                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                  NO. 2-07-147-CV


JIMMY L. SHAW                                                         APPELLANT

                                              V.

FRANK SHAW BY SHERRI SHAW                                               APPELLEE

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            FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY


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                          MEMORANDUM OPINION 1

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                                   I. INTRODUCTION

      Appellant Jimmy L. Shaw appeals the district court’s judgment awarding

ownership and possession of 513 Farris, Wichita Falls, Texas (the Farris

property), to Appellee Frank Shaw by Sherri Shaw.          In two issues, Jimmy

argues that his transfer of the Farris property to Frank was void for lack of

consideration and that the district court abused its discretion by failing to grant


      1
          … See T EX. R. A PP. P. 47.4.
his motion for new trial. In a single cross-point, Frank argues that this court

lacks jurisdiction over this appeal. We will reverse and remand.

                   II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      This case involves very unusual facts that are presented against a very

quirky procedural background. On September 8, 1988, Anthony Tisko deeded

the Farris property to Jimmy and Christina Shaw via a warranty deed with

vendor’s lien. On that same date, Jimmy and Christina also signed a deed of

trust. In May 1991, Christina transferred her interest in the Farris property to

Jimmy. In October 1994, Jimmy signed a quitclaim deed to his father Frank

“for tax purposes.”

      Approximately twelve years later, Sherri Shaw, Frank’s daughter to whom

he had given a durable power of attorney, told Jimmy that he would have to

start paying rent on the Farris property or vacate the premises. Jimmy failed

to pay rent; however, he did pay some of the taxes on the Farris property.

      Sherri filed a “Sworn Complaint for Eviction” in the justice court in

Wichita County on November 2, 2006, claiming unpaid rent as the ground for

eviction. Jimmy did not file an answer. Sherri failed to appear when the case

was called for trial, and the justice court denied her claim for possession of the

premises.




                                        2
      Sherri appealed the justice court’s decision to the district court. 2 Sherri

did not file a new pleading. The district court conducted a de novo trial on

Sherri’s appeal from the justice court. Jimmy appeared pro se.

      After hearing the evidence, including testimony regarding the quitclaim

deed, the district court signed a judgment on February 1, 2007, finding that

Frank was the owner of the Farris property and was entitled to possession of

the Farris property. The district court also awarded Frank reasonable rental for

the Farris property in the amount of $1,250 and attorney’s fees of $150.

      On March 1, 2007, Jimmy, now represented by counsel, filed a motion

for new trial in the district court, alleging that the district court had erred by

determining that Frank was the owner of the Farris property because Frank did

not give consideration for the quitclaim deed to the Farris property.         Two

months later, on May 1, 2007, Jimmy filed his notice of appeal.

      On May 14, 2007, the district court convened a hearing on Jimmy’s

motion for new trial. But Frank’s counsel argued that the district court did not


      2
        … Normally, an appeal from a justice court’s decision is to a county court
in which the judgment is rendered. See T EX. R. C IV. P. 749. In Wichita County,
however, an appeal from the justice court is to the district court. See T EX.
G OV’T C ODE A NN. § 24.132(b) (Vernon 2004) (stating that, in addition to other
jurisdiction prescribed by law, each district court in Wichita County has the civil
jurisdiction of a county court), § 24.180 (Vernon 2004) (giving specifics related
to the 78th District Court of Wichita County from which this case was
appealed).

                                        3
have jurisdiction to hear Jimmy’s motion for new trial because the Texas Rules

of Civil Procedure do not authorize the filing of motions for new trial in forcible

entry and detainer cases. The district court agreed and did not consider the

merits of Jimmy’s motion for new trial.

      Approximately one week later, the district court signed a writ of

possession, entitling Frank to the Farris property. This appeal followed.

                           III. A PPELLATE J URISDICTION

      As an initial issue, we address Frank’s contention that we lack jurisdiction

over this appeal.3 Specifically, Frank argues that the rules of civil procedure do

not provide for the filing of a motion for new trial in forcible entry and detainer

cases and that, consequently, Jimmy’s notice of appeal—filed eighty-eight days

after the judgment was signed—was not timely filed and failed to vest this

court with jurisdiction over the appeal.




      3
        … We note that Frank attempts to raise this issue in a cross-appeal by
means of cross-points, which no longer exist; Frank did not file a notice of
cross-appeal. See T EX. R. A PP. P. 26.1(d). Thus, we would normally lack
jurisdiction to entertain Frank’s attempted cross-appeal. See Charette v.
Fitzgerald, 213 S.W.3d 505, 509 (Tex. App.—Houston [14th Dist.] 2006, no
pet.) (concluding that untimely notice of cross-appeal deprived court of
jurisdiction to consider cross-appeal). However, because challenges to a court’s
jurisdiction cannot be waived and may be raised at any time, we proceed to
analyze the jurisdictional issue. See Waco ISD v. Gibson, 22 S.W.3d 849, 850
(Tex. 2000).

