                                    NO. 07-06-0390-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                   OCTOBER 28, 2008

                          ______________________________

                       IT’S THE BERRYS, LLC, A TEXAS LIMITED
                        LIABILITY COMPANY, DOING BUSINESS
                            AS MARY ELLEN’S, APPELLANT

                                             V.

                            EDOM CORNER, LLC, A TEXAS
                       LIMITED LIABILITY COMPANY, APPELLEE
                        _________________________________

           FROM THE 294TH DISTRICT COURT OF VAN ZANDT COUNTY;

                 NO. 06-00428; HONORABLE TERESA DRUM, JUDGE
                        _______________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                                         OPINION


       Appellant It’s the Berry’s, LLC d/b/a Mary Ellen’s (Berry’s) complains of a district

court judgment granting possession of its leasehold to its landlord, appellee Edom Corner,

LLC. Brought as an action for forcible detainer in justice court, the case was transferred

to district court and there tried as though that court possessed original subject matter

jurisdiction. Finding the district court lacked original subject matter jurisdiction to try an
eviction suit, we will sever, vacate and dismiss the forcible detainer suit and affirm the

remainder of the judgment.


                                         Background


       The legal complaints of the parties before us arise from a commercial lease

between Edom Corner as lessor and Berry’s as lessee. The leased property was retail

space located in a building that also housed a restaurant known as Edom Bakery.


       At the time the parties executed the lease, the principal members of Edom Corner

were Earl A. Berry, Jr. and his wife, Ann Thornton Berry. Mr. and Mrs. Berry were also the

sole members of Edom Bakery, LLC, which did business as Edom Bakery. Berry’s was

owned by Mary Ellen Malone.


       Edom Corner, Edom Bakery, and Berry’s were formerly owned in equal shares by

Mr. and Mrs. Berry and Malone.1 But the parties found joint operation of the companies

difficult and divided their interests. Under the agreed division, Mr. and Mrs. Berry acquired

ownership of Edom Corner and Edom Bakery and Malone acquired ownership of Berry’s.


       Berry’s operated a retail merchandise store known as Mary Ellen’s in the space it

leased from Edom Corner. According to trial testimony, problems developed among the

parties after execution of the lease. Disagreements escalated after Malone purchased a

nearby restaurant, known as “the Shed,” a competitor of Edom Bakery. About eighteen

months after execution of the lease, an attorney for Edom Corner notified Berry’s by letter


       1
           Earl A. Berry, Jr. and Mary Ellen Malone are brother and sister.

                                              2
that because of multiple alleged breaches of the lease it must vacate the premises by a

specified date or face a forcible detainer suit.


       When Berry’s did not vacate the leasehold, Edom Corner commenced a forcible

detainer suit in a justice court of Van Zandt County. By its original petition entitled

“Plaintiff’s Original Petition for Forcible Detainer,” Edom Corner sought possession of the

property, a writ of possession, and attorney’s fees.


       Before Berry’s answered the suit, Edom Corner filed a “Motion to Transfer” in the

justice court requesting transfer of the case to the 294th judicial district court of Van Zandt

County. In its motion, Edom Corner asserted a suit was already pending in district court

concerning a dispute among other entities owned by Malone and Mr. and Mrs. Berry. The

justice court responded with an order transferring the case to district court “because the

matter concerns issues within its jurisdiction.” Thereafter, Berry’s answered and filed a

counterclaim for declaratory relief and attorney’s fees.2


       About three weeks later, Edom Corner filed a supplemental petition requesting the

district court to issue “without notice” a temporary restraining order enjoining Berry’s from

locking a passageway in the building, leaving the door of Mary Ellen’s open while the air

conditioning operated, and interfering in efforts to change building locks.               The

supplemental petition requested a temporary injunction and on trial a permanent injunction



       2
        Berry’s sought declarations that it was not in default of the lease, Edom Corner
breached the lease, and Edom Corner’s claims were barred by waiver. As the issue is not
before us, we express no opinion on the propriety of the grounds for declaratory relief
Berry’s urged.

