                             NUMBER 13-13-00504-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

                           IN RE ROSARIO GALLEGOS


                       On Petition for Writ of Mandamus.


                         MEMORANDUM OPINION
     Before Chief Justice Valdez and Justices Rodriguez and Garza
                Memorandum Opinion by Justice Garza
       The underlying proceeding is a forcible detainer action that is on appeal to the

county court at law. By petition for writ of mandamus, relator, Rosario Gallegos, seeks

to compel the county court at law to vacate its order: (1) denying her motion to dismiss

for want of subject matter jurisdiction; and (2) granting a writ of possession for property

in favor of the real party in interest, Jose Eloy Vela. Gallegos contends that the county

court lacked jurisdiction over Vela’s forcible detainer action because of a pending title
dispute over the property in district court. We conditionally grant the petition for writ of

mandamus.

                                          I. BACKGROUND

        By warranty deed in 1999, Edward Pyle conveyed an interest in real property to

Vela.       The warranty deed stated that the property being conveyed included any

improvements and did not constitute homestead.                The real estate note agreement

underlying the transaction provided that: Vela would loan $45,000 to Pyle, Vela would

obtain clear title to the property, the parties would sign the note, and Pyle would “let” a

title company give Vela a clear title to the property. The note provided that Pyle agreed

to pay the property taxes, property liens, closing costs, the “cost” of clear title, the

“private loan” between Vela and Pyle, and “if applicable, filing and recording fees” from

the $45,000 loan. Pyle further agreed to “pay to [Vela] or assigns monthly payments

paid to the [First National Bank] for 20 years or until the $45,000[] is paid in full.” Under

the agreement, Pyle or assigns retained “the right to lease and convert the property into

a funeral home . . . for $10,000[] at $41.66 and $83.00 property tax or till paid.”1

        Under the note, Vela agreed to lease the property to Pyle “for $10,000[] or until

the note is paid in full.” The note agreement prohibited Vela from using the property as

collateral, using the property to “retain” loans, or selling the property while timely lease

payments and loan payments were being made. Vela agreed to “hold said property in

trust until the Bank Loan/Note and $10,000[] is paid in full.” The note provided that Vela

would transfer title to Pyle when the $45,000 was paid to the bank in full, and that Vela

“may foreclose on the property herein described” in the event that Pyle or assigns “do


        1
         The record is unclear as to the meaning of the note’s provision regarding payments of “$41.66
and $83.00 property tax or till paid.”

                                                  2
not make timely lease payment[s] and timely Bank Loan/Note payment.” The note

further provided that Vela “will have the $45,000[] within 10 days of signing this

agreement, within 10 days of signing this agreement [sic] become null and void.”

        In 2002, Pyle sold the property to Gallegos by bill of sale and assignment of

rights and transferred the property to Gallegos by quitclaim deed. According to the

underlying pleadings, Gallegos “began living on the property in 2002 and lived with Mr.

Pyle as his wife until he passed away in 2007.” The assignment from Pyle to Gallegos

expressly includes right, title, and interest in the name “La Blanca Kountry Funeral

Home.”

        In 2012, Vela filed a complaint for forcible detainer against “Edward Pyle and

Occupants” in justice court. The justice court granted the defendants’ motion to dismiss

for lack of jurisdiction.

        Vela appealed the dismissal to the county court.           While the appeal was

proceeding in county court, in May 2013 Gallegos filed a separate suit to quiet title in

district court alleging that the warranty deed and note agreement were void and illegal.

In August 2013, Gallegos filed a motion to dismiss the county court case on grounds

that the county court lacked jurisdiction because the title dispute in the district court had

to be resolved before the issue of possession in the county court could be addressed.

On September 19, 2013, the county court denied the motion to dismiss and granted

Vela a writ of possession. The matter had been set for trial in county court in October

2013.

        This original proceeding ensued. By two issues, Gallegos contends: (1) that the

county court’s order of September 19, 2013, denying her motion to dismiss and granting



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a writ of possession is void; and (2) the trial court failed to provide her with notice of a

hearing on the merits of the forcible detainer action.           We granted a stay of the

underlying proceedings on September 24, 2013. This Court requested and received a

response to the petition from Vela and also received a reply to the response from

Gallegos.

