Opinion issued August 12 , 2014

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 13
- 00237
- CV

——————————— RUBEN GARCIA AND JOSE GARCIA, Appellant s V. JAVIER E. PERRETT , Appellee

On Appeal from County Civil Court at Law No. 3 Harris County, Texas Trial Court Ca se No. 1025209

MEMORANDUM OPINION Appellants, Ruben Garcia and Jose Garcia ( the “Garcia s ”), challenge the trial court’s judgme nt of possession of real property in favor appellee, Javier E. Perrett, in Perrett’s forcible

- detainer action against them

. In two issue s , the Garcia s contend that th e evidence is legally and factually insufficient to support the2 trial court’s finding that they committed a forcible detainer of the real property and the sale of the property to Perrett should be set aside

. We affirm

. Background 1
Perrett filed , in a Harris County justice court , a sworn complaint for eviction , seeking to evict the Garcia s and all occupants fro m a home at 1802 Dominic Lane in Sonoma Ranch , a subdivision located in H ouston. In his complaint, Perrett identified himself as the owner of the property , having purchased it at a n execution sale foreclosing on a lien held by the Sonoma Ranch Homeowner’s Association (the “Association”) . Perrett asse rted that he del ivered “in person” to the Garcia s a written notice to vac ate and demand for possession of the property

. T he justice court entered a judg ment of possession in favor of Perrett , and the Garcia s appealed to the county court for a trial d e novo . At trial in the county court , Perrett , proceeding pro se, testified that he had purchased the property at “auction. ” And t he trial court admitted into evidence a certified copy of Perrett’s “Deed Under Execution,” which shows that he purchased the prope rty on June 5, 2012 f or $7,000 at a public sa le conducted by

1 The Garcia s present in their appellate brief what they assert are “[f]acts not apparen t from the record in this cause, ” and they have attached various exhibits to their brief

. However, we must hear and determine a case on the record as filed ; we may not consider documents attached t o briefs as exhibits if they are not included in the record

. See Till v. Thomas , 10 S.W.3d 730, 733 (Tex. App.

— Houston [1st Dist.] 1999, no pet.).3 the Harris County Precinct 3 C onstable , by virtue of a writ issued pursu ant to a judgment and decree of sale

. 2 Perrett further t estified that he gave the Garcia s notice to vacate , and h e referred the trial court to a “Vacate Notice Request ” that he had submitted to the constable. The trial court responded, That’s [a] request. Let me look through the court file and see if it’s in there. If you requested the constable to do it, it migh t be in here. Sometimes the constable attaches it to the original pleadings. Okay. Date of the 30

- day notice, 9/6/12. According to this, the 30

- day notice was sent by the constable on 9/6/12 . . . . Owner desires possession of property for [sic] 30 day s. 3 Finally, P errett testified that despite not ice, the Garcia s had refused to vacate the property

. Ruben Garcia , also proceeding pro se, explained that the Association had sold the property because of a “problem that [he] had on a bill.” S ince the sale, however, he “paid the amount” to the Association , and it had released its lien. Garcia asserted, thus , Perrett was no longer entitled to possession of the property. The trial court concluded that Perrett’s deed was “good” and the Garcia s’ payment to the Association after the foreclosure sale did not invalidate the effect of
Perrett’s deed on this proceeding. Accordingly, it r end ered judgment of possession in favor of Perrett.

