                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-17-00052-CV


TAKESHA DUNLAP                                                         APPELLANT

                                         V.

BEAULY, LLC                                                             APPELLEE

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          FROM COUNTY COURT AT LAW NO. 1 OF TARRANT COUNTY
                    TRIAL COURT NO. 2017-000378-1



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                         MEMORANDUM OPINION 1

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      This is an appeal from a forcible detainer proceeding. Appellee Beauly,

LLC bought property at a foreclosure sale (the Property) and then brought this

forcible detainer action against Appellant Takesha Dunlap. Dunlap argues that

the trial court did not have jurisdiction over this action because of problems in the


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       See Tex. R. App. P. 47.4.
chain of title. Because the trial court could determine that Beauly had a superior

right to immediate possession without adjudicating any issues of title, we affirm.

                                I.     Background

      In December 2016, Beauly filed this forcible detainer action in the justice

court, alleging that it had acquired the Property at a substitute trustee’s sale on

June 3, 2014; that the deed of trust securing a mortgage on the property

provided that in the event of foreclosure, any person in possession of the

Property would then be a tenant at sufferance of the purchaser at foreclosure;

that Beauly had made written demand on Dunlap for possession; and that

Dunlap had refused to comply.

      The original deed of trust named Dunlap as the borrower; Mortgage

Electronic Systems, Inc. (MERS), as nominee for the lender, as beneficiary; and

Primelending as the lender.      The substitute trustee’s deed listed MERS, as

nominee, as the original mortgagee; Wells Fargo Bank, N.A. as the current

mortgagee and mortgage servicer; and Beauly as the grantee.

      As alleged by Beauly, the deed of trust provided that “[i]f the Property is

sold pursuant to [the foreclosure provisions in the instrument], Borrower . . . shall

immediately surrender possession of the Property to the purchaser at the sale. If

possession is not surrendered, Borrower . . . shall be a tenant at sufferance and

may be removed by writ of possession.”

      The justice court rendered a judgment of possession for Beauly. Dunlap

appealed to the county court at law.


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      In the county court, Dunlap filed a “Notice And Demand For A Definite

Statement Of Allegation Of Bona Fide Jurisdiction.”       In that document, she

asserted that if Beauly failed to respond to her demand within ten days, Beauly

“shall be in DEFAULT, non prosequitur, and both the ALLEGATION OF BONA

FIDE JURISDICTION and the COMPLAINT shall be considered to be nul tiel

records, thereby requiring that the court DISMISS WITH PREJUDICE the instant

case for being void on its face.” She also filed a document entitled “Judicial

Notice; In The Nature Of Writ Of Coram Non Judice & A Demand For Dismissal

& Objection For Lack Of Jurisdiction.” In that document, she asserted that the

trial court had erred “[b]y failing to disclose the proper jurisdiction when

challenged with a writ of Coram Nobis” and that because the court has refused to

state jurisdiction,” “no judgments, orders[,] or pleas can be entered into the

record.” She further filed a motion for default judgment on the basis that Beauly

had not filed an answer to her “Notice And Demand For A Definite Statement Of

Allegation Of Bona Fide Jurisdiction,” and a subsequent “Notice And Demand

For Default Judgment” requesting the court to enter a default judgment in her

favor “pursuant to Rule 503.1” of the rules of civil procedure. See Tex. R. Civ. P.

503.1 (providing that a justice court may render a default judgment if a defendant

fails to timely answer).

      The trial court rendered a judgment awarding possession to Beauly.

Dunlap now appeals.




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                        II.     Forcible Detainer Actions

      “The sole focus of a forcible-detainer action is the right to immediate

possession of real property.” Shields Ltd. P’ship v. Bradberry, 526 S.W.3d 471,

478 (Tex. 2017).     “To prevail in a forcible detainer action, 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.” Rice v.

Pinney, 51 S.W.3d 705, 709 (Tex. App.—Dallas 2001, no pet.); see also Tex. R.

Civ. P. 510.3(e) (stating that in a forcible detainer action, “[t]he court must

adjudicate the right to actual possession and not title”). Beauly had the burden to

prove (1) it owns the property, (2) Dunlap is a tenant at will, tenant at sufferance,

or a tenant willfully holding over after the termination of her right of possession,

(3) it gave Dunlap proper notice to vacate the premises, and (4) Dunlap refused

to vacate the premises.       See Tex. Prop. Code Ann. § 24.002 (West 2014);

Bradberry, 526 S.W.3d at 478.

                                  III.   Analysis

      In her sole point, Dunlap challenges the trial court’s subject matter

jurisdiction over the case, arguing that the trial court improperly granted judgment

without hearing her challenge to its jurisdiction.     She also makes additional

arguments in her brief unrelated to this point, which we address below.

A.    Dunlap’s arguments about Wells Fargo are irrelevant.

      The motions Dunlap filed in the trial court demanded that the trial court and

Beauly disclose the basis of the court’s jurisdiction, but they did not raise any


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ground challenging the court’s jurisdiction. Nevertheless, we must consider any

jurisdictional arguments she makes on appeal.       See Clint I.S.D. v. Marquez,

487 S.W.3d 538, 558 (Tex. 2016) (noting parties may challenge subject matter

jurisdiction for the first time on appeal).

