                                                                                ACCEPTED
                                                                            01-15-00398-CV
                                                                 FIRST COURT OF APPEALS
                                                                         HOUSTON, TEXAS
                                                                       9/14/2015 8:25:28 AM
                                                                      CHRISTOPHER PRINE
                                                                                     CLERK

                      No. 01-15-00398-CV

                    COURT OF APPEALS                       FILED IN
                 FIRST DISTRICT OF TEXAS            1st COURT OF APPEALS
                                                        HOUSTON, TEXAS
                       Houston, Texas               9/14/2015 8:25:28 AM
                                                    CHRISTOPHER A. PRINE
                                                            Clerk
                  JENNIE LARRY JOHNSON
                       APPELLANT,

                              VS.

FREO TEXAS LLC, A DELAWARE LIMITED LIABILITY COMPANY
                      APPELLEE.


      Appeal from the County Court at Law Number Three (3)

                    Fort Bend County, Texas

          Honorable Susan G. Lowery (Presiding Judge)

                 Case Number: 15-CCV-054223

                    BRIEF OF APPELLEE
                 Oral Argument Not Requested


                                    Travis H. Gray
                                    SBN 24044965
                                    JACK O’BOYLE & ASSOCIATES
                                    P.O. Box 815369
                                    Dallas, Texas 75381
                                    P: 972.247.0653 | F: 972.247.0642
                                    E: travis@jackoboyle.com
                                    ATTORNEY FOR APPELLEE
                 IDENTITY OF PARTIES AND COUNSEL

      The following is a complete list of names and address of all parties to the

proceeding and their counsel:


APPELLANT:
JENNIE LARRY JOHNSON

      Represented at Trial By:
      Jennie Larry Johnson, Pro Se
      1907 Doliver Circle
      Missouri City, TX 77489

      Represented on Appeal By:
      L Mickele Daniels
      SBN 05374900

      L. Mickele’ Daniels & Associates
      One Arena Place, Suite 580
      7322 Southwest Freeway
      Houston, Texas 77074
      seminole85@peoplepc.com
      (713) 995-4681 Telephone
      (713) 995-4685 Facsimile

APPELLEE:
FREO TEXAS LLC, A DELAWARE LIMITED LIABILITY COMPANY

      Represented at Trial and on Appeal by:
      Travis H. Gray
      SBN 24044965
      JACK O’BOYLE & ASSOCIATES
      P.O. Box 815369
      Dallas, Texas 75381
      P: 972.247.0653
      F: 972.247.0642
      E: travis@jackoboyle.com



                                                                               2
             STATEMENT REGARDING ORAL ARGUMENT

      Appellee does not waive oral argument. FREO Texas LLC, A Delaware

Limited Liability Company believes that oral argument is not necessary for this

Court to understand the issues presented in the Briefs of the parties. However, if

the Court desires oral argument, FREO Texas LLC, A Delaware Limited Liability

Company wishes to participate. Tex. R. App. P. 39.7.




                                                                                3
                     TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL                        2

STATEMENT REGARDING ORAL ARGUMENT                      3

TABLE OF CONTENTS                                      4-5

INDEX OF AUTHORITIES                                   6-7

STATEMENT OF THE CASE                                  8

ISSUES PRESENTED                                       9

STATEMENT OF FACTS                                    10-11

ARGUMENT AND AUTHORITIES                              12-27

I.     THE TRIAL COURT CORRECTLY GRANTED JUDGMENT     12-19
       ON AH4R’S CLAIM FOR FORCIBLE DETAINER

II.    THE TRIAL COURT PROPERLY ADMITTED EXHIBIT      19-21
       3

III.   THE EVIDENCE PRESENTED BY PLAINTIFF AT         21-23
       TRIAL WAS LEGALLY SUFFICIENT TO ESTABLISH
       ITS CLAIM FOR FORCIBLE DETAINER

IV.    APPELLEE DEMONSTRATED TO THE COURT THAT        12-25
       IT SENT TO APPELLANT THE REQUISITE NOTICE
       TO VACATE AND DEMAND FOR POSSESSION

V.     THE    TRIAL  COURT    PROPERLY   MAINTAINED   25-27
       JURISDICTION OVER THE MATTER DESPITE ALLEGED
       TITLE ISSUES

