AFFIRMED; Opinion Filed November 6, 2015.




                                            In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-14-00497-CV

                        YADA SMITH, Appellant
                                    V.
    BENEFICIAL FINANCIAL I INC., ITS SUCCESSORS AND ASSIGNS, Appellee

                      On Appeal from the County Court at Law No. 5
                                  Dallas County, Texas
                          Trial Court Cause No. CC-14-00031-E

                            MEMORANDUM OPINION
                          Before Justices Bridges, Francis, and Myers
                                   Opinion by Justice Myers
       This is an appeal from a judgment in a forcible detainer action awarding possession of a

property located at 906 Ponds Court, Cedar Hill, Texas 75104–7280 (“the property”) to appellee

Beneficial Financial 1 Inc., and its successors and assigns (“Beneficial”). In a single issue,

appellant Yada Smith argues the trial court erred because she had “a superior right to immediate

possession of her mortgage.” We affirm the trial court’s judgment.

                          BACKGROUND AND PROCEDURAL HISTORY

       On or about August 27, 2007, Smith executed a Deed of Trust encumbering the property

and securing a loan of $129,564. The Deed of Trust provided that if the property was sold at

foreclosure, Smith or any person holding possession of the property through Smith “shall

immediately surrender possession of the Property to the purchaser at the sale.”       It further
provided that “[i]f possession is not surrendered, Borrower [Smith] or such person shall be a

tenant at sufferance and may be removed by writ of possession.”

       As shown by a Substitute Trustee’s Deed executed on October 7, 2013, after Smith failed

to repay her residential mortgage according to its terms, Beneficial purchased the property at a

foreclosure sale held on October 1, 2013 for $105,300. On October 28, 2013, Beneficial sent

Smith and/or all other occupants of the property notice to vacate the premises via certified mail,

return receipt requested. When Smith failed to vacate the property, Beneficial filed this forcible

detainer action in the Justice Court of Dallas County, Precinct Number 4–2, on November 8,

2013. After a hearing, the JP Court entered judgment in favor of Beneficial on November 25,

2013. Smith appealed the judgment to the County Court at Law Number 5 of Dallas County,

which subsequently granted final summary judgment in favor of Beneficial on April 18, 2014.

Smith then brought this appeal.

                                           DISCUSSION

       In her issue, Smith contends the trial court erred by awarding possession of the property

to Beneficial for two reasons: (1) Beneficial did not establish its right to immediate possession

of the property because it did not have the legal right to either collect on the debt or enforce the

underlying security interest; and (2) the JP Court lacked subject matter jurisdiction to decide the

forcible detainer action. We begin with Smith’s contention regarding jurisdiction.

       A forcible detainer occurs when a person, who is a tenant at sufferance, refuses to

surrender possession of real property after his right to possession has ceased. TEX. PROP. CODE

ANN. § 24.002(a)(2); Aspenwood Apartment Corp. v. Coinmach, Inc., 349 S.W.3d 621, 632

(Tex. App.––Houston [1st Dist.] 2011), aff’d in part, rev’d in part on other grounds, 417 S.W.3d

909 (Tex. 2013). A forcible detainer action is “a summary, speedy, and inexpensive” procedure

for determining the right to immediate possession of real property where no claim of unlawful

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entry exists. Williams v. Bank of N.Y. Mellon, 315 S.W.3d 925, 926–27 (Tex. App.––Dallas

2010, no pet.). To prevail in a forcible detainer action, a plaintiff is required to show sufficient

evidence of a superior right to possession. See Rice v. Pinney, 51 S.W.3d 705, 709 (Tex. App.––

Dallas 2001, no pet.). Under Texas Rule of Civil Procedure 746, the only issue in a forcible

detainer action is the right to possession. TEX. R. CIV. P. 746. The merits of title “shall not be

adjudicated.” TEX. R. CIV. P. 746. In forcible detainer actions, entitlement to possession of

premises is decided “without resorting to an action upon the title.” Rice, 51 S.W.3d at 710

(quoting Scott v. Hewitt, 127 Tex. 31, 35, 90 S.W.2d 816, 818–19 (Tex. 1936)).

