Texas Causes of Action & Affirmative Defenses

Texas Causes of Action & Affirmative Defenses

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Sunday, November 20, 2011

Nature of Forcible Detainer Action (in Justice Court)

In a forcible detainer action, the only issue the trial court determines is whether the party seeking to obtain possession is entitled to actual and immediate possession, and the merits of whether a party has title shall not be determined. See Tex. R. Civ. P. 746; Williams v. Bank of N.Y. Mellon, 315 S.W.3d 925, 927 (Tex. App.-Dallas 2010, no pet.); Black v. Wash. Mut. Bank, 318 S.W.3d 414, 416 (Tex. App.-Houston [1st Dist.] 2010, pet. dism'd w.o.j.).
A forcible detainer action is not exclusive, but cumulative of any other remedy that a party may have in the courts of this state. See Rice v. Pinney, 51 S.W.3d 705, 708 (Tex. App.-Dallas 2001, no pet.); Hong Kong Dev., Inc. v. Nguyen, 229 S.W.3d 415, 437 (Tex.App.-Houston [1st Dist.] 2007, no pet.). Thus, the displaced party is entitled to bring a separate suit in the district court to determine the question of title. Rice, 51 S.W.3d at 708; see also Williams, 315 S.W.3d at 927 (stating questions over whether a sale of property in a deed of trust is invalid "must be brought in a separate suit").
A justice court or county court at law is not deprived of jurisdiction merely by the existence of a title dispute; rather, it is deprived of jurisdiction only if "the right to immediate possession necessarily requires the resolution of a title dispute." Rice, 51 S.W.3d at 713 (citing Haith v. Drake, 596 S.W.2d 194, 196 (Tex. App.-Houston 

SOURCE: DALLAS COURT OF APPEALS - 05-10-01402-CV - 11/9/11

Here, the Deed of Trust under which the property was sold
provides: If the Property is sold . . . Borrower or any person holding
possession of the Property through borrower shall immediately surrender
possession of the Property to the purchaser at the sale. If possession
is not surrendered, Borrower or such person shall be a tenant at
sufferance and may be removed by writ of possession or other court

Thus, according to the terms of the Deed of Trust, after the
foreclosure, Husband and Bruce became tenants at sufferance.
Bruce insists the right to immediate possession in this case
cannot be determined on the basis of the landlord-tenant provision in
the Deed of Trust because she did not convey her community interest in
the Deed of Trust. Relying on Mitchell v. Armstrong Capital Corp., 911
S.W.2d 169, 170 (Tex. App.-Houston [1st Dist.] 1995, writ denied), Bruce
asserts that the issue of immediate possession depends solely upon title
to the house under the marital property statutes. Bruce's reliance on
Mitchell, however, is misplaced.

Mitchell did not involve competing claims or distributions
under the marital property statutes. See id. Although the Mitchell court
did conclude that the existence of a title dispute deprived the justice
court and county court at law of subject matter jurisdiction, the title
dispute was predicated on a foreclosure resulting from default under a
promissory note secured by a mechanics lien contract. Id. at 171.
Significantly, the lien contract in Mitchell did not include a
landlord-tenant provision. Rather, the issue of immediate possession
depended solely upon title to the house under the terms of the note and
lien contract. Id. Here, the Deed of Trust contains a provision that
creates a landlord-tenant relationship, and this relationship “provides
an independent basis on which the trial court could determine the issue
of immediate possession without resolving the issue of title to the
property.” Rice, 51 S.W.3d at 712. Thus, to prevail in its forcible
detainer action, Fannie Mae was not required to prove title; it was only
required to demonstrate a superior right to possession. See Rice, 51
S.W.3d at 709. Because the county court was not required to determine
the issue of title to resolve the right to immediate possession, we
conclude the county court had jurisdiction to issue the writ of
possession. Bruce's first issue is overruled.

Attorney's Fees
In her second issue, Bruce asserts the trial court erred in awarding Fannie Mae attorney's fees because there are no pleadings or
evidence to support the award. Fannie Mae does not respond to this

A party may recover attorney's fees in a forcible detainer action. See Tex. Prop. Code Ann. § 24.006 (West 2000). But the record must reflect that any fees awarded were reasonable. See Charette v. Fitzgerald, 213 S.W.3d 505, 512 (Tex. App.-Houston [14th Dist.] 2006, no

In the present case, Fannie Mae's pleading prayed for costs of
suit, but did not seek attorney's fees. Although the court awarded
Fannie Mae possession of the property, there is no evidence in the
record to support the basis for the dollar amount of the fees awarded.
In the absence of support for the award in the record, we conclude the
trial court erred in awarding Fannie Mae its attorney's fees. Bruce's
second issue is sustained.
We modify the trial court's judgment to vacate the attorney's
fees award to Fannie Mae and affirm the judgment as modified.

SOURCE: DALLAS COURT OF APPEALS - 05-10-01402-CV - 11/9/11