                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION

                                        No. 04-19-00076-CV

                                       Paloma HERNANDEZ,
                                             Appellant

                                                  v.

                                          Eva MARTINEZ,
                                              Appellee

                      From the County Court at Law No. 3, Bexar County, Texas
                                  Trial Court No. 2018CV08551
                           Honorable David J. Rodriguez, Judge Presiding

Opinion by:       Sandee Bryan Marion, Chief Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Rebeca C. Martinez, Justice
                  Luz Elena D. Chapa, Justice, concurring in the judgment only

Delivered and Filed: October 30, 2019

REVERSED AND RENDERED

           Appellant Paloma Hernandez (“Hernandez”) files this appeal from a judgment in a forcible

detainer action. Because we conclude the trial court lacked jurisdiction to render judgment of

possession, we reverse and render judgment that this suit be dismissed for lack of subject matter

jurisdiction.
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                                            Background

       Appellee Eva Martinez initiated this forcible detainer action in the justice court, seeking

the right to immediate possession of real property located in San Antonio. After the justice court

ruled in Martinez’s favor, Hernandez appealed to the trial court.

       The trial court held a bench trial on January 31, 2019. Prior to trial, Hernandez filed a pro

se letter stating: “I consider myself with the right to stay in the house since I have given

maintenance and I have been living there and paying the property taxes of the house for 10 years.”

During the trial, Hernandez testified: “. . . I don’t pay rent because Mr. Ave Coronado left me the

house. . . . And practically I see that as my house because I have been living there for 10 years or

more than 10 years.”

       At the conclusion of the trial, the trial court entered judgment of possession in favor of

Martinez. On February 5, 2019, Hernandez filed a plea to the jurisdiction, arguing the trial court

lacked jurisdiction over the suit because Hernandez claimed title to the real property by adverse

possession and has “actually, adversely, and openly possess[ed]” the real property for ten years.

The record does not reflect that the trial court had an opportunity to consider or rule on the plea to

the jurisdiction before Hernandez perfected this appeal and posted a supersedeas bond.

                                            Jurisdiction

       In the first of three issues she raises on appeal, Hernandez argues the trial court lacked

jurisdiction to award Martinez possession of the real property because Hernandez raised an issue

of title by adverse possession.

A.     Standard of review

       Whether the trial court had subject matter jurisdiction is a question of law we review de

novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). The parties

cannot waive subject matter jurisdiction and may raise it for the first time on appeal. Tex. Ass’n of
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Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993). Where jurisdiction is raised for

the first time on appeal, we must construe the pleadings and the record in favor of the party

asserting jurisdiction. Rusk State Hosp. v. Black, 392 S.W.3d 88, 96 (Tex. 2012). If the pleadings

or the record conclusively negate jurisdiction, then the suit should be dismissed. Id.

B.     Analysis

       Justice courts and county courts on appeal de novo have jurisdiction to determine the right

to immediate possession in a forcible detainer suit. Dormady v. Dinero Land & Cattle Co., L.C.,

61 S.W.3d 555, 557 (Tex. App.—San Antonio 2001, pet. dism’d w.o.j.) (citing TEX. PROP. CODE

ANN. § 24.004). To prevail in a forcible detainer, the plaintiff need not prove title but must show

sufficient evidence of ownership to demonstrate a superior right to immediate possession. Id.

(citing Goggins v. Leo, 849 S.W.2d 373, 377 (Tex. App.—Houston [14th Dist.] 1993, no writ)).

Where the right to immediate possession necessarily requires resolution of a title dispute, however,

neither the justice court nor the county court on appeal has jurisdiction. Id. at 557–58.

       Where, as here, a party raises an issue of adverse possession, determining the right to

immediate possession necessarily requires resolving a title dispute. Gibson v. Midstream Servs.,

L.P., 138 S.W.3d 518, 824 (Tex. App.–Fort Worth 2004, no pet.); Gentry v. Marburger, 596

S.W.2d 201, 203 (Tex. Civ. App.—Houston [1st Dist.] 1980, writ ref’d n.r.e.). Because Hernandez

raised an issue of adverse possession in her pro se letter to the trial court, in her trial testimony,

and in her post-trial plea to the jurisdiction, the record conclusively negates the justice court’s and

the trial court’s subject matter jurisdiction. See Dormady, 61 S.W.3d at 557–58. Accordingly,

construing the record in favor of Martinez, we conclude the trial court lacked subject matter

jurisdiction and sustain Hernandez’s first issue.




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                                          Conclusion

       Because we sustain Hernandez’s first issue on the basis that the trial court lacked

jurisdiction to render judgment for immediate possession, we reverse the trial court’s judgment

and render judgment that the underlying suit be dismissed for lack of subject matter jurisdiction.

We need not reach Hernandez’s second and third issues.

                                                Sandee Bryan Marion, Chief Justice




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