CONCLUSION                                            27-28

PRAYER                                                 28



                                                              4
CERTIFICATE OF SERVICE      30

CERTIFICATE OF COMPLIANCE   31

APPENDIX                    32




                                 5
                         INDEX OF AUTHORITIES

CASES:
Moncrief Oil Int'l, Inc. v. OAO Gazprom, 414 S.W.3d 142, 150 (Tex.        12
2013).
Willms v. Americas Tire Co., Inc., 190 S.W.3d 796, 803 (Tex. App.-        12
Dallas 2006, pet. denied).
Bennett v. Cochran, 96 S.W.3d 227, 229-30 (Tex. 2002) (per curiam).      12
Gallagher v. Fire Ins. Exch., 950 S.W.2d 370, 370-71 (Tex. 1997))).      12
Heckendorn v. First Mortg. Co., LLC, No. 13-12-00451-CV, 2013 WL        12-13
5593520 (Tex. App.-Corpus Christi July 29, 2013, no pet.) (mem. op.)
Perez v. Spring Branch Indep. Sch. Dist., No. 14-10-00058-CV, 2011        13
WL 742601, at *2-3 (Tex. App.-Houston [14th Dist.] Mar. 3, 2011, pet.
denied) (mem. op.) (per curiam).
Jaimes v. Federal Nat'l Mortg. Ass'n, No. 03-13-00290-CV, 2013 WL         13
7809741 (Tex. App.-Austin Dec. 4, 2013, no pet.) (mem. op.).
Yarto v. Gilliland, 287 S.W.3d 83, 92 (Tex. App.-Corpus Christi           13
2009, no pet.
Gall v. Allstate Cnty. Mut. Ins. Co., No. 09-99-00296-CV, 2000 WL         13
235148 (Tex. App.-Beaumont Mar. 2, 2000, no pet.)
Cantu v. Federal Nat'l Mortg. Ass'n, No. 02-11-00293-CV, 2012 WL          13
955363 (Tex. App.-Fort Worth Mar. 22, 2012, no pet.) (mem. op.).
Smith v. KNC Optical, Inc., 296 S.W.3d 807, 811 (Tex.App.- Dallas         14
2009, no pet.).
Rice v Pinney, 51 S.W.3rd 705, 709 (Tex.App.-Dallas 2001, pet.dism’d    15, 16,
w.o.j.).                                                                  23
U.S. Bank Nat’l Ass’n v. Freeney, 266 S.W.3d 623, 625 (Tex.App.-        15, 22
Dallas 2008, no pet.).
Dormandy v. Dinero Land & Cattle Co., L.C., 61 S.W.3d 555                 15
(Tex.App.—San Antonio 2001, pet. dism’d w.o.j.).
Rodriguez v. Citimortgage, Inc., No. 03–10–00093–CV, 2011 WL            16, 21
182122, (Tex.App.-Austin Jan. 6, 2011, no pet.) (mem. op.).
Mitchell v. Citifinancial Mortgage Company, 192 S.W. 3rd 882, 883         16
(Tex.App.-Dallas 2006 no pet)
Powelson v. U.S. Bank National Association, 125 S.W.3rd 810, 812          17
(Tex.App.-Dallas 2004, no pet.).
Mortgage Electronic Registration Systems, Inc. v. Knight, No. 09-04-      18
452 CV, 2006 WL 510338, (Tex.App-Beaumont March 2, 2006, no
pet.) (mem. op.).
Williams v. Bank of N.Y. Mellon, 315 S.W.3d 925, 927 (Tex.App.-           19


                                                                                  6
Dallas 2010, no pet.)
Hope's Fin. Mgmt. v. Chase Manhattan Mortg. Corp., 172 S.W.3d 105,      20
107 (Tex.App.-Dallas 2005, pet. denied).
Duncan Dev., Inc. v. Haney, 634 S.W.2d 811, 813–14 (Tex.1982).          21
City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005).               22
Thomas v. Ray, 889 S.W.2d 237, 238 (Tex.1994).                          24
Kaldis v. U.S. Bank Nat'l Ass'n, No. 14–11–00607–CV, 2012 WL            24
3229135, at 1, 3 (Tex.App.-Houston [14th Dist.] Aug. 9, 2012, pet.
dism'd w.o.j.) (mem.op.
Ramey v. Bank of New York, No. 14–06–00824, 2010 WL 2853887, at         24
3 (Tex.App.-Houston [14th Dist.] July 22, 2010, no pet.) (mem.op.)
Jimmerson v. Homecomings Financial L.L.C., No. 02–07–00305– CV,         25
2008 WL 2639757, at 2 n. 3 (Tex.App.-Fort Worth July 3, 2008, no
pet.) (mem.op.)
Villalon v. Bank One, 176 S.W.3d 66, 69 (Tex.App.-Houston [1st Dist.]   26
2004, pet. denied).

STATUTES:
Tex. R. App. P. 39.7                                                     3
Tex. Prop. Code Ann. § 24.002(a)(2)                                     14
Tex. R. Civ. P. 510.3(e).                                               15
Tex. R. Civ. P. 510.3(a).                                               16
Tex. Prop. Code Ann. Sections 24.002(b)                                 18
Tex. Prop. Code Ann. Sections 24.002                                    18
Tex.R.App. P. 33.1(a).                                                  19
Tex. R. Evid. 803(6)                                                    20




                                                                             7
                        STATEMENT OF THE CASE

      This forcible detainer case is an appeal from a judgment granted in favor of

FREO Texas LLC, A Delaware Limited Liability Company (‘FREO’).

      Appellee purchased the Subject Property at foreclosure and filed suit for

forcible detainer in the appropriate Justice of the Peace Court against Jennie Larry

Johnson and/or All Occupants of 1907 Doliver Circle, Missouri City, TX 77489.

