                                                                                 ACCEPTED
                                                                             05-18-01017-CV
                                                                   FIFTH COURT OF APPEALS
                                                                             DALLAS, TEXAS
                                                                          6/19/2019 11:44 PM
                                                                                  LISA MATZ
                                                                                      CLERK

                  CASE NO. 05-18-01017-CV

            IN THE COURT OF APPEALS           FILED IN
                                       5th COURT OF APPEALS
FOR THE FIFTH SUPREME JUDICIAL DISTRICT OFDALLAS,
                                             TEXAS   TEXAS
                 DALLAS, TEXAS         6/19/2019 11:44:39 PM
                                                          LISA MATZ
                       LISA HAWKINS,                        Clerk
                          Appellant

                               V.

        MICHAEL JENKINS and WANDA JENKINS,
                     Appellees

 Appeal from the County Court at Law No. 4, Dallas County, Texas

                   Cause No. CC-18-01539-D



                     APPELLEE’S BRIEF



                             Anthony W. Reed
                             Texas Bar No. 24029789
                             3245 W Main Street, Ste 235-346
                             Frisco, Texas 75034
                             Tel. (469) 579-5739
                             Fax. (214) 975-6854
                             E-Mail: areed@thereedlawfirm.com
                             Attorney for Appellees Michael Jenkins and
                             Wanda Jenkins




                                                                          i
                   IDENTITY OF PARTIES AND COUNSEL

      The following is a complete list of the parties, attorneys, and other persons

with an interest in the outcome of this lawsuit:

      Lisa Hawkins, Appellant

      Represented at trial and in this appeal by:

      Walter L. Irvin
      State Bar No. 10423000
      5787 South Hampton Road, Ste 210, LB 122
      Dallas, Texas 75232
      (214) 330-1100 (p)
      (214) 331-2595 (f)
      wirvin@sbcglobal.net

      Michael Jenkins and Wanda Jenkins, Appellees
      Appellee’s Trial Counsel
      Adam Stone
      The Law Offices of Alex R. Herndandez, PLLC
      111 Congress Ave., 4th Floor
      Austin, Texas 78701
      (888) 907-8984 (p)
      (888) 278-9044 (f)
      arh@alexhernadezcase.com

      Appellee’s Appeal Counsel
      Anthony W. Reed
      The Reed Law Group, PLLC.
      3245 W Main Street, Ste 235-346
      Frisco, Texas 75034
      (469) 579-5739 (p)
      (214) 975-6854 (f)
      areed@thereedlawfirm.com




                                                                                 ii
                     TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL          ii

TABLE OF CONTENTS                        iii

INDEX OF AUTHORITIES                     iv-v

STATEMENT OF THE CASE                    1-2

RESTATED ISSUE(S) BEFORE THE COURT       2

STATEMENT OF FACTS                       3-6

SUMMARY OF ARGUMENT                      7-8

ARGUMENT                                 8-12

PRAYER                                   12-13

CERTIFICATE OF COMPLIANCE                13

CERTIFICATE OF SERVICE                   13




                                                iii
                          INDEX OF AUTHORITIES

Cases

Boyer v. Tauber, 834 S.W.2d 60 (Tex.1992)                         11, 12

 Chambers v. Pruitt, 241 S.W.3d 679, 684                          9
(Tex.App.-Dallas 2007, no pet.)

Dent v. Pines, 394 S.W.2d 266, 268-269                            9
(Tex.Civ.App—Houston [1St Dist.] 1965, no writ

Doggett v. Nitschke, 498 S.W.2d 339, 339 (Tex.1973)               8

Falcon v. Ensignia, 976 S.W.2d 336, 338                           10
(Tex.App.—Corpus Christi 1998, no pet.)

Fandey v. Lee, 880 S.W.2d 164, 169                                10
(Tex.App.—E1 Paso 1994, writ denied)

Haith v. Drake, 596 S.W.2d 194, 196                               9
(Tex.Civ.App-Houston [1st Dist.] 1980, writ ref d n.r.e.)

Mitchell v. Armstrong, 911 S.W.2d 169, 271                        9, 10
(Tex.App—Houston [1" Dist. 1995, writ denied.)