       The jurisdiction of forcible detainer actions is expressly given to the justice court of the

precinct where the property is located and, on appeal, to county courts for a trial de novo. See

TEX. PROP. CODE ANN. § 24.004; TEX. R. CIV. P. 506; Rice, 51 S.W.3d at 708; Perry v. Fed.

Nat’l Mortgage Ass’n, No. 05–14–00022–CV, 2015 WL 3961941, at *3 (Tex. App.––Dallas

June 30, 2015, no pet.) (mem. op.). However, forcible detainer actions are not exclusive. Scott

v. Hewitt, 90 S.W.2d 816, 818–19 (Tex. 1936). Forcible detainer actions are cumulative of any

other remedy a party may have in the courts of this state, and the displaced party is entitled to

bring a separate suit in the district court to determine questions of title. Salaymeh v. Plaza

Centro, LLC, 264 S.W.3d 431, 436 (Tex. App.––Houston [14th Dist.] 2008, no pet.). A justice

court is not deprived of jurisdiction merely by the existence of a title dispute; it is deprived of

jurisdiction only if resolution of a title dispute is a prerequisite to determination of the right to

immediate possession. Rice, 51 S.W.3d at 709. “For the district court to enjoin the exercise of

the justice court’s exclusive jurisdiction in a forcible entry and detainer case, there must be a

showing that the justice court is without jurisdiction to proceed in the cause or the defendant has

no adequate remedy at law.” McGlothin v. Kliebert, 672 S.W.2d 231, 232 (Tex. 1984).

       Smith did not make this required showing. As noted earlier, the Deed of Trust contains a

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tenant-at-sufferance clause that created a landlord-tenant relationship when the property was

foreclosed. Yarbrough v. Household Finance Corp., 455 S.W.3d 277, 280 (Tex. App.––Houston

[14th Dist.] 2015, no pet.); Pinnacle Premier Properties, Inc. v. Breton, 447 S.W.3d 558, 564–65

(Tex. App.––Houston [14th Dist.] 2014, no pet.) (opinion on rehearing). Tenant-at-sufferance

clauses separate the issue of possession from the issue of title. Pinnacle, 447 S.W.3d at 564. A

foreclosure sale transforms the borrower into a tenant at sufferance who must immediately

relinquish possession to the foreclosure sale purchaser. Id. Under such circumstances, a party’s

complaints about defects in the foreclosure process generally do not require the justice court to

resolve a title dispute before determining the right to immediate possession, and the justice court

has jurisdiction. Yarbrough, 455 S.W.3d at 280; Pinnacle, 447 S.W.3d at 564.

          This case is no different.   Smith does not challenge the validity of the tenant-at-

sufferance clause, but rather argues the foreclosure was improper because a signatory of the

Mortgage Electronic Registration Systems, Inc. (“MERS”) lacked authority to execute a release

that Smith contends conveyed the note and deed of trust to Beneficial, and that the MERS’

involvement in the foreclosure was therefore illegal. Because Smith is subject to a valid tenant-

at-sufferance clause, however, she does not allege a title dispute that is intertwined with the right

to immediate possession. See Pinnacle, 447 S.W.3d at 564 (no intertwined title issue when

defendants’ title dispute was based entirely on contentions foreclosure sale was conducted

improperly and that lender had assigned note to another bank). When, as in this case, the party

to be evicted is subject to a valid tenant-at-sufferance clause and the party seeking possession

purchased the property at a foreclosure sale and gave proper notice requiring the occupants to

vacate the premises, defects in the foreclosure process are not relevant to possession. Id. Thus,

the JP court, and by extension the trial court, had jurisdiction to determine this forcible detainer

action.

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       Smith also argues that Beneficial did not establish its right to immediate possession of the

property. But Smith does not provide citations to the appellate record to support her contentions.

See TEX. R. APP. P. 38.1(i). This Court is not required to search the appellate record, without

guidance from the briefing party, to determine if the record supports the party’s argument. Keyes

Helium Co. v. Regency Gas Servs., 393 S.W.3d 858, 861–62 (Tex. App.––Dallas 2012, no pet.);

Rubsamen v. Wackman, 322 S.W.3d 745, 746–47 (Tex. App.—El Paso 2010, no pet.); Citizens

Na’l Bank v. Allen Rae Invs., Inc., 142 S.W.3d 459, 489–90 (Tex. App.––Fort Worth 2004, no

pet.). Nevertheless, our review of the record shows that Beneficial satisfied its burden.

