                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-13-00403-CV


TOM S. DIFFLEY                                                       APPELLANT

                                        V.

FEDERAL NATIONAL MORTGAGE                                             APPELLEE
ASSOCIATION, A/K/A FANNIE MAE


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          FROM COUNTY COURT AT LAW NO. 1 OF TARRANT COUNTY
                    TRIAL COURT NO. 2012-005713-1

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                        MEMORANDUM OPINION 1

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      Appellant Tom S. Diffley appeals the trial court’s award of possession of

503 Cherry Ann Drive in Euless, Texas, to appellee Federal National Mortgage

Association, a/k/a Fannie Mae. We affirm.




      1
      See Tex. R. App. P. 47.4.
                               Background Facts

       Fannie Mae filed a petition for forcible detainer in the justice of the peace

court. A trial was held, and the court rendered judgment in favor of Fannie Mae.

Diffley appealed to the county court at law, which tried the case de novo and also

entered judgment in favor of Fannie Mae. See Tex. R. Civ. P. 749, 751. Diffley

now appeals to this court.

                             Forcible Detainer Suits

      A forcible detainer action is a cumulative, not an exclusive, remedy for a

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

In a forcible detainer action, the only issue the trial court determines is whether

the party seeking to obtain possession is entitled to actual and immediate

possession, and the merits of whether a party has title shall not be determined.

See Tex. R. Civ. P. 746; Black v. Wash. Mut. Bank, 318 S.W.3d 414, 416 (Tex.

App.—Houston [1st Dist.] 2010, pet. dism’d w.o.j.); Williams v. Bank of N.Y.

Mellon, 315 S.W.3d 925, 927 (Tex. App.—Dallas 2010, no pet.). Questions over

whether a sale of property in a deed of trust is invalid “must be brought in a

separate suit.” Williams, 315 S.W.3d at 927; Rice v. Pinney, 51 S.W.3d 705, 710

(Tex. App.—Dallas 2001, no pet.).

                                    Discussion

      Diffley brings two interrelated issues on appeal, one involving jurisdiction

and the other evidence. Both derive from his allegations that an individual at



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Fannie Mae told him by telephone that the company had no interest in the

property, which statements he offered as evidence of foreclosure fraud.

I. Determination of title

       In Diffley’s first issue, he argues the justice court and county court lacked

jurisdiction because evidence of a title dispute was so intertwined with the

question of possession that it deprived them of jurisdiction. 2 Whether a court has

subject-matter jurisdiction is a question of law that we review de novo. See Tex.

Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Subject-

matter jurisdiction can be raised at any time, even for the first time on appeal; the

parties cannot waive it. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d

440, 445 (Tex. 1993).

       Justice courts, and county courts on appeal, have no jurisdiction over a

forcible detainer action if the adjudication of the action requires resolution of a

title dispute. Tex. Gov’t Code Ann. § 27.031(b)(4),(5) (West 2014) (“A justice

court does not have jurisdiction of . . . a suit for trial of title to land; or . . . a suit

for the enforcement of a lien on land.”); Tex. Prop. Code Ann. § 24.004(b) (West

2014); Black, 318 S.W.3d at 417. But the mere existence of a title dispute does

not deprive the court of jurisdiction. See Schlichting v. Lehman Bros. Bank FSB,

       2
        An appeal from a justice court judgment is tried de novo in the county
court. Tex. R. Civ. P. 506.3. While the ultimate question in this case is the
extent of the county court at law’s appellate jurisdiction, the county court has no
jurisdiction over the appeal unless the justice court had jurisdiction. Rice, 51
S.W.3d at 708; Crompton v. Stevens, 936 S.W.2d 473, 476 (Tex. App.—Fort
Worth 1996, no writ).

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346 S.W.3d 196, 199 (Tex. App.—Dallas 2011, pet. dism’d) (“Any defects in the

foreclosure process or with the purchaser’s title to the property may not be

considered in a forcible detainer action.”). It is only when the right to immediate

possession necessarily requires resolution of the title dispute—that is, when the

court’s decision of which party has a superior right of possession must rest on a

determination of title—that the justice court, and therefore the county court at

law, may not adjudicate the forcible detainer action. Rice, 51 S.W.3d at 709;

see, e.g., Mortg. Elec. Registration Sys. v. Young, No. 02-08-00088-CV, 2009

WL 1564994, at *5 (Tex. App.—Fort Worth June 4, 2009, no pet.) (mem. op.)