Yarto v. Gilliland, 287 S.W.3d 83 (Tex.App—Corpus Christi 2009)   10


STATUTES

Tex. Govt. Code Ann. §27.031(b) (Vernon Supp. 2001)




                                                                          iv
1.     STATEMENT OF THE CASE

       The appeal in this matter proceeds in the same manner in which the matter

proceeded previously from a factual basis. In typical fashion, Appellant’s counsel

quips that Shakespeare “said it best” and writes, “What a web we weave when at

first we try to deceive”, however, the quoted line is actually a phrase from Sir

Walter Scott in a poem named Marmion, Canto VI, Stanza 17, published in 1808,

and more specifically states, “Oh, what a tangled web we weave, When first we

practise to deceive!” What truly began as an attempt by an uncle attempting to bail

out a niece and salvage a home had disintegrated into a litany of misrepresentations

and fallacies perpetrated to facilitate an unfair, irresponsible, and unequitable

attempt to obtain the fruit of Appellees labor, benefit of Appellees funds, benefit of

Appellees kind-hearted gestures, and obtain an unjust enrichment and unlawful

dispossession of Appellees from the property the subject of this suit, 504 Dogwood

Trail, Dallas, Texas 75115. This is an appeal from an Order of Dismissal granting a

dismissal of an eviction appeal in favor of the Appellees Michael and Wanda

Jenkins that was filed in Dallas County Court at Law No. 4, Dallas County, Texas

on or about August 3, 2018. The Order of Dismissal was based upon the trial court

granting Appellees Michael Jenkins and Wanda Jenkins Plea to the Jurisdiction

and Plaintiff’s eviction appeal/petition was dismissed for lack of subject matter

Appellee Brief                                                       Page 1 of 13
jurisdiction because the trial court determined there was a factual dispute

concerning whether Appellees had equitable title and Appellees put on the record

that the title issue was an open issue in another court, and the trial court determined

the possession issue could not be addressed until the title issue was addressed.

Appellant appeals the decision based upon the restated issues identified herein

below.

2.       RESTATED ISSUES BEFORE THE COURT

2.1.     Whether the Trial Court erred in dismissing Appellant’s claims for subject

matter jurisdiction after determining there were fact issues concerning equitable title

that needed to be addressed before the Trial Court could exert subject matter

jurisdiction over an eviction matter?

2.2      Whether the Trial Court erred in dismissing Appellants Wrongful Detain suit

more specifically:

A. Whether Appellees established fact issues to establish their equitable title remedy

1. Whether Appellees established an oral contract

2. Whether Appellees equitable title remedy is quashed by the written contract

B. Whether the Trial Court could determine possession without entertaining title

issues




Appellee Brief                                                       Page 2 of 13
3.       STATEMENT OF FACTS

3.1      Lisa Hawkins owned a property located at 504 Dogwood Trail, Dallas, Texas

      75115, hereinafter the “Property.” Lisa Hawkins filed for bankruptcy due to

      falling behind on her first and second mortgage and was no longer living at the

      Property the summer of 2015.

3.2      During the summer of 2015, Michael Jenkins approached his niece, Lisa

      Hawkins, about purchasing the property located at 504 Dogwood Trail, Dallas,

      Texas 75115. Lisa Hawkins obtained approval from the bankruptcy court to sell

      her property. Lisa Hawkins indicated an intent, whether to obtain a more

      favorable position with her second mortgage or not with Dyck Oneal, to walk

      away from her property as evidenced by her email to David Arledge (Appellant’s

      Exhibit to Transcript Tab 7, Page 19 Defendant’s Exhibit 1), and her testimony

      concerning the second lien on the Property where she testified to the Trial Court,

      “That’s the second lien. I talked to them about reducing my loan, and then they

      – we had a back-and-forth. And then I asked them – I told them, well, if I – if I

      don’t get this done, then I’ll walk away from the house, you don’t get anything.

      So at that time they considered they would reduce what was $!4,000 to $3,000.”

      (Appellant’s Transcript Tab 5, Page 54).