      Dunlap argues that Wells Fargo had no standing to prosecute a claim

against the Property. She contends that she filed a challenge to the trial court’s

subject matter jurisdiction “under the consideration that Wells Fargo must prove

to the court that it had agency to represent a[] principal with standing to enforce

the contract in accordance with Texas Property Code 13.001 and the legal

capacity to invoke the subject matter jurisdiction of the court.”    Wells Fargo,

however, did not bring this forcible detainer action. This action addressed who

had the superior right to possession as between Beauly and Dunlap, not between

Dunlap and Wells Fargo.         Her arguments about Wells Fargo are therefore

irrelevant to the trial court’s determination of who had the superior right to

possession of the Property.

B.    Dunlap could not raise an issue of title in this suit.

      Dunlap further argues that Primelending, “when it purported to assign the

mortgage to Wells Fargo, was not the beneficiary, holder, or even the agent of

the holder” and that “Primelending may never have been the holder of the

mortgage, but rather, an agent for an undisclosed money source.” With this

argument, Dunlap appears to be raising an issue of title.




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      In a forcible detainer action, “[t]he court must adjudicate the right to actual

possession and not title.” Tex. R. Civ. P. 510.3(e). However, the mere existence

of a title dispute does not deprive the justice court of jurisdiction.      Pinnacle

Premier Props., Inc. v. Breton, 447 S.W.3d 558, 563 (Tex. App.—Houston [14th

Dist.] 2014, no pet.) (op. on reh’g). As we have previously explained

      A justice court or county court at law is not deprived of jurisdiction in
      a forcible detainer action merely because of the existence of a title
      dispute. In most cases, “the right to immediate possession can be
      determined separately from the right to title. The trial court is
      deprived of jurisdiction only if the determination of the right to
      immediate possession necessarily requires the resolution of the title
      dispute.”

             “Where a foreclosure pursuant to a deed of trust establishes a
      landlord and tenant-at-sufferance relationship between the parties,
      the trial court has an independent basis to determine the issue of
      immediate possession without resolving the issue of title to the
      property.”

Mosely v. Am. Homes 4 Rent Props. Eight, LLC, No. 02-15-00200-CV,

2015 WL 9942695, at *2–3 (Tex. App.—Fort Worth Dec. 10, 2015, pet. dism’d)

(citations omitted).

      Here, the deed of trust governs the right to possession of the Property.

Beauly produced evidence that it purchased the Property at the foreclosure sale

and that when it did so, under the terms of the deed of trust, Dunlap became a

tenant at sufferance. Beauly included with its petition a copy of its notice to

vacate, along with proof that it mailed the notice to Dunlap by certified mail to the

Property’s address and that the notice gave Dunlap three-day’s notice to vacate.

Beauly’s attorney swore in his affidavit filed below that he also mailed the notice


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by first-class mail and that neither that notice nor the one sent by certified mail

were returned as undeliverable. Dunlap did not object in the trial court that she

did not receive the notice. Dunlap also did not dispute that she had not vacated

the property, and the motions she filed in the trial court listed her address as the

Property’s address. The record shows that Beauly established a superior right to

possession. See Tex. Prop. Code Ann. § 24.002; Bradberry, 526 S.W.3d at 478.

Because the trial court could determine the issue of immediate possession based

on the foreclosure under the deed of trust, the trial court had an independent

basis to determine the issues without addressing title issues, if any, related to the

Property.

C.    Dunlap could not assert a breach of contract claim.

      Dunlap further argues that the deed of trust contained notice requirements

designed to prevent undisclosed transactions and that Primelending “breached

the contractual notice requirements of the Deed of Trust contract by negotiating

the mortgage note to an undisclosed third party.” The only issue in a forcible

detainer action is the right to immediate possession of the premises.           See

Bradberry, 526 S.W.3d at 478. Therefore, if Dunlap has any claim based on

Primelending’s assignment of her note or deed of trust, she could not raise it in

this forcible detainer action.

D.    Dunlap was not entitled to summary judgment.

      Dunlap argues that the trial court should have dismissed Beauly’s action

because it did not respond to her motion for summary judgment below. Dunlap


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filed no motion in the trial court that references summary judgment or cites civil

procedure rule 166a. See Tex. R. Civ. P. 166a. In her Statement of Facts,

however, she characterizes her “Notice and Demand for Default Judgment” as a

motion for summary judgment. The text of that motion stated, in its entirety,

“Comes now TAKESHA DUNLAP and requests the Court, pursuant to Rule

503.1, Texas Rules of Civil Procedure, for the entry of a judgment by default

against the defendant. In support of this request, TAKESHA DUNLAP, relies

upon the record in this case and the affidavit submitted herein.” Even construing

this motion as a motion for summary judgment, the motion failed to set out any

grounds for summary judgment and, accordingly, provided no basis on which the

trial court could grant summary judgment for Dunlap.         See Tex. R. Civ. P.

166a(c), (i).

       We overrule Dunlap’s sole point on appeal.

                               IV.   Conclusion

       Having overruled Dunlap’s point, we affirm the trial court’s judgment for

possession.




                                                    /s/ Mark T. Pittman
                                                    MARK T. PITTMAN
                                                    JUSTICE

PANEL: WALKER, MEIER, and PITTMAN, JJ.

DELIVERED: March 15, 2018


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