                           NUMBER 13-14-00464-CV

                          COURT OF APPEALS

                THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

DEUTSCHE BANK NATIONAL TRUST COMPANY,
AS TRUSTEE FOR AMERIQUEST MORTGAGE
SECURITIES, INC., ASSET-BACKED PASS-THROUGH
CERTIFICATES, SERIES 2004-R8,                                            Appellant,

                                         v.

CONSUELO JONES, EDWIN JONES, GABRIELA
JONES, AND ALL OCCUPANTS OF
2028 E. 28TH STREET, MISSION, TX 78574,                                  Appellees.


              On appeal from the County Court at Law No. 8
                       of Hidalgo County, Texas.


                       MEMORANDUM OPINION
             Before Justices Rodriguez, Garza and Longoria
                Memorandum Opinion by Justice Garza
      This appeal concerns residential property situated in Mission, Texas. Appellant,

Deutsche Bank National Trust Company, as Trustee for Ameriquest Mortgage Securities,
Inc., Asset-Backed Pass-Through Certificates, Series 2004-R8 (“Deutsche Bank”)

challenges the trial court’s judgment awarding possession to appellees Consuelo Jones,

Edwin Jones, Gabriela Jones, and all occupants of the subject property (collectively, “the

Joneses”). By four issues, Deutsche Bank contends: (1) the trial court improperly

considered “evidence and issues other than the superior right to immediate possession”;

(2) the evidence was factually insufficient to support the judgment; (3) the trial court erred

in awarding possession to the Joneses because they “did not request such relief”; and (4)

Deutsche Bank conclusively established its right to possession. We affirm.

                                      I. BACKGROUND

       In 2004, the Joneses took out a home equity loan payable to Ameriquest Mortgage

Company (“Ameriquest”), Deutsche Bank’s predecessor-in-interest, and secured by a lien

on the subject property. The security agreement provided in relevant part that, in the

event of a foreclosure sale,

       Borrower [the Joneses] 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 other person shall be a tenant at sufferance and may be removed by
       writ of possession or other court proceeding.

       In 2011, Deutsche Bank filed an application for judicial foreclosure in the 93rd

District Court of Hidalgo County. See TEX. R. CIV. P. 736. The district court, noting that

the Joneses had not filed a response, granted Deutsche Bank’s application and rendered

an order authorizing it to proceed with a foreclosure sale. On January 15, 2013, a “Notice

of Trustee’s Sale” was recorded in the public records of Hidalgo County, stating that the

subject property would be sold by substitute trustee Connie Medley on February 5, 2013.

Deutsche Bank purchased the property for $84,319 at the foreclosure sale.

       On April 10, 2013, a notice was sent to the Joneses directing them to vacate the
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subject property within three days.     See TEX. PROP. CODE ANN. § 24.005(b) (West,

Westlaw through Ch. 46, 2015 R.S.) (providing that a landlord must generally give a

tenant-at-sufferance at least three days’ written notice to vacate before filing a forcible

detainer suit). When the Joneses failed to do so, the bank filed a forcible detainer action

in justice court in Hidalgo County.      The justice court rendered judgment awarding

possession to Deutsche Bank and the Joneses appealed to the County Court at Law

Number 8 of Hidalgo County. After a bench trial de novo on April 28, 2014, the county

court rendered judgment awarding possession to the Joneses. It later filed findings of

fact and conclusions of law which state in their entirety as follows:

               On April 28, 2014, the Court held a trial on the merits on a suit for
       forcible detainer brought by Deutsche Bank National Trust Company
       (“Deutsche Bank”) against Edwin Jones, Gabriela Jones, and Consuelo
       Jones (collectively “the Joneses”). All parties, in person and/or through their
       attorneys of record, appeared and announced ready for trial to the bench.
       Though given the opportunity, none of the parties presented witnesses at
       trial. The Court was not called upon to take judicial notice of any document
       not presented at trial. The Court’s determination as to which party was
       entitled to immediate possession of the Property was based solely on the
       evidence presented at the trial on the merits. Based on that evidence, the
       Court awarded possession of a property located at 2028 E. 28th St.,
       McAllen [sic], Texas (“the Property”) to the Joneses. Upon reviewing the
       evidence presented at trial, the Court issues the following findings of fact
       and conclusions of law.

                                     Findings of Fact

       1.   The Joneses had a home equity loan with Ameriquest Mortgage
       Company (“the Loan”). The Loan was assigned to Deutsche Bank.