2 Sonoma Ra nch Homeowner’s Ass’n, Inc. v. Ruben Garcia , No. 2011

- 05162, in the 270th District Court of Harr is County. 3 Only the “ Vacate Notice Request ” appears in the appellate record

.4 Standard of Review In a nonjury trial, w hen no findings of fact or concl usions of law are filed, 4 we imply that the trial court made all necessary fi ndings to support its judgment

. Holt Atherton Indus., Inc. v. Hein e , 835 S.W.2d 80, 83 (Tex. 1992). When a reporter’ s record is filed, as in this case, the implied findings are not conclusive , and a party may challenge both the legal and factua l sufficiency of the evidence support ing those findings. BMC Software Belg., N.V. v. Marchand , 83 S.W.3d 789, 795 (Tex. 2002). When legal

- and factual

- sufficiency issues are raised, the

a pplicable standard s of review are the same as those applied to review jury findings. Roberson v. Robinson , 768 S.W.2d 280, 281 (Tex. 1989). The judgment must be affirmed if it can be upheld on any legal theory supported by the evidence. Worford v. Stampe r , 801 S.W.2d 108, 109 (Tex. 1990). We will sustain a legal

- sufficiency or “no

- evidence” challenge if the record shows one of the following: (1) a complete absence of evidence of a vital fact, (2) rules of law or evidence bar the court from giving weight t o the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a scintilla, or (4) the evidence establishes conclusively the opposite of the vital fact. City of Keller v. Wilson , 16 8 S.W.3d 802, 810 (Tex. 2005). In

4 T he reco rd does not show that the Garcia s filed the requisite notice of past due findings of fact and conclusions of law

. See T EX
. R. C IV
. P. 297; Alpert v. Crain, Caton & James, P.C ., 178 S.W.3d 398 , 410 (Tex. App.

— Hous ton [1st Dist.] 2005, pet. denied).5 conducting a legal

- sufficiency review, a “court must consider evidence in the light most favorable to the verdict, and indulge every reasonable inf erence that would support it.” Id . at 822. The term “inference” means, [i] n the law of evidence , a truth or proposition drawn from another which is supposed or admitted to be true. A process of reasoning by which a fact or proposition sought to be established is deduced as a logical consequence from other facts, or a st ate of facts, already proved .

. . . Marshall Field Stores, Inc. v. Gardiner , 859 S.W.2d 391, 400 (Tex. App.

— Houston [1st Dist.] 1993, writ d ism’d w.o.j.) (quoting B LACK ’ S L AW D ICTIONARY 700 (5th ed. 1979) ). For a factfinder to infer a fact, “it must be able to deduce that fact as a logical conseq uence from other proven facts.” Id

. If there is more than a scintilla of evidence to support the challeng ed finding, we must uphold it. Formosa Pla stics Corp. USA v. Presidio Eng’ rs &
Contractors , Inc ., 96 0 S.W.2d 41, 48 (Tex. 1998). “ [W]hen the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, i n legal effect, is no evidence. ” Ford Motor Co. v. Ridgway , 135 S.W.3 d 5 98, 601 (Tex. 2004)

. However, if the evidence at trial would enable reasonable and fair

- minded people to differ in their conclusions, then factfinders must be allowed to do so. City of Keller , 168 S.W.3d at 822; see also King Ranch, Inc. v. Chapman , 118 S.W.3d 742, 751 (Tex. 2003). “A reviewing court cannot substitute its judgment6 for that of the trier

- of

- fact, so long as the evidence falls within this zone of reasonable disagreement.” City of Keller , 168 S.W.3d at 822. In conducting a factual

- sufficien cy review, we must consider, weigh, and examine all of the evidence that supports or contradicts the factfinder’s determination. 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. 19 89). In a bench trial, the trial court is the sole judge of the witnesses’ credibility, and it may choose to believe one witness over another; a reviewing court may not impose i ts own opinion to the contrary. See Golden Eagle Archery, Inc. v. Jackson , 1 16 S.W.3d 757, 761 (Tex. 2003) ; Howeth Inv s . , Inc. v. City of Hedwig Vill ., 259 S.W.3d 877, 894 (Tex. App.