                                   II. STANDARD OF REVIEW

       Gallegos contends that the county court’s order is void because it lacks

jurisdiction over the case. Mandamus is proper if a trial court issues an order beyond its

jurisdiction. See In re Dickason, 987 S.W.2d 570, 571 (Tex. 1998) (orig. proceeding);

Bd. of Disciplinary App. v. McFall, 888 S.W.2d 471, 472 (Tex. 1994) (orig. proceeding).

Mandamus is available to correct a void order even if the order was appealable and the

party requesting relief failed to pursue an appeal. Dikeman v. Snell, 490 S.W.2d 183,

186 (Tex. 1973) (orig. proceeding). Where an order is void, the relator need not show it

did not have an adequate appellate remedy and mandamus relief is appropriate. See In

re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding); In re Union

Pac. Res., Co., 969 S.W.2d 427, 428 (Tex. 1998) (orig. proceeding).

       Gallegos further contends that the trial court abused its discretion by failing to

give notice that the hearing on the plea and motion to dismiss encompassed the right of

possession, particularly since trial on the merits was scheduled some months in

advance of the hearing on the plea and motion to dismiss. A trial court abuses its

discretion if it reaches a decision so arbitrary and unreasonable that it amounts to a

clear and prejudicial error of law, or if it clearly fails to correctly analyze or apply the law.

In re Olshan Found. Repair Co., 328 S.W.3d 883, 888 (Tex. 2010) (orig. proceeding).



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This standard is satisfied where the trial court effectively deprives the relator of the

fundamental due process right to notice and a hearing. See Union Carbide Corp. v.

Moye, 798 S.W.2d 792, 793 (Tex. 1990) (orig. proceeding); In re Acceptance Ins. Co.,

33 S.W.3d 443, 448 (Tex. App.—Fort Worth 2000, orig. proceeding); see also In re

Hamilton, No. 12-13-00080-CV, 2013 WL 2456499, at *1 (Tex. App.—Tyler June 5,

2013, orig. proceeding) (mem. op.).2

                                         III. FORCIBLE DETAINER

        Gallegos’s first issue contends that the county court’s order of September 19,

2013 denying the motion to dismiss and granting a writ of possession in favor of Vela is

void.    This issue is premised on the jurisdictional limitations applicable to forcible

detainer actions. In response, Vela asserts, inter alia, that Gallegos failed to provide a

complete record, including a copy of a lease between Vela and Pyle;3 that the lease

provided sufficient evidence of Vela’s ownership to demonstrate that he has a superior

right to immediate possession; and that forcible detainer actions can be brought and

prosecuted concurrently with suits to try title in district court.



        2
          In his statement of jurisdiction, Vela appears to contend that we should deny the petition for writ
of mandamus on grounds that Gallegos failed to post a bond as required by the Texas Property Code.
See TEX. PROP. CODE ANN. § 24.007(a) (West Supp. 2013) (allowing a judgment of a county court in an
eviction suit to be stayed on appeal if the appellant files an appropriate and timely supersedeas bond).
However, this section of the property code, by its express terms, applies to appeals and not original
proceedings. See id. Accordingly, we proceed to address the merits of this case.
        3
           Vela asserted that Gallegos failed to file certified or sworn copies of relevant documentation with
her petition for writ of mandamus. See TEX. R. APP. P. 52.3(k), 52.7. Any alleged deficiencies in these
filings have subsequently been corrected by Gallegos by way of a supplemental affidavit. See, e.g.,
Humphreys v. Caldwell, 881 S.W.2d 940, 943 (Tex. App.—Corpus Christi 1994, no writ). Moreover, to
the extent that Vela asserts that Gallegos failed to provide “the entire record of the proceeding,” we note
that Gallegos’s appendix and record included those materials required by the appellate rules and the
alleged omissions did not render the appendix or record misleading. See TEX. R. APP. P. 52.11. In short,
Gallegos met her burden to provide a record sufficient to show her entitlement to mandamus relief.
Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding); In re Davidson, 153 S.W.3d 490,
491 (Tex. App.—Amarillo 2004, orig. proceeding); see generally TEX. R. APP. P. 52.3, 52.7.

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       The forcible detainer action is the procedural vehicle by which the right to

immediate possession of real property is determined. Ward v. Malone, 115 S.W.3d

267, 270 (Tex. App.—Corpus Christi 2003, pet. denied). Such an action is intended to

be a speedy and inexpensive means for resolving the question of who is entitled to

immediate possession of property without resorting to an action upon title. Harrell v.

