                                 NO. 12-11-00150-CV

                      IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

JACK LEWIS BYNUM,                             §             APPEAL FROM THE
APPELLANT

V.                                            §             COUNTY COURT

HAROLD RAY LEWIS,
APPELLEE                                      §             HENDERSON COUNTY, TEXAS

                                           OPINION
       Jack Bynum appeals the trial court‘s judgment of possession entered in favor of Appellee
Harold Lewis. Bynum raises six issues on appeal. We vacate the judgment of the trial court and
render judgment dismissing the cause for want of jurisdiction.


                                         BACKGROUND
       In 1994, Bynum moved into a farmhouse located on 12.8 acres in Henderson County (the
property). Lewis previously had purchased the property from the estate of Hubert Lewis. In
January 2011, Lewis filed an eviction complaint in Henderson County, Texas, with the justice of
the peace, precinct two. On February 2, 2011, the justice court signed a judgment of possession
in Lewis‘s favor.
       Bynum appealed the justice court‘s judgment to the county court of Henderson County.
In the proceedings before the county court, Bynum filed a pleading in which he stated that he
was the owner of the property by virtue of adverse possession. On May 5, 2011, the county
court signed a judgment of possession in Lewis‘s favor. This appeal followed.
                                          JURISDICTION
         We first consider the issue of subject matter jurisdiction. See Geldard v. Watson, 214
S.W.3d 202, 206 (Tex. App.—Texarkana 2007, no pet.) (citing Tex. Ass’n of Bus. v. Tex. Air
Control Bd., 852 S.W.2d 440, 445–46 (Tex. 1993)); see also It’s the Berrys, LLC v. Edom
Corner, LLC, 271 S.W.3d 765, 769 (Tex. App.—Amarillo 2008, no pet.) (―The existence of
subject matter jurisdiction may be raised for the first time on appeal by the parties or the court on
its own motion.‖). Whether a trial court has subject matter jurisdiction is a question of law that
we review de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex.
2004).
Applicable Law
         District courts have exclusive jurisdiction to determine title to real property. See Aspen
Wood Apt. Corp. v. Coinmach, Inc., 349 S.W.3d 621, 635 (Tex. App.—Houston [1st Dist.]
2011, no pet.) (citing Doggett v. Nitschke, 498 S.W.2d 339, 339 (Tex. 1973)). Any suit that
adjudicates real property rights is a trespass to try title suit. See TEX. PROP. CODE ANN. § 22.001
(West 2000). Rival claims to title or right of possession may be adjudicated in a trespass to try
title action. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 755 (Tex. 2003).
         Adverse possession is ―an actual and visible appropriation of real property, commenced
and continued under a claim of right that is inconsistent with and is hostile to the claim of
another person.‖ TEX. CIV. PRAC. & REM. CODE ANN. § 16.021(1) (West 2002); King Ranch,
Inc., 118 S.W.3d at 756. The concept of adverse possession allows a person to claim title to real
property presently titled in another. Session v. Woods, 206 S.W.3d 772, 777 (Tex. App.—
Texarkana 2006, pet. denied). To establish title through adverse possession, the possession must
unmistakably assert a claim of exclusive ownership in the occupant. Id.
         Chapter 24 of the Texas Property Code governs forcible entry and detainer actions, and
provides a summary method for determining the right of a party to the possession of real
property. See TEX. PROP. CODE ANN. §§ 24.001–.011 (West 2000 & Supp. 2012); Aspen Wood
Apt. Corp., 349 S.W.3d at 635. To preserve the simplicity and speedy nature of the forcible
entry and detainer remedy, Texas Rule of Civil Procedure 746 provides that the ―only issue shall
be as to the right to actual possession; and the merits of title shall not be adjudicated.‖ TEX. R.
CIV. P. 746; Rice v. Pinney, 51 S.W.3d 705, 709 (Tex. App.—Dallas 2001, no pet.). To prevail
in a forcible entry and detainer action, a plaintiff is not required to prove title, but is only