— Houston [1st Dist.] 2008, pet. denied). We may set aside the verdict only if the evidence is so weak or the finding is so against the great weight

a nd preponderance of the evidence that it is clea rly wrong or manifestly unjust. Pool v. Ford Motor Co ., 715 S.W.2d 629, 635 (Tex. 1986). Forcible Detainer
In their first issue, the Garcia s a rgue that the evidence is legally and fac tually insufficient to support the trial court’s finding that they committed a forcible detainer because they had a superior right to pos ses s the real property and Perrett failed to make a timely written demand for possessio n of the property prior to filing suit

.7 A person who “ purchases occupied property at a sal e foreclosing a property owners’ association’ s assessment lien must commence and prosecute a forcible

. . . d etainer action

. . . to recover possession of the property. ” T EX
. P ROP
. C ODE A NN
. §

. 209.011 (a) (Vernon Supp. 2013 ). A forcible

- detainer action is intended to be a speedy, simple, and inexpensive method to o btain immediate possession of property. Marshall v. Hous. Auth. of San Antonio , 198 S.W.3d 782, 787 (Tex. 2006). It is “cumulative” of any other lega l remedy that a party may have. Hong Kong Dev., Inc

. v. Nguyen , 229 S.W.3d 415, 437 (Tex. App.

— Houston [1st Dist.] 2007, no pet.) . T he only issue to be determined in a forcible

- detainer action is which party is entitled to immediate possession of the rea l property at issue , and the merits of whether a party has title shall not be adjudicated. See T EX
. R. C IV
. P. 510.3(e) ; Marshall , 198 S.W.3d at 787.
To preva il in his forcible

- detainer action , Perrett had to show that (1) he was the owner of the property at issue , (2) the Garcia s were occupant s of the property at the time of foreclosure, (3) the foreclosure was of a lien supe rior to the Garcia s’ righ t to possession, (4) Perrett made a sufficient written deman d for possession, and (5) the Garcia s refused to vacate

. See T EX
. P ROP
. C ODE A NN
. § 24.002 (Vernon 2000) ; Murphy v. Countrywide Home Loans , Inc. , 199 S.W.3d 441, 445 (Tex. App.

— Houston [1st Dist.] 2006 , pet. denied).8 Regarding his ownership of the real property , Perrett, as the purchaser, was not required to prove title, but only to show sufficient eviden ce of ownership to demonstrate a superior right to immediate possession. See Murphy , 199 S.W.3d at
446

. Perrett testified that he purchased th e real property at auction , and the county court admitted into evidence a certified copy of his “Deed Under Execution,” which shows that he purchased the property at a public sale conducted by the Harris County Precinct 3 C onstable by virtue of a writ issued purs uant to the judgment and decree of sale entered against Ruben Garcia in Sonom a Ranch Homeowner’s Association, Inc. v. Ruben Garcia , No. 2011

- 05162, in the 270th District Court of Harris County. Perrett further testified, and it is undisputed, that the Gar cia s occupied the property at the time of foreclosure , and they refused to
vacate

. See Murphy , 199 S.W.3d at 445. “G enerally, a n occupant of the property holding over after execution of a deed is considered a permissive tenant whose right to possession is inferior to that of the party holding title. ” Id. (citing Tex

– Wis
Co. v. Johnson , 534 S.W.2d 895, 899 (Tex. 1976)). Because it is undisputed that Perrett provided the trial court with a foreclosure sale deed , which, on its face, purports to transfer the property to him , and the foreclosure was of a lien supe rior to the Garcia s ’ righ t to possession , the evidenc e demonstrate s Perrett’s superior right to immediate possession

. See id. at 445

– 47 (holding deed obtained at foreclosure sale es tablished ownership in9 forcible

- detainer action) ; see also Wells Fargo Bank, N.A. v. Ezell , 410 S.W.3d 919, 922 (Tex. App.

— El Paso 2013, no pet.) (same ); Villalon v. Bank One , 176 S.W.3d 66 , 71 (Tex. App.

— Houston [1st Dist.] 2004, pet. denied) (holding
pur chaser established ownership of property by virtue of deed following foreclosure sale); Goggins v. Leo , 849 S.W.2d 373, 377 (Tex. App.

