









02-10-004-CV



























COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
NO. 02-10-00004-CV
 
 



Tanya LeBlanc


 


APPELLANT




 
V.
 




Federal Home Loan Mortgage Corporation


 


APPELLEE



 
 
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FROM County
Court at Law No. 1 OF Tarrant COUNTY
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MEMORANDUM
OPINION[1]
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I.  Introduction
         
In three points, Appellant Tanya LeBlanc, pro se, appeals from a judgment
awarding possession of real property to Appellee Federal Home Loan Mortgage
Corporation (FHLMC).  We will affirm.
II.  Factual and Procedural Background
         
LeBlanc executed a deed of trust in January 2007 to secure repayment of a loan
that she used to purchase a property at 1717 Bassett Hound Drive, Fort Worth,
Texas  76052 (the property).  The deed of trust provided the
following in the event the lender accelerated the payments of sums secured by
the instrument and invoked its power of sale:
         
If the Property is sold pursuant to this Section 22, Borrower or any person
holding possession of the Property through Borrower shall immediately surrender
possession of the Property to the purchaser at that 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 proceeding.
 
LeBlanc
defaulted under the terms of the deed of trust, and a substitute trustee sold
the property at a non-judicial foreclosure sale to FHLMC on September 1,
2009.  On November 9, 2009, FHLMC sent a notice to vacate and demand for
possession by certified mail to LeBlanc, explaining that it had acquired title
to the property and that she was a tenant at sufferance and requesting that she
vacate the property no later than three days after receiving the letter.
         
FHLMC subsequently filed its original petition for forcible detainer in the
justice court, alleging that LeBlanc continued to reside on the property and
seeking possession of the property.  The justice court awarded FHLMC
possession of the property, and LeBlanc appealed to the county court at law,
which also awarded FHLMC possession of the property.[2]  LeBlanc appeals.[3]
III.  Evidentiary Sufficiency
         
We liberally construe LeBlanc’s first point as a challenge to the legal and
factual sufficiency of the evidence to support the award of possession to
FHLMC.[4]
         
We may sustain a legal sufficiency challenge only when (1) the record discloses
a complete absence of evidence of a vital fact; (2) the court is barred by
rules of law or of evidence from giving weight to the only evidence offered to
prove a vital fact; (3) the evidence offered to prove a vital fact is no
more than a mere scintilla; or (4) the evidence establishes conclusively
the opposite of a vital fact.  Uniroyal Goodrich Tire Co. v. Martinez,
977 S.W.2d 328, 334 (Tex. 1998), cert. denied, 526 U.S. 1040 (1999);
Robert W. Calvert, "No Evidence" and "Insufficient
Evidence" Points of Error, 38 Tex. L. Rev. 361, 362–63 (1960). 
In determining whether there is legally sufficient evidence to support the
finding under review, we must consider evidence favorable to the finding if a
reasonable factfinder could and disregard evidence contrary to the finding
unless a reasonable factfinder could not.  Cent. Ready Mix Concrete Co.
v. Islas, 228 S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson,
168 S.W.3d 802, 807, 827 (Tex. 2005).
         
When reviewing an assertion that the evidence is factually insufficient to
support a finding, we set aside the finding only if, after considering and
weighing all of the evidence in the record pertinent to that finding, we
determine that the credible evidence supporting the finding is so weak, or so
contrary to the overwhelming weight of all the evidence, that the answer should
be set aside and a new trial ordered.  Pool v. Ford Motor Co., 715
S.W.2d 629, 635 (Tex. 1986) (op. on reh’g); Garza v. Alviar, 395 S.W.2d
821, 823 (Tex. 1965).
         
A forcible detainer action is the procedure by which the right to immediate
possession of real property is determined.  See Cattin v. Highpoint
Village Apartments, 26 S.W.3d 737, 738–39 (Tex. App.—Fort Worth 2000, pet.
dism’d w.o.j.).  Forcible detainer actions are intended to be a summary,
speedy, and inexpensive remedy for resolving the question of who is entitled to
immediate possession of real property.  Id.  Rule of civil
procedure 746 provides that “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.  Thus, to prevail in a forcible detainer action,
a plaintiff is not required to prove title but is only required to show
sufficient evidence of ownership to demonstrate a superior right to immediate
possession.  Hong Kong Dev., Inc. v. Nguyen, 229 S.W.3d 415, 433
(Tex. App.—Houston [1st Dist.] 2007, no pet.).
         
