                              NUMBER 13-19-00021-CV

                              COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI – EDINBURG

DWAIN A. BOEHL,                                                                 Appellant,

                                              v.

LISA RICHARDSON,                                                                 Appellee.


                On appeal from the County Court at Law No. 2
                         of Victoria County, Texas.



                         MEMORANDUM OPINION
              Before Justices Benavides, Longoria, and Perkes
                 Memorandum Opinion by Justice Longoria

       Appellant Dwain A. Boehl (Dwain) appeals the trial court’s judgment entering a

forcible detainer in favor of appellee Lisa Richardson, who is a distant cousin to Dwain’s

father Leroy. By four issues, which we combine into three, Dwain argues that: (1) the

trial court lacked subject-matter jurisdiction over the forcible detainer action; (2) the trial

court erroneously awarded attorney’s fees; and (3) the findings of fact and conclusions of
law are not supported by the evidence. We vacate the judgment and dismiss for want of

jurisdiction.

                                     I. BACKGROUND

       This appeal concerns the right to possession of certain real property in Victoria,

Texas (the Property). Leroy and Margaret Boehl created a living trust in 1996. The

Property and the house on the Property were conveyed to the trust by special warranty

deed in August 1997. Margaret died in June 2009. Leroy moved to a retirement center

in Houston, Texas; he died in June 2018.

       On July 26, 2018, Leroy’s daughter Susan Donnell, filed an application to probate

Leroy’s Last Will and Testament, originally executed in 2016. This 2016 will named

Donnell as the independent executor and successor trustee. The 2016 will directed that

all personal household effects were to be transferred to the trust, while the rest of the

estate was to be given to Donnell, as the trustee, to divide the property in accordance

with the trust. During this time, Dwain lived on the Property. On September 13, 2018,

Richardson filed an opposition to the probate of the 2016 will. Richardson alleged that

on May 22, 2018, when executing his fifth amendment to the trust, Leroy also executed

a new will, which replaced Richardson as trustee in place of Donnell.

       Because Leroy resided in Houston at the time of his death, a court in Harris County

assumed jurisdiction over the will contest and the trust amendment contest, in case

number 472228.

       Meanwhile, Richardson filed an eviction suit in a justice court in Victoria County,

claiming that Dwain had no right to possess the Property. During the proceedings, Dwain

testified that he currently resided at the Property and had done so since 2005. He stated

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that he was aware that his parents had placed the Property in their living trust. Dwain

also admitted that Leroy had told him to leave the Property shortly before Leroy died.

However, Dwain also claims that his father told him that he could move back in at some

point and that Dwain was never required to pay rent while he lived at the Property. After

Leroy died, Richardson sent Dwain a three-day eviction notice; however, Dwain remained

on the Property. He testified that based on the 2016 will, he had no reason to believe

that he could no longer reside at the Property. The court admitted Dwain’s expert

evidence, which indicated that in the handwriting expert’s opinions, Leroy did not sign the

second will. The justice court determined that Richardson was entitled to immediate

possession of the property. Dwain appealed to the county court.

       The county court also found that Richardson was entitled to immediate possession

of the Property and awarded her $3,874.75 in attorney’s fees and costs. Dwain filed a

motion for new trial and a request for findings of fact and conclusions of law. The county

court entered the findings of fact and conclusions of law but denied the motion for new

trial. This appeal ensued.

                                       II. JURISDICTION

       In issues one and two, which we address together, Dwain asserts that the trial

court lacked jurisdiction over the forcible detainer suit.

A. Standard of Review and Applicable Law

       We review de novo whether a trial court has subject-matter jurisdiction to hear a

case. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004).

The issue of subject-matter jurisdiction may be raised for the first time on appeal. See id.

To determine whether the plaintiff has affirmatively demonstrated the court’s jurisdiction

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to hear the case, we consider the facts alleged by the plaintiff and, “to the extent it is

relevant to the jurisdictional issue, the evidence submitted by the parties.” Tex. Nat. Res.