                                              3
because “when [Edom Corner] prevails in its suit for Forcible Detainer there is a period of

time between the Court’s judgment and the actual physical evacuation of the premises

. . . .” No temporary restraining order or temporary injunction issued.3


       Following a bench trial, the district court signed a judgment awarding Edom Corner

possession of the leased premises, a writ of possession, costs and attorney’s fees. The

judgment also decreed that Berry’s take nothing by its counterclaims.


       Berry’s timely filed a notice of appeal to the Twelfth District Court of Appeals at

Tyler. It also filed a motion with the trial court requesting a supersedeas bond exceeding

the aggregate of attorney’s fees awarded Edom Corner under the judgment, post-judgment

interest, and the monthly rental and utility charges payable according to the terms of the

lease. Edom Corner objected, arguing the case was a forcible detainer suit not involving

a party’s principal residence and execution of a writ of possession could not be

superseded. See Tex. R. Civ. P. 755. The trial court ordered a supersedeas bond in an

amount sufficient only to supersede enforcement of the monetary portion of its judgment.


       Berry’s petitioned the Tyler Court for a writ of mandamus arguing the trial court did

not set the amount of bond necessary to supersede the writ of possession, contrary to the

requirements of Rule of Appellate Procedure 24.1. Tex. R. App. P. 24.1(a)(3); In re It's The

Berry's, LLC, No. 12-06-00298-CV, 2006 WL 3020353, 2006 Tex. App. Lexis 9146,*9-11


       3
           Edom Corner’s request for permanent injunctive relief was not tried or expressly
embraced by the court’s judgment. As the judgment was signed following a trial on the
merits and no order for trial of separate issues appears of record we presume the judgment
is final for appellate purposes. Moritz v. Preiss, 121 S.W.3d 715, 719-20 (Tex. 2003). The
parties do not argue otherwise.

                                             4
(Tex.App.–Tyler Oct. 25, 2006, orig. proceeding) (not designated for publication). Edom

Corner again took the position the writ could not be superseded under Rule of Civil

Procedure 755 because it was not a party’s principal residence. Berry’s countered that

Rule 755 was not applicable to the case because the appeal was not from a judgment of

the county court. 2006 WL 3020353, at *3, 2006 Tex. App. Lexis 9146, at *10. Edom

Corner responded that Government Code section 24.471 established a “special

relationship” between the county court and district court of Van Zandt County, authorizing

adjudication of its forcible detainer suit in district court. Therefore, Rule 755 applied,

disallowing suspension of the writ of possession. 2006 WL 3020353, at *4, 2006 Tex. App.

Lexis 9146, at *10-11. The Tyler Court disagreed, finding Rule 755 inapplicable because

Berry’s was appealing not from a judgment of the county court after a trial de novo on

appeal from the justice court, but a judgment of the district court, exercising its original

jurisdiction. 2006 WL 3020353, at *4, 2006 Tex. App. Lexis 9146, at *12. The court

concluded the trial court abused its discretion by not setting a bond for suspension of the

entire judgment, and conditionally granted the writ of mandamus. 2006 WL 3020353, at

*4, 2006 Tex. App. Lexis 9146, at *12-13.        After the trial court complied with the

requirements of the conditional grant, the Tyler Court dismissed the original proceeding as

moot. In re It's The Berry's, LLC, No. 12-06-00298-CV, 2006 WL 3313659, 2006 Tex. App.

Lexis 9920 (Tex.App.–Tyler November 15, 2006, orig. proceeding) (not designated for

publication). By docket equalization order of the Supreme Court, the appeal of the case

was thereafter transferred to this court. See Tex. Gov’t Code Ann. § 73.001 (Vernon

2005).



                                             5
                                            Issues


       Berry’s raises twenty-two issues on appeal. We find issues one and eleven

dispositive of the appeal.


                                          Discussion


       In its first issue Berry’s argues the district court lacked subject matter jurisdiction to

try Edom Corner’s forcible detainer action.


       Whether a trial court possessed subject matter jurisdiction is a question of law we

review de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). 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. University of Tex. Sw. Med. Ctr. v. Loutzenhiser,

140 S.W.3d 351, 358 (Tex. 2004), superseded by statute on other grounds, Tex. Gov’t

Code Ann. § 311.034 (Vernon Supp. 2008).


