REVERSE and RENDER; Opinion Filed March 19, 2011




                                              In The
                                 (1uitrt nf Appiata
                        FiftI! thitrirt of ixa at OaLtwii
                                      No 05-12-00100-CV


                              ONFWEST BANK, FSB, Appellant

                                                V.

            CLARK R, CARMAN AND ALL OTHER OCCUPANTS, Appellees


                       On Appeal from the County Court at Law No. I
                                   Dallas County, Texas
                           Trial Court Cause No. CC-I 0-06587-A


                             MEMORANDUM OPINION
                          Before Justices Moseley, Fillmore, and Myers
                                   Opinion By Justice Moseley

       OneWest Bank, FSB filed a forcible detainer action against Clark R. Carman and all other

occupants of a residential property. The justice court entered judgment in OneWest’s favor. Carman

appealed to the county court at law, which conducted a trial de novo and entered judgment in

Carman’s favor. OneWest asserts three arguments in this appeal, including the trial court erred by

ignoring an independent basis for adjudicating possession of the property.

       The background and facts of the case are well-known to the parties; thus, we do not recite

them here. Because all dispositive issues are settled in law, we issue this memorandum opinion.

TEx. R. App. P. 47.2(a), 47.4. We sustain OneWest’s third issue, reverse the trial court’s judgment,
and enter judgment in favor of OneWest for i umediate possession ot the property.

         OneWcst acquired the property located at 532 Winchester Drive. Richardson. Texas 75Ot()

(the Property) at a foreclosure sale. After unsuccessful lv attempting to remove Carman and any

other persons living in the Property. OneWest filed a fore ible detainer action.

         The trial     court    admitted four exhibits uttered by OneWest: a certified copy of the deed of

trust executed by Carman that encumbered the Property; a certified copy of the substitute trustee’s

deed; and the notices to vacate the Property that One West served on Carman and other occupants

of the Property (along with proof of service of the notices). Carman also testified and offered into

evidence a copy of a document titled “Assignment of Note and Transfer of [ems.” The Assignment,

admitted over One West’s objection, showed it had been executed after the foreclosure sale with an

effective date before the foreclosure sale.

         After the exhibits were admitted and Carman testified, the trial judge concluded: “I don’t

think you [OneWestj had the right to possess at the time that you took [the Property. I don’t think

you’re precluded Irom going through the process again now that you actually have the paperwork

in place. That being the case, I’m going to fncl for the defendant.” The trial court entered judgment

in Carman’s favor.

         In its third issue, OneWest argues the trial court erred by ignoring the parties’ agreement in

the deed of trust that, in the event of a foreclosure, Carman would become a tenant-at-sufferance and

One West would be entitled to institute a court proceeding to remove him (and others) from the

Property. OneWest’s claim to immediate possession of the Property is based on section 22 of the

deed of trust, which states:




    As a result of our conclusion as to OneWest’s third   issue.   we need not address its first or second issue. Sce TEX. R. APP. P. 47.1   -
        lithe Pmperty is sold pursuant to this Section 22, Borrower or any person holding
        possession of the Property through Borrower shall immediately surrender possession
        of the Property to the purchaser at that sale. It possession is not surrendered,
        Borro\ver or such person ha1l he a tenant at sufferance and may he removed by writ
        ol possession or other court proceeding.

        The only issue in a forcible detainer action is the entitlement to actual and immediate

possession of real property. Whether a party has title shall not be adjudicated. See TIEX, R.   OV.   P.

746; Bruce r. F1\!,t 7 :fortç lw .   i,   352 S.W.3d 891, 893 (Tex. App.— Dallas 2011, pet. denied).

A forcible detamer action is dependent on proof ofa landlord-tenant relationship; without a landlord-

tenant relationship, the trial court cannot determine the issue of immediate possession without also

determining the owner of the property.          Duss, Inc.   .   Smith, 206 SW .3d 197. 200 (Tex.

App.— Dallas 2006, no pet.).

       The deed of trust expressly established a landlord and tenant—at-sufferance relationship

between Carman (and any other tenant of the Property) and OneWest beginning as of the date of the

foreclosure sale. See Rice v. Pinriey, 51 S.W.3d 705, 712 (Tex. App.—Dallas 2001, no pet.). “This

landlord—tenant relationship provided an independent basis on which the trial court could determine

the issue of immediate possession without resolving the issue of title to the property.” Id.; see also

Bruce, 352 S.W.3d at 893-94 (concluding similar provision in deed of trust established landlord-

tenant relationship that served as independent basis for determining right to immediate possession

without resolving title issue); U.S. Bank Nat’! Ass ‘n v. Freenev, 266 S.W.3d 623, 25-26 (Tex.

App.—Dallas 2008, no pet.) (same). The documents OneWest offered and the trial court admitted,

including the deed of trust and the substitute trustee’s deed, proved OneWest was entitled to

immediate possession of the Property as a matter of law. We sustain OneWest’s third issue.
       We   reverse   the trial   court’s judgment and render judgment of possession in favor ol


()neWest.




                                                       JIM M)SFLL
                                                     zJ’USTiC E

1201 OOFP05
                                    nnri      tif   Appra6
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                                        JUDGMENT
ONEWEST BANK FS[3. Appellant                         Appeal from the County Court at Law No. 1
                                                     of Dallas County, Texas. (Tr.Ct.No. Cause
No. 05- 1 —(H) I U(J_C\/      V                      No. CC-I 0065 87-A).
                                                     Opinion deIiered by Justice Moseley.
CLARK R, CARMAN AND ALL OTHER                        Justices Fillmore and Myers participating
OCCU PANTS, Appellees

        In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and judgment is RENDEREI) that OneWest Bank, FSB is entitled to immediate
possession of the property located at 532 Winchester Drive, Richardson, Texas 75080. It is
ORDERED that appellant OneWest Bank, FSB recover its costs of this appeal from appellees
Clark R. Carman and all other occupants.


Judgment entered March 19, 201 3.




                                                     JIM MOSELEY
                                                     JUSTICE
                                                     /
