Reverse and Remand and Opinion Filed November 19, 2013




                                         S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-12-01126-CV

                        CITIMORTGAGE, INC., Appellant
                                    V.
            ERIC A. SCZEPANIK AND ALL OTHER OCCUPANTS, Appellee

                       On Appeal from the County Court at Law No. 1
                                   Dallas County, Texas
                           Trial Court Cause No. CC-11-08775-A

                             MEMORANDUM OPINION
                         Before Justices FitzGerald, Francis, and Myers
                                  Opinion by Justice Francis
       In this suit for forcible detainer, CitiMortgage, Inc. appeals the trial court’s take nothing

judgment in favor of Eric A. Sczepanik and all other occupants of 421 Cambridge Drive,

Richardson, Texas. In four issues, CitiMortgage contends the trial court erred by sustaining

Sczepanik’s objections and excluding the trustee’s deed (by substitute trustee) from evidence.

We agree. We reverse the trial court’s judgment and remand for further proceedings.

       Sczepanik purchased the house at 421 Cambridge Drive in Richardson on November 8,

2004. He signed a promissory note for $123,750 and executed a deed of trust. Under the deed of

trust, Sczepanik agreed that if the property were sold at a foreclosure sale, as borrower on the

note, he and any person holding possession of the house through him would “immediately

surrender possession of the Property to the purchaser at that sale.” If he did not surrender
possession, he would become a tenant at sufferance and could be removed by writ of possession

or other court proceeding.     When he defaulted on his note, the property was posted for

foreclosure, and CitiMortgage purchased the property. CitiMortgage sent Sczepanik a demand to

vacate the premises and, when he did not do so, filed suit for forcible detainer in justice of the

peace court. After that court awarded judgment in favor of CitiMortgage, Sczepanik appealed to

the county court at law.

       On appeal, CitiMortgage offered the trustee’s deed to establish it had the right to

immediate possession of the property. Sczepanik objected to the document on the grounds it was

“hearsay within hearsay.” The trial court sustained the objection and entered a take nothing

judgment in favor of Sczepanik. The trial court did not file findings of fact and conclusions of

law despite CitiMortgage’s request for the same. This appeal followed.

       Evidentiary rulings are committed to the trial court’s sound discretion.        Bay Area

Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex. 2007) (per curiam). A trial court

abuses its discretion when it acts without regard for any guiding rules or principles. Owens–

Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998).

       We recently considered whether the recitals in a trustee’s deed were hearsay within

hearsay subject to exclusion under the hearsay rule. See Mason v. Wells Fargo Bank, N.A., No.

05-12-01590-CV, 2013 WL 5948077, at *2 (Tex. App.—Dallas Nov. 5, 2013, no pet. h.) (mem.

op.). Rule of evidence 803(15) provides that statements of document affecting an interest in

property are not excluded by the hearsay rule. TEX. R. EVID. 803(15); see Mason, 2013 WL

5948077, at *2. The trustee’s deed in this case is “a document purporting to establish or affect

an interest in property.” TEX. R. EVID. 803(15).

       As was the case in Mason, the issue here is whether the recitals Sczepanik objected to

were “relevant to the purpose of the document.” The purpose of the trustee’s deed was to

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transfer the property following a foreclosure sale, and the recitals in the trustee’s deed, setting

out the facts on which the foreclosure sale was based, were germane to the deed’s purpose. We

therefore conclude that, under rule 803(15), the recitals are “relevant to the purpose of the

document” and are not excluded by the hearsay rule. See Mason, 2013 WL 5948077, at *3.

Accordingly, the trial court abused its discretion by sustaining Sczepanik’s hearsay within

hearsay objection to the deed and by excluding the deed.

       Having concluded the trial court erred, we must determine whether the error probably

caused the rendition of an improper judgment. TEX. R. APP. P. 44.1(a). A forcible detainer

action is a procedure to determine the right to immediate possession of real property where there

was no unlawful entry. Williams v. Bank of New York Mellon, 315 S.W.3d 925, 926 (Tex.

App.—Dallas 2010, no pet.). It is intended to be a speedy, simple, and inexpensive means to

obtain possession without resort to an action on the title. Scott v. Hewitt, 127 Tex. 31, 35, 90

S.W.2d 816, 818–19 (1936). To maintain simplicity, the applicable rule of procedure provides

that “the only issue shall be as to the right to actual possession; and the merits of the title shall

not be adjudicated.” TEX. R. CIV. P. 746. Thus, the only issue in a forcible detainer action is

which party has the right to immediate possession of the property. Williams, 315 S.W.3d at 927.

       CitiMortgage offered the trustee’s deed to establish it purchased the property at

foreclosure and had a right to immediate possession. The trial court erroneously excluded the

evidence and found in favor of Sczepanik. Under these facts, we conclude the erroneous

exclusion of the deed showing CitiMortgage’s ownership probably caused the rendition of an

improper judgment. We sustain CitiMortgage’s issues.




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       We reverse the trial court’s judgment and remand this case for further proceedings

consistent with this opinion.




                                                    /Molly Francis/
121126F.P05                                         MOLLY FRANCIS
                                                    JUSTICE




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                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

CITIMORTGAGE, INC., Appellant                       On Appeal from the County Court at Law
                                                    No. 1, Dallas County, Texas
No. 05-12-01126-CV         V.                       Trial Court Cause No. CC-11-08775-A.
                                                    Opinion delivered by Justice Francis.
ERIC A. SCZEPANIK AND ALL OTHER                     Justices FitzGerald and Myers participating.
OCCUPANTS, Appellee

        In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and this cause is REMANDED to the trial court for further proceedings consistent
with this opinion.
        It is ORDERED that appellant CITIMORTGAGE, INC. recover its costs of this appeal
from appellee ERIC A. SCZEPANIK AND ALL OTHER OCCUPANTS.


Judgment entered this 19th day of November, 2013.




                                                    /Molly Francis/
                                                    MOLLY FRANCIS
                                                    JUSTICE




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