                             Fourth Court of Appeals
                                   San Antonio, Texas

                               MEMORANDUM OPINION
                                       No. 04-11-00849-CV

                         AAA FREE MOVE MINI STORAGE, LLC,
                                     Appellant

                                                 v.

                                  OIS INVESTMENTS, INC.,
                                          Appellee

                   From the 131st Judicial District Court, Bexar County, Texas
                                Trial Court No. 2010-CI-01619
                        Honorable John D. Gabriel, Jr., Judge Presiding

Opinion by:     Steven C. Hilbig, Justice

Sitting:        Catherine Stone, Chief Justice
                Phylis J. Speedlin, Justice
                Steven C. Hilbig, Justice

Delivered and Filed: November 21, 2012

REVERSED AND REMANDED

           OIS Investments Inc. (“OIS”) sued its landlord, AAA Free Move Mini Storage,

 L.L.C. (“AAA”), seeking a declaratory judgment that AAA could not terminate the

 lease and that OIS was properly in possession of the premises. Both parties moved for

 summary judgment on the issue of the res judicata effect of a final judgment in a forcible entry

 and detainer action involving the same property. The district court denied AAA’s partial
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motion and rendered a final summary judgment in favor of OIS and awarded OIS attorney’s

fees. AAA appeals the judgment.

                                       BACKGROUND

       On April 12, 1991, Official Inspection Station, Inc., which is now OIS Investments,

Inc., entered into a Ground Lease Agreement (the “Lease”) with a previous owner for premises

at 7100 Bandera Road.      The Lease provided that it could be terminated under certain

circumstances and provided for extensions of the Lease. The parties later extended the Lease

and, a number of years after that extension, a controversy arose between the parties as to the

terms of the extension.

       In August 2009, AAA bought the premises and sent OIS a six-month notice of

termination of the Lease pursuant to the disputed provisions. After the termination notice was

sent but before the six-month period expired, OIS filed this declaratory judgment action

seeking a declaration that AAA had no right to terminate the lease and OIS was properly in

possession of the premises. AAA then filed a forcible entry and detainer action in March 2010.

AAA asserted in both lawsuits that it had terminated the lease under a provision that allowed

termination upon six-months’ notice. The court in the detainer action disagreed and rendered a

take nothing judgment in favor of OIS against AAA on the detainer claim, and awarded OIS its

attorney’s fees and expenses. The judgment was affirmed on appeal to the county court.

       In the declaratory judgment case, AAA counterclaimed with a trespass to try title claim

that the lease had terminated and AAA was entitled to possession of the property, a declaratory

judgment claim that the lease was not extended or had been terminated under several lease

provisions, a breach of contract claim that OIS breached the lease by refusing to vacate the

property after the termination, a quantum meruit claim by which AAA sought recovery of


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 market rental value rather than the lower contract rate OIS was paying, and tortious

 interference with contract or prospective business relations claims. AAA sought actual and

 punitive damages, attorney’s fees, court costs, and pre-judgment and post-judgment interest.

       OIS subsequently moved for summary judgment in the declaratory judgment case on the

ground that the final judgment in the detainer case was res judicata of its claim in this cause

because the same issue—validity of AAA’s termination of the Lease—was decided in the

county court. AAA filed a motion for partial summary judgment, seeking a ruling that the

judgment in the detainer case was not res judicata of this cause. The district court denied

AAA’s motion, granted final summary judgment in favor of OIS which expressly disposed of all

parties and claims, and awarded attorney’s fees to OIS. AAA appealed this summary judgment.

        While this appeal was pending, AAA filed another detainer action against OIS alleging

 nonpayment of rent. The judgment of the county court on appeal, signed August 20, 2012,

 awarded AAA possession of the premises. AAA subsequently filed in this court a motion

 asking us to consider that judgment and suggesting this appeal or some parts of it have become

 moot because OIS has been evicted from the property for nonpayment of rent and its right to

 possession has been adversely determined. OIS did not respond to this motion. Our record

 does not reflect whether the county court’s August 2012 judgment was timely superseded or

 appealed, or whether AAA has actually recovered possession of the premises.

                                          MOOTNESS

       A tenant’s surrender of possession or failure to supersede a judgment of possession may

cause an appeal on the issue of immediate possession to become moot. See Marshall v. Hous.

Auth., 198 S.W.3d 782, 786-87 (Tex. 2006); Cavazos v. San Antonio Hous. Auth., No. 04-09-

00659-CV, 2010 WL 2772450, at *2 (Tex. App.—San Antonio July 14, 2010, no pet.) (mem.