      The Justice Court’s judgment in that case was appealed to the County Court

at Law Number Three of Fort Bend County, Texas to be considered de novo. At

trial the County Court entered judgment for Appellee.       Appellant Jennie Larry

Johnson then appealed that County Court’s judgment to this Court.

      In its brief Appellant argues that judgment was improperly awarded to

FREO as it allegedly failed to properly send notice in accordance with Texas

Property Code 24.005, the trial court improperly admitted Plaintiff’s Exhibit 3 –

the business records affidavit of Appellee which contained the Notice to Vacate

and Demand for Possession sent by Appellee prior to filing suit, and the Trial

Court lacked jurisdiction to determine the issue of possession.




                                                                                  8
                         ISSUES PRESENTED

I.     THE TRIAL COURT CORRECTLY GRANTED JUDGMENT ON

       FREO’S CLAIM FOR FORCIBLE DETAINER.

II.    THE TRIAL COURT PROPERLY ADMITTED FREO’S EXHIBIT 3.

III.   THE EVIDENCE PRESENTED BY FREO AT TRIAL WAS LEGALY

       SUFFICIENT   TO   ESTABLISH   ITS   CLAIM   FOR   FORCIBLE

       DETAINER.

IV.    APPELLEE DEMONSTRATED TO THE COURT THAT IT SENT TO

       APPELLANT THE REQUISITE NOTICE TO VACATE AND DEMAND

       FOR POSSESSION

V.     THE TRIAL COURT PROPERLY MAINTAINED JURISDICTION OVER

       THE MATTER DESPITE THE ALLEGED TITLE ISSUE AND PENDING

       SUIT CONTESTING TITLE TO THE SUBJECT PROPERTY.




                                                                9
                           STATEMENT OF FACTS

      On December 19, 2003, Jennie Larry Johnson executed a Deed of Trust to

secure payment of a Note concerning the real property identified by street address

as 1907 Doliver Circle, Missouri City, TX 77489 (the “Subject Property”). (C.R.

46-56). This Deed of was admitted into evidence at the January 28, 2015 trial on

the merits as Plaintiff’s Exhibit 2. (Id.). According to the Deed of Trust, in the

event of default the lender may require immediate payment in full of all sums

secured under the terms of the Note and may invoke the power of sale contained in

the Deed of Trust and any other remedies permitted by law. (C.R. 52). Section 18

of the Deed of Trust then authorized the foreclosure sale of the subject property to

the highest bidder and permitted purchase by the lender or its designee. Id.

Paragraph 4 of Section 18 of said Deed of Trust also provides that:

       “If the property is sold pursuant to this Section 18, Borrower or any
      person holding possession of the Property through Borrower shall
      immediately surrender possession of the Property to the purchaser at
      that sale. If possession is not surrendered, Borrower or such person
      shall be a tenant at sufferance and may be removed by writ of
      possession.” Id.
      Appellant(s) defaulted under the terms of the Note subjecting the property to

foreclosure proceedings. As evidenced by a Substitute Trustee’s Deed, Appellee

FREO Texas LLC (‘FREO’) acquired the Subject Property at the non-judicial

foreclosure sale held on November 04, 2014. (C.R. 43). This Substitute Trustee’s




                                                                                 10
Deed was admitted into evidence without objection at the January 28, 2015 trial on

the merits as Plaintiff’s Exhibit 1. (Id.).

      On November 17, 2014, Appellee FREO, by and through its counsel of

record, sent written notice to vacate and demand for possession of the Subject

Property. (C.R. 59-64). This Notice to Vacate and Demand for Possession was

admitted into evidence at the January 28, 2015 trial on the merits as Plaintiff’s

Exhibit 3. (C.R. 57-64).

      On or around December 02, 2014 FREO filed suit for forcible detainer in the

Justice of the Peace Court – Precinct 2, Place 1 of Fort Bend County, Texas. (C.R.

21-22). At the December 23, 2014 Justice Court trial the presiding judge granted

judgment in favor of FREO. (C.R. 15). The Justice Court’s judgment was then

appealed to the County Court at Law of Fort Bend County, to be considered de

novo. (C.R. 11-12).

      On January 28, 2015 the honorable judge presiding over the County Court at

Law No. 3 of Fort Bend County, Texas entered judgment in favor of FREO and

awarded it possession of the Subject Property. (C.R. 65-66). Appellant appealed

the County Court’s judgment to this Court.




                                                                               11
                         ARGUMENT AND AUTHORITIES

I.    THE TRIAL COURT CORRECTLY GRANTED JUDGMNET ON

      APPELLEE’S CLAIM FOR FORCIBLE DETAINER

                          A.   STANDARD OF REVIEW

      Appellant appeals the County Court’s award of possession in favor of

Appellee arguing that there was insufficient evidence presented at trial establishing

its right to possession of the Subject Property.