                                        4
      The rules of civil procedure, when read as a whole, contemplate only that

no motion for new trial is allowed following the forcible entry and detainer

decision of a justice court. See T EX. R. C IV. P. 748, 749. The comment to rule

749 states, “The purpose of this amendment is to give notice to the appellee

that an appeal of the case from the justice court has been perfected in the

county court.”    See T EX. R. C IV. P. 749 cmt. (emphasis added). The rules

pertaining to forcible entry and detainer do not indicate that motions for new

trial are not permitted following the de novo decision of the county court (or in

Wichita County, the district court). Frank points us to no case law, and we

have found none, involving a forcible entry and detainer in which the appellant

was not allowed to file a motion for new trial following the de novo decision of

a county court or district court; in fact, we have found a case to the contrary.

See Stewart v. C.L. Trammell Props., Inc., No. 05-04-01027-CV, 2005 W L

2234607, at *1-4 (Tex. App.—Dallas Sept. 15, 2005, no pet.) (mem. op.)

(analyzing whether trial court abused its discretion in forcible detainer case by

failing to grant appellant’s motion for new trial, which was filed after her appeal

to the county court at law resulted in a default judgment, and was overruled by

operation of law).

      Because the rules of civil procedure and case law do not prohibit an

appellant from filing a motion for new trial following the de novo decision of a

                                        5
county court or a district court, we hold that Jimmy’s motion for new trial,

which was filed within thirty days after the district court’s judgment was

signed, was proper and was timely filed. 4        See T EX. R. C IV. P. 329b(a).

Consequently, Jimmy’s notice of appeal, which was filed within ninety days

after the district court’s judgment was signed, was timely filed. See T EX. R.

A PP. P. 26.1(a)(1). Thus, we have jurisdiction over Jimmy’s appeal. See T EX.

R. A PP. P. 25.1(b); Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997).

                           IV. M OTION F OR N EW T RIAL

      A.    Plenary Jurisdiction to Hear Motion for New Trial

      In the first part of his second issue, Jimmy contends that the district

court had plenary jurisdiction to hear his motion for new trial.

      Texas Rule of Civil Procedure 329b prescribes the time limits during

which the trial court has jurisdiction to take action on a motion for new trial.

See T EX. R. C IV. P. 329b. A trial court has seventy-five days after the judgment

is signed to enter a written order on a timely filed motion for new trial, or the

motion for new trial shall be considered overruled by operation of law at the end

of the seventy-five-day period. See T EX . R. C IV. P. 329b(c). Thereafter, the


      4
       … Moreover, as set forth in more detail below, if the suit as presented
to the trial court included a trespass to try title claim, then Frank’s
issue—regarding the impropriety of filing a motion for new trial in a forcible
entry and detainer case—is moot.

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trial court has an additional thirty days of plenary power to grant a new trial or

to vacate, modify, correct, or reform the judgment. See T EX. R. C IV. P. 329b(e).

      In this case, because the district court’s judgment was signed on

February 1, 2007, and because Jimmy’s motion for new trial was timely filed

on March 1, 2007, the district court had seventy-five days after the judgment

was signed—or until April 17, 2007—to rule on Jimmy’s motion for new trial.

See T EX. R. C IV. P. 329b(c). The district court did not hold a hearing on the

motion for new trial, however, until May 14, 2007. By that time, Jimmy’s

motion for new trial had already been overruled by operation of law. See id.

But the district court nonetheless had plenary power until May 17, 2007—thirty

days after the motion for new trial had been overruled by operation of law on

April 17, 2007—to grant a new trial or to vacate, modify, correct, or reform the

judgment. See T EX. R. C IV. P. 329b(e) (stating that trial court does not lose its

plenary power until thirty days after motion for new trial is either overruled by

trial court or by operation of law). And no distinction exists between a motion

for new trial that is overruled by operation of law and a motion for new trial

that is denied by written order. See T EX. R. A PP. P. 33.1(b) (“In a civil case, the

overruling by operation of law of a motion for new trial . . . preserves for

appellate review a complaint properly made in the motion. . . .”). Thus, the

district court erred by concluding that it did not have plenary jurisdiction to

                                         7
grant Jimmy’s motion for new trial.          We sustain the first part of Jimmy’s

second issue.