Citizens Bank & Trust Co., 296 S.W.3d 321, 325 (Tex. App.—Texarkana 2009, pet.

dism’d); Falcon v. Ensignia, 976 S.W.2d 336, 338 (Tex. App.—Corpus Christi 1998, no

pet.). The only issue in a forcible detainer action is the right to actual possession of the

premises. Marshall v. Hous. Auth., 198 S.W.3d 782, 785–86 (Tex. 2006); see TEX. R.

CIV. P. 746. In cases of forcible entry or forcible detainer, the “merits of the title shall not

be adjudicated.” TEX. R. CIV. P. 746; Hong Kong Dev., Inc. v. Nguyen, 229 S.W.3d 415,

434 (Tex. App.—Houston [1st Dist.] 2007, no pet.).            In keeping with the foregoing

prohibition against the adjudication of title in a forcible detainer action, a justice court is

expressly deprived of jurisdiction to determine or adjudicate title to land.         See TEX.

GOV’T CODE ANN. § 27.031(b)(4) (West Supp. 2013).

       By statute, a justice court has jurisdiction over a forcible detainer action. See

TEX. PROP. CODE ANN. § 24.004 (West Supp. 2013). From the justice court, a forcible

detainer suit may be appealed to the county court for a de novo review. See TEX. R.

CIV. P. 749; Hong Kong Dev., Inc., 229 S.W.3d at 433–34. The appellate jurisdiction of

the county court is confined to the jurisdictional limits of the justice court. Salaymeh v.

Plaza Centro, LLC, 264 S.W.3d 431, 435 (Tex. App.—Houston [14th Dist.] 2008, no

pet.); Hong Kong Dev., Inc., 229 S.W.3d at 434. Therefore, neither the justice court nor




                                               6
a county court on appeal can resolve questions of title beyond the immediate right to

possession. See Bacon v. Jordan, 763 S.W.2d 395, 396 (Tex. 1988).

       A forcible detainer action is cumulative, not exclusive, of other remedies a party

may have in the courts of this State, including a suit to try title. Salaymeh, 264 S.W.3d

at 435–36; Rice v. Pinney, 51 S.W.3d 705, 709 (Tex. App.—Dallas 2001, no pet.); see

Scott v. Hewitt, 90 S.W.2d 816, 818–19 (Tex. 1936). The displaced party is entitled to

bring a separate suit in the district court to determine questions of title. Salaymeh, 264

S.W.3d at 435–36.        Accordingly, forcible detainer suits in justice court may run

concurrently with an action in another court even if the other action involves adjudication

of matters that could result in a different determination of possession from the decision

rendered in the forcible detainer suit. Id.; Hong Kong Dev. Inc., 229 S.W.3d at 437.

However, where the right to immediate possession necessarily requires resolution of a

title dispute, a justice court has no jurisdiction to enter a judgment. Rice, 51 S.W.3d at

709. In other words, a justice court is not deprived of jurisdiction because there is a title

dispute; it is deprived of jurisdiction only if resolution of a title dispute is a prerequisite to

determination of the right to immediate possession. See id. Whether an existing title

dispute deprives the justice and county courts of jurisdiction to adjudicate possession in

forcible detainer actions generally turns on whether there is a basis, independent of the

claimed right to title, for the plaintiff’s claim of superior possession rights in the property.

See Villalon v. Bank One, 176 S.W.3d 66, 71 (Tex. App.—Houston [1st Dist.] 2004, no

pet.); see also Chinyere v. Wells Fargo Bank, N.A., No. 01-11-00304-CV, 2012 WL

2923189, at *3 (Tex. App.—Houston [1st Dist.] July 12, 2012, no pet.) (op.).




                                                7
       Courts have concluded that several different factual scenarios generally require

the resolution of title as a prerequisite to determination of possession. Familial disputes

over property rights generally require the initial resolution of title. See, e.g., Pina v.

Pina, 371 S.W.3d 361, 365–66 (Tex. App.—Houston [1st Dist]. 2012, no pet.)