3.3      Lisa Hawkins verbally agreed to sell the Property to Appellees for $160k. Lisa

Appellee Brief                                                        Page 3 of 13
      Hawkins testified she consistently intended to sell the Property to Appellees for

      $160k, including, but not limited to her testimony, “he did not offer me what we

      agreed upon at the $160,000.” (Appellant’s Transcript Tab 5, Page 62)

      Furthermore, Lisa Hawkins testified to a sell price of $160k, “if he would have

      signed for the 160 – that he was approved for, then I would have sold the house

      to him at 160. That was our agreement.” (Appellant’s Transcript Tab 5, Page 65)

3.4      On or about August 3, 2018 based upon what Appellees testified to in the prior

      hearing on or about April 27, 2018, of which Appellant did not refute, and of

      which the Court based its’ ruling upon such facts and evidence of record in the

      hearings and arguments made before the Trial Court in the prior hearing and the

      August 3, 2018 hearing, that after the contract that was executed in the underlying

      case was no longer of effect, that “Ms. Hawkins was still trying to sell the

      property.” (Appellant’s Transcript Tab 6, Page 32) The Trial Court further held,

      “I don’t really think it’s deniable that there was an understanding or their (sp)

      position or oral contract to sell the house.” (Appellant’s Transcript Tab 6, Page

      32) The Trial Court further held regarding Appellees conduct with Appellant,

      “They clearly made improvements. They made payments to her on a monthly

      basis, at least until September of last year when they stopped making payments

      after this dispute about what the ultimate sales price was going to be. Because

Appellee Brief                                                         Page 4 of 13
      that Defense Exhibit 5, October 17th about this Ms. Lisa saying she wants the

      price to be 175 so she wont net what expected, equitable 160.” (Appellant’s

      Transcript Tab 6, Page 62) That Appellees remained in the Property after the

      financing was not approved binding the written contract and ultimate

      performance by February 2016, continued to make improvements, continued to

      make payments to Appellant and pursuant to the Court, “isn’t there at least a

      factual dispute on whether or not they’ve sent some equitable title to the property,

      is the point.” (Appellant’s Transcript Tab 6, Page 33) The Trial Court did not

      resolve the equitable title dispute and stated, “Foreclosure can happen. Or even

      if they litigate equitable title, they’ll have to, at best, get a percentage and then

      she can – Ms. Hawkins can force the sale of the property because she’ll have the

      title interest as well.” (Appellant’s Transcript Tab 6, Page 34) The Court on the

      record recognized the payments as house payments and thus, no landlord-tenant

      relationship existed between the parties. (Appellant’s Transcript Tab 6, Page 35)

3.5      The Trial Court granted Appellees plea to the jurisdiction because there was

      enough evidence to create a fact issue concerning equitable title, and thus, the

      Trial Court could not exercise jurisdiction over the possession issue.

4        The issue of whether Appellee performed its’ obligations under a contract or

      not is the basis for the merit of Appellee’s breach of contract claim. Appellant

Appellee Brief                                                          Page 5 of 13
   entered into a verbal contract with the Appellees, in which she sold all her

   rights and interest to the property in question located at 504 Dogwood Trail,

   Desoto, Texas 75115, Dallas County, Texas. The Plaintiff paid the Defendant

   more than $7500.00 in cash and other consideration for all of Appellant’s rights

   and interest in the Property, paid off a second lien worth $14,000.00 for $3,000

   after negotiating the second lien down, and paid over $36,000.00 in mortgage

   payments to Appellant. Appellees have spent more than $50,000.00 renovating

   and repairing the Property. These renovations constitute permanent and

   valuable improvements on the property. Appellant agreed to sign any and all

   the documents to transfer the title to the Appellees once financing was secured.

   However, when financing was secured with Quicken Loans in 2017 Appellees

   discovered that Appellant had not been paying the mortgage payments. In fact,

   Appellant was cashing the mortgage checks and using the funds for her personal

   use. Quicken Loans had approved Appellees for a loan, but not on the property

   in question due to Appellant not paying the mortgage and letting the property go

   into pre-foreclosure status. Appellees fully performed their obligations under the

   contract and thus are entitled to transfer of 100% equitable title to Appellees.

   This title issue takes the possession issue outside the jurisdiction of the Trial

   Court. Appellant failed and refused to transfer her ownership as promised.