      In the absence of findings of fact and conclusions of law — and there are

none here — the Court should imply that the trial court found all material facts

necessary to support the judgment that are supported by the evidence. 1 Moreover,

because no reporter's record has been brought forward on appeal, the Court should

presume that these implied findings by the trial court were indeed supported by

sufficient evidence. 2

      Accordingly, the Court must presume that FREO presented sufficient

evidence to establish its right to immediate possession of the Property as required



1
  See Moncrief Oil Int'l, Inc. v. OAO Gazprom, 414 S.W.3d 142, 150 (Tex. 2013).
2
  Willms v. Americas Tire Co., Inc., 190 S.W.3d 796, 803 (Tex. App.-Dallas 2006,
pet. denied); see Bennett v. Cochran, 96 S.W.3d 227, 229-30 (Tex. 2002) (per
curiam) ("`The court of appeals was correct in holding that, absent a complete
record on appeal, it must presume the omitted items supported the trial court's
judgment.'" (quoting Gallagher v. Fire Ins. Exch., 950 S.W.2d 370, 370-71 (Tex.
1997))).


                                                                                  12
to prevail in its action. 3 Similarly, in the absence of a record, appellants cannot

show any reversible error from any rulings admitting or excluding evidence, 4 any

asserted defects in the foreclosure sale, 5 the existence of any asserted "title

dispute," 6 alleged "bias" by the trial court or "abuse" by opposing counsel, 7 or the

denial of a continuance. 8



3
  See, e.g., Heckendorn v. First Mortg. Co., LLC, No. 13-12-00451-CV, 2013 WL
5593520, at *4-5 (Tex. App.-Corpus Christi July 29, 2013, no pet.) (mem. op.)
(holding in absence of reporter's record, appellate court would presume evidence
supported trial court's ruling in forcible detainer suit).
4
   See, e.g., Perez v. Spring Branch Indep. Sch. Dist., No. 14-10-00058-CV, 2011
WL 742601, at *2-3 (Tex. App.-Houston [14th Dist.] Mar. 3, 2011, pet. denied)
(mem. op.) (per curiam) (in absence of reporter's record, reviewing court had
"no record of what . . . evidence at trial was," and therefore had "no basis to
review" appellant's issues challenging the trial court's evidentiary rulings).
5
   See, e.g., Jaimes v. Federal Nat'l Mortg. Ass'n, No. 03-13-00290-CV, 2013 WL
7809741, at *3-4 (Tex. App.-Austin Dec. 4, 2013, no pet.) (mem. op.) (rejecting
arguments premised on alleged defects in foreclosure proceedings where evidence
in record provided trial court with independent basis to determine issue of
immediate possession
6
    See Yarto v. Gilliland, 287 S.W.3d 83, 92 (Tex. App.-Corpus Christi
2009, no pet.) (holding that if party fails to present "`specific evidence to raise a
genuine title dispute, the jurisdiction of the court [is] never at issue'"
(quoting Falcon v. Ensignia, 976 S.W.2d 336, 338 (Tex. App.-Corpus Christi
1998, nopet.))).
7
   See, e.g., Gall v. Allstate Cnty. Mut. Ins. Co., No. 09-99-00296-CV, 2000 WL
235148, at *1-2 (Tex. App.-Beaumont Mar. 2, 2000, no pet.) (not designated for
publication) (holding that without reporter's record, court could not decide points
of error related to alleged judicial bias and improper behavior on the part of
opposing counsel).
8
   See, e.g., Cantu v. Federal Nat'l Mortg. Ass'n, No. 02-11-00293-CV, 2012 WL
955363, at *2-3 (Tex. App.-Fort Worth Mar. 22, 2012, no pet.) (mem. op.) (in
absence of reporter's record, appellate court could not conclude trial court abused
its discretion in denying motion for continuance in forcible detainer action).


                                                                                   13
       When a party challenges the evidence supporting a finding upon which he

did not bear the burden of proof, the appellate court will sustain the challenge if the

evidence offered to support the finding is no more than a scintilla. 9 Evidence is no

more than a scintilla if it is so weak that it does no more than create a surmise or

suspicion of its existence. 10 In conducting its review, the appellate court considers

the evidence in the light most favorable to the verdict, indulging every reasonable

inference in support. Id.

       Appellee submits that based upon the pleadings on file with the court, the

stipulations of the parties, and the exhibits admitted into evidence at trial, that it

established its right to immediate possession of the Subject Property as a matter of

law.   Appellee accordingly submits that the trial court did not err in awarding

possession of the Subject Property to Appellee.

            B.    NATURE OF A FORCIBLE DETAINER ACTIONS

       A forcible detainer action is a special proceeding governed by Chapter 24 of

the Texas Property Code and Rule 510 of the Texas Rules of Civil Procedure.

Under Texas law, a tenant who refuses to surrender possession of the subject

property on demand commits a forcible detainer. 11



9
   Smith v. KNC Optical, Inc., 296 S.W.3d 807, 811 (Tex.App.- Dallas 2009, no
pet.).
10
   Id.
11
   Tex. Prop. Code Ann. § 24.002(a)(2).