       2.      On April 12, 2011, American Home Mortgage Servicing, Inc. (“the
       Applicant”), as servicing agent for Deutsche Bank, filed an application for
       an Order permitting foreclosure of lien created under Texas Constitution,
       Article XVI, Section 50A(6), in Cause No. C-964-11-B, 93rd District Court,
       Hidalgo County, Texas.

       3.    On November 30, 2011, the 93rd District Court of Hidalgo County,
       Texas entered an Order for Foreclosure, authorizing the Applicant to
       proceed with the foreclosure of the Property.

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4.    The Order for Foreclosure expressly required the Applicant to give a
copy of the Order for Foreclosure to the Joneses. Deutsche Bank
presented no evidence of compliance.

5.    On January 15, 2013, a Notice of Trustee’s Sale for the Property was
issued by Homeward Residential, Inc., as servicer for Deutsche Bank.
Homeward Residential, Inc., is not the Applicant who secured the Order for
Foreclosure.

6.     No evidence was presented showing that Homeward Residential,
Inc., ever made an application for an order permitting foreclosure of the
Property, nor was any evidence presented showing that a court entered an
order authorizing Homeward Residential, Inc., to proceed with foreclosing
on the Property, nor was there sufficient evidence showing that Deutsche
Bank had superior right to immediate possession.

7.    The Substitute Trustee’s Deed recites an Order to Proceed with
Notice of Foreclosure Sale purportedly entered on March 20, 2011, in
Cause No. 964-11-B, in the 93rd Judicial District Court, Hidalgo County,
Texas. However, no such order was attached to the Substitute Trustee’s
Deed.

8.     Deutsche Bank presented no evidence demonstrating (1) that the
Joneses had been provided with a proper demand for possession; (2) that
the Joneses’ period of time to vacate the Property had expired; and/or (3)
that the Joneses had refused to surrender possession in response to a
proper demand for possession; (4) that Deutsche Bank had a superior right
to immediate possession.

                           Conclusions of Law

1.    At trial, Deutsche Bank presented legally insufficient evidence
showing that the Joneses had been provided with a proper demand for
possession.

2.    At trial, Deutsche Bank presented legally insufficient evidence
showing that the Joneses’ period of time to vacate the Property had expired.

3.     At trial, Deutsche Bank presented legally insufficient evidence
showing that the Joneses had refused to surrender possession in response
to a proper demand for possession.

4.   At trial, Deutsche Bank did not show sufficient evidence to
demonstrate a superior right to immediate possession.

5.      Based on the evidence presented at trial, Deutsche Bank failed to
carry its evidentiary burden for establishing that it had a right of immediate
possession of the Property.

                                      4
This appeal followed.

                                       II. DISCUSSION

A.     Applicable Law

       An action for forcible detainer is the judicial procedure for determining the right to

immediate possession of real property. It’s The Berrys, LLC v. Edom Corner, LLC, 271

S.W.3d 765, 769 (Tex. App.—Amarillo 2008, no pet.). It exists to provide a speedy,

simple and inexpensive means for settling the right to possession of premises. Id. In

order to prevail in its forcible detainer action, Deutsche Bank had to prove that (1) it owned

the subject property by virtue of a foreclosure sale deed, (2) the Joneses became tenants

at sufferance when the property was sold, (3) Deutsche Bank gave the Joneses notice to

vacate the premises, and (4) the Joneses refused to vacate the premises. See Elwell v.

Countrywide Home Loans, Inc., 267 S.W.3d 566, 568–69 (Tex. App.—Dallas 2008, pet.

dism’d w.o.j.); see also TEX. PROP. CODE ANN. § 24.002 (West, Westlaw through Ch. 46,

2015 R.S.) (“A person who refuses to surrender possession of real property on demand

commits a forcible detainer if the person . . . is a tenant at will or by sufferance, including

an occupant at the time of foreclosure of a lien superior to the tenant’s lease . . . .”). A

prevailing party in a suit for forcible detainer “is entitled to a judgment for possession of

the premises and a writ of possession.” Id. § 24.0061(a) (West, Westlaw through Ch. 46,

2015 R.S.).

       Jurisdiction to hear forcible detainer actions is vested in justice courts, and on

appeal, to county courts for trial de novo. Id. § 24.004 (West, Westlaw through Ch. 46,