Conservation Comm’n v. White, 46 S.W.3d 864, 868 (Tex. 2001). If a plaintiff pleads

facts that affirmatively demonstrate an absence of jurisdiction and such defect is

incurable, immediate dismissal of the case is proper. Peek v. Equip. Serv. Co., 779

S.W.2d 802, 804–05 (Tex. 1989).

       Justice courts have original jurisdiction over forcible entry and detainer

proceedings. TEX. GOV’T CODE ANN. § 27.031(a)(2); TEX. PROP. CODE ANN. § 24.004;

Dass, Inc. v. Smith, 206 S.W.3d 197, 200 (Tex. App.—Dallas 2006, no pet.). District

courts have exclusive jurisdiction over title disputes. See Merit Mgmt. Partners I, L.P. v.

Noelke, 266 S.W.3d 637, 647 (Tex. App.—Austin 2008, no pet.). Forcible detainer

actions in justice courts may be tried concurrently with title disputes in district court. See

Kassim v. Carlisle Interests, Inc., 308 S.W.3d 537, 541 (Tex. App.—Dallas 2010, no pet.);

Dormady v. Dinero Land & Cattle Co., L.C., 61 S.W.3d 555, 558 (Tex. App.—San Antonio

2001, pet. dism’d w.o.j.). “A forcible detainer action is a procedure to determine the right

to immediate possession of real property. It is intended to be a speedy, simple, and

inexpensive means to obtain possession without resort to an action on the title.”

Dormady, 61 S.W.3d at 557. Accordingly, in a forcible detainer suit, “the only issue shall

be as to the right to actual possession; and the merits of the title shall not be adjudicated.”

TEX. R. CIV. P. 746. However, if the question of title is so “intertwined” with the issue of

immediate possession, then possession may not be adjudicated until legal title has been

determined. Dormady, 61 S.W.3d at 557. Thus, “[i]f it becomes apparent that a genuine

fact issue regarding title exists in a forcible detainer suit, the court does not have

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jurisdiction over the matter. Aguilar v. Weber, 72 S.W.3d 729, 732 (Tex. App.—Waco

2002, no pet.).

B. Analysis

       Dwain contends that the trial court lacked jurisdiction to entertain the forcible

detainer suit. First, Dwain contends a forcible detainer action requires proof of a landlord-

tenant relationship. See Aguilar, 72 S.W.3d at 733–35 (“One indication that a justice court

(and county court on appeal) is called on to adjudicate title to real estate in a forcible

detainer case—and, thus, exceed its jurisdiction—is when a landlord tenant relationship

is lacking.”). Secondly, he contends that “the question of title is so intertwined with the

issue of possession, th[at] possession may not be adjudicated without first determining

title.” Pinnacle Premier Props., Inc. v. Breton, 447 S.W.3d 558, 563 (Tex. App.—Houston

[14th Dist.] 2014, no pet.). We agree with Dwain that the trial court lacked jurisdiction.

       Although a tenant-landlord relationship is not “a prerequisite to jurisdiction, the lack

of such a relationship indicates that the case may present a title issue.” Espinoza v.

Lopez, 468 S.W.3d 692, 695–96 (Tex. App.—Houston [14th Dist.] 2015, no pet.). We

reached a similar conclusion in Garza v. Estate of Olivarez, No. 13-17-00265-CV, 2018

WL 3768505, at *5 (Tex. App.—Corpus Christi–Edinburg Aug. 9, 2018, no pet.) (mem.

op.). In Garza, the estate admitted in its pleadings that there was no lease agreement

between Garza and the estate. We concluded: “[t]he undisputed fact that there was no

lease agreement, and therefore no landlord-tenant relationship, indicates that there is a

genuine issue of title that must be resolved.”        Id.   Similarly, in the present case,

Richardson pleaded “[Dwain] is not now and never has been a tenant of [the Property].”

