                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-15-00060-CV


ALFRED FIELDS, LISA FIELDS,                                        APPELLANTS
AND ALL OTHER OCCUPANTS

                                        V.

MICHAEL VARRICHIO AND JILL                                          APPELLEES
VARRICHIO


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          FROM COUNTY COURT AT LAW NO. 1 OF TARRANT COUNTY
                    TRIAL COURT NO. 2014-006803-1

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                        MEMORANDUM OPINION 1

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      This is a forcible detainer case. Appellants Alfred and Lisa Fields argue in

one issue that the justice court and the county court below did not have

jurisdiction to render the judgment of forcible detainer in favor of Appellees



      1
      See Tex. R. App. P. 47.4.
Michael and Jill Varrichio.      Because we hold that the lower courts had

jurisdiction, we affirm.

      In 2001, the Fieldses executed a note secured by a deed of trust on a

home in Arlington, Texas. The deed of trust was subsequently assigned to JP

Morgan Chase Bank, N.A. (Chase Bank). In 2013, the home was sold at a

foreclosure sale to the Varrichios.

      The Fieldses filed suit against Chase Bank and the Varrichios in a Tarrant

County district court, but the case was removed to a federal district court. By

amended complaint, the Fieldses sued Chase Bank for wrongful foreclosure in

violation of the property code, breach of contract, anticipatory breach of contract,

unjust enrichment, negligence, violations of the Texas Debt Collections Practice

Act, 2 negligent misrepresentation, equitable relief based on Chase Bank’s

unclean hands, and for violations of the federal Truth in Lending Act. 3 Against

the Varrichios, the Fieldses alleged a claim to quiet title based on the alleged

wrongful acts of Chase Bank leading up to the foreclosure sale.

      The federal court granted summary judgment for the Varrichios in October

2014, prior to the Varrichios’ filing of their eviction suit. The Fieldses assert that

their case is on appeal to the Fifth Circuit, and, although the record contains




      2
       Tex. Fin. Code Ann. §§ 392.001–.404 (West 2006).
      3
       15 U.S.C.A. §§ 1601–67 (West 2009 & Supp. 2015).


                                          2
nothing showing that such appeal has been taken, the Varrichios do not dispute

that the case is on appeal. 4

      In November 2014, the Varrichios brought this eviction suit against the

Fieldses.   The justice court rendered judgment for the Varrichios, and the

Fieldses appealed to the county court. After the county court rendered judgment

for the Varrichios, the Fieldses filed this appeal.

      In their sole issue, the Fieldses argue that both the justice of the peace

court and the county court lacked jurisdiction to hear the forcible detainer action

because the federal court first acquired subject-matter jurisdiction over the

property and the issue of right to possession of the property. In response, the

Varrichios contend that the justice and county courts had subject matter

jurisdiction regardless of the pendency of an appeal in federal court. We agree

with the Varrichios.

      The Fieldses argue that “where a federal court has first acquired

jurisdiction of the subject-matter of a cause, it may enjoin the parties from

proceeding in a state court of concurrent jurisdiction where the effect of the

action would be to defeat or impair the jurisdiction of the federal court.”

[Emphasis added.] They cite four old cases from the United States Supreme


      4
        See Tex. R. App. P. 38.1(g) (stating that, in a civil case, the court will
accept as true the facts asserted in the appellant’s brief unless another party
contradicts them), 38.2(a)(1)(B) (stating that an appellee’s brief need not contain
a statement of facts unless the appellee is dissatisfied with the statement of facts
in the appellant’s brief).


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Court to support that argument. 5 They contend that “both title and possession

are in front of the federal court,” and, therefore, “allowing the forcible entry and

detainer suit to go forward would be contrary to federal law.”

