                                    NO. 07-04-0325-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL C

                                NOVEMBER 10, 2004
                          ______________________________

  TERRA XXI LTD., TERRA PARTNERS, VEIGEL FARMS, INC., VEIGEL CATTLE
         COMPANY, ROBERT W. VEIGEL, and ELLA MARIE VEIGEL,

                                                                 Appellants

                                              v.

       AG ACCEPTANCE CORPORATION, AG SERVICES of AMERICA, INC.,
            and MARK HARMON, individually and as substitute trustee,

                                                      Appellees
                        _________________________________

           FROM THE 222ND DISTRICT COURT OF DEAF SMITH COUNTY;

                  NO. CI-04B-011; HON. ROLAND SAUL, PRESIDING
                        _______________________________

                                Memorandum Opinion
                          _______________________________

Before JOHNSON, C.J., and QUINN and REAVIS, JJ.

       This is an interlocutory appeal from an order denying a preliminary injunction sought

by appellants Terra XXI, Ltd., Terra Partners, Veigel Farms, Inc., Veigel Cattle Company,

Robert W. Veigel, and Ella Marie Veigel (collectively referred to as Veigel). Veigel initiated

suit in the district court to nullify a deed of trust and foreclosure sale undertaken pursuant

to that deed. It also moved to enjoin an action for forcible entry and detainer brought by
appellees Ag Acceptance Corporation, Ag Services of America, Inc., and Mark Harmon,

individually and as substitute trustee (collectively referred to as Ag Services) in the local

justice court. As previously mentioned, the district court refused to grant the injunction.

The three issues before us involve whether the trial court erred in denying the remedy.

Veigel believes it did because 1) the justice court lacked jurisdiction over the detainer

action, 2) Veigel had a probable right of recovery and no adequate remedy at law, and 3)

evidence supporting its attempt to vitiate the deed of trust was improperly excluded. We

affirm the order of the trial court.

       Standard of Review

       The standard of review is one of abused discretion; thus, we may not modify or

reverse the decree unless such an abuse is clearly shown. Walling v. Metcalfe, 863

S.W.2d 56, 58 (Tex. 1993); Friona I.S.D. v. King, 15 S.W.3d 653, 657 (Tex. App.–Amarillo

2000, no writ). Furthermore, an abuse of discretion arises when the trial court acts without

reference to applicable guiding principles, acts arbitrarily or unreasonably, misinterprets or

misapplies the law, or renders a decision without sufficient evidentiary basis. Friona I.S.D.

v. King, 15 S.W.3d at 657.

       Next, one is not entitled to a temporary injunction until he demonstrates a probable

injury and a probable right of recovery. Id. A probable right of recovery is proven by

alleging the existence of a right and presenting evidence tending to illustrate that the right

is being denied. Id.; Miller Paper Co. v. Roberts Paper Co., 901 S.W.2d 593, 597 (Tex.

App.–Amarillo 1995, no writ). Probable injury is proven through evidence of imminent

harm, irreparable injury, and the lack of an adequate legal remedy. Id. As can be seen,

both prongs require the presentation of evidence and, unlike temporary restraining orders,

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cannot be based upon sworn pleadings or affidavits unless the parties so agree.

Millwrights Local Union No. 2484 v. Rust Engineering Co., 433 S.W.2d 683, 685-87 (Tex.

1968); Friona I.S.D. v. King, 15 S.W.3d at 657. With this said, we turn to the issues before

us.

       Want of Jurisdiction

       Veigel initially contends that it had a probable right to recover because the justice

court had no jurisdiction to adjudicate the detainer action. This is purportedly so because

questions of ownership were intermingled with the issue of who had the right to immediately

possess the land, and the justice court could not determine who owned the property. While

it is true that a justice court lacks the subject matter jurisdiction to adjudicate title to land,

TEX . GOV ’T CODE ANN . §27.031(a)(2) & (b)(4) (Vernon 2004), it can nonetheless determine

who is entitled to immediately possess the property. Rice v. Pinney, 51 S.W.3d 705, 709

(Tex. App.–Dallas 2001, no writ). This is so because the litigant pursuing the forcible entry

and detainer suit need not prove that it has title to the property; rather, it need only show

sufficient evidence of ownership to demonstrate a superior right to immediate possession.