— Houston [14th Dist.] 1993, no writ ) (holding uncontroverted testimony and execution sale deed constitute d evidence of sup erior right to possession )

. The Garcia s argue that “at the time Perrett filed this forcible de tainer action

. . . , he did not have a superior right to possession of the property because [ Ruben Garcia] had already begun to exercise [his] right to redeem the property.”
A residential

- property owner or lienholder of record “may redeem” property sold at a sale foreclosing on a property association’s assessment lien “ not later than the 180th day after the date the association mails written notice of the sale t o the owner and the lienholder

. ” T EX
. P ROP
. C ODE A NN
. §

. 209.011(b) (Vernon Supp. 2013). To redeem property purchased at a foreclosure sale by a person other than the property owners’ association, the owner or lien holder must pay the association all amoun ts due at the time of the foreclosure sale, “less the foreclosure sales price received by the association from the purchaser ” ; reimburse the purchaser the price he paid at the foreclosure sale ; and p ay any new assessments, fees, and costs

. Id. § 209.011(e ). “ If a lot owner or lienholder redeems the property under this section,10 the purchaser of the property at foreclosure shall immediately execute and deliver to the redeeming party a deed transferring the property to the lot owner. ” Id. § 209.011(f). “ If a purchaser fails to comply with this section, the lot owner or lienholder may file an action against the purchaser and may recover reasonable attorney’s fees from the purchaser if the lot owner or the lienholder is the prevailing party in the action.” Id. “If a lot owner makes partial payment of amounts due the association at any time before the redemption period expires but fails to pay all amounts necessary to redeem the property before the redemption period expires, the association shall refund any partial payments to the lot owner

. . . .” Id. §

. 209.011(l)

. Here, the Garcia s assert that they had taken the “ first step toward redemption by paying the amounts du e to [the Association] and obtaining a release of lien.” The clerk’s record contains the Association’s lien release , which is dated August 21, 2012 and shows that it was recorded in the county’s real property records on September 4, 201 2. However, the lien release does not reflect what sums were paid or by whom. 5
Even if we were to conclude that t he Association’s lien release constitutes evidence that the Garcia s pai d the Association in accordance with the statute, the

5 We cannot discern whether the Association released its lien because Perrett satisfied the delinquent assessments through his purchase at the f oreclosure sale; the Garci a s paid their delinquent assessments, resulting in the Associatio n having been paid twice; or the Garcia s paid a deficiency that remained after the sale.11 Garcia s do not assert, and there is nothing in the record that shows, that they paid
Perrett. See id. § 209.011(e). Rather, they make only a bare assertion for the first time on appeal that they attempted to pay Perrett. Thus, the Garcia s have not demonstrated that the trial court erred in find ing that Perrett demonstrated a superior right to possession of the real pro perty

. Moreover , any defects in the foreclosure process or with title to the property following foreclosure may not be considered in a forcible

- detainer action , but must be pursued in a separate suit in the district court for wrongful forec losure or to set aside the deed

. See T EX
. R. C IV
. P. 510.3(e) ; Marshall , 198 S.W.3d at 787; Salaymeh v. Plaza Centro, LLC , 264 S.W.3d 431, 43 5

– 3 6 (Tex. App.

— Houston [14th Dist.] 200 8, no pet.); Villalon , 17 6 S.W.3d at 70

– 71 (holding because forcible

- detainer action not exclusive, but cumulat ive , “ the displaced party is entitled to bring a separate suit in the district court to determine the question of title ”) ; see also Rice v. Pinney , 51 S.W.3d 705, 708

– 09 (Tex. App.