Thus, this indicates there is a genuine issue of title that needs to be resolved first. Id.

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       Richardson argues there was a tenant-landlord relationship because once she

gave Dwain notice to leave the Property, he became a tenant at sufferance. It is true that

several courts have held that the trial court had jurisdiction in a forcible detainer suit where

one of the parties was a tenant at sufferance.          See Pinnacle, 447 S.W.3d at 564

(“[B]ecause the deed of trust contained a valid tenant-at-sufferance clause, appellees do

not allege a title dispute that is intertwined with the right of immediate possession.”); see

also Onabajo v. Wilmington Sav. Fund Soc’y, FSB, No. 03-17-00486-CV, 2018 WL

2728068, at *3 (Tex. App.—Austin June 7, 2018, pet. denied) (mem. op.) (concluding

there was an independent basis for the justice court and for the county court to determine

the issue of immediate possession without resolving the issue of title to the property

because “foreclosure under [the] security instrument create[d] a landlord and tenant-at-

sufferance relationship”); Gardocki v. Fed. Nat. Mortg. Ass’n, No. 14-12-00921-CV, 2013

WL 6568765, at *3 (Tex. App.—Houston [14th Dist.] Dec. 12, 2013, no pet.) (mem. op.)

(“[W]here a deed of trust provides that in the event of foreclosure, the previous owner will

become a tenant at sufferance if he does not surrender possession, the trial court can

resolve possession without resort to title.”). However, in the present case, there is no

such tenant at sufferance clause and there is no foreclosure.

       Ultimately, Dwain contends he is entitled to remain on the Property because under

the 2016 will, Dwain’s sister Donnell was named as the successor trustee. Dwain testified

that he is working with his sisters to remodel the home by installing new floors and

applying fresh paint; furthermore, Dwain claims that Donnell did not give Dwain any

indication that he was going to be forced to vacate the Property. Under the 2016 will,

Richardson did not have any immediate right to possession of the Property or authority

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to force Dwain to leave. But under the 2018 will, Richardson is named as the successor

trustee, and as such, she had the right to immediate possession.

       Thus, considering the pleadings and record evidence, we conclude that “the right

to immediate possession necessarily requires resolution of a title dispute.” Lopez, 76

S.W.3d at 605; see Yarto v. Gilliland, 287 S.W.3d 83, 90 (Tex. App.—Corpus Christi–

Edinburg 2009, no pet.) (concluding that the parties’ “competing assertions over the

nature of their relationship—with neither party’s assertion having the support of a

contractual document (i.e., a written lease or written contract for deed)—requires the

resolution of a title dispute before the right of immediate possession can be fully

ascertained”); see also Garza, 2018 WL 3768505, at *5. Therefore, the justice court, and

county court on appeal, lacked jurisdiction. See Lopez, 76 S.W.3d at 605. We sustain

Dwain’s first issue. Because we sustain Dwain’s first issue, we need not address his third

issue concerning the trial court’s findings of fact and conclusions of law. See TEX. R. APP.

P. 47.1.

                                   III. ATTORNEY’S FEES

       In his second issue, Dwain argues that the trial court erroneously awarded

attorney’s fees because Richardson did not meet the requirements that would permit

attorney’s fees in an eviction suit. See TEX. PROP. CODE ANN. § 24.004. Richardson

concedes that attorney’s fees were not proper here. We sustain Dwain’s second issue.

                                     IV. CONCLUSION

       We vacate the county court’s judgment and dismiss Richardson’s forcible detainer

suit for want of jurisdiction. See TEX. R. APP. P. 43.2(e); Goodman-Delaney v. Grantham,

484 S.W.3d 171, 175 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (“When a court’s

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void judgment is appealed, we have jurisdiction to declare the judgment void and render

judgment dismissing the case.”).

                                                            NORA L. LONGORIA
                                                            Justice

Delivered and filed the
12th day of December, 2019.




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