                                                                                    14
          A forcible detainer action is intended to be a speedy, simple, and

inexpensive means for resolving the question of the right to immediate possession
                12
of premises.         The only issue in an action for forcible detainer is the right to

actual possession, and the merits of title shall not be adjudicated. 13 Any defects in

the foreclosure process or with appellee’s title to the property may not be

considered in a forcible detainer action. 14 Those defects may be pursued in suits

for wrongful foreclosure or to set aside the substitute trustee’s deed, but they are

not relevant in a forcible detainer action. 15

          Even when a dispute as to title may exist, if the foreclosed upon Deed of

Trust establishes a landlord-tenant relationship making Appellant a tenant at

sufferance, this relationship provides an independent basis for determining the

right to immediate possession without resolving the ultimate issue of title to the

property. 16     A forcible detainer action is cumulative, not exclusive, of other

remedies that a party may have, and the parties may concurrently pursue both a

forcible detainer action in justice court and a suit to quiet title in district court. 17

     C.      THE BURDEN OF PROOF IN FORCIBLE DETAINER ACTIONS

12
   Rice v Pinney, 51 S.W.3rd 705, 709 (Tex.App.-Dallas 2001, pet.dism’d w.o.j.).
13
   Tex. R. Civ. P. 510.3(e).
14
   U.S. Bank Nat’l Ass’n v. Freeney, 266 S.W.3d 623, 625 (Tex.App.-Dallas 2008,
no pet.).
15
   Id.
16
   Dormandy v. Dinero Land & Cattle Co., L.C., 61 S.W.3d 555 (Tex.App.—San
Antonio 2001, pet. dism’d w.o.j.).
17
   Id. at 559.


                                                                                            15
      To prevail in a forcible detainer action, a plaintiff is not required to prove

title, but is only required to show sufficient evidence of ownership to demonstrate

a superior right to immediate possession. 18 To establish its claim for forcible

detainer, Appellee herein had to prove: (1) it was the owner of the property in

question, (2) Appellant was an occupant at the time of foreclosure, (3) the

foreclosure was of a lien superior to Appellant’s right to possession, (4) Appellee

made a written demand for possession in accordance with section 24.005 of the

property code, and (5) Appellant failed and/or refused to vacate. 19

                                (i)   The Complaint

      Texas Rule of Civil Procedure 510.3(a) requires that the complaint contain a

description of the facts and the grounds for eviction. 20 In Mitchell v. Citifinancial

Mortgage Company 21 this Court stated:

       “The complaint in this case stated that Citifinancial, holder of the

       note for the Deed of Trust, executed its power of sale under the Deed

       of Trust and acquired the property. The complaint further stated that

       appellants were given notice to vacate the premises pursuant to the

       Texas Property Code and that they failed or refused to do so. These

18
   Rice, 51 S.W.3d at 709.
19
   Rodriguez v. Citimortgage, Inc., No. 03–10–00093–CV, 2011 WL 182122,
(Tex.App.-Austin Jan. 6, 2011, no pet.) (mem. op.).
20
   Tex. R. Civ. P. 510.3(a).
21
   Mitchell v. Citifinancial Mortgage Company, 192 S.W. 3rd 882, 883 (Tex.App.-
Dallas 2006 no pet)


                                                                                   16
         facts are sufficient to demonstrate Citifinancial’s entitlement to

         possession of the property.”
22
     The original petition for forcible detainer filed by Appellee AH4R makes

the same allegations as Citifinancial’s complaint, and establishes the same

foundational facts as in the Mitchell and Powelson cases. (C.R. 21-22).

                             (ii) The Evidence Submitted

        In MERS v. Knight (copy attached as Appendix B) the Beaumont Court of

Appeals reviewed the evidence presented by the plaintiff in a post-foreclosure

forcible detainer case and made the following observations:

        “MERS further relied on three documents: (1) a certified copy of the

        deed of trust; (2) a certified copy of the substitute trustee’s deed; and

        (3) a copy of the certified notice to vacate sent to Knight. First, the

        deed of trust signed by Knight established a landlord-tenant

        relationship between MERS and Knight. The deed of trust required

        Knight, or any person holding possession through her, to

        “immediately surrender possession of the Property to the purchaser at

        the foreclosure sale.” The deed of trust further provided that failure to

        surrender possession would cause Knight, or anyone possessing

        through her, to become a “tenant at sufferance.”           Second, the

22
  See also Powelson v. U.S. Bank National Association, 125 S.W.3rd 810, 812
(Tex.App.-Dallas 2004, no pet.).


                                                                                    17
      substitute trustee’s deed established that MERS was entitled to

      possession of the property. The substitute trustee conveyed the

      property by deed to MERS after it purchased the property at the

      foreclosure sale.   Finally, the notice to vacate provided proof of

      proper notice to KNIGHT that MERS required her to vacate the

      premises. 23

      Nothing in the record controverts the three legal documents. Thus, on

      this record, MERS established its entitlement to possession as a matter

      of law. We find the evidence is legally insufficient to support the

      award of possession to Knight and find that MERS established as a

      matter of law that it is legally entitled to possession of the premises.