      B.     District Court’s Jurisdiction

      In his first issue and the second part of his second issue, Jimmy

complains that the district court erred by failing to grant his motion for new trial

because the quitclaim deed of the Farris property was void for lack of

consideration. Because Jimmy’s arguments implicitly raise the issue of whether

the district court here could determine title in a de novo forcible entry and

detainer appeal from the justice court,5 we first analyze whether the district

court had subject matter jurisdiction over the title issue.

             1.     Law Applicable to Forcible Detainer Actions

      “A forcible detainer action is a special proceeding governed by particular

statutes and rules.” Rice v. Pinney, 51 S.W.3d 705, 709 (Tex. App.—Dallas

2001, no pet.).     The proceeding exists “to provide a speedy, simple, and

inexpensive means for resolving the question of the right to possession of

premises.”    Id.   The Texas Property Code allows forcible detainer actions




      5
       … At the hearing on Jimmy’s motion for new trial, his counsel pointed
out to the district court that Frank’s forcible entry and detainer suit was the
wrong vehicle to use to assert a title claim to the Farris property and that Frank
had asserted claims for attorney’s fees and reasonable rent, neither of which
are a part of a standard forcible entry and detainer suit.

                                         8
against persons (often tenants) who refuse to surrender possession of real

property when demanded to do so by one entitled to possession. See T EX.

P ROP. C ODE A NN. §§ 24.002, 24.0051, 24.0061 (Vernon 2000 & Supp. 2007).

       Our procedural rules highlight the action’s limited purpose; rule 746

provides that the “only issue” in a forcible detainer action is “the right to actual

possession; and the merits of the title shall not be adjudicated.” T EX. R. C IV. P.

746.    Thus, the sole question for the trial court is who has the right to

immediate possession of the property. See 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); Dormady

v. Dinero Land & Cattle Co., 61 S.W.3d 555, 557 (Tex. App.—San Antonio

2001, pet. dism’d w.o.j.).

       In a forcible detainer action, the law requires the plaintiff to introduce

sufficient evidence of ownership to show a superior right to immediate

possession; the plaintiff, however, does not have to prove that he holds title to

the property.   See Rice, 51 S.W.3d at 709.         An exception to the court’s

forcible detainer jurisdiction may occur when the title issue is “so intertwined”

with the possession issue that “possession may not be adjudicated without first

determining title.” Dormady, 61 S.W.3d at 557. Still, this exception to the




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justice court’s jurisdiction occurs “only when the justice or county court must

determine title issues.” Rice, 51 S.W.3d at 713.

      A forcible detainer action is not an exclusive remedy and is cumulative of

other remedies.    Scott v. Hewitt, 127 Tex. 31, 90 S.W.2d 816, 818–19

(1936); Villalon, 176 S.W.3d at 70. A party who loses possession in a detainer

action may sue in the district court to decide who has legal title to the property.

Scott, 90 S.W.2d at 818; Villalon, 176 S.W.3d at 70. Also, a party may bring

a separate detainer action in justice court and prosecute it concurrently with a

suit to try title pending in district court. Villalon, 176 S.W.3d at 70–71.

            2.     Trying Title in District Court

      In this case, the suit in the justice court was a straight-forward eviction

suit for rent, which resulted in a default judgment in favor of Jimmy. However,

Sherri appealed the justice court’s decision to the district court, as is proper in

Wichita County. At the hearing in the district court, issues related to the title

came up during the testimony, and Jimmy, who was pro se, failed to object.

Thus, it appears that the issue of title was tried by consent.6 See T EX. R. C IV.

P. 67 (providing that when issues not raised by pleadings are tried by express


      6
      … Additionally, Jimmy’s answer, which his counsel filed on March 1
along with his motion for new trial, raises the affirmative defense of no
consideration for the quitclaim deed. This appears to further evidence his
consent to try the title issue concurrently with the forcible detainer suit.

                                        10
or implied consent, they shall be treated in all respects as if they had been

raised in the pleadings); Reed v. Wright, 155 S.W .3d 666, 670 (Tex.

App.—Texarkana 2005, pet. denied) (holding that even if pleadings had been

deficient to raise issue of implied dedication, the issue was tried by consent

when the parties addressed implied dedication in their briefs and the trial court

addressed implied dedication in its findings of fact); see also Johnson v. Wichita

Falls Housing Auth., No. 02-06-00416-CV, 2007 WL 4126475, at *2 (Tex.

App.—Fort Worth Nov. 21, 2007, no pet.) (mem. op.) (stating that an issue is

tried by consent when a party introduces evidence to support an issue that is

not included in written pleadings and no objection is made to the lack of

pleadings).

