
NO. 07-06-0419-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

OCTOBER 31, 2008

______________________________


TERRA XXI, LTD., TERRA PARTNERS, VEIGEL FARMS, INC., 
ROBERT W. VEIGEL, AND ELLA MARIE VEIGEL, APPELLANTS

V.

AG ACCEPTANCE CORPORATION, APPELLEE

_________________________________

FROM THE COUNTY COURT OF  DEAF SMITH COUNTY;

NO. CI-2006-04972; HONORABLE ROLAND SAUL, JUDGE

_______________________________


Before CAMPBELL, and PIRTLE, JJ. AND BOYD, S.J.



DISSENTING OPINION


          The majority opinion finds that, in the context of a forcible detainer proceeding
following foreclosure of a deed of trust, where the opposing party contests the superiority
of the right to possession based upon an allegation of wrongful foreclosure, a plaintiff (in
this case Ag Acceptance) is not required to prove title but is only required to show
“sufficient evidence of ownership to demonstrate [its] superior right to immediate
possession.” (emphasis added).  Notwithstanding apparent authority to the contrary,
 
where the superiority of Ag Acceptance’s right to immediate possession manifestly
depends upon the validity of its trustee’s deed, an issue simultaneously being contested
by a wrongful foreclosure proceeding in the district court, I fail to see how Ag Acceptance
could ever meet its burden without title being an issue.  In cases involving a genuine issue
of title, neither the justice court nor the county court on appeal has jurisdiction.  Haith v.
Drake, 596 S.W.2d 194, 196 (Tex.Civ.App.–Houston [1st Dist.] 1980, writ ref’d n.r.e.).  For
these reasons, I would sustain Appellants’ first point of error, reverse the judgment of the
trial court, and enter judgment dismissing the forcible detainer cause of action for want of
jurisdiction.
                                                                                      Patrick A. Pirtle
                                                                                            Justice