      We find the county court erred in awarding possession to Knight.

      Accordingly, we reverse the court’s judgment and render judgment

      that MERS is entitled to possession.” 24

      Appellee submits that at trial the evidence considered by the county court in

this case was essentially identical to the evidence introduced by MERS in the

Knight case. To summarize, Appellee FREO demonstrated at trial its right to

possession of the property as follows: (1) the substitute trustee’s deed (C.R. 43-45)


23
  See Tex. Prop. Code Ann. Sections 24.002(b); 24.005.
24
  Mortgage Electronic Registration Systems, Inc. v. Knight, No. 09-04-452 CV,
2006 WL 510338, (Tex.App-Beaumont March 2, 2006, no pet.) (mem. op.).


                                                                                  18
evidencing the foreclosure sale of the Subject Property and subsequent conveyance

to Appellee; (2) the deed of trust (C.R. 46-56) evidencing Appellant’s status as a

tenant at sufferance; and (3) the notice to vacate (C.R. 57-64) evidencing

Appellee’s notification to Appellant that it must vacate the property. This evidence

is sufficient to demonstrate Appellee FREO’s right to immediate possession of the

Subject Property. 25   For these reasons, the trial court did not err in awarding

possession of the Subject Property to Appellee FREO.

II.   THE TRIAL COURT PROPERLY ADMITTED FREO’S EXHIBIT 3.

      In its first issue presented Appellant asserts that the trial court committed

error in admitting Plaintiff’s Exhibits 3 into evidence. As an initial matter it should

be noted that Appellant failed to request a reporter’s record at trial.

      In order to properly preserve a complaint for appellate review, there must be

a reporter’s record and that record must show that (1) the complaint was made to

the trial court by a timely request, objection, or motion and (2) the trial court ruled

on or refused to rule on the request, objection, or motion. 26 This rule applies

equally to pro se litigants as it does to those represented by counsel.




25
   Williams v. Bank of N.Y. Mellon, 315 S.W.3d 925, 927 (Tex.App.-Dallas 2010,
no pet.)
26
   Tex.R.App. P. 33.1(a).


                                                                                    19
“Pro se litigants,” like Appellant, “are held to the same standards as licensed

attorneys and must comply with all applicable laws and rules of procedure.” 27

       FREO’s Exhibit 3 was the Business Records Affidavit of Patti Henslee

containing the Notice to Vacate and Demand for Possession sent to the Subject

Property and dated November 17, 2014. (See C.R. 57-64). FREO offered the

exhibit under the business records exception to the hearsay rule, which permits

evidence which otherwise would be inadmissible to be admitted if it meets certain

specific criteria. 28

       To be admissible under the business records exception to the hearsay rule,

the proponent of the evidence must demonstrate: (1) the records were made and

kept in the course of a regularly conducted business activity; (2) it was the regular

practice of the business activity to create such records; (3) the records were created

at or near the time of the event recorded; and (4) the records were created by a

person with knowledge who was acting in the regular course of business. 29 These

prerequisites to admissibility may be provided in the form of an affidavit by the




27
   Hope's Fin. Mgmt. v. Chase Manhattan Mortg. Corp., 172 S.W.3d 105, 107
(Tex.App.-Dallas 2005, pet. denied).
28
   See TEX.R.EVID. 803(6).
29
   Riddle v. Unifund CCR Partners, 298 S.W.3d 780, 782 (Tex.App.-El Paso 2009,
no pet.).


                                                                                   20
custodian of records, or other qualified witness who has personal knowledge of the

information contained therein. 30

       In the business records affidavit containing the Notice to Vacate and

Demand for Possession, Henslee averred that she was the custodian of those

records. (C.R. 57-58). She further averred that she was providing the records as

the custodian; that she had personal knowledge of the information contained in the

records; that the records were made in the regular course of business; and that it

was the regular practice of the business to keep such records. (Id.). The affidavit

therefore substantially complies with Texas Rule of Evidence 902(10) by averring

to facts that satisfy Rule 803(6). 31 The trial court did not abuse its discretion in

admitting this evidence under the business records exception to the hearsay rule.

       Because Appellant failed to preserve at this his complaint regarding the

admissibility of Appellee’s evidence and because the evidence submitted was

properly authenticated and admissible, these issue(s) presented by Appellant must

be dismissed by this Court.

III.   THE EVIDENCE PRESENTED BY PLAINTIFF AT TRIAL WAS

       LEGALY SUFFICIENT TO ESTABLISH ITS CLAIM FOR FORCIBLE

       DETAINER


30
  See Duncan Dev., Inc. v. Haney, 634 S.W.2d 811, 813–14 (Tex.1982).
31
  See Rodriguez v. Citimortgage, Inc., No. 03–10–00093–CV, 2011 WL 182122,
(Tex.App.-Austin Jan. 6, 2011, no pet.) (mem. op., not designated for publication).