Appellee Brief                                                     Page 6 of 13
4.     SUMMARY OF ARGUMENT


4.1    Appellees will address the issues and attempt in all means to be brief.

Appellant is correct as it pertains to the history and well-established principles as it

pertains to a claim for equitable title. The Trial Court found that after the written

contract was extinguished, Appellees and Appellant continued to conduct

themselves in furtherance of an oral real estate purchase without the terminated

written contact, whereby Appellees continued to perform fulfilling the statutory

grounds to factually argue an equitable title dispute that was actively being pursued

in a suit to quiet title in Dallas County District Court after the expiration and/or

termination of the written contract between the parties. The continued performance

pursuant to an oral contact included Appellees making permanent improvements,

including, but not limited to HVAC system, paint, install security system, replaced

trees, plants, sod, built a fence around the house, cleaned, bleached and sanitized

the walls and house, removed a large tree and replaced rotted siding on the home

and trim around doors and windows, and financial contributions including

continued making mortgage payments after the written contract did not close, gave

Appellant a 2002 S-Type Jaguar, valued at approximately $4,000.00, paid-off

the second lien for $3,000.00. Appellant suggests the Trial Court should have

deferred to the Dallas County District Court on the title issue and seek a ruling
Appellee Brief                                                        Page 7 of 13
from the Dallas County District Court, but Appellant provides no record of having

made such a request in either dispute, the Trial Court nor the District Court

referenced in Appellant’s summary. Appellant offers a cursory “what if” argument

to boot strap her unripe case for possession instead of addressing the title issue

head-on.


5.     ARGUMENT


5.1    Whether the Trial Court erred in dismissing Appellant’s claims for subject

matter jurisdiction after determining there were fact issues concerning equitable

title that needed to be addressed before the Trial Court could exert subject matter

jurisdiction over an eviction matter? The Trial Court did not exercise jurisdiction

over the equitable title issue. First and foremost, no landlord-tenant relationship

existed between the parties. Appellant has not offered any signed lease agreement

between the parties. Furthermore, even if Appellant was attempting to proceed in a

forcible detainer action against Appellees, title to property must be determined

before this forcible detainer matter can continue, and a suit "for the recovery of

land" is a suit that determines title and falls outside the purview of the County

Court. Doggett v. Nitschke, 498 S.W.2d 339, 339 (Tex.1973) Neither a justice

court nor a county court on appeal has jurisdiction to determine the issue of title to


Appellee Brief                                                       Page 8 of 13
real property in a forcible detainer suit. Tex.Civ.P.746; Mitchell v. Armstrong,

911 S.W.2d 169, 271 (Tex.App—Houston [1" Dist. 1995, writ denied.) Chambers

v. Pruitt, 241 S.W.3d 679, 684 (Tex.App.-Dallas 2007, no pet.) ("District courts

generally have exclusive jurisdiction to determine title to real property.") Appellees

are disputing title through an equitable title dispute based upon partial performance

and due to the nature of the title disputes, the title issue is significantly intertwined

with possession. Dent v. Pines, 394 S.W.2d 266, 268-269 (Tex.Civ.App—Houston

[1St Dist.] 1965, no writ. In cases involving a genuine issue of title, neither the

justice court, nor the county court on appeal has jurisdiction. Mitchell, 911 S.W.2d

at 171; Haith v. Drake, 596 S.W.2d 194, 196 (Tex.Civ.App-Houston [1st Dist.]

1980, writ ref d n.r.e.). The factual history of this dispute is complex and involves

bankruptcy, permission for Appellant to sell to Appellees, payment of a second

lien by Appellees, substantial permanent improvement to the property leading to an

increase in the value of the Property, payment of mortgage payments, approval of

two occasions for a loan that were frustrated by Appellant, and an unfettered

willingness throughout the process for Appellees to make payments, an on-going

verbal understanding that the Property will be sold to Appellees, continued

improvements, transfer title to a vehicle all while Appellees lived at the Property,

and thus the issue of possession is not simple and is substantially intertwined with

Appellee Brief                                                         Page 9 of 13
the title issue and cannot be adjudicated without first determining the title issue(s).

Falcon v. Ensignia, 976 S.W.2d 336, 338 (Tex.App.—Corpus Christi 1998, no

pet.; Mitchell, 911 S.W.2d at 171; Fandey v. Lee, 880 S.W.2d 164, 169

(Tex.App.—E1 Paso 1994, writ denied). The Trial Court simply did not have

jurisdiction due to the affirmative defense and plea to the jurisdiction filed by

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

pet.) held that justice court did not have jurisdiction when one party argued that it

bought the property and the other party argued that there was a landlord-tenant

relationship. As specified herein above, the Trial Court did not exercise jurisdiction

but specified fact issues existed as it pertained to an equitable title issue and thus,

due to multiple parties arguing an ownership interest in the Property. Appellees

established a 100% equity interest in the Property. Appellant has set forth the case

law and statutory basis that the Trial Court could not proceed due to subject matter

jurisdiction. Yarto v. Gilliland, 287 S.W.3d 83 (Tex.App—Corpus Christi 2009),

the Court held that because the purchaser performed all the obligations under the

oral contract, the issue of equitable title was raised, thus removing the case from

the jurisdiction of the justice court. A Justice Court is expressly denied jurisdiction

to determine or adjudicate title to land. Tex. Govt. Code Ann. §27.031(b) (Vernon