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

immediate possession of real property. Kennedy v. Highland Hills Apartments, 905 S.W.2d

325, 326 (Tex.App.–Dallas 1995, no writ). It exists to provide a speedy, simple and

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


       A person who refuses to surrender possession of real property on demand
       commits a forcible detainer if the person:



                                               6
              (1) is a tenant or a subtenant wilfully and without force holding over
              after the termination of the tenant's right of possession;

              (2) 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; or

              (3) is a tenant of a person who acquired possession by forcible entry.


Tex. Prop. Code Ann § 24.002(a)(1)-(3) (Vernon 2000). A prevailing landlord in a suit for

forcible detainer “is entitled to a judgment for possession of the premises and a writ of

possession.” Tex. Prop. Code Ann. § 24.0061(a) (Vernon 2000).


       A forcible detainer action depends on the existence of a landlord-tenant relationship.

Haith v. Drake, 596 S.W.2d 194, 196 (Tex.Civ.App.–Houston [1st Dist.] 1980, writ ref’d

n.r.e.). Only proof of a superior right to immediate possession must be proved for the

plaintiff to prevail in a forcible detainer action. Goggins v. Leo, 849 S.W.2d 373, 377

(Tex.App.–Houston [14th Dist.] 1993, no writ). Accordingly, the sole matter in issue for

resolution in a forcible detainer action is which party has the superior right to immediate

access to the property. Fandey v. Lee, 880 S.W.2d 164, 168 (Tex.App.–El Paso 1994, writ

denied); Goggins, 849 S.W.2d at 377.


       District courts in Texas are courts of general jurisdiction, presumably having subject

matter jurisdiction over a cause unless a contrary showing is made. Subaru of America,

Inc. v. David McDavid Nissan, Inc., 84 S.W.2d 212, 220 (Tex. 2002), citing Dubai

Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex. 2000). Under our constitution and by

statute, the district court’s jurisdiction “consists of exclusive, appellate, and original


                                             7
jurisdiction of all actions, proceedings, and remedies, except in cases where exclusive,

appellate, or original jurisdiction may be conferred by [the constitution] or other law on

some other court, tribunal, or administrative body.” Tex. Const. art. V, § 8; Tex. Gov’t Code

Ann. § 24.007 (Vernon 2004).4 The legislature has committed jurisdiction of a forcible

detainer suit, however, exclusively to a justice court in the precinct where the property in

question is located. Tex. Prop. Code Ann. § 24.004 (Vernon 2000); Tex. Gov’t Code Ann.

§ 27.031(a)(2) (Vernon 2004) (justice court has original jurisdiction of cases of forcible

entry and detainer); McGlothlin v. Kliebert, 672 S.W.2d 231, 232 (Tex. 1984) (referring to

exclusive jurisdiction of justice court in forcible entry and detainer case); Haginas v. Malbis

Memorial Foundation, 163 Tex. 274, 354 S.W.2d 368, 371 (Tex. 1962) (forcible entry and

detainer action must be instituted in justice court); Rice v. Pinney, 51 S.W.3d 705, 712

(Tex.App.–Dallas 2001, no pet.) (jurisdiction “expressly” given to justice court); Mitchell v.

Armstrong Capital Corp., 911 S.W.2d 169, 171 (Tex.App.–Houston [1st Dist.] 1995, writ

denied) (jurisdiction of forcible detainer suit is in justice court and on appeal, county court);

McCloud v. Knapp, 507 S.W.2d 644, 647-648 (Tex.Civ.App.–Dallas 1974, no writ).


       Where a claimed right of immediate possession necessarily requires resolution of

a title dispute, the justice court lacks subject matter jurisdiction. Rice, 51 S.W.3d at 709;

       4
         “‘Basically, district courts are tribunals of general jurisdiction with exclusive,
appellate, and original jurisdiction in all causes unless the domain has been constitutionally
or statutorily specified elsewhere.’” 1 Roy W. McDonald & Elaine A. Grafton Carlson,
Texas Civil Practice: Courts § 3:30 n.1 (2d ed. 2004) (quoting Texas Courts, A Study By
the Texas Research League: Report One (The Texas Judiciary: A Structural-Functional
Overview) pp. 29, 30 (1990)). The Government Code further provides that a district court
“may hear and determine any cause that is cognizable by courts of law or equity and may
grant any relief that could be granted by either courts of law or equity.” Tex. Gov’t Code
Ann. § 24.008 (Vernon 2004).