                                                                                    21
            Appellant agues the evidence present at trial by Appellee was insufficient

to establish FREO’s claim for forcible detainer. As previously outlined, to obtain

possession by a forcible detainer action, the party seeking possession following a

foreclosure sale must show: (a) a substitute trustee's deed that conveyed the

property to it after a foreclosure sale; (b) a deed of trust establishing a landlord-

tenant relationship; (c) the party gave proper notice to vacate the premises; and (d)

the tenant refused to vacate. 32 At trial, appellee introduced, without objection, the

following exhibits: (1) Substitute Trustee's Deed; (2) Deed of Trust; and (3)

Affidavit of Attorney for Appellee with attached Notice to Vacate and signed

certified mail green card.

         The test for legal sufficiency is “whether the evidence at trial would enable

reasonable and fair-minded people to reach the verdict under review.” 33 In

applying this test, the Court must view the evidence in the light most favorable to

the challenged finding and indulge every reasonable inference that would support

it. 34

         The Substitute Trustee’s memorializes the sale of the Subject Property

pursuant to the terms of a Deed of Trust and names FREO as Grantee. The Deed

of Trust outlines Appellant’s obligations as borrower and contains paragraph 18,

32
   U.S. Bank Nat'l Ass'n v. Freeney, 266 S.W.3d 623, 625 (Tex.App.-Dallas 2008,
no pet.).
33
   City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005).
34
   Id.


                                                                                   22
the tenant-at-sufferance clause, establishing a landlord-tenant relationship between

Ramey and the purchaser at the foreclosure sale.

         The affidavit of Patti Henslee provided a copy of a letter directed to Jennie

Larry Johnson and/or All Occupants at the address of the Subject Property. The

letter is entitled “Notice to Vacate.” The Notice to Vacate, mailed via certified and

regular mail, provides three-days' notice to vacate prior to FREO’s filing

a forcible detainer suit.

         This evidence, viewed in the light most favorable to the judgment, is

sufficient to show that appellee had a superior right to immediate possession of the

subject property. 35 Appellant’s issue must be overruled.

IV.      APPELLEE DEMONSTRATED TO THE COURT THAT IT SENT TO

         APPELLANT THE REQUISITE NOTICE TO VACATE AND DEMAND

         FOR POSSESSION

         Johnson contends that FREO failed to establish the Notice to Vacate and

Demand for Possession was delivered to Johnson or the premises. Ordinarily the

basis for this contention is based upon a notice and corresponding track and

confirm report that shows the certified mailer was returned. Here is it unclear why

Johnson argues the Notice was not received, as the evidence submitted in




35
     See Rice, 51 S.W.3d at 709.


                                                                                   23
connection with FREO’s Exhibit 3 contains the Green Card for the Notice that is

signed by Johnson.

      FREO asserts it provided the requisite three days' notice to vacate by

certified and regular mail. In support, FREO attached the following exhibits: (1)

the affidavit of Patti Henslee, custodian of records for the law office of FREO's

attorney; (2) a copy of a letter dated November 17, 2014 addressed to Johnson

“and/or All Current Occupants” of the subject property address and demanding

he/they vacate the premises no later than three days after receipt of the letter; (3) a

copy of the face of a certified-mail envelope with postage affixed; and (4) a copy

of the signed green card including a signature from what appears to be the signed

name “Jennie Johnson.” (See C.R. 57-64).

      When a letter, properly addressed and postage prepaid, is mailed, there

exists a presumption that the notice was duly received by the addressee. 36 This

presumption may be rebutted by an offer of proof of non-receipt. Id. In the absence

of proof to the contrary, the presumption has the force of a rule of law. 37


36
  Thomas v. Ray, 889 S.W.2d 237, 238 (Tex.1994).
37
   Id.; see Kaldis v. U.S. Bank Nat'l Ass'n, No. 14–11–00607–CV, 2012 WL
3229135, at 1, 3 (Tex.App.-Houston [14th Dist.] Aug. 9, 2012, pet. dism'd w.o.j.)
(mem.op.) (holding, in forcible detainer action, that landlord established delivery
of notice to vacate by proving that, although letters sent to tenant by certified mail
were returned unclaimed, letters sent by first class mail were not, and trial court
was free to disbelieve tenant's testimony during bench trial that he did not receive
the first class letters); Ramey v. Bank of New York, No. 14–06–00824, 2010 WL
2853887, at 3 (Tex.App.-Houston [14th Dist.] July 22, 2010, no pet.) (mem.op.)


                                                                                    24
       The letter constitutes a business record of the law firm, it was properly filed

as evidence in the summary judgment proceeding, and it constitutes evidence that

the notice to vacate was sent to Johnson by regular mail and certified mail on

November 17, 2014. 38

       FREO established delivery of the notice to vacate because it provided

evidence that the letter was sent to Johnson by certified and first class mail, there is

evidence indicating Johnson signed for this Notice, and there was no controverting

summary judgment evidence negating receipt of the first class letter. See Ramey,

2010 WL 2853887, at 3.

V.     THE TRIAL COURT PROPERLY MAINTAINED JURISDICTION OVER

       THE MATTER DESPITE THE ALLEGED TITLE ISSUES.

