Opinion issued July 12, 2012




                                       In The

                                Court of Appeals
                                       For The

                           First District of Texas
                               NO. 01-11-00304-CV
 AYIBA QUEENDALYN CHINYERE, SULEMAN NELSON ILODIGWE
AND ALL OTHER OCCUPANTS OF 13523 BONILLA LANE, HOUSTON,
                 TEXAS 77083, Appellant
                                          V.
                     WELLS FARGO BANK, N.A., Appellee



             On Appeal from the County Civil Court at Law No. 4
                           Harris County, Texas
                        Trial Court Case No. 985918



                                   OPINION

      This is an appeal from a county court judgment in favor of plaintiff-appellee,

Wells Fargo Bank, N.A., in a forcible-detainer action. We vacate the judgment

and dismiss the case for lack of jurisdiction.
                                 BACKGROUND

      The underlying proceedings

      Following its December 7, 2010 purchase of the home at 13523 Bonilla

Lane at a non-judicial foreclosure sale, Wells Fargo filed a forcible-detainer action

in justice court in February 2011 seeking to evict defendants-appellants Ayiba

Queendalyn Chinyere, Suleman Nelson Ilodigwe, and any other occupants of the

Bonilla property (collectively, appellants). Wells Fargo was awarded possession

of the Bonilla property in that proceeding, and appellants appealed to county court

of law. The county court held a de novo bench trial, and again awarded Wells

Fargo possession of the Bonilla property. It is from that judgment that appellants

appeal.

      Other proceedings

      On September 7, 2010—before the forcible-detainer proceedings were

instituted by Wells Fargo in justice court—appellants had filed suit in state district

court to avoid foreclosure.     They later amended that suit to request that the

foreclosure be set aside.    On December 16, 2010, Wells Fargo removed that

lawsuit to federal district court, where it remained pending at the time of the

underlying justice and county court proceedings.




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                                ISSUES ON APPEAL

      Appellants challenge the county court’s judgment in two issues:

(1) “Whether the trial court erred in denying Appellants’ motion to abate,” and

(2) Whether the trial court abused its discretion by allowing Wells Fargo’s attorney

to testify at trial without calling any witness.”

                               MOTION TO ABATE

      Before the trial in county court, appellants filed a verified motion to abate

the proceedings pending resolution of the federal district court case.      In that

abatement motion, appellants allege that “the parties are litigating this same

dispute in federal court.” According to appellants, the “case in federal court is

intertwined with the current eviction suit,” in that “Defendants are contending that

Wells Fargo Bank, N.A. is not the owner of the note and deed of trust for which it

foreclosed on Defendant’s property” and that “they did not receive adequate notice

of the foreclosure sale.”

      Before trial, the county court denied the motion:

            THE COURT: Okay. Ready for trial? I see a motion to abate which
      should have been set on a motion docket, but I’ll tell you, I won’t abate this
      pending federal court. I’ve got to move my docket, and federal judges do
      what they want to do. It can be on my docket. They can’t determine
      possession anyway.

              [DEFENDANTS’ COUNSEL]: I did file injunctive relief over there
      also.



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            THE COURT: From what? They can’t enjoin me. That was before all
      this. They can’t enjoin me because they don’t have jurisdiction over
      possession.

             [DEFENDANTS’ COUNSEL]: I know, but the two cases are
      intertwined actually.
             THE COURT: I don’t think, you know, I don’t think you'll find any
      case law that tells me that I have to abate in deference to — you know it
      would be like abating in deference to district court. Fight them. Ultimately,
      the only issue we’re here today on is who has the superior right to
      possession. So I’m not going to abate. I don’t abate for district courts. I
      don’t abate for federal courts because they can take years. I don’t have years
      to do that.

              [DEFENDANTS’ COUNSEL]: The other issue we have, Your Honor,
      is that, if this case is not abated and is tried on the merits and, you know, you
      move — you rule for Wells Fargo, then my case in federal court becomes
      moot.
               THE COURT: No, it doesn’t.

               [DEFENDANTS’ COUNSEL] Well, Your Honor, if —

               (Discussion off the record).
               THE COURT: Your motion to abate is denied. We’re ready for trial
      today.

      Parties’ arguments

      Appellants argue that, while generally “a forcible-detainer action is intended

to provide a speedy, summary, and inexpensive determination of the right to

immediate possession of real property,” such proceedings are inappropriate in a

foreclosure, rather than landlord-tenant, context. This is because, according to

appellants, the issues are generally more complicated in a foreclosure proceeding,

and the lender should not benefit from the piecemeal adjudication of possession
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issues before title issues are resolved. Here, appellants contend, the title dispute

and possession issue are so intertwined that the justice and county courts should be

stripped of jurisdiction to hear the case. See Dormady v. Dinero Land & Cattle,

Co., 61 S.W.3d 555, 557 (Tex. App.—San Antonio 2001, pet. dism’d w.o.j.) (“[I]f

the question of title is so intertwined with the issue of possession, then possession

may not be adjudicated without first determining title.”)