(explaining that the district court had jurisdiction over the determination of the right to

immediate possession of property between four siblings, where their mother had

deeded the property to two of the four children, because the issue necessarily required

a resolution of the title dispute between the children); Geldard v. Watson, 214 S.W.3d

202, 208–09 (Tex. App.—Texarkana 2007, no pet.) (holding that the justice court lacked

jurisdiction over a forcible detainer suit because the disagreement over the right of

possession, which arose from a familial dispute over homestead rights in property,

“necessarily required an adjudication of the merits of title”). Similarly, claims regarding

adverse possession typically involve the preliminary determination of title disputes.

See, e.g., Gibson v. Dynegy Midstream Servs., L.P., 138 S.W.3d 518, 524 (Tex. App.—

Fort Worth 2004, no pet.) (concluding that the issue of title raised by a party’s claims of

adverse possession was “integrally linked” to the issue of possession); Gentry v.

Marburger, 596 S.W.2d 201, 203 (Tex. Civ. App.—Houston [1st Dist.] 1980, writ ref’d

n.r.e.) (holding that the justice court lacked subject-matter jurisdiction over a forcible

detainer suit where the pleadings raised the issue of title by adverse possession and

thus “title to premises was directly involved”).

       The resolution of the issue regarding whether a forcible detainer case can

proceed concurrently with a title dispute or whether title has to be resolved as a

preliminary matter is more complicated in situations regarding the purchase and sale or



                                              8
lease of a property. In general, cases have held that where the relationship between

the parties in a forcible detainer suit is that of buyer and seller only, the determination of

the right to immediate possession of the property necessarily requires resolution of the

title dispute. See, e.g., Dass, Inc. v. Smith, 206 S.W.3d 197, 200–01 (Tex. App.—

Dallas 2006, no pet.) (concluding that the determination of the right to immediate

possession of property necessarily required a resolution of a title dispute, and

jurisdiction properly belonged in the district court, where there was evidence that a

landlord-tenant relationship had ended and a buyer-seller relationship had begun); see

also Chinyere, 2012 WL 2923189, at *5 (holding that the justice and county court lacked

subject matter jurisdiction where the claim for possession of property rested solely on

the claim to title based on the sale of the property).

       In contrast, where the relationship between the purchaser and seller of real

property encompasses the landlord and tenant relationship, even where such a

relationship occurs in the context of a sale of property, the issue of immediate

possession can typically be determined without first necessarily determining the issue of

title. See, e.g., Morris v. Am. Home Mortg. Serv., 360 S.W.3d 32, 35 (Tex. App.—

Houston [1st Dist.] 2011, no pet.) (holding that a deed of trust containing language

establishing a landlord-tenant relationship between the borrower and the purchaser

provided a basis to resolve competing claims to possession without resolving the title

dispute between the parties); Bruce v. Fed. Nat. Mortg. Ass’n, 352 S.W.3d 891, 893

(Tex. App.—Dallas 2011, pet. denied) (“Here, the Deed of Trust contains a provision

that creates a landlord-tenant relationship, and this relationship ‘provides an

independent basis on which the trial court could determine the issue of immediate



                                              9
possession without resolving the issue of title to the property.’”); see also Black v.

Washington Mut. Bank, 318 S.W.3d 414, 418 (Tex. App.—Houston [1st Dist.] 2010, pet.

dism’d w.o.j.); Yarto & DTRJ Invs., L.P. v. Gilliland, 287 S.W.3d 83, 89 (Tex. App.—

Corpus Christi 2009, no pet.); Elwell v. Countywide Home Loans, Inc., 267 S.W.3d 566,

569 (Tex. App.—Dallas 2008, pet. dism’d w.o.j.); Villalon, 176 S.W.3d at 71; Rice, 51

S.W.3d at 712–13; see also Weatherbee v. GMAC Mortgage, LLC, No. 01-11-00546-

CV, 2012 WL 1454494, at *3 (Tex. App.—Houston [1st Dist.] Apr. 26, 2012, pet. dism’d

w.o.j.) (mem. op.).

                                       IV. ANALYSIS

       Gallegos contends that the county court did not have jurisdiction over Vela’s

forcible detainer cause of action because of the pending title dispute in district court. As

stated previously, the county court is deprived of jurisdiction if resolution of a title

dispute is a prerequisite to the determination of the right to immediate possession. See

Rice, 51 S.W.3d at 709.       In contrast, Vela asserts that the leasehold relationship

between the parties provided an independent basis for the trial court to determine the

right to immediate possession without resolution of the title issues.