                                                 2
required to show sufficient evidence of ownership to demonstrate a superior right to immediate
possession. See Rice, 51 S.W.3d at 709. Because a forcible entry and detainer action is not
exclusive, but cumulative, of any other remedy that a party may have in the courts of this state,
the displaced party is entitled to bring a separate suit in district court to determine the question of
title. Id.
          However, if the resolution of a title dispute is necessarily intertwined with the issue of
possession so that the right of possession depends upon it, possession may not be adjudicated
without first determining title. Dormady v. Dinero Land & Cattle Co., 61 S.W.3d 555, 557
(Tex. App.—San Antonio 2001, pet dism‘d w.o.j.). Only the district court has jurisdiction to
determine title. Id.; It’s the Berrys, LLC, 271 S.W.3d at 770; see also Rice, 51 S.W.3d at 713
(―[A] justice court or county court at law is not deprived of jurisdiction merely by the existence
of a title dispute, but is deprived of jurisdiction only ‗if the right to immediate possession
necessarily requires the resolution of a title dispute.‘‖) (emphasis omitted). A county court at
law exercising appellate jurisdiction over a justice court judgment is limited to the original
jurisdiction of the justice court. Geldard, 214 S.W.3d at 206.
          In sum, when the question of title is so integrally linked to the issue of possession that the
right to possession cannot be determined without first determining title, the justice court and, on
appeal, the county court lack subject matter jurisdiction to consider the issue. See id. The
affirmative defense of adverse possession invokes a claim to title that can defeat the jurisdiction
of the justice court and on appeal, the county court. See Gibson v. Dynergy Midstream Servs.,
L.P.,138 S.W.3d 518, 524 (Tex. App.—Fort Worth 2004, no pet.); see also Gentry v.
Marburger, 596 W.W.2d 201, 203 (Tex. Civ. App.—Houston [1st Dist.] 1980, writ ref‘d n.r.e.)
(pleading of adverse possession in forcible entry and detainer suit in justice court raises issue of
title).
Analysis
          In the case at hand, when Bynum raised the affirmative defense of adverse possession to
Lewis‘s forcible entry and detainer action, the title issue became an integral part of the
proceeding. Gibson, 138 S.W.3d at 522. Based on our review of the record, the county court, in
considering the pleadings before it, would have had to determine title to the property in order to
determine whether Lewis had the superior right to possession. See Dormady, 61 S.W.3d at 557.
Because (1) the county court had no jurisdiction to determine title and (2) title may not be

                                                    3
adjudicated in a forcible detainer action, but only in a trespass to try title action, we hold that the
county court did not have subject matter jurisdiction to determine if Lewis had a superior right to
immediate possession of the property.1


                                                    DISPOSITION
         Having held that the county court lacked subject matter jurisdiction to determine Lewis‘s
right of possession, we vacate the judgment of the county court and render judgment dismissing
the cause for want of jurisdiction.


                                                                JAMES T. WORTHEN
                                                                  Chief Justice




Opinion delivered January 16, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                    (PUBLISH)




         1
          Because we have held that the county court did not have jurisdiction to determine Lewis‘s claim of
possession, we do not address Bynum‘s six issues. See TEX. R. APP. P. 47.1.

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                               COURT OF APPEALS
           TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                         JUDGMENT

                                         JANUARY 16, 2013


                                      NO. 12-11-00150-CV

                                      JACK LEWIS BYNUM,
                                            Appellant
                                               V.
                                      HAROLD RAY LEWIS,
                                            Appellee

_____________________________________________________________________________
                           Appeal from the County Court
                    of Henderson County, Texas. (Tr.Ct.No. 6940)
_____________________________________________________________________________

                        THIS CAUSE came to be heard on the appellate record and the briefs filed
herein, and the same being considered, because it is the opinion of this court that the county
court had no jurisdiction of the subject matter in this case and that its judgment same should be
reversed and rendered, and the case dismissed.
                        It is therefore ORDERED, ADJUDGED and DECREED by this court that
the judgment of the county court in favor of Appellee, HAROLD RAY LEWIS, be, and the
same is, hereby reversed and judgment is rendered dismissing the cause for want of
jurisdiction. All costs in this cause expended in this court be, and the same are, hereby
adjudged against the Appellee, HAROLD RAY LEWIS, for which let execution issue; and that
this decision be certified to the court below for observance.
                        James T. Worthen, Chief Justice.
                      Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                     5
                      THE STATE OF TEXAS
                         MANDATE
              *********************************************
TO THE COUNTY COURT of HENDERSON COUNTY, GREETING:

       Before our Court of Appeals for the 12th Court of Appeals District of Texas, on the 16th day
of January, 2012, the cause upon appeal to revise or reverse your judgment between

                               JACKLEWIS BYNUM, Appellant

                          NO. 12-11-00150-CV; Trial Court No. 6940

                           Opinion by James T. Worthen, Chief Justice.

                               HAROLD RAY LEWIS, Appellee

was determined; and therein our said Court made its order in these words:

        ―THIS CAUSE came to be heard on the appellate record and the briefs filed herein, and the
same being considered, because it is the opinion of this court that the county court had no
jurisdiction of the subject matter in this case and that its judgment same should be reversed and
rendered, and the case dismissed.

       It is therefore ORDERED, ADJUDGED and DECREED by this court that the judgment of
the county court in favor of Appellee, HAROLD RAY LEWIS, be, and the same is, hereby
reversed and judgment is rendered dismissing the cause for want of jurisdiction. All costs in
this cause expended in this court be, and the same are, hereby adjudged against the Appellee,
HAROLD RAY LEWIS, for which let execution issue; and that this decision be certified to the
court below for observance.‖

       WHEREAS, WE COMMAND YOU to observe the order of our said Court of Appeals for
the Twelfth Court of Appeals District of Texas in this behalf, and in all things have it duly
recognized, obeyed, and executed.

        WITNESS, THE HONORABLE JAMES T. WORTHEN, Chief Justice of our Court of
Appeals for the Twelfth Court of Appeals District, with the Seal thereof affixed, at the City of
Tyler, this the ______ day of __________________, 201____.

                      CATHY S. LUSK, CLERK


                      By:_______________________________
                        Deputy Clerk