— Dallas 2001, no pet.) (holding county courts are wit hout jurisdiction to adjudicate tit le in de novo trial of forcible

- detainer action from jus tice court). “Judgment of possession in a forcible detainer action is not intended to be a final determination of whether the eviction is wrongful; rather, it is a determination of the right to immediate possession.” Marshall , 198 S.W.3d at 787. Title issues must be brought in a separate suit in dis trict court, even if such action “ involves adjudication of matters12 that could result in a different determination of p ossession from the decision rendered in the forcible detainer suit.” Salaymeh , 264 S.W.3d at 436

. The Garcia s further assert that Perrett failed to make a written demand for possession and he “produced no evidence ” of any notice to vacate. A written demand for possession must be made by a person entitled to possession of the property and it must comply with the requirements for “ notice to vacate ” in Texas Property Code section 24.005. T EX
. P ROP
. C ODE A NN
. §

. 24.002 (b) (Vernon 2000), §

. 24.005 (Vernon S upp. 2013). S ection 24.005 required Perrett, before filing a forcible

- detainer action , to give the Garcia s “at least three days’ written notice to
vacate.” Id. §

. 24.005(b). “The notice to vacate shall be given in person or by mail at the premises in que stion.” Id. §

. 24.005(f). Notice by mail “may be by regular mail” or by certified mail, return receipt requested. Id. In his sworn petition filed in the justice court on October 5, 2012, Perrett asserted that he made “demand for possession” and gave the Garcia s “ [ w ] ritten notice to vacate” b y “ delivery in person ” on September 6, 2012 . The record contains Perrett’s “ Vacate Notice Request,” sent on September 6, 2012 to the Harris County C onstable by facsimile, asking that thirty days’ notice to vacate be
i ssued to “all occupants” at 1802 Dominic Lane

. And it shows that it was received by “HCCO Precinct 3” on September 6, 2012. The actual notice to vacate and return receipt, if any, are not in the appellate record. See id. (allowing notice “by13 regular mail”). However, t he trial court indica ted on the record that its file contained a “30

- day notice

. . . sen t by the constable on 9/6/12.” A trial court may take judicial notice of the contents of its file

. See T EX
. R. E VID
. 201 (providing trial court may take judic ial notice of matters generally known or easily proven and cannot reasonably be disputed ); Hunt Const. Gr p . , Inc. v. Konecny , 290 S.W.3d 238, 244 (Tex. App.

— Houston [1st Dist.] 2008 , pet. denied ); see also In re
M.C.H ., No. 01

- 02

- 00686

- CV, 2003 WL 21470347, at *2 (Tex. App.

— Houston [1st Dist.] June 26, 2003, no pet. ) (mem. op.) (holding reporter’s record showing trial court took judicial notice of constable’s return constituted sufficient evidence notice was given ). The G arcia s did not object to the trial court’s action, and they do not assert that t he y did not receive notice. Viewing the evidence in the li ght most favorable to the trial court’s judgment and indulging every reasonable inference that would suppo rt it, we conclu de that the re is evidence to support the trial court’s impl ied findings that Perrett demonstrated a superior right to immediate possess ion of the property , Perrett made written demand for possession, and the Garcia s refused to vacate

. We further conclude , after viewing all of the evidence neutrally, that the evidence supporting the s e finding s is not so weak as to render the trial court’s judgment clearly wrong or manifestly unjust. Accordingly, we hold that the evidence is14 legally and factually sufficient to support the trial court’ s judgment that the Garcia s committed a forcible detainer

. We overrule the G arcias’ first issue

. Underlying Judgment In their second issue, the Garcia s argue that the “sale of the property should be set aside” because the Association did not provide proper notice “prior to proceeding with their action to obtain the underlying judgment.” A s noted above ,

a ny defects in the underlying foreclos ure process may not be considered in a forcible

- detainer action

. See T EX
. R. C IV
. P. 510.3(e) ; Marshall , 198 S.W.3d at 787; Salaymeh , LLC , 264 S.W.3d at 43 5

– 36; Villalon , 176 S.W.3d at 70

– 71

. We overrule the Garcia s’ second issue. Conclusion We affirm the judgment of the trial court

.

Terry Jennings Justice Panel consists of Justices Jennings, Higley, and Shar p.