2015 R.S.); see Dormady v. Dinero Land & Cattle Co., 61 S.W.3d 555, 557 (Tex. App.—

San Antonio 2001, pet. dism'd w.o.j.) (op. on reh’g). But justice courts are expressly

deprived of jurisdiction to determine or adjudicate title to land. TEX. GOV’T CODE ANN. §
                                              5
27.031(b)(4) (West, Westlaw through Ch. 46, 2015 R.S.). Thus, neither a justice court

nor a county court on appeal can resolve questions of title beyond the immediate right to

possession. See Bacon v. Jordan, 763 S.W.2d 395, 396 (Tex. 1988); Rice v. Pinney, 51

S.W.3d 705, 708–09 (Tex. App.—Dallas 2001, no pet.). Moreover, the justice court lacks

jurisdiction when “the right to immediate possession necessarily requires resolution of a

title dispute.” Lopez v. Sulak, 76 S.W.3d 597, 605 (Tex. App.—Corpus Christi 2002, no

pet.); see Dormady, 61 S.W.3d at 557; Rice, 51 S.W.3d at 709.

B.     Consideration of Title Issues

       By its first issue, Deutsche Bank contends that the trial court improperly considered

evidence concerning issues other than the immediate right to possession of the subject

property. In particular, it contends that

       [the Joneses] argued that there [sic] supposed irregularities in the
       underlying order authorizing foreclosure, the appointment of the substitute
       trustee, the authority of the trustee who issued the notice of sale, and the
       authority of the trustee who conducted the sale. . . . None of these
       arguments had any effect on the determination of the issue of whether
       Deutsche Bank was entitled to a judgment of possession, yet the Trial Court
       relied on them in making its judgment.

In support of its argument that the trial court “relied” on title issues in making its ruling,

Deutsche Bank points to findings of fact numbers 2, 4, 5, 6 and 7.

       We disagree that the trial court erred. Deutsche Bank does not dispute that the

trial court’s conclusions of law, including its ultimate legal conclusion in favor of the

Joneses, pertained only to the issue of immediate possession and did not adjudicate

validity of title. Moreover, Deutsche Bank does not contend, and we do not find, that the

issue of possession could not be decided without first determining the issue of title, such

that the justice and county courts would have lacked jurisdiction. See Lopez, 76 S.W.3d

at 605. The referenced findings of fact discuss the Substitute Trustee’s Deed by which
                                              6
Deutsche Bank obtained ownership of the subject property, but they do not purport to

determine the validity of the deed. As this Court has observed:

       The right to immediate possession can be determined separately from the
       right to title in most cases, and the Texas Legislature established just such
       a system [by enacting the forcible detainer statute]. Rice, 51 S.W.3d at 710
       (citing Scott [v. Hewitt], 90 S.W.2d [816,] 818–19 [(1936)]). In cases
       challenging the validity of a trustee deed the legislature contemplated
       concurrent actions in the district and justice courts to resolve issues of title
       and immediate possession, respectively. Id. Forcible detainer actions in
       justice courts may be brought and prosecuted concurrently with suits to try
       title in district court. Id. at 709; Haith [v. Drake], 596 S.W.2d [194,] 196
       [(Tex. Civ. App.—Houston [1st Dist.] 1980, writ ref’d n.r.e.)]; Hartzog v.
       Seeger Coal Co., 163 S.W. 1055, 1060 (Tex. Civ. App.—Dallas 1914, no
       writ).

       This Court has previously held that 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. Martinez [v. Beasley], 572
       S.W.2d [83,] 85 [(Tex. Civ. App.—Corpus Christi 1978, no writ)]. An action
       in forcible detainer in the justice court is one thing, and an action in the
       district court to determine whether a deed to the premises involved in the
       forcible detainer action should be set aside is something else. Id.

Lopez, 76 S.W.3d at 605. Here, even assuming that the trial court considered the

substitute trustee’s deed in reaching its ruling, that did not deprive the court of jurisdiction

because resolution of title was not necessary to determining the issue of possession. See

id. Instead, as the trial court’s findings and conclusions illustrate, its ruling was based

entirely on Deutsche Bank’s failure to satisfy its evidentiary burden to show a superior

right to possession—ownership of the property was not at issue.

       Deutsche Bank’s first issue is overruled.

