### AFFIRNI; Opinion Filed January 14, 2013.

lnTbe 

## Qiourt of Appeals lf.iftl! ilistrict of Wexas at 1ilallas No. 05-11-01023-CV PIDLLIP CARO, Appellant 

## v. ·FEDERAL**HOMKLOAN~MORTGAGE** 

### CORPORATION, Appellee On Appeal

# froin th.e County Co-urt at Law No. 2 Dallas County, Texas Trial Court Cause No. CC-11-04179-B



### MEMORANDUM OPINION Before Justices Bridges, Lang, and Richter• Opinion By Justice Lang This is an appeal from ajudgment in a forcible detainer action awarding to Federal Home Loan Mortgage Corporation (FHLMC) possession ofproperty located at 412 Orchard Hill Drive, Cedar Hill, Texas 75104 ("property"). In a single issue, Phillip Caro, appearing pro se, argues the trial courterred in grantingjudgmentin favor ofFHLMCbecausethe complaintandnoticeto vacate
were insufficient? We affirm the trial court'sjudgment.

1 The Honorable Martin Richter, Retired Justice, Fifth District Court ofAppeals, Dallas, Texas, sitting by assignment.
2 Caro filed thenotice ofappeal individually, but argues at times as ifhe isjoined byotheroccupantsofthe property. However, because no other occupantsjoined Caro in the notice ofappeal, we address the argumentsraised only as they pertain to him. See TEX. R. APP. PRoc. 25.l{c), (dXS). i-::

### I. BACKGROUND FHLMC purchased the property at a foreclosure sale on September 7, 2010, after Caro and LaToya Alexander defaulted on a promissory note that was secured by a deed oftrust covering the property. Pursuant to the deed oftrust, Caro, Alexander, and any other occupantbecame tenants at sufferance subject to removal by writ ofpossession or other court proceeding. On January 18,2011, and again on January 31,2011, FHLMC gave Caro, Alexander, and tenant Patsy R. Johnson written notice to vacate the property. The notices, sent both by certified mail, return receipt requested and regular mail, informed Caro, Alexander, and Johnson that suit would be filed ifthe propertywas not timely vacated. The first notice gave three days to vacate and the second notice gave ninety days. On May 18, 2011, after Caro, Alexander, and Johnson had failed to vacate the property, '·. FHLMC filed its forcible detainer action injustice court and attached to the petition a copy ofthe .·

. -**~** deed oftrust. The petition stated that FHLMC**o~ed** the property and was entitled to immediate .. possessiOn. The petition also stated that Caro, Alexander, and Johnson were given written notice to vacate the property, but they failed and refused to leave. The petition identified the property by its street address as well as by the legal description found in the deed oftrust. Caro, Alexander, and Johnson failed to answer the petition, and thejustice court renderedjudgment in favor ofFHLMC. Thisjudgment was subsequently appealed to the county court at law. At the de novo bench trial, FHLMC offered into evidence without objection (1) a substitute trustee's deed showingFHLMCpurchased the property at the foreclosure sale, (2) the deed oftrust, and (3) copies ofthe notices to vacate sent to Caro, Alexander, and Johnson. Johnson, the sole

· defendantto appear, offered no evidence, andFHLMC was again awardedjudgment. Thetrial court

did not file findings offact and conclusions oflaw, and none were requested.



### -2-

### II. SUFFICIENCY OF THE PETITION 

### Relying on 

### Steele v. Steele, 2 Willson 299, {Tex. Ct. App. 1884), Caro challenges the sufficiency ofthe petition and appears to argue FHLMC should have attached an exhibit containing the "correct legal description." The record reflects Caro failed to file an answer to FHLMC's petition and failed to appear at trial. However, Caro contends that "[a ]n objection" to the sufficiency ·ofthe description ofthe · property**sou~t** 

### to be recovered in a forcible detainer action "can be first made on appeal." In 

### support, Caro cites to 

### Granbeny v. Storey, 127 S.W. 1122 {Tex. Civ. App. 1910, no writ). Caro's reliance on 

### Granbeny is misplaced. As FHLMC points out, the 

### Granberry court specifically concluded that a complaint about the propertydescription raised for the first time on appeal was late and should have been made to the trial court. 127 S.W. at 1125 (op. on reh'g). Nonetheless, we

.. -_ ;**-~** ·, :,..-. '·

.



### . · address the merits ofCaro's complaint. : ' ·· . ··**~.** . - ,.



### . A:·Applicable**La~v** 

### · Pursuant to Texas Rule ofCivil Procedure 741, a complaint for forcible entry and detainer must "describethe lands, tenements orpremises, the possession ofwhich is claimed, with sufficient certainty to identify the same ...." 