      In a county in which appeals involving forcible detainer cases from the

justice court are appealed to the county court at law, the issue of trying title

concurrently with a forcible detainer case would raise the issue of jurisdiction.

See T EX. G OV’T C ODE A NN. § 27.031(b)(4) (Vernon 2004) (stating that justice

court does not have jurisdiction over a suit to try title to land); Gibson v.

Dynegy Midstream Servs., L.P., 138 S.W.3d 518, 522, 524 (Tex. App.—Fort

Worth 2004, no pet.) (holding that justice and county courts properly granted

appellee’s plea to the jurisdiction because questions of title and possession

were so integrally linked that justice court could not have decided possession

                                       11
without deciding title, over which it did not have subject matter jurisdiction).

Here, however, the government code specifies that appeals from the justice

courts of Wichita County are to the district courts, which have exclusive

subject matter jurisdiction to try title. See T EX. G OV’T C ODE A NN. § 24.132(b)

(giving district courts in Wichita County jurisdiction over appeals from justice

courts); Blaylock v. Riser, 163 Tex. 235, 238, 354 S.W.2d 134, 136 (1962)

(stating that power to try title to land is exclusively within the jurisdiction of

district court); see generally T EX. C ONST. art. V, § 8 (setting forth jurisdiction

of district courts); T EX. G OV’T C ODE A NN. § 24.007 (Vernon 2004) (same).

Consequently, we hold that the 78th District Court of Wichita County had

jurisdiction to determine both title to and possession of the Farris property.

      C.    Jimmy’s Motion for New Trial

      Because we have held that Jimmy could file a motion for new trial and

that the district court possessed jurisdiction and plenary power to grant it at

any time prior to April 17, 2007, and that the district court possessed subject

matter jurisdiction to try both title and possession, we now proceed to analyze

whether the district court abused its discretion by not granting Jimmy’s motion.

      At the hearing on Jimmy’s motion for new trial, Frank’s counsel argued

that the district court lacked jurisdiction to consider Jimmy’s motion for new

trial. Jimmy’s counsel countered and attempted to put on evidence concerning

                                        12
the consideration issue to counter Sherri’s effort in the district court to obtain

title; however, his attempt to put on evidence was cut off. The district court

stated,

         Well, I guess even before I get to the merits of your argument, I’m
         trying to figure out, she says I don’t have jurisdiction. So tell me
         how – I mean, I think I’ve got to have jurisdiction before I can even
         get to [the] merits of [your] arguments. Tell me how I have
         jurisdiction.

The remainder of the hearing on Jimmy’s motion for new trial, which takes up

approximately ten pages in the record, was spent discussing whether the

district court had jurisdiction to consider and rule on Jimmy’s motion for new

trial.   The district court concluded at the end of the hearing that it lacked

jurisdiction to grant a new trial.

         As we have discussed above, however, the district court did in fact have

jurisdiction to grant Jimmy’s motion for new trial. We cannot, based on the

record before us, determine the merits of Jimmy’s first issue and the second

part of his second issue challenging the trial court’s failure to grant his motion

for new trial because the trial court, although desiring to reach the merits of

Jimmy’s new-trial argument, limited the scope of the hearing to jurisdiction.

Jimmy was improperly cut off from placing evidence concerning the merits of

his motion for new trial before the trial court. Accordingly, having sustained

the first part of Jimmy’s second issue, we reverse the trial court’s judgment

                                          13
and remand for a new trial. See Phillips v. Phillips, 244 S.W.3d 433, 435 (Tex.

App.—Houston [1st Dist.] 2007, no pet.) (reversing trial court’s striking of

motion for new trial and remanding to trial court for hearing on motion for new

trial); Martin v. Allman, 668 S.W.2d 795, 800–01 (Tex. App.—Dallas 1984,

no writ) (holding that when trial court erred by prohibiting introduction of

evidence at new trial hearing, appellate court would reverse and remand for a

new trial); see also T EX. R. A PP. P. 43.2(d), 43.3.

                                 V. C ONCLUSION

      Having sustained the first part of Jimmy’s second issue, we reverse the

trial court’s judgment and remand this case for a new trial. See T EX. R. A PP. P.

43.2(d), 43.3; Martin, 668 S.W.2d at 800–01.




                                                   SUE WALKER
                                                   JUSTICE

PANEL F:    CAYCE, C.J.; LIVINGSTON and WALKER, JJ.

CAYCE, C.J., concurs without opinion.

DELIVERED: May 8, 2008




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