Lopez v. Sulak, 76 S.W.3d 597, 604-05 (Tex. App.–Corpus Christi 2002, no pet.); Rice v.

Pinney, 51 S.W.3d at 709; Goggins v. Leo, 849 S.W.2d 373, 377 (Tex. App.–Houston [14th

Dist.] 1993, no writ). And, though the current possessor may question the validity of the

foreclosure sale and the quality of title that passed to the individual who bought the property

at the sale, that does not ipso facto deprive the justice court of its power to decide who

should immediately possess the land when, due to the foreclosure sale, the relationship of

landlord and tenant arose between the buyer and current possessor. Villalon v. Bank One,

No. 01-03-00446-CV, slip. op., 2004 LEXIS 5578 at 8-11 (Tex. App.–Houston [1st Dist.] June

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24, 2004, no pet.); Aguilar v. Weber, 72 S.W.3d 729, 733-34 (Tex. App.–Waco 2002, no

pet.); Dormady v. Dinero Land & Cattle Co., L.C., 61 S.W.3d 555, 559 (Tex. App.–San

Antonio 2001, pet. dism’d w.o.j.); Rice v. Pinney, 51 S.W.3d at 709-13. Under that

circumstance, the issue of possession can be resolved on a ground other than ownership.

Id.

       Here, the deed of trust provided that:

       If any of the property is sold under this deed of trust, Grantor shall
       immediately surrender possession to the purchaser. If the Grantor fails to do
       so, Grantor shall become a tenant at sufferance of the purchaser, subject to
       an action for forcible detainer.

Given this provision, the relationship between Ag Services and Veigel became that of

landlord and tenant once Ag Services acquired the land at the foreclosure sale and Veigel

refused to vacate it. So too did the relationship afford the justice court a basis to adjudicate

the matter of possession without having to determine title. In view of this evidence and the

holdings of Villalon, Rice, and Dormady, we cannot say that Veigel’s allegation about

jurisdiction, or the lack thereof, in the justice court illustrated a probable basis for recovery.



       Evidence Illustrating Causes of Action

       Next, Veigel also suggests that it satisfied the requirements for obtaining a

preliminary injunction since it tendered evidence of various causes of action which could

result in the nullification of the deed of trust and foreclosure sale. Assuming arguendo, that

such evidence was indeed tendered, we cannot say that it obligated the trial court to grant

the injunctive relief.




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       Again, the standard of review is one of abused discretion. Thus, Veigel is obligated

to establish that the district court violated guiding rules and principles, misinterpreted the

law, or acted arbitrarily or without factual basis in rendering the decision it did. Friona I.S.D.

v. King, supra. Allowing one claiming the right to immediately possess land to urge a

forcible entry and detainer suit in a justice court while his opponent prosecutes an action

in a district court to adjudicate title comports with legislative policy and the law. See Scott

v. Hewitt, 90 S.W.2d 816, 818-19 (Tex. 1936) (holding that the legislature expressly

provided by forcible entry and detainer proceedings a summary, speedy, and inexpensive

remedy for the determination of who is entitled to the possession of premises, without

resorting to an action upon the title, even though title is in dispute); Villalon v. Bank One,

supra (holding similarly); Dormady v. Dinero Land & Cattle Co., L.C., supra (holding

similarly); Rice v. Pinney, supra (holding similarly). In other words, because both statute

and judicial opinion authorize the prosecution of those type of suits concurrently in different

courts, we cannot say that the trial court erred in permitting what the law allows. So, it

does not matter that Veigel allegedly presented evidence supporting causes of action which

could result in the nullification of the deed of trust and foreclosure sale. Nor does it matter

that the trial court may not have allowed Veigel to present such evidence. In either case,

the trial court’s refusal to enjoin prosecution of the forcible entry and detainer suit while

Veigel attempted to adjudicate title to the land elsewhere comported with the law and,

therefore, evinced a legitimate exercise of its discretion.

       Accordingly, the order denying the temporary injunction is affirmed.



                                                    Brian Quinn

                                                5
    Justice




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