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op.); De La Garza v. Riverstone Apartments, No. 04-06-00732-CV, 2007 WL 3270769, at *1

(Tex. App.—San Antonio Nov. 7, 2007, no pet.). AAA asserts only that the issue of right to

immediate possession of the premises has been rendered moot by the recent eviction judgment.

The record before us does not establish that the judgment of possession is final, has not been

superseded, or that OIS has surrendered possession. Therefore, the record is insufficient to

allow us to determine AAA’s motion asserting mootness with respect to the issue of the right to

immediate possession of the premises. AAA’s claims for trespass to try title, declaratory

judgment, breach of contract, quantum meruit, and tortious interference with contract or

business relations are all predicated upon issues of title and the ultimate right of possession.

Neither these claims nor AAA’s complaint about the attorney’s fee award are affected by the

judgment of possession. We conclude none of the issues in this appeal are moot and we decide

whether the trial court erred in granting summary judgment.

                                          RES JUDICATA

Applicable Law

       Within the general doctrine of res judicata are two principal categories: (1) claim

preclusion, which prevents the relitigation of a claim or cause of action that has been finally

adjudicated and all related matters that with the use of diligence should have been litigated in the

prior suit, and (2) issue preclusion, which prevents relitigation of particular issues already

resolved in a prior suit. Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex. 1992); see

State & County Mut. Fire Ins. Co. v. Miller, 52 S.W.3d 693, 696 (Tex. 2001). Res judicata

requires proof of the following elements: (1) a final judgment on the merits by a court of

competent jurisdiction; (2) identity of parties or those in privity with them; and (3) a second

action based on the same claims that were raised or could have been raised in the first action.


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Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996). To determine whether the same

claims are the basis for both suits necessarily requires examination of the factual basis of the

claims in the cases. Barr, 837 S.W.2d at 630. The factual matters that comprise the gist of the

complaint are analyzed without regard to the form of action. Id. A claim is not barred by res

judicata if the court rendering judgment in the initial suit lacked subject-matter jurisdiction over

the claim. Lopez v. Sulak, 76 S.W.3d 597, 606 (Tex. App.—Corpus Christi 2002, no pet.);

Montgomery v. Blue Cross & Blue Shield of Tex., Inc., 923 S.W.2d 147, 150 (Tex. App.—

Austin 1996, writ denied). Additionally, res judicata does not operate as a bar to litigation when

the second claim could not have been raised in the previous litigation. Barnes v. United Parcel

Serv. Inc., No. 01-09-00648-CV, 2012 WL 112252, *4 (Tex. App.—Houston [1st Dist.] Jan. 12,

2012, pet. filed) (citing Abbott Labs. v. Gravis, 470 S.W.2d 639, 642 (Tex. 1971)).

       In a detainer action, “the only issue shall be as to the right to actual possession; and the

merits of the title shall not be adjudicated.” Aspenwood Apt. Corp. v. Coinmach, Inc., 349

S.W.3d 621, 635 (Tex. App.—Houston [1st Dist.] 2011, pet. granted) (quoting TEX. R. CIV. P.

746); Ward v. Malone, 115 S.W.3d 267, 270 (Tex. App.—Corpus Christi 2003, pet. denied).

The sole issue in a detainer action is the right to immediate possession of the premises. Black v.

Washington Mut. Bank, 318 S.W.3d 414, 416 (Tex. App.—Houston [1st Dist.] 2010, pet. dism’d

w.o.j.); Ward, 115 S.W.3d at 270; Johnson v. Highland Hills Drive Apts., 552 S.W.2d 493, 495

(Tex. Civ. App.—Dallas 1977) (construing predecessor of TEX. PROP. CODE ANN. § 24.008 to

prevent any issue in detainer action other than immediate possession from having preclusive

effect), writ ref’d n.r.e. on other grounds, 568 S.W.2d 661 (Tex. 1978). No other issues,

controversies or rights of the parties related to the property, including title, can be adjudicated in

such a suit. Puentes v. Fannie Mae, 350 S.W.3d 732, 738-39 (Tex. App—El Paso 2011, pet.



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                                                                                     04-11-00849-CV


dism’d); Hong Kong Dev., Inc. v. Nguyen, 229 S.W.3d 415, 434 (Tex. App.—Houston [1st

Dist.] 2007, no pet.).     “[A] judgment of possession in a forcible detainer action is a

determination only of the right to immediate possession and does not determine the ultimate

rights of the parties to any other issue in controversy relating to the realty in question.”