       While we agree with Vela that a leasehold relationship typically establishes an

independent basis for the county court to determine possession without the prerequisite

resolution of a title dispute, we disagree with Vela’s assertion that the resolution of this

case is controlled by that doctrine. The facts and argument presented here render this

proceeding distinguishable from those cases concluding that a landlord-tenant

relationship provides an independent basis to determine possession. Specifically, the

alleged landlord-tenant relationship between Vela and Pyle does not provide an



                                            10
independent basis for determination of possession because Gallegos contends that the

transaction itself was void. According to Gallegos, Pyle’s transfer of the property in

exchange for a loan to Vela, with a right to buy back the real property on repayment, is

prohibited by the Texas Constitution and the pretended sale of the homestead was void.

See TEX. CONST. art. XVI, § 50(c); Johnson v. Cherry, 726 S.W.2d 4, 6 (Tex. 1987).

      Agreements executed at the same time, for the same purpose, and in the course

of the same transaction are to be construed together. In re Prudential Ins. Co. of Am.,

148 S.W.3d 124, 135 (Tex. 2004) (orig. proceeding); Jim Walter Homes, Inc. v.

Schuenemann, 668 S.W.2d 324, 327 (Tex.1984) (citing Jones v. Kelley, 614 S.W.2d 95

(Tex. 1981)); Nevels v. Harris, 102 S.W.2d 1046, 1048 (Tex. 1937) (stating that a deed

of trust and notes for principal and interest should be treated as one contract because

the borrowers executed the documents at the same time and for the same purpose of

obtaining a loan secured by the real property); Nat’l City Bank of Indiana v. Ortiz, 401

S.W.3d 867, 884 (Tex. App.—Houston [14th Dist.] 2013, no pet.). In this case, the real

estate note agreement, the warranty deed, and the lease were all allegedly executed on

August 19, 1999. The real estate note agreement, which underlies the transfer of title

and Vela’s right to “foreclose” on the property, included provisions allegedly establishing

the lease between Vela and Pyle. The lease at issue in this case contains provisions

that clearly implicate the transfer of title. Under the lease, Pyle retained the option to

“buy back the house,” Vela had the right to declare the lease forfeited and to repossess

the premises if Pyle defaulted in his obligations, Vela would have “clear title” to the

property, the “sole purpose for [Vela] to hold the deed of said property is to borrow the




                                            11
said monies,” and “upon final payment on bank note the house will be return[ed] to the

lessee.”

       In short, there is no leasehold that is independent of the claimed right to title that

would buttress Vela’s claim of superior possession rights in the property. As part of the

same transaction, the lease would also be necessarily void under Gallegos’s claims.

Vela’s claims for possession cannot be separated into claims based on his alleged

disparate positions as both lessor and owner of the property. Thus, we agree with

Gallegos that the right to immediate possession of the property necessarily required a

resolution of the title dispute. Accordingly, the forcible detainer suit and the title suit

could not proceed concomitantly. See, e.g., Dass, Inc., 206 S.W.3d at 200–01; Rice, 51

S.W.3d at 709; see also Chinyere, 2012 WL 2923189, at **4–6. Because the right to

immediate possession of the property necessarily required resolution of the title dispute,

the county court had no jurisdiction to enter a judgment regarding the right to

possession. See Rice, 51 S.W.3d at 709. The trial court’s order of September 19,

2013, denying Gallegos’s plea and granting a writ of possession in favor of Vela, was

void. See id. We sustain Gallegos’s first issue. Having sustained her first issue, we

need not address her second issue regarding the deficiency of the notice of the hearing

on possession. See TEX. R. APP. P. 47.4.

                                      V. CONCLUSION

       The Court, having examined and fully considered the petition for writ of

mandamus, the response, the reply, and the applicable law, is of the opinion that

Gallegos has met her burden to obtain mandamus relief.               Accordingly, the stay

previously imposed by this Court is lifted.       See TEX. R. APP. P. 52.10(b) (“Unless



                                             12
vacated or modified, an order granting temporary relief is effective until the case is

finally decided.”). We conditionally grant Gallegos’s petition for writ of mandamus. We

are confident that the trial court will withdraw its order. The writ will issue only if the trial

court fails to comply with this opinion.



                                                    DORI CONTRERAS GARZA,
                                                    Justice


Delivered and filed the
13th day of November, 2013.




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