Supp. 2001) As Appellant has argued, if the Justice Court lacked jurisdiction, the

Appellee Brief                                                       Page 10 of 13
County Court likewise lacks jurisdiction. The Trial Court did not err in dismissing

the matter for lack of subject matter jurisdiction.


5.2 Whether Appellees established fact issues to establish their equitable title
remedy as Appellees established an oral contract and was not subject to a written
signed earnest money contract. The Trial Court record shows as specified factually
herein above that Appellant continued, after expiration and termination of the written
contract between the parties for Appellees to purchase the property. Appellant
specifically stated her intent, and through her counsel’s argument that the contract
was repudiated and terminated, yet Appellant verbally continued to seek to sell the
Property to Appellees as specified herein above in her testimony. In Boyer v.
Tauber, 834 S.W.2d 60 (Tex.1992), the Texas Supreme Court set forth the elements
of the doctrine of partial performance, opining that an oral contract for the purchase
of real property is sufficiently corroborated and enforceable if the purchaser:

       (1)       Pays consideration.
       (2)       Takes possession of the property; and
       (3)       Makes permanent and valuable improvements on the property with the
       consent of the seller.


The Trial Court record shows that Appellees continued to pay consideration after

February 2016, remained in possession of the property, and continued to make

permanent improvements to the property with the consent of Appellant. Jenkins has

Appellee Brief                                                     Page 11 of 13
satisfied every element of the partial performance doctrine, as previously set forth

herein above. Boyer v. Tauber, 834 S.W.2d 60 (Tex.1992). The parties were no

longer operating under the written agreement. The Trial Court recognized

through Appellant’s testimony her intent to sell, the house payments made, the

improvements to the Property, and had possession. Appellant grants possession

in her appeal. The agreement referenced by Appellant does not contain any lease

attached to the Agreement as no lease existed between the parties. Appellees

performance and Appellants conduct after the expiration and termination of the

Real Estate Purchase Agreement ratified Appellees equitable title.

5.3    The final point as to whether the Trial Court could make a determination

concerning possession without addressing title has been addressed in the prior

arguments, but will be replied to herein specifically by stating that due to the

intertwined nature of the transaction, and Appellees factual disputes concerning

their ownership interest through equitable principles, the title issue must be

resolved before any possession issues through forcible detainer can be addressed.

6.     PRAYER

6.1    The Court should rule for the Appellees pursuant to the procedural,

administrative, common law and statutory law. The Trial Court should have, upon a

review of the appeal, deny Appellant’s requests, and affirm the ruling of the Trial

Appellee Brief                                                     Page 12 of 13
Court, and award Appellees reasonable attorney fees and cost incurred in this

appeal, and grant Appellees such other and further relief, at law, or in equity, as

Appellees may show themselves to be entitled or the Court deems proper.

                                              Respectfully submitted,

                                           By: /s/ Anthony W. Reed, Esq.
                                             Anthony W. Reed, Esq.
                                             Texas Bar No. 24029789
                                             3245 Main Street, Ste 235-346
                                             Frisco, Texas 75034
                                             Tel. (469) 579-5769
                                             Fax. (214) 975-6854
                                             areed@thereedlawfirm.com

                      CERTIFICATE OF COMPLIANCE

   I hereby certify that this document complies with the brief requirements of this
Court and is 2877 words long.

                                           By: /s/ Anthony W. Reed
                                             Anthony W. Reed, Esq.

                         CERTIFICATE OF SERVICE

    I hereby certify that on the 19th day of June 2019, a true and correct copy of the
foregoing Appellee Brief was duly served to Appellant through his counsel of
record, Walter Lewis Irvin, 5787 S. Hampton, Rd., Ste 210, One West Hill, LB 122,
Dallas, Texas 75232-6333, (214) 330-1100, wirvin@sbcglobal.net.

                                           By: /s/ Anthony W. Reed
                                             Anthony W. Reed, Esq.




Appellee Brief                                                     Page 13 of 13