      In response, Wells Fargo contends that the county court properly denied the

motion to abate. It points out that a “justice court or county court at law is not

deprived of jurisdiction merely by the existence of a title dispute, but is deprived of

jurisdiction only if ‘the right of immediate possession necessarily requires the

resolution of a title dispute.’” See Rice v. Pinney, 51 S.W.3d 705, 713 (Tex.

App.—Dallas 2001, no pet.). Wells Fargo also contends that a forcible-detainer

action is not exclusive, but cumulative of other remedies, id. at 708, and that the

Texas Supreme Court has recognized that the legislature contemplated concurrent

actions in the district and justice courts to resolve issues of title and immediate

possession, respectively. See Scott v. Hewitt, 90 S.W.2d 816, 818–19 (Tex. 1936).

According to Wells Fargo, “Appellant’s mere allegation that a lawsuit is pending

in federal court in which they contest the foreclosure sale and assert that they did

not receive foreclosure notices, without more, does not provide a basis for the court

to withhold ruling on the issue of immediate possession.”

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      Applicable Law

      Justice of the peace courts and, on appeal, county courts, have jurisdiction of

forcible-detainer suits. TEX. PROP. CODE ANN. § 24.004 (Vernon Supp. 2011); TEX.

R. CIV. P. 749. The sole issue in a forcible-detainer action is which party has the

right to immediate possession of the property. Dormady, 61 S.W.3d at 557 “[T]he

merits of the title shall not be adjudicated.” TEX. R. CIV. P. 746. Accordingly, to

prevail in a forcible-detainer action, the plaintiff need not prove title but merely

present sufficient evidence of ownership to demonstrate a superior right to

immediate possession. Dormady, 61 S.W.3d at 557 (citing Goggins v. Leo, 849

S.W.2d 373, 377 (Tex. App.—Houston [14th Dist.] 1993, no writ)).

      Courts have recognized that a question of title may be so intertwined with

the issue of possession so as to preclude adjudication of the right to possession

without first determining title. In such cases, neither the justice court nor the

county court on appeal, has jurisdiction.1      Dormady, 61 S.W.3d at 557–58;

Mitchell v. Armstrong Capital Corp., 911 S.W.2d 169, 171 (Tex. App.—Houston

[1st Dist.] 1995, writ denied). Whether such subject-matter jurisdiction exists “is a

question of law, subject to de novo review.” Black v. Washington Mut. Bank, 318

S.W.3d 414, 416 (Tex. App.—Houston [1st Dist.] 2010, pet. dism’d w.o.j.).


      1
            A justice court may not adjudicate title to land. TEX. GOV’T CODE
ANN. § 27.031(b)(4) (Vernon Supp 2011).

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Subject-matter jurisdiction can be raised at any time, including for the first time on

appeal. Id.

      Analysis

      Whether an existing title dispute in another court 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.

      In Mitchell v. Armstrong Capital Corp., we held that a pending title dispute

in state district court deprived the justice courts, county courts, and our Court of

jurisdiction over a claimed right of possession flowing from rights as the purchaser

at a foreclosure sale. 911 S.W.2d at 169. In that case, title to the property owner’s

home was burdened with a Builder’s and Mechanic’s Lien Contract securing

payment on a promissory note to Armstrong Capital Corporation for repairs. Id. at

170. After the property owner defaulted, Armstrong Capital requested enforcement

of the lien and it purchased the property at the resulting substitute trustee’s sale.

Id. After the property owner refused a demand to vacate, Armstrong Capital filed

a forcible-detainer action. Id. Among other defenses, the property owners asserted

that the lower courts, and this Court, lacked jurisdiction because they had

requested abatement of the forcible-detainer action pending the outcome of a

lawsuit they filed in state district court seeking to set aside the foreclosure. Id. at

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170–71. We agreed, explaining that “[b]ecause a ‘title issue’ was involved in the

courts below, they had no subject matter jurisdiction over the case.” Id. at 170.

      In contrast, just last year in Morris v. American Home Mortgage Servicing,

we addressed jurisdictional arguments identical to those made by appellants in

Mitchell, but held that the justice court, county court, and this Court did have

jurisdiction. 360 S.W.3d 32, 35 (Tex. App.—Houston [1st Dist.] 2011, no pet.).

There we noted that, unlike in Mitchell, “the original deed of trust contained

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

purchaser.”   Id.   We concluded this was a dispositive difference because it

provided a basis to resolve rights to possession without resolving the ultimate title

dispute.

