that written pleadings, before the time of submission, 

shall be necessary to the submission of questions, as is provided in Rules 

277 and 279.

TEX. R. CIV. P. 67.

In its brief, appellant acknowledges the foregoing rules, but nonetheless 

maintains that appellee’s counterclaim was not tried by consent. While we agree with 

appellant that trial by consent should never be applied haphazardly, we do not agree 
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with appellant that the situation in this trial was “unclear to the parties,” as appellant 

suggests.

First, the record shows that from the beginning of the trial, appellee clearly 

asserted a counterclaim for affirmative relief. Second, appellee was permitted to put on 

evidence of her counterclaim without any objection by appellant. Third, to the extent 

appellant’s corporate representative subsequently advised the county court that she had 

no knowledge of appellee’s counterclaim, it is clear that she was speaking as a fact 

witness and corporate representative responding to the court’s inquiries, not as an 

attorney for appellant making an objection to appellee’s counterclaim being tried without 

written pleadings. She told the court she was a leasing agent for appellant and made 

no claim to being an attorney or counsel of record for appellant in this trial. Although 

representation by a non-lawyer is permissible in a hearing on a landlord’s sworn motion 

that the tenant failed to pay rent during the appeal as required, appellant filed no such 

motion and this trial was not a hearing on such a motion. See TEX. PROP. CODE ANN. § 

24.0054(e) (West Supp. 2011) (“In a motion or hearing in county court under Subsection 

(a), the parties may represent themselves or be represented by their authorized agents, 

who need not be attorneys.”).

In sum, this was not a “doubtful situation” where appellant had no knowledge of 

appellee’s counterclaim being tried without a written pleading. See White v. Sullins, 917 

S.W.2d 158, 161 (Tex. App.—Beaumont 1996, writ denied) (“It is a rule that should be 

applied with care and not in a doubtful situation.”). Rather, this was an exceptional case 

where appellant, through its corporate representative, had actual knowledge of 

appellee’s counterclaim but did not make a valid and timely objection to the trial of the 
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counterclaim. Under these circumstances, appellant is prohibited from complaining 

about the no-pleading issue on appeal. See Elliott v. Hamilton, 767 S.W.2d 262, 263 

(Tex. App.—Beaumont 1989, writ denied) (“Appellants never voiced any objections nor 

raised the ‘no pleading’ issue prior to a motion for new trial. Had the jury issues been 

answered adverse to appellees, they would have been bound by res judicata. 

Appellants were willing to allow appellees to proceed to the jury and litigate the issues. 

They cannot, at this juncture, complain.”) (citation omitted). Accordingly, appellant’s first 

issue is overruled.

B. Factual Sufficiency of the Evidence

In its second issue, appellant complains that the evidence was factually 

insufficient to support the trial court’s judgment denying appellant’s claim for rent during 

the pendency of the appeal. 

1. Standard of Review

In reviewing a factual insufficiency point, this court must weigh all of the evidence 

in the record. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996) (per curiam). We will 

set aside the verdict only if the evidence supporting the verdict is so weak or so against 

the overwhelming weight of the evidence that the verdict is clearly wrong and unjust. 

Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998); Cain v. Bain, 709 

S.W.2d 175, 176 (Tex. 1986) (per curiam). We may not pass upon the witnesses’ 

credibility or substitute our judgment for that of the fact-finder, even if the evidence 

would clearly support a different result. Mar. Overseas Corp., 971 S.W.2d at 407. The 

amount of evidence necessary to affirm a judgment is far less than necessary to reverse 
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a judgment. Thomas v. Uzoka, 290 S.W.3d 437, 452 (Tex. App.—Houston [14th Dist.] 

2009, pet. denied). 

When reviewing factual sufficiency issues, we are mindful that the fact finder is 

the sole judge of the credibility of the witnesses. Canal Ins. Co. v. Hopkins, 238 S.W.3d 

549, 557 (Tex. App.—Tyler 2007, pet. denied) (citing Santa Fe Petroleum, L.L.C. v. Star 

Canyon Corp., 156 S.W.3d 630, 637 (Tex. App.—Tyler 2004, no pet.)). The trial court 

may take into consideration all of the facts and surrounding circumstances in connection 

with the testimony of each witness and accept or reject all or any part of that testimony. 

Id. at 557-58. Where enough evidence is before the trial court so that reasonable minds 

could differ on the meaning of the evidence, or the inferences and conclusions to be 

drawn from the evidence, we may not substitute our judgment for that of the trial court. 

Id. at 558.