At trial, FHLMC offered, and the trial court admitted into evidence, the deed
of trust, the substitute trustee’s deed, and the notice to vacate.  The
deed of trust evidenced LeBlanc’s status as a tenant at sufferance; the
substitute trustee’s deed evidenced FHLMC’s purchase of the property; and the
notice to vacate evidenced that FHLMC had notified LeBlanc of her status as a
tenant at sufferance and requested that she vacate the property.  Viewing
the evidence under the appropriate standards of review, we hold that the
evidence is both legally and factually sufficient to support the trial court’s
judgment.  See Uniroyal Goodrich Tire Co., 977 S.W.2d at 334; Pool,
715 S.W.2d at 635.  We overrule LeBlanc’s first point.
IV.  Title
         
In her second point, LeBlanc asserts arguments regarding title to the property.[5]  Neither a justice court nor a
county court at law on appeal has jurisdiction to determine issues of title to
real property in a forcible detainer suit; rule of civil procedure 746 provides
that “the merits of the title shall not be adjudicated.”  Tex. R. Civ.
P. 746.  Therefore, when the right to immediate possession
necessarily requires resolution of a title dispute, the justice court has no
jurisdiction to enter a judgment.  Rice v. Pinney, 51 S.W.3d 705,
709 (Tex. App.—Dallas 2001, no pet).
 
         
The county court at law was able to make a determination of the right of
immediate possession of the property between FHLMC and LeBlanc independent of
any title issues that LeBlanc now raises for the first time in this
appeal.  Any defects in the foreclosure process or with FHLMC’s title to
the property may not be considered in a forcible detainer action.  See
Williams v. Bank of N.Y. Mellon, 315 S.W.3d 925, 927 (Tex. App.—Dallas
2010, no pet.) (citing Scott v. Hewitt, 127 Tex. 31, 35, 90 S.W.2d 816,
818–19 (1936)).  We overrule LeBlanc’s second point.
V.  Other Actions and Damages
         
LeBlanc states the following in her third point:  “Whether [FHLMC] caused
[LeBlanc] to become homeless, lose wages and time from her job, suffer severe
mental stress, pain and suffering.”  In the trial de novo in the
county court, “the appellant or appellee shall be permitted to plead, prove and
recover his damages, if any, suffered for withholding or defending possession of
the premises during the pendency of the appeal.”  Tex. R. Civ.
P. 752.  Such damages include, but are not limited to, loss of
rentals during the pendency of the appeal, reasonable attorneys’ fees in the
justice and county courts, and court costs for the prevailing party.  Id.;
Nguyen, 229 S.W.3d at 434.  Rule 752 expressly provides that
“[o]nly the party prevailing in the county court shall be entitled to recover
damages against the adverse party.”  Tex. R. Civ. P. 752. 
Two factors regarding damages are therefore clear:  (1) only the
party awarded possession is to recover damages and (2) damages are for
expenses and losses related to maintaining or obtaining possession.  Rushing
v. Smith, 630 S.W.2d 498, 500 (Tex. App.—Amarillo 1982, no writ).
         
LeBlanc asserted “counterclaims” in the justice court for “emotional distress,
irreparable harm and tort injury to Defendant.”  However, she did not
appear for the trial de novo in the county court at law to present any
evidence in support of her tort claims, nor was she even awarded possession of
the property.  Consequently, notwithstanding any question of whether these
counterclaims requested damages suffered as a direct result of withholding or
defending possession, LeBlanc was both statutorily and procedurally foreclosed
from recovering damages on her counterclaims.  We overrule LeBlanc’s third
point.
VI.  Conclusion
         
Having overruled LeBlanc’s three points, we affirm the trial court’s judgment.
 
BILL MEIER
JUSTICE
 
PANEL: 
GARDNER, MEIER, and GABRIEL, JJ.
 
DELIVERED:  March 10,
2011

 




[1]See
Tex. R. App. P. 47.4.


[2]The
record does not demonstrate that LeBlanc appeared for the trial de novo in
the county court at law.  She does not raise any arguments in this appeal
relating to notice of the trial de novo.


[3]LeBlanc
attached multiple exhibits to her brief that were not admitted at trial and
that are not part of the record.  With limited exceptions not relevant
here, an appellate court may not consider matters outside the appellate
record.  Bencon Mgmt. & Gen. Contracting, Inc. v. Boyer, Inc.,
178 S.W.3d 198, 210 (Tex. App.—Houston [14th Dist.] 2005, no pet.).  The
attachment of documents as exhibits or appendices to briefs is not formal
inclusion in the record on appeal; therefore, the documents cannot be
considered.  Id.  Accordingly, we will not consider the
exhibits that are attached to LeBlanc’s brief and that are not also included in
the record.


[4]LeBlanc
identifies three points in her brief, but she includes only a single “Argument”
section.  Her first point states, “Whether the Court of Tarrant County
illegally evicted Tanya LeBlanc out of her home based on the fact that [FHLMC]
assumed that she was a ‘Tenant at sufferance’ and not the rightful ‘Owner’ of
1717 Bassett Hound Drive, Fort Worth, Texas  76052.”


[5]The
second point states, “Whether [FHLMC] agreed to extend a Loan Modification to
[LeBlanc] and fraudulently initiated eviction proceedings against her.”