Aspenwood, 349 S.W.3d at 637; see Hong Kong Dev. Inc., 229 S.W.3d at 437 (quoting Lopez,

76 S.W.3d at 605). If the resolution of a title dispute is necessarily intertwined with the issue of

immediate possession, so that the right of possession depends upon it, possession may not be

adjudicated without first determining title. Aspenwood, 349 S.W.3d at 635; Rice, 51 S.W.3d at

709. In such a case, neither the justice court nor the county court on appeal has jurisdiction to

finally determine title. See Doggett v. Nitschke, 498 S.W.2d 339, 339 (Tex. 1973); Aspenwood,

349 S.W.3d at 635. Such jurisdiction is vested only in the district court. See Doggett, 498

S.W.2d at 339; Aspenwood, 349 S.W.3d at 635. A leasehold is an interest in real property and a

dispute over the existence of a leasehold or its extent and parameters involves a question of title

to real property that presents a title question for the district court. Aspenwood, 349 S.W.3d at

635; Merit Mgmt. Partners I, L.P. v. Noelke, 266 S.W.3d 637, 643 (Tex. App.—Austin 2008, no

pet.).

Discussion

         AAA urges that the trial court erred in granting OIS summary judgment and in denying

AAA’s motion for summary judgment. AAA asserts that the detainer action addressed only the

issue of immediate possession of the premises, did not determine ultimate rights of the parties or

affect other claims which could be pursued concurrently in the district court, and the county

court’s detainer judgment was not res judicata of OIS’s declaratory judgment action or AAA’s

counterclaims.


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        OIS asserts that res judicata bars relitigation of the issue of right to possession of the

premises and AAA’s right to terminate the Lease, and argues that the trial court properly granted

summary judgment. It contends that the county court specifically determined that AAA could

not terminate the Lease and that issue was finally determined for all purposes and cannot be

relitigated in this cause.

        OIS’s right of possession arose solely from the existence of a leasehold. AAA claimed

in the detainer suit that it properly terminated the Lease, was entitled to immediate possession of

the property, and OIS had no right of possession or any interest in the property. The county

court in the detainer action did not have jurisdiction to determine AAA’s ultimate right of

possession under the Lease by determining the existence and extent of the lease after the

termination that court found ineffective. See Aspenwood, 349 S.W.3d at 637 (judgment of

possession in detainer action is determination only of right to immediate possession and does not

determine ultimate rights of the parties to any other issue relating to realty in question); Merit

Mgmt. Partners, 266 S.W.3d at 644; Hong Kong Dev. Inc., 229 S.W.3d at 437. Indeed, no

issues, controversies, or rights of the parties related to the property other than immediate

possession could be adjudicated in the county court suit. See Puentes, 350 S.W.3d at 738-39;

Hong Kong Dev., Inc., 229 S.W.3d at 434. In this case, the central issues are whether a

leasehold existed, its extent and parameters, and the right to ultimate possession. These issues

require the resolution of the title questions surrounding the validity of the lease.           See

Aspenwood, 349 S.W.3d at 635, 637 (holding leasehold is interest in real property and dispute of

existence of leasehold or its extent and parameters involves question of title to real property for

district court); Merit Mgmt. Partners, 266 S.W.3d at 643. Because the county court in the




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detainer action did not have jurisdiction to decide those title questions, its judgment does not

support the application of res judicata and does not have preclusive effect in this case.

        All of AAA’s claims in this case—trespass to try title, declaratory judgment, breach of

contract, quantum meruit, and tortious interference with contract or prospective business

relations—require the resolution of a title dispute. To prevail on each of these claims, among

other elements, AAA had to establish that the leasehold had terminated and that AAA was

entitled to the ultimate right of possession of the premises. See Aspenwood, 349 S.W.3d at 635;

Merit Mgmt. Partners, 266 S.W.3d at 643.

        The ultimate right to possession at issue here and the right to immediate possession

addressed in the county court are independent and different issues. See Puentes, 350 S.W.3d at

739; Aspenwood, 349 S.W.3d at 637 (such actions may run concurrently with a detainer suit,

even if other action adjudicates matters that could result in different determination of

possession). Likewise, the issue of immediate possession in the county court and at issue here

are independent. See Puentes, 350 S.W.3d at 739 (award of possession on particular date does

not implicate party’s possessory right on a future date). The detainer action and this cause do

not involve the same claims. See Amstadt, 919 S.W.2d at 652; Puentes, 350 S.W.3d at 739. The

detainer action therefore is not res judicata of AAA’s claims or the right to immediate

possession asserted in this cause. See Amstadt, 919 S.W.2d at 652; Puentes, 350 S.W.3d at 739;

Lopez, 76 S.W.3d at 606.1

                                            ATTORNEY’S FEES

        AAA asserts the trial court erred in awarding attorney’s fees to OIS because OIS did not

move for attorney’s fees in its motion for summary judgment. OIS does not deny AAA’s

1
  Because of our disposition of this issue, it is not necessary to address the parties’ additional arguments and
authorities on this point.