When the party who had the burden of proof on an issue in a bench trial 

complains about the absence of a finding of fact by the trial court, we treat the absence 

of the finding as a refusal by the trial court to find the fact from a preponderance of the 

evidence. Santa Fe Petroleum, L.L.C., 156 S.W.3d at 637 (citing Sterner v. Marathon 

Oil Co., 767 S.W.2d 686, 690 (Tex. 1989)). When the party who had the burden of 

proof on an issue asserts that the trial court’s refusal to find the fact is contrary to the 

evidence, we must overrule the complaint unless, considering all the evidence, the 

refusal is so contrary to the great weight and preponderance of the evidence that it is 

manifestly unjust. See Ramsey v. Lucky Stores, Inc., 853 S.W.2d 623, 632 (Tex. 

App.—Houston [1st Dist.] 1993, writ denied) (citing Cropper v. Caterpillar Tractor Co., 

754 S.W.2d 646, 649 (Tex.1988)).
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2. Applicable Law

Justice courts have original jurisdiction over forcible detainer suits. TEX. PROP.

CODE ANN. § 24.004 (West Supp. 2011); TEX. GOV’T CODE ANN. § 27.031(a)(2) (West 

Supp. 2011). Because a forcible detainer suit is intended to ensure a “speedy, 

summary, and inexpensive” determination regarding the right to immediate possession 

of real property, generally the sole issue is entitlement to actual and immediate 

possession. See Hong Kong Dev., Inc. v. Nguyen, 229 S.W.3d 415, 434 (Tex. App.—

Houston [1st Dist.] 2007, no pet.) (citing TEX. R. CIV. P. 746; Haginas v. Malbis Mem'l 

Found., 163 Tex. 274, 354 S.W.2d 368, 371 (Tex. 1962)). However, a justice or county 

court in such suits is vested with jurisdiction over a few other limited matters. See TEX.

R. CIV. P. 738, 752; Nguyen, 229 S.W.3d at 415. In particular, a claim for rent may be 

joined with a forcible entry or detainer action as long as the claim falls within the justice 

court’s jurisdiction. TEX. R. CIV. P. 738; see Nguyen, 229 S.W.3d at 415 (citing Haginas, 

354 S.W.2d at 371).

A party may appeal the justice-court judgment to a county court for trial de novo. 

See TEX. R. CIV. P. 591 (“The cause shall be tried de novo in the county or district court; 

and judgment shall be rendered as in cases appealed from justice courts.”); id. at R. 

749 (“In appeals in forcible entry and detainer cases, no motion for new trial shall be 

filed. Either party may appeal from a final judgment in such case, to the county court of 

the county in which the judgment is rendered by filing with the justice within five days 

after the judgment is signed, a bond to be approved by said justice, and payable to the 

adverse party, conditioned that he will prosecute his appeal with effect, or pay all costs 

and damages which may be adjudged against him.”).
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On appeal in a forcible detainer suit, the county court exercises appellate, not 

original, jurisdiction, which is generally confined to the jurisdictional limits of the justice 

court. Nguyen, 229 S.W.3d at 434 (citing Ward v. Malone, 115 S.W.3d 267, 269 (Tex. 

App.—Corpus Christi 2003, pet. denied)).

On appeal to the county court, “the appellant or appellee shall be permitted to 

plead, prove and recover his damages, if any, suffered for withholding or defending 

possession of the premises during the pendency of the appeal,” although only the party 

prevailing in the county court may recover these damages. TEX. R. CIV. P. 752. Such 

damages include, but are not limited to, loss of rents during pendency of the appeal and 

reasonable attorneys’ fees in the justice and county courts. Id. The damages 

recoverable under Rule 752 are only those “suffered as a direct result of withholding or 

defending possession.” Nguyen, 229 S.W.3d at 415 (quoting Hanks v. Lake Towne 

Apartments, 812 S.W.2d 625, 627 (Tex. App.—Dallas 1991, writ denied)). The justice 

and county courts lack subject-matter jurisdiction in a forcible detainer suit to adjudicate 

matters other than those set forth above. Id.

3. Analysis

Appellant did not plead a claim for damages, if any, suffered from the withholding 

of possession of the premises during the pendency of the appeal. See TEX. R. CIV. P.

752. Appellant did not file a sworn motion for unpaid rent during the pendency of the 

appeal, as provided for in the property code. See TEX. PROP. CODE ANN. § 24.054. 

Most importantly, appellant did not prevail in the county court on the claim being 

appealed from the judgment of the justice court, namely, the claim for delinquent rent for 

the month of August. Nor has appellant challenged the sufficiency of the evidence to 
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support the county court’s judgment on that claim. Accordingly, appellant was not 

entitled to recover on a claim for unpaid rent during the pendency of the appeal. See

TEX. R. CIV. P. 752 (“Only the party prevailing in the county court shall be entitled to 

recover damages against the adverse party.”). Appellant’s second issue is overruled.

III. CONCLUSION

The judgment of the trial court is affirmed.

__________________

ROGELIO VALDEZ

Chief Justice

Delivered and filed the 

19th day of July, 2012.