### See TEX. R. 

### Civ. P. 741. This Court has previously concluded that a street address is sufficiently certain to identify the premises made the subject ofa detainer action. 

### Mitchell v. 

### Citifin. Mortg. Co., 192 S.W.3d 882, 883 (Tex. App.-Dallas 2006, no pet.). 

### B. Application of the Law to the Facts Although Caro contends that FHLMC did not sufficiently describe the property sought to be recovered because FHLMC did not attach an exhibit containing the correct legal description, no such requirement exists. FHLMC's petition for forcible detainer includes the street address ofthe property, and this was sufficient. 

### See Mitchell, 192 S.W.3d at 883. Moreover, contrary to Caro's


### "' -.)-contention, the petition in fact included as an attachment the deed oftrust which contained the legal description ofthe property. We decide against Caro as to this argument. 

### III. Sufficiency ofthe Notice to Vacate Ina single sentence, Caro also argues that FHLMC's notice to vacate was insufficient. Caro argues that FHLMC "failed to follow" the property code and provide him notice to vacate the property. A. Applicable Law To prevail in its suit, FHLMC had to show, among other things, that FHLMC gave proper notice to Caro to vacatetheproperty. SeeElwellv. CountrywideHomeLoans, Inc., 267 S.W.3d 566, 568-69 (Tex. App.-Dallas 2008, pet. dism'd w.o.j.). Under Texas Property Code section 24.005, unless the parties have contracted for a different notice period, a tenant by sufferance is entitled to· · \.. : . : -**~** .""" ·, .**~** .. ·at least three days' written notice to vacate before ·a forcible detainer action is filed. See TEX. PROP.



### - . CODE ANN.§ 24.005(b) (West Supp. 2012). The notice t'oivacatemay be given by regular mail, registered mail, or certified mail, return receipt requested. Jd.'at§ 24.005(f). B. Standard of Review Whenfindings offact and conclusions oflaware not filed orproperlyrequested, it is implied that the trial court made all necessaryfindings to support itsjudgment. Beckv. Walker, 154 S.W.3d 895, 902 (Tex. App.-Dallas2005, no pet.). When, as here, a reporter's record is filed, an appellant may challenge the legal and factual sufficiency ofthese implied findings. Jd. Challenged fmdings
are reviewed underthe same legal and factual sufficiency standards used in reviewingjuryfindings. Walker v. Anderson, 232 S.W.3d 899, 907 (Tex. App.-Dallas 2007, no pet.). In challenging the legal sufficiencyofthe evidenceto support a finding on an issue for whichthe appellantdid not have the burden of proof, the appellant must demonstrate no evidence exists to support the adverse



### -4- . 

# .. . . .finding. Aland v. Martin, 271 S.W.3d 424,429 (Tex. App.-Dallas 2008, no pet.). In challenging the factual sufficiency ofthe evidenceto support such a finding, the appellant must demonstrate the evidence is so weak as to be clearly wrong and unjust. THIoJTe"t. atLubbockI, LLCv. Perea, 329 S.W.3d 548, 572 {Tex. App.-Amarillo 2010, pet. denied). 

### C. Application of Law to Facts Caro does not argue, and nothing in the record reflects, the parties contracted for a notice period greater than three days. The record here reflects both regular and certified mail notices demanding vacation ofthe property were sent to Caro on two dates in January 2011. The record further reflects FHLMC filed its petition three months later, on May 18, 2011. We conclude the record before us contains some evidence supporting the trialcourt's implied finding that the notice FHLMC gave Caro was proper and that evidence is not so weak as to be clearly wrong and unjust. I, : I ·:, ..

. 

### . .· ... ·SeeTEX. PROP. CODE ANN.§**24.00§(b)~(f);** Aland, 271: S.W.2d-at429; Perea, 329 S.W.3d at 5.72. 

### IV. CONCLUSION We decide Caro's sole issue against him and affirm the trial court'sjudgment.

111023F.P05



### -5-

### C!iourt of 

## Ap-p

## .euls lf.iftq 

## 1ilistrict of 

## W.exu.s at 1ilullu.s

PHILLIP CARO, Appellant No. 05-11-01023-CV V. 

### JUDGMENT Appeal from the County Court at Law No.2 ofDallas County, Texas. {Tr.Ct.No. CC-11- 04179-B). FEDERAL HOME LOAN MORTGAGE CORPORATION, Appellee Opinion delivered by Justice Lang, Justices Bridges and Richter participating. Inaccordance with this Court'sopinionofthis date, we AFFIRMthetrial court'sjudgment. We ORDERthat appelleeFederal Home LoanMortgageCorporationrecoverits costsofthis appeal from appellant Phillip Caro. Judgment entered January 14, 2013. I
. .**~** : .l . . :.**~"**