law-forcible detainer action | eviction proceedings

FORCIBLE DETAINER ACTIONS

The statutory remedy of forcible detainer will lie when a person in possession of real property refuses to
surrender possession on demand if, as was alleged here, the person is a tenant at will or by sufferance,
"including an occupant at the time of foreclosure of a lien superior to the tenant's lease." See Tex. Prop.
Code Ann. § 24.002(a) (West 2000). To establish forcible detainer, Citimortgage had to prove: (1) it was
the owner of the property in question, (2) Rodriguez was an occupant at the time of foreclosure, (3) the
foreclosure was of a lien superior to Rodriguez's right to possession, (4) Citimortgage made a written
demand for possession in accordance with section 24.005 of the property code, and (5) Rodriguez refused
to vacate. See id. §§ 24.002, .005 (West Supp. 2010); Murphy v. Countrywide Home Loans, Inc., 199 S.W.
3d 441, 445 (Tex. App.-Houston [1st Dist.] 2006, pet. denied).

In a forcible detainer action, the trial court considers only the issue of who has the right to immediate
possession of real property, not the merits of the title. Tex. R. Civ. P. 746; see also, e.g., Shutter v. Wells
Fargo Bank, 318 S.W.3d 467, 470 (Tex. App.-Dallas 2010, pet. dism'd w.o.j.) (op. on reh'g). Forcible
detainer is intended to be a speedy, inexpensive, summary procedure for obtaining possession without
resorting to a suit on the title. Williams v. Bank of New York Mellon, 315 S.W.3d 925, 926-27 (Tex. App.-
Dallas 2010, no pet.) (citing Scott v. Hewitt, 90 S.W.2d 816, 818-19 (Tex. 1936)). To prevail in a forcible
detainer action, the plaintiff is required only to show sufficient evidence of ownership to demonstrate a
superior right to immediate possession. Dormady v. Dinero Land & Cattle Co., 61 S.W.3d 555, 557 (Tex.
App.-San Antonio 2001, pet. dism'd w.o.j.) (op. on reh'g). If the right to immediate possession necessarily
requires resolution of a title dispute, the justice court and county court have no jurisdiction to enter a
judgment. Rice v. Pinney, 51 S.W.3d 705, 709, 713 (Tex. App.-Dallas 2001, no pet.) (collecting cases). In
most disputes, however, the right to title can be determined separately from the right to immediate
possession, and the Texas Legislature has expressly established a system designed to keep the two
issues separate. Id. at 710. Thus, the trial court cannot determine in a forcible detainer action whether the
sale of property under a deed of trust is invalid; instead, the displaced property occupant is entitled to
bring a separate suit in district court to resolve any title issues. Id. (citing Scott, 90 S.W.2d at 818-19).
Section 24.006 of the property code states that "a prevailing landlord is entitled to recover reasonable
attorney's fees from the tenant" if the landlord sends the tenant a written demand to vacate the premises
by registered or certified mail at least ten days before the eviction suit is filed. Tex. Prop. Code Ann. §
24.006 (West 2000). The phrase "entitled to recover reasonable attorney's fees" denotes that the trial
court has no discretion not to award reasonable attorney's fees. See Bocquet v. Herring, 972 S.W.2d 19,
20 (Tex. 1998). In general, the reasonableness of attorney's fees is a fact question. Id. at 21. Thus, the
statute's requirement that the fees must be reasonable means that there must be legally and factually
sufficient evidence that the fees awarded were reasonable. See id.; Charette v. Fitzgerald, 213 S.W.3d
505, 512 (Tex. App.-Houston [14th Dist.] 2006, no pet.).

Section 24.005(f) of the property code provides that notice to vacate that is given by mail "may be by
regular mail, by registered mail, or by certified mail, return receipt requested, to the premises in question."
Tex. Prop. Code Ann. § 24.005(f) (West Supp. 2010).