      The existence of a landlord-tenant relationship provides a basis for the
      court to determine the right to immediate possession without resolving
      the question of title. See Villalon [v. Bank One], 176 S.W.3d [66,] 71
      [(Tex. App.—Houston [1st Dist.] 2004, no pet.]. When, however, the
      right to possession depends upon the resolution of a question of title,
      neither the justice court nor the county court has jurisdiction. Mitchell
      v. Armstrong Capital Corp., 911 S.W.2d 169, 171 (Tex. App.—
      Houston [1st Dist.] 1995, writ denied).
      ....
      Because the plaintiff in a forcible detainer action is only required to
      demonstrate a superior right to immediate possession, the county court
      can determine possession without quieting title if the deed establishes
      a landlord-tenant relationship between the borrower and the purchaser
      of the property at the foreclosure sale. See Villalon, 176 S.W.3d at 71;
      Rice v. Pinney, 51 S.W.3d 705, 712–13 (Tex. App.—Dallas 2001, no
      pet.). At the hearing, AHMS introduced the substitute trustee's deed,
      showing that Wells Fargo was the successor in interest to Option One
      Mortgage Corporation, and that it, through its servicing agent, AHMS
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      had purchased the property at the foreclosure sale. Evidence presented
      in the county court also established that the original deed of trust
      contained language establishing a landlord-tenant relationship
      between the borrower and the purchaser. AHMS also introduced the
      notice to vacate, which named it as the successor in interest, as a
      servicing agent, to Option One Mortgage Corporation. Because the
      evidence in the county court showed that AHMS was the service
      agent for Wells Fargo, and there was a landlord tenant-relationship
      between Morris and Wells Fargo, the county court could determine
      possession without quieting title. Accordingly, we hold that the justice
      and county courts were not deprived of subject-matter jurisdiction.

Morris, 360 S.W.3d at 34–35; see also Yarto & DTRJ Invs., L.P. v. Gilliland, 287

S.W.3d 83, 89 (Tex. App.—Corpus Christi 2009, no pet.) (“In most situations, the

parties in a forcible detainer suit are in a landlord-tenant relationship.       One

indication that a justice court, and a county court on appeal, is called on to

adjudicate title to real estate in a forcible detainer case—and, thus exceed its

jurisdiction—is when a landlord-tenant relationship is lacking.”).

      Courts have consistently followed or distinguished Mitchell on the same

basis. Compare Yarto, 287 S.W.3d at 89–90 (concluding justice court lacked

subject-matter jurisdiction in forcible-detainer action because determining who had

a superior right of possession required immediate resolution of title dispute) and

Hopes v. Buckeye Ret. Co., LLC, No. 13-07-00058-CV, 2009 WL 866794, at *5

(Tex. App.—Corpus Christi, Apr. 2, 2009, no pet.) (“Without a landlord-tenant

relationship or other basis independent of the Community Improvements contract,

the justice court could not determine the issue of immediate possession without


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determining ownership of the property.”), with Bruce v. Fed. Nat’l Mortg. Ass’n,

352 S.W.3d 891, 893–94 (Tex. App.—Dallas 2011, pet. denied) (agreeing that

“title determination was not required to determine the right to possession because

the landlord-tenant relationship [found within the deed] provided an independent

basis for possession” such that justice court had jurisdiction over forcible-detainer

claim); Elwell v. Countywide Home Loans, Inc., 267 S.W.3d 566, 569 (Tex.

App.—Dallas 2008, pet. dism’d w.o.j.) (holding justice and county courts had

jurisdiction in forcible-detainer action because deed of trust rendered appellant a

“tenant at sufferance,” giving rise to landlord-tenant relationship between parties

and, thus, “it was not necessary for the trial court to determine whether the

foreclosure was valid before awarding possession to Countrywide”); Rice, 51

S.W.3d at 709–10 (holding justice and county courts had jurisdiction in forcible-

detainer action because deed of trust established a landlord and tenant-at-

sufferance relationship, which, unlike in Mitchell, 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”); Dormady, 61 S.W.3d at 559 (holding

justice and county courts had jurisdiction in forcible-detainer action, observing that

the situation in Mitchell was “not the situation in this case where a landlord-tenant

relationship is established in the original deed of trust” that “provides a basis for




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determining the right to immediate possession without resolving the ultimate issue

of title to the property.”)

       We have examined both the Deed of Trust and the Substitute Trustee’s Deed

in the underlying dispute and neither one contains language creating a landlord-

tenant relationship. Moreover, Wells Fargo has not argued that there is any basis

for its claimed possession rights other than the title rights it gained through the

disputed foreclosure. Thus, in this case—unlike the Morris, Bruce, Elwell, Rice

and Dormady cases cited above—there is no independent basis aside from Wells

Fargo’s claim that it has superior title rights. Rather, like in Mitchell, Yarto, and

Hopes, Wells Fargo’s claim to possession in the underlying proceedings rests

solely on its claim to title. Accordingly, the lower courts “had no subject matter

jurisdiction over the case.” Mitchell, 911 S.W.2d at 171. We sustain appellant’s

first issue.

                                 CONCLUSION

       Given our resolution of appellant’s first issue, we need not address his

second issue. We vacate the lower courts’ judgments and dismiss the case. TEX.

R. APP. P. 43.2(e).




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                                            Sherry Radack
                                            Chief Justice

Panel consists of Chief Justice Radack and Justices Jennings and Keyes.




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