C.     Evidentiary Sufficiency

       By its second issue, Deutsche Bank contends that the evidence was factually

insufficient to support the trial court’s judgment. By its fourth issue, it argues that it

conclusively established its right to possession; we construe this argument as challenging

                                               7
the legal sufficiency of the evidence supporting the judgment. See City of Keller v. Wilson,

168 S.W.3d 802, 810 (Tex. 2005).

       1.     Standard of Review

       In an appeal from a bench trial, the trial court’s findings of fact have the same

weight as a jury verdict. Aland v. Martin, 271 S.W.3d 424, 428–29 (Tex. App.—Dallas

2008, no pet.); Butler v. Comm’n for Lawyer Discipline, 928 S.W.2d 659, 662 (Tex. App.—

Corpus Christi 1996, no writ). We review the sufficiency of the evidence supporting the

findings by applying the same standards we use in reviewing the legal and factual

sufficiency of the evidence supporting a jury verdict. Catalina v. Blasdel, 881 S.W.2d 295,

297 (Tex. 1994); Aland, 271 S.W.3d at 429. Evidence will be legally insufficient to support

a finding if, among other things, the evidence conclusively establishes the opposite of a

fact vital to the finding. City of Keller, 168 S.W.3d at 819. A matter is conclusively

established if reasonable people could not differ as to the conclusion to be drawn from

the evidence. Id. at 816. We view the evidence in the light most favorable to the finding,

indulge every reasonable inference in support of the finding, credit favorable evidence if

a reasonable fact-finder could, and disregard contrary evidence unless a reasonable

factfinder could not. Id. at 807, 822.

       In reviewing factual sufficiency, we consider all the evidence in a neutral light and

will set aside the judgment only if it is so contrary to the overwhelming weight of the

evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.

1986); Corpus Christi Day Cruise, LLC v. Christus Spohn Health Sys. Corp., 398 S.W.3d

303, 311 (Tex. App.—Corpus Christi 2012, pet. denied). In a bench trial, the trial court

assesses the credibility of the witnesses, determines the weight to be given to their

testimony, and resolves conflicts and inconsistencies in the testimony. See City of Keller,
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168 S.W.3d at 819; Hinkle v. Hinkle, 223 S.W.3d 773, 778 (Tex. App.—Dallas 2007, no

pet.).

         We review a trial court’s conclusions of law de novo, evaluating them

independently and determining whether the court correctly drew the legal conclusions

from the facts. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002);

Bollner v. Plastics Solutions of Tex., Inc., 270 S.W.3d 157, 166 (Tex. App.—El Paso 2008,

no pet.); Dallas Morning News v. Bd. of Trs., 861 S.W.2d 532, 536 (Tex. App.—Dallas

1993, writ denied). Conclusions of law will be upheld on appeal if the judgment can be

sustained on any legal theory supported by the evidence. Mack v. Landry, 22 S.W.3d

524, 528 (Tex. App.—Houston [14th Dist.] 2000, no pet.).

         2.    Analysis

         At trial on April 28, 2014, counsel for both parties made arguments but no

witnesses testified.     The Joneses’ counsel argued that “Deutsche Bank completely

messed up the foreclosure on this deal” because “the applicant who obtained the order

permitting the foreclosure was not the entity that ended up foreclosing.” Counsel also

argued that the substitute trustee who was appointed in the Notice of Trustee’s Sale was

not the same substitute trustee that conducted the sale.

         Deutsche Bank offered two exhibits into evidence:                 (1) the 2004 security

agreement between the Joneses and Ameriquest; and (2) the 2013 Substitute Trustee’s

Deed granting title to Deutsche Bank, which was accompanied by a copy of the Notice of

Trustee’s Sale dated January 15, 2013.1



         1The Notice of Trustee’s Sale states that the substitute trustee is Connie Medley, whereas the
Substitute Trustee’s Deed states that the substitute trustee is Monty Medley. We do not address this
discrepancy because the trial court’s ruling was not based on the identity of the substitute trustee.
                                                  9
        These exhibits were insufficient to show the elements required to prevail in a

forcible detainer action. As noted, Deutsche Bank was required to show that (1) it owned

the subject property by virtue of a foreclosure sale deed, (2) the Joneses became tenants

at sufferance when the property was sold, (3) Deutsche Bank gave the Joneses notice to

vacate the premises, and (4) the Joneses refused to vacate the premises. See Elwell,

267 S.W.3d at 568–69; see also TEX. PROP. CODE ANN. § 24.002. Even assuming that

the deed established the first element and the security agreement established the second

element, neither exhibit even arguably established the third or fourth elements. That is,

there was no evidence adduced at trial establishing either that Deutsche Bank gave the

Joneses notice to vacate or that the Joneses refused to vacate. See Elwell, 267 S.W.3d

at 568–69.

