                                   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.1


                                 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



       1
       John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment. Tex. Gov’t Code Ann. § 75.002(a)(1) (Vernon 2005).
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,2

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




       2
         The majority opinion relies heavily upon this Court’s prior opinion in Terra XXI v. Ag
Acceptance Corp., No. 07-04-0325-CV, 2004 WL 2559940 (Tex.App.–Amarillo Nov. 10,
2004, pet. dism’d w.o.j.) (not designated for publication), to support its position that in order
to prevail, 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 is not required to prove title but is only
required to show sufficient evidence of ownership to demonstrate a superior right to
immediate possession. That earlier opinion in turn relies heavily upon Villalon v. Bank
One, 176 S.W.3d 66, 70 (Tex.App–Houston [1st Dist.] 2004, pet. denied), which in turn
relies heavily upon Rice v. Pinney, 51 S.W.3d 705, 709 (Tex.App.–Dallas 2001, no pet.).
Ultimately, Rice relies upon the Texas Supreme Court decision in Scott v. Hewitt, 127 Tex.
31, 90 S.W.2d 816 (1936). A review of that case reveals that it is not based upon an issue
of wrongful foreclosure.

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