                                               8
Tex. R. Civ. P. 746. Because a forcible detainer action is not exclusive of other remedies,

another possessory action, such as a suit for trespass to try title, may be brought in district

court. Scott v. Hewitt, 127 Tex. 31, 90 S.W.2d 816, 819 (Tex. 1936) (title may not be

adjudicated in forcible entry and detainer proceeding but remedy is cumulative of any other

remedy); Rice, 51 S.W.3d at 709; Tex. Prop. Code Ann. § 24.008 (suit for forcible detainer

does not bar a suit for “trespass, damages, waste, rent, or mesne profits.”). And the district

court may adjudicate a suit to try title concurrently with a forcible detainer action in justice

court. Haith, 596 S.W.2d at 196; Rice, 51 S.W.3d at 709.


       Here the parties and trial court looked to Government Code § 24.471(b) as the origin

of jurisdiction of the district court to try the forcible detainer suit. In pertinent part the

statute provides:


       The 294th District Court has concurrent jurisdiction with the county court in
       Van Zandt County over all matters of civil and criminal jurisdiction, original
       and appellate, in cases over which the county court has jurisdiction under the
       constitution and laws of this state. Matters and proceedings in the
       concurrent jurisdiction of the 294th District Court and the county court may
       be filed in either court and all cases of concurrent jurisdiction may be
       transferred between the 294th District Court and the county court. However,
       a case may not be transferred from one court to another without the consent
       of the judge of the court to which it is transferred, and a case may not be
       transferred unless it is within the jurisdiction of the court to which it is
       transferred.


Tex. Gov’t Code Ann. § 24.471(b) (Vernon 2004). We do not find this statute ambiguous.

It does not authorize, nor could it authorize, consistent with Property Code § 24.004, trial

of a forcible detainer suit in the 294th district court.5


       5
       Further, trial of this forcible detainer suit in district court precludes appeal by trial
de novo, Tex. R. Civ. P. 751, and places appeal in the courts of appeals, when the

                                                9
       Edom Corner argues the Tyler Court’s conditional grant of mandamus resolved any

question of the district court’s subject matter jurisdiction and we are, therefore, precluded

by the “law of the case” doctrine from considering the question of subject matter

jurisdiction. We disagree.


       The “law of the case” doctrine is defined as that principle under which
       questions of law decided on appeal to a court of last resort will govern the
       case throughout its subsequent stages. By narrowing the issues in
       successive stages of the litigation, the law of the case doctrine is intended
       to achieve uniformity of decision as well as judicial economy and efficiency.
       The doctrine is based on public policy and is aimed at putting an end to
       litigation.


Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986) (citations omitted). The doctrine

is not a limitation on the power of the court. Devilla v. Schriver, 245 F.3d 192, 197 (2d Cir.

2001). Rather, as Justice Holmes long ago noted, it “merely expresses the practice of the

courts generally to refuse to reopen what has been decided.” Messenger v. Anderson, 225

U.S. 436, 444, 32 S.Ct. 739, 56 L.Ed. 1152 (1912). Application of the doctrine lies with

the discretion of the court. Briscoe v. Goodmark Corp., 102 S.W.3d 714, 716 (Tex. 2003).


       The Fourteenth Court of Appeals rejected a contention like that made by Edom

Corner here in Gantt v. Gantt, 208 S.W.3d 27 (Tex.App.–Houston [14th Dist.] 2006, pet.

denied). There, a party contended the law of the case doctrine precluded the Fourteenth

Court from dismissing an appeal for lack of subject matter jurisdiction, based on a late

notice of appeal. Id. at 30 n.4 According to the party’s argument, the Corpus Christi Court


legislature intended final appellate resolution by the county court. See Tex. Prop. Code
Ann. § 24.007 (Vernon 2000) (final judgment of county court in forcible entry and detainer
action not appealable on issue of possession unless property in question is exclusively
residential).

                                             10
of Appeals, by issuing an opinion and judgment in a prior appeal in the case, must

necessarily have concluded it had jurisdiction, establishing the law of the case. Id. The

Fourteenth Court found the Corpus Christi Court had not expressly considered and decided

the late-notice-of-appeal question, and found that court’s sub silentio exercise of

jurisdiction was not law of the case. Id.