        Deutsche Bank contends that both the third and fourth elements were satisfied by

the April 10, 2013 notice to vacate sent by its counsel to the Joneses. An unsworn copy

of this notice appears in the appellate record before this Court,2 but it is undisputed that

the notice was not admitted as evidence at trial. Deutsche Bank argues that we should

nevertheless consider this document in our sufficiency analysis because the trial court

stated in its final judgment that it “took judicial notice of all documents in its file” and

“considered the totality of the evidence and arguments presented.”

        We disagree. The trial court stated in its findings and conclusions that it based its

ruling “solely on the evidence presented at the trial on the merits” and that it was “not

called upon to take judicial notice of any document not presented at trial.” Findings of

fact and conclusions of law filed after a judgment are controlling if there is any conflict


        2 The notice to vacate appears within a series of documents referred to in the clerk’s record table
of contents as “Civil Appeal.” It is not clear whether or when the notice was ever presented to the trial court.
                                                      10
between them and the judgment. Zorilla v. Wahid, 83 S.W.3d 247, 254 (Tex. App.—

Corpus Christi 2002, no pet.), overruled on other grounds by Iliff v. Iliff, 339 S.W.3d 74

(Tex. 2011). Additionally, when a trial court takes judicial notice of a file, the documents

in that file—even if sworn—are not treated as substantive evidence or considered in an

evidentiary sufficiency analysis if they are not actually introduced as evidence at trial. See

Barnard v. Barnard, 133 S.W.3d 782, 789 (Tex. App.—Fort Worth 2004, pet. denied) (“As

a general rule, documents not admitted into evidence are not considered by an appellate

court. . . . A court may take judicial notice of its own files and the fact that a pleading has

been filed in a case. . . . A court may not, however, take judicial notice of the truth of

allegations in its records.”); Tex. Dep’t Of Pub. Safety v. Claudio, 133 S.W.3d 630, 633

(Tex. App.—Corpus Christi 2002, no pet.) (“A court may properly take judicial notice of

pleadings that have been filed. However, a court may not take the allegations in the

pleadings to be true absent testimony, other proof, or admissions by the other

party. . . . The court taking judicial notice of the contents of the file does not elevate those

averments into proof.”); see also Rios v. Tex. Dep’t of Family & Protective Servs., No. 03-

11-00565-CV, 2012 WL 2989237, at *7 n.5 (Tex. App.—Austin July 11, 2012, no pet.)

(mem. op.) (“While a court can take judicial notice of its own files and the fact that a

pleading has been filed in a case, a court may not take judicial notice of the truth of

allegations in its records, including affidavits.”)

       Because there was no evidence adduced at trial to establish two of the elements

required in a forcible detainer action, Deutsche Bank did not conclusively establish its

entitlement to judgment and the trial court’s judgment was not contrary to the weight of

the evidence. See City of Keller, 168 S.W.3d at 319; Cain, 709 S.W.2d at 176. Therefore,

we conclude that the evidence was sufficient, both legally and factually, to support the
                                               11
trial court’s judgment awarding possession to the Joneses. We overrule Deutsche Bank’s

second and fourth issues.

D.     Failure to Request Possession Order

       By its third issue, Deutsche Bank contends that the trial court erred in awarding

possession to the Joneses because the Joneses “never requested an order of

possession.” See In re Russell, 321 S.W.3d 846, 855 (Tex. App.—Fort Worth 2010, orig.

proceeding) (“A trial court abuses its discretion by awarding relief to a person who has

not requested such relief in a live pleading.”). This issue is without merit. The live

pleading before the county court was the Joneses’ appeal of the justice court’s order of

possession in favor of Deutsche Bank. Obviously, the underlying justice court suit—a

forcible detainer action filed by Deutsche Bank—requested adjudication of possession of

the subject property. Deutsche Bank directs us to no authority, and we find none, stating

that a party appealing a justice court’s ruling to the county court must file an explicit

pleading in the county court requesting the relief that was already requested at the justice

court. We overrule Deutsche Bank’s third issue.

                                     III. CONCLUSION

       The trial court’s judgment is affirmed.

                                                 DORI CONTRERAS GARZA,
                                                 Justice

Delivered and filed the
2nd day of July, 2015.




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