FORCIBLE DETAINER SUITS: ORIGINAL JURISDICTION AND APPEAL

Justice courts have original jurisdiction over forcible-detainer suits. See Tex.Prop.Code Ann. § 24.004
(West 2000); Tex.Gov't Code Ann. § 27.031(a)(2)(West Supp. 2010). The justice court's judgment may be
appealed to the county court for de novo review. Tex.R.Civ.P. 749; Hong Kong Dev., Inc. v. Nguyen, 229 S.
W.3d 415, 434 (Tex.App.-Houston [1st Dist.] 2007, no pet.). The county court's appellate jurisdiction is
limited to the original jurisdiction of the justice court. Black v. Washington Mut. Bank, 318 S.W.3d 414, 416-
17 (Tex.App.-Houston [1st Dist.] 2010, pet. dism'd w.o.j.).
In both courts, the sole issue to be determined in a forcible detainer suit is the petitioner's right to
immediate possession of the real property at issue. Black, 318 S.W.3d at 416. No other issues,
controversies or rights of the parties related to the property, including title, can be adjudicated in such a
suit. Nguyen, 229 S.W.3d at 434. In simpler terms, a forcible detainer suit asks one simple, and specific
question: "who has right to possess the property now?" See Black, 318 S.W.3d at 417; Valencia v. Garza,
765 S.W.2d 893, 899 (Tex.App.-San Antonio 1989, no writ). Because the judgment in such a case is
necessarily limited to the scope of the suit, an award of possession on a particular date does not implicate
a party's possessor right on a future date. See Garza, 765 S.W.2d at 899.


EVICTION - FORCIBLE DETAINER - WHICH COURT?

Jurisdiction to hear forcible detainer actions is vested in justice courts, and on appeal, to county courts for
trial de novo. TEX. PROP. CODE ANN. § 24.004 (Vernon 2000); Dormady v. Dinero Land & Cattle Co., 61
S.W.3d 555, 557 (Tex. App.-San Antonio 2001, pet. dism'd w.o.j.) (op. on reh'g). A justice court is
expressly deprived of jurisdiction to determine or adjudicate title to land. See TEX. GOV'T CODE ANN. §
27.031(b)(4) (Vernon Supp. 2010). Thus, neither a justice court, nor a county court on appeal, can
resolve questions of title beyond the immediate right to possession. See Bacon v. Jordan, 763 S.W.2d
395, 396 (Tex. 1988); Rice v. Pinney, 51 S.W.3d 705, 708-09 (Tex. App.-Dallas 2001, no pet.).

In a forcible detainer action, the trial court considers only the issue of who has the right to immediate
possession of real property, not the merits of the title. TEX. R. CIV. P. 746; Villalon v. Bank One, 176 S.W.
3d 66, 70 (Tex. App.-Houston [1st Dist.] 2004, pet. denied); Ward v. Malone, 115 S.W.3d 267, 270 (Tex.
App.-Corpus Christi 2003, pet. denied). Forcible detainer is intended to be a speedy, inexpensive,
summary procedure for obtaining possession without resorting to a suit on the title. Villalon, 176 S.W.3d at
70; Malone, 115 S.W.3d at 270.

However, if the question of title is so intertwined with the issue of possession, then possession may not be
adjudicated without first determining title. Dormady, 61 S.W.3d at 557; Rice, 51 S.W3d at 709. "In such a
case involving a genuine issue of title, neither the justice court, nor the county court on appeal, has
jurisdiction." Dormady, 61 S.W.3d at 557; see Rice, 51 S.W.3d at 709. "[O]ne indication that a justice
court, and on appeal a county court, may be required to adjudicate title to real estate in a forcible detainer
case—and, thus, exceed its jurisdiction—is when a landlord-tenant relationship is lacking." Rice, 51 S.W.
3d at 712 n.4.   Corpus Christi Court of Appeals, No. 13-09-00702-CV 3/10/11



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