       The standard of review for a traditional summary judgment is well known. See TEX. R.

CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). We review a

trial court’s decision to grant or deny a motion for summary judgment de novo. See Tex. Mun.

Power Agency v. Pub. Util. Comm’n of Tex., 253 S.W.3d 184, 192 (Tex. 2007) (citing standard

for appellate review of grant of summary judgment and denial of cross-motion for summary

judgment). We must determine whether the movant demonstrated that no genuine issues of

material fact existed and it was entitled to judgment as a matter of law. See Nixon, 690 S.W.2d

at 548–49. When reviewing a summary judgment, we should take as true all evidence favorable

to the non-movant, and indulge every reasonable inference and resolve any doubts in the non-

movant’s favor. Provident Life and Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). If

the trial court’s order does not specify the grounds for its summary judgment, we must affirm if

any of the theories presented to the trial court and preserved for appellate review are meritorious.

Id. at 216; see also Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex. 1996); Carr v.

Brasher, 776 S.W.2d 567, 569 (Tex. 1989).

       To prevail and obtain possession in its forcible detainer action, the law required

Beneficial to show: (1) it owned the property by virtue of the deed from the entity that obtained

                                                –5–
the property by substitute trustee’s deed after a foreclosure sale; (2) Smith became a tenant-at-

sufferance when the property was sold under the Deed of Trust; (3) Beneficial gave proper notice

to Smith requiring her to vacate the premises; and (4) Smith refused to vacate the premises. TEX.

PROP. CODE ANN. §§ 24.002(a)(2), 24.002(b); 24.005; see also United States Bank Nat’l Ass’n v.

Freeney, 266 S.W.3d 623, 625 (Tex. App.––Dallas 2008, no pet.); Perry, 2015 WL 3961941, at

*3.

       In support of its motion for summary judgment, Beneficial relied on four documents: (1)

the Deed of Trust, (2) the Substitute Trustee’s Deed, (3) the Notices to Vacate sent to Smith and

all other occupants of the property, and (4) a business records affidavit related to the Notices to

Vacate and the Substitute Trustee’s Deed. As we discussed earlier, the Deed of Trust signed by

Smith provides that if the property is sold at foreclosure, the borrower (Smith) or any person

holding possession of the property through the borrower shall immediately surrender possession

of the premises. If possession is not surrendered, the borrower or other persons in possession

become a tenant at sufferance and may be removed by writ of possession. The Deed of Trust

also states that the recitals in the Substitute Trustee’s Deed shall be prima facie evidence of the

truth of the statements made therein. In addition, the Substitute Trustee’s Deed shows Beneficial

purchased the property at the foreclosure sale and that Beneficial is, therefore, entitled to

possession of the property pursuant to the tenant-at-sufferance clause contained in the Deed of

Trust. Moreover, the notices to vacate provide proof of proper notice to Smith that Beneficial

required her to vacate the premises. See TEX. PROP. CODE ANN. § 24.002(b); 24.005. This

evidence was sufficient to establish Beneficial’s right to immediate possession of the property.




                                               –6–
Accordingly, the trial court did not err by granting summary judgment for Beneficial. We

overrule Smith’s sole issue and affirm the trial court’s judgment.




140497F.P05

                                                             /s/ Lana Myers
                                                             LANA MYERS
                                                             JUSTICE




                                               –7–
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                     JUDGMENT

YADA SMITH, Appellant                              On Appeal from the County Court at Law
                                                   No. 5, Dallas County, Texas
No. 05-14-00497-CV        V.                       Trial Court Cause No. CC-14-00031-E.
                                                   Opinion delivered by Justice Myers. Justices
BENEFICIAL FINANCIAL 1, INC., ITS                  Bridges and Francis participating.
SUCCESSORS AND ASSIGNS, Appellee

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED. It is ORDERED that appellee BENEFICIAL FINANCIAL 1 INC., ITS
SUCCESSORS AND ASSIGNS, recover its costs of this appeal from appellant YADA SMITH.

Judgment entered this 6th day of November, 2015.




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