       Our circumstance is similar. While it might be said that implicit in the Tyler Court’s

opinion is recognition that the trial court exercised subject matter jurisdiction by

adjudicating the case, this was clearly not the narrow question presented or decided in the

mandamus proceeding. Indeed, the Tyler Court’s opinion states, “Edom [Corner] states

that it agreed to the transfer [from justice court] and does not contend that the transfer was

improper.” In re It’s the Berry’s, 2006 WL 3020353, at *3, 2006 Tex. App. Lexis 9146, at

*9. We decline to utilize the law of the case doctrine to avoid review of the district court’s

exercise of subject matter jurisdiction in the forcible detainer action.


       Edom Corner also argues that Berry’s is judicially estopped to now challenge the

subject matter jurisdiction of the trial court because in its petition for writ of mandamus it

alleged the lawsuit was one over which a district court has original jurisdiction. Edom

Corner asserts that Berry’s thus took inconsistent positions in the mandamus action and

the instant appeal, and is estopped to do so. We disagree for two reasons. First, “[s]ubject

matter jurisdiction cannot be conferred by consent, waiver, or estoppel at any stage of a

proceeding.” Tourneau Houston, Inc. v. Harris County Appraisal Dist., 24 S.W.3d 907, 910

(Tex.App.–Houston [1st Dist.] 2000, no pet.) (citing Fed. Underwriters Exch. v. Pugh, 141

Tex. 539, 174 S.W.2d 598, 600 (Tex. 1943)). Second, and assuming Berry’s mandamus


                                             11
and appellate positions were contradictory, the mandamus proceeding is part of the

present case and not a prior proceeding. See Pleasant Glade Assembly of God v.

Schubert, No. 05-0916, 51 Tex. S.Ct. J. 1086, 2008 WL 2572009, at *6, 2008 Tex. Lexis

620, at *17 (Tex. June 27, 2008). The doctrine of judicial estoppel has no application to

contradictory positions taken in the same proceeding.             Id. (citing Galley v. Apollo

Associated Servs., Ltd., 177 S.W.3d 523, 529 (Tex.App.–Houston [1st Dist.] 2005, no

pet.)).


          The relief Edom Corner sought in the trial court was exclusive to Chapter 24 of the

Property Code. Tex. Prop. Code Ann. Chapter 24 Forcible Entry and Detainer (Vernon

2000 & Supp. 2007). The district court was without subject matter jurisdiction to try Edom

Corner’s forcible detainer suit. We sustain Berry’s first issue.


          In its eleventh issue, Berry’s challenges the award of attorney’s fees for Edom

Corner and the denial of its request for attorney’s fees. Specifically, Berry’s asserts it

should have prevailed in the trial court and recovered attorney’s fees while Edom Corner

should not have prevailed and was not entitled to recover attorney’s fees. Because the

district court lacked subject matter jurisdiction to adjudicate the forcible detainer action, that

cause, including the award of statutory and contractual attorney’s fees and costs to Edom

Corner, must be set aside and dismissed. In the same way, the trial court had no

jurisdiction to award attorney’s fees to Berry’s for defense of a forcible detainer action.

Berry’s does not contend the absence of an award of attorney’s fees under the Uniform

Declaratory Judgments Act, Tex. Civ. Prac. & Rem. Code § 37.009 (Vernon 1997), was




                                               12
error. We sustain Berry’s eleventh issue as to the recovery of attorney’s fees by Edom

Corner. We overrule Berry’s eleventh issue as to its claim for attorney’s fees.


                                       Conclusion


      When a trial court lacks subject matter jurisdiction to render a judgment, the proper

procedure on appeal is for the appellate court to set the judgment aside and dismiss the

cause. See Dallas County Appraisal Dist. v. Funds Recovery, 887 S.W.2d 465, 471

(Tex.App.–Dallas 1994) (citing Fulton v. Finch, 162 Tex. 351, 346 S.W.2d 823, 827

(1961)). Finding the trial court lacked subject matter jurisdiction, we sever the forcible

detainer case, vacate the judgment in the forcible detainer case, and dismiss the forcible

detainer case. Otherwise, we affirm the district court’s judgment.




                                                James T. Campbell
                                                     Justice




                                           13