(finding a title dispute when the evidence showed that the plaintiff in the forcible

detainer action had purchased the property but then conveyed it to another

party). In other words, a justice or county court lacks jurisdiction over forcible

detainer only when it “must determine title issues.” Rice, 51 S.W.3d at 713; see,

e.g., Guyer v. Rose, 601 S.W.2d 205, 205–206 (Tex. Civ. App.—Dallas 1980,

writ ref’d n.r.e.) (finding title dispute where possessory rights depended on

contract compliance); Gentry v. Marburger, 596 S.W.2d 201, 203 (Tex. Civ.

App.—Houston [1st Dist.] 1980, writ ref’d n.r.e.) (holding that “title to premises

was directly involved” where possessory rights depended on assertion of life

estate or adverse possession); Rodriguez v. Sullivan, 484 S.W.2d 592, 593 (Tex.

Civ. App.—El Paso 1972, no writ) (voiding justice court’s holding when

possession depended on “purchase-sale contract”); Dent v. Pines, 394 S.W.2d

266, 268–69 (Tex. Civ. App.—Houston 1965, no writ) (denying justice court’s

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jurisdiction when competing wills and intestacy statutes clouded title); Am.

Spiritualist Ass’n v. Ravkind, 313 S.W.2d 121, 125 (Tex. Civ. App.—Dallas 1958,

writ ref’d n.r.e.) (denying jurisdiction when question of contractual compliance

clouded title). However, “the right to immediate possession [can] be determined

separately from the right to title in most cases.” Rice, 51 S.W.3d at 710.

      Fannie Mae submitted to the trial court the deed of trust, the substitute

trustee’s deed showing that the company acquired the property at a foreclosure

sale on July 3, 2012, and the notice to Diffley to vacate. The deed of trust

evidenced Diffley’s status as a tenant at sufferance; the substitute trustee’s deed

evidenced Fannie Mae’s purchase of the property; and the notice to vacate

evidenced that Fannie Mae had notified Diffley of his status as a tenant at

sufferance and requested that he vacate the property.             This was sufficient

evidence upon which the trial court could determine Fannie Mae’s right to

immediate possession. See Black, 318 S.W.3d at 418 (holding that evidence

such as deed of trust, trustee’s foreclosure sale deed, documentation of default,

and eviction notices made it “unnecessary for the trial court to determine the

issue of title to the property”) (internal citations omitted) (citing Rice, 51 S.W.3d at

712); Shutter v. Wells Fargo Bank, 318 S.W.3d 467, 471 (Tex. App.—Dallas

2010, pet. dism’d w.o.j.) (op. on reh’g) (holding that a deed of trust, a substitute

trustee’s deed, and notices to vacate establish right to immediate possession).

Because the trial court could properly determine right to possession without



                                           5
determining right to title, it had jurisdiction over this case. We overrule Diffley’s

first issue.

II. Fraud

       In his second issue, Diffley argues that he offered evidence that Fannie

Mae foreclosed fraudulently and thus called into question its right to possession.

However, as stated above, any cause of action for fraud cannot be maintained in

a forcible detainer action; it must be brought in a separate suit. Williams, 315

S.W.3d at 927; Rice, 51 S.W.3d at 710. In other words, any evidence of fraud

that Diffley had bears on Fannie Mae’s right of title, not to its right of immediate

possession, which is the only justiciable controversy in this case.             See

Schlichting, 346 S.W.3d at 199 (affirming denial of evidence relevant only to

possible defects in title or foreclosure process); Williams, 315 S.W.3d at 927.

Accordingly, we overrule Diffley’s second issue.

                                    Conclusion

       Having overruled Diffley’s two issues, we affirm the county court’s

judgment.


                                                    /s/ Lee Gabriel

                                                    LEE GABRIEL
                                                    JUSTICE

PANEL: WALKER, MCCOY, and GABRIEL, JJ.

DELIVERED: November 26, 2014



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