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assertion, but contends that AAA was afforded sufficient notice of the attorney’s fee claim in the

motion and that AAA has not preserved this complaint.

Applicable Law

       The first sentence of Rule 166a(c) provides: “The motion for summary judgment shall

state the specific grounds therefor.” TEX. R. CIV. P. 166a(c). Moreover, summary judgment

shall be rendered only when the evidence shows “there is no genuine issue as to any material fact

and the moving party is entitled to judgment as a matter of law on the issues expressly set out in

the motion or in an answer or any other response.” Id. (emphasis added) “It is axiomatic that

one may not be granted judgment as a matter of law on a cause of action not addressed in a

summary judgment proceeding.” Chessher v. Sw. Bell Tel. Co., 658 S.W.2d 563, 564 (Tex.

1983); see Torres v. Garcia, No. 04-11-00822-CV, 2012 WL 3808593, *5 (Tex. App.—San

Antonio Aug. 31, 2012, no pet.) (mem. op.) (where party pled for attorneys’ fees in petition,

attorneys’ fees affidavit was attached to summary judgment motion, but fees claim was not

expressly raised in motion, trial court erred in awarding attorneys’ fees); Trebesch v. Morris, 118

S.W.3d 822, 827 (Tex. App.—Fort Worth 2003, pet. denied) (summary judgment motion on

breach of contract claim where prayer seeking judgment “including attorneys’ fees” was only

reference to fees, held not to involve attorneys’ fees claim); see also Roberts v. Sw. Tex.

Methodist Hosp., 811 S.W.2d 141, 146 (Tex. App.—San Antonio 1991, writ denied) (if issues

are obvious from summary judgment proof, it is not burdensome to require movant to state them

in motion; issues may be stated concisely, without detail, but must at least be listed in motion).

In determining whether issues were expressly stated, the courts may not rely on briefs or

summary judgment evidence. See Trebesch, 118 S.W.3d at 827; Torres, 2012 WL 3808593, at

*5.



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Discussion

       OIS’s motion for summary judgment states it “embraces the entire cause of action stated

in the pleadings against Defendant.” OIS’s live pleading, its second amended petition, requested

reasonable and necessary attorney’s fees, as did its two prior, superseded pleadings. The motion

for summary judgment does not mention a claim for attorney’s fees. However, the motion

“directs the Court’s attention to” the affidavit of OIS’s counsel, Mr. Golden, which was attached

to the motion and incorporated by reference. The affidavit addressed only attorney’s fees. Mr.

Golden testified to the amount of reasonable attorney’s fees and attached 72 pages of exhibits

including pleadings, letters, orders, and judgments which he created and filed, or received from

the courts or opposing counsel. Finally, OIS prayed that the court grant its motion for summary

judgment “in all things.”

       OIS did not expressly set out its request for recovery of attorney’s fees in its motion for

summary judgment. See Chessher, 658 S.W.2d at 564. It cannot cure that deficiency by

reference to its affidavit or other summary judgment evidence or to the pleadings. See Trebesch,

118 S.W.3d at 827; Torres, 2012 WL 3808593 at *5. The issues upon which judgment is sought

must at least be listed in the motion. See Roberts, 811 S.W.2d at 146. Having failed to request

or even refer to attorney’s fees anywhere in the motion itself, OIS was not entitled to summary

judgment for attorney’s fees.

       OIS also contends that AAA failed to preserve error because it did not object to the fee

award on this ground until its motion for new trial. We disagree. Where the motion for

summary judgment either expressly states no grounds or states some but not other grounds, the

non-movant is not required to except or object to the motion to preserve the error. McConnell v.

Southside Indep. Sch. Dist., 858 S.W.2d 337, 342 (Tex. 1993). On the other hand, when the


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grounds the movant relied upon were unclear or ambiguous, an exception is required for the

non-movant to complain on appeal. Id. at 343. AAA’s complaint here is not that OIS’s motion

for summary judgment contained an unclear or ambiguous claim for attorney’s fees; rather,

AAA complains that OIS failed to expressly present its claim for attorney’s fees in its motion for

summary judgment. Accordingly, AAA was not required to make any objection or exception in

the trial court and its complaint is properly before this court. See id. at 342; Torres, 2012 WL

3808593, at *5. AAA’s issue regarding attorney’s fees is sustained and the judgment awarding

OIS attorney’s fees is reversed.

                                            CONCLUSION

       The trial court’s judgment against AAA on its trespass to try title, declaratory judgment,

breach of contract, quantum meruit, and tortious interference with contract or prospective

business relations claims, and in favor of OIS concerning the immediate right to possession of

the premises and for attorney’s fees is reversed and remanded to the trial court for further

proceedings consistent with this opinion.



                                                        Steven C. Hilbig, Justice




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