      “[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.” 6 “[I]n

most cases the right to immediate possession can be determined separately from

the right to title,” and a court hearing an eviction proceeding “is deprived of

jurisdiction only if the determination of the right to immediate possession

necessarily requires the resolution of the title dispute.” 7

      Texas courts, including this one, have repeatedly held that “subject matter

jurisdiction in a forcible detainer action is not defeated simply by the fact that a

concurrent suit is pending in federal court.” 8 “[A] judgment of possession in a


      5
       Mandeville v. Canterbury, 318 U.S. 47, 50, 63 S. Ct. 472, 474 (1943);
Toucey v. New York Life Ins. Co., 314 U.S. 118, 135, 62 S. Ct. 139, 144–45
(1941); Kline v. Burke Const. Co., 260 U.S. 226, 229, 43 S. Ct. 79, 81 (1922);
Farmers Loan & Trust Co. v. Lake St. Elevated R. Co., 177 U.S. 51, 61, 20 S. Ct.
564, 568 (1900).
      6
     Schlichting v. Lehman Bros. Bank FSB, 346 S.W.3d 196, 199 (Tex.
App.—Dallas 2011, pet. dism’d).
      7
       Id.
      8
       Woods v. Pennymac Loan Servs., L.L.C., No. 02-12-00301-CV, 2013 WL
4506776, at *2 (Tex. App.—Fort Worth Aug. 22, 2013, no pet.) (mem. op.); see
also Hossain v. Fed. Nat’l Mortg. Ass’n, No. 14-14-00273-CV, 2015 WL 3751548,
at *2 (Tex. App.—Houston [14th Dist.] June 16, 2015, pet. filed) (mem. op.);
Singha v. Fed. Nat’l Mortg. Ass’n, No. 05-13-01518-CV, 2015 WL 1477930, at *3
(Tex. App.—Dallas Mar. 31, 2015, no pet.) (mem. op.).


                                           4
forcible detainer action is a determination only of the right to immediate

possession and does not determine the ultimate rights of the parties to any other

issue in controversy relating to the realty in question.” 9

      The eviction proceedings below involved the adjudication of only who has

the superior right to immediate possession and not of who holds title to the

property, whether Chase Bank violated any duty or law by foreclosing on the

property, whether the foreclosure was proper, or who ultimately has the right of

possession. 10 The eviction proceeding neither impaired nor interfered with the

federal court’s jurisdiction to adjudicate the Fieldses’ claims.

      The Fieldses point us to nothing in the record that shows that the lower

courts could not determine the question of immediate possession without also

determining title to the property or any of the issues before the federal court, and

we found nothing of that kind in our review of the record. The Fieldses have not

alleged any grounds, other than the existence of the federal lawsuit, on which the

courts below should have found that the Fieldses had a superior right to

      9
        Girard v. AH4R I TX DFW, LLC, No. 02-13-00112-CV, 2014 WL 670198,
at *2 (Tex. App.—Fort Worth Feb. 20, 2014, no pet.) (citing Hong Kong Dev. Inc.
v. Nguyen, 229 S.W.3d 415, 437 (Tex. App.—Houston [1st Dist.] 2007, no pet.)
(op. on reh’g)).
      10
          See, e.g., Hossain, 2015 WL 3751548, at *2 (noting that challenge to
validity of a foreclosure sale does not deprive justice court or county court of
jurisdiction over forcible detainer suit); Morris v. Am. Home Mortg. Servicing, Inc.,
360 S.W.3d 32, 34, 35 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (holding
that county court had jurisdiction to determine forcible detainer claim despite
pending federal suit to try title because county court could determine possession
without determining title).


                                           5
possession, and they do not argue that the Varrichios failed to establish the

statutory criteria for eviction or to follow the rules applicable to such

proceedings. 11 Accordingly, we overrule their sole issue.

      Having overruled the Fieldses’ issue, we affirm the county court’s

judgment.




                                                   /s/ Lee Ann Dauphinot
                                                   LEE ANN DAUPHINOT
                                                   JUSTICE

PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.

DELIVERED: October 1, 2015




      11
         See Tex. Prop. Code Ann. § 24.002 (West 2014) (defining forcible
detainer), § 24.005 (West 2014) (requiring that notice to vacate be given prior to
filing an eviction suit); Tex. R. Civ. P. 510.1–.13 (setting out procedures for
eviction suits).


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