       Appellant Johnson lastly appears to argue on appeal that the trial court

lacked jurisdiction to enter judgment in the forcible detainer action due to an

alleged title issue.

       The jurisdiction of the county court at law, sitting as an appellate court over

the judgment of a justice court, is confined to the jurisdictional limits of the justice

(holding landlord established delivery of notice to vacate because it proved letter
was sent to tenant by certified and first class mail and there was no evidence
negating receipt of the first class letter).
38
   See Jimmerson v. Homecomings Financial L.L.C., No. 02–07–00305– CV, 2008
WL 2639757, at 2 n. 3 (Tex.App.-Fort Worth July 3, 2008, no pet.) (mem.op.) (top
of notice to vacate stated “CERTIFIED MAIL, RETURN RECEIPT
REQUESTED” and “FIRST CLASS REGULAR MAIL,” which constituted
evidence that the notice was mailed both by certified mail and regular mail).


                                                                                     25
court. 39 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. 40 Indeed,

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

the right to title. 41    The trial court is deprived of jurisdiction only if the

determination of the right to immediate possession necessarily requires the

resolution of the title dispute. 42

       Where a foreclosure pursuant to a deed of trust establishes a landlord and

tenant-at-sufferance relationship between the parties, the trial court has an

independent basis to determine the issue of immediate possession without

resolving the issue of title to the property. 43

       In this case, as stated above, the foreclosure pursuant to the deed of trust

created a landlord and tenant-at-sufferance relationship between Appellant and

FREO. Thus, it was not necessary for the trial court to resolve the title dispute to

determine the right of immediate possession.

       As evidenced by trustee foreclosure deed, FREO acquired the Property at a

foreclosure sale on November 04, 2014. (C.R. 43-45). Pursuant to the terms of the

Deed of Trust, Johnson, or any person holding possession of the Property through

39
   Villalon v. Bank One, 176 S.W.3d 66, 69 (Tex.App.-Houston [1st Dist.] 2004,
pet. denied).
40
   See Id. at 712.
41
   Id. at 710.
42
   Id. at 712.
43
   Id.


                                                                                    26
Johnson, became tenants at sufferance once the Property was sold at the

foreclosure sale. (C.R. 45-55; Sec. 18, Par. 4).

      The holding in Villalon and Dormady govern the outcome of this appeal.

FREO made a showing that: (1) it is the owner of the property by virtue of a

substitute trustee's deed; (2) Appellant is a tenant at sufferance; and (3) FREO has

the superior right to immediate possession. Because the landlord-tenant

relationship provides a basis for determining the right to immediate possession

without resolving the ultimate issue of title to the property, the issues of title and

possession are not necessarily intertwined, and the forcible detainer action could be

prosecuted concurrently with the title dispute in district court. See Bruce v. Fed.

Nat'l Mortg Ass'n, 352 S.W.3d 891, 893–94 (Tex.App.—Dallas 2011, pet. denied)

(holding county court had jurisdiction where deed of trust contained a provision

creating a landlord-tenant relationship in the event of a foreclosure sale).

                                  CONCLUSION

      In this case Appellee submitted, and the court admitted, proper and sufficient

evidence to demonstrate FREO’s entitlement to immediate possession of the

Subject Property. Appellee purchased the Subject Property at a foreclosure sale

held pursuant to the terms of a Deed of Trust executed by Appellant. By way of

his own written agreement Appellant is a tenant at sufferance and Appellee is

entitled to obtain a prompt determination of its right to immediate possession of the



                                                                                   27
Subject Property by filing its suit for forcible detainer. Importantly, to prevail on

its forcible detainer action Appellee was not required at trial to prove title, but was

only required showing sufficient evidence of ownership to demonstrate a superior

right to immediate possession. The trial court appropriately granted judgment in

favor of Appellee on the grounds that Appellee had a lawful right to immediate

passion of the subject property under Chapter 24 of the Texas Property Code and

other relevant Texas law.

                                      PRAYER

      For these reasons, Appellee FREO respectfully requests that this Honorable

Court affirm the judgment of the trial court. Appellee also requests any other relief,

at law or in equity, to which it may be entitled.




                                                                                    28
Respectfully Submitted,

JACK O’BOYLE & ASSOCIATES



   /s/ Travis H. Gray
Travis H. Gray
SBN 24044965
P.O. Box 815369
Dallas, Texas 75381
Phone: 972.247.0653
Fax: 972.247.0642
travis@jackoboyle.com
Attorneys for Appellee
FREO Texas LLC, A Delaware
Limited Liability Company




                             29
                        CERTIFICATE OF SERVICE

      I certify that a true and correct copy of the foregoing has been served on the

following counsel and/or pro se parties of record, in accordance with Texas Rule of

Appellate Procedure 9.5, on the date shown.

Dated: September 14 2015


L. Mickele’ Daniels
Arena Tower One, Suite 580
7322 Southwest Freeway
Houston, TX 77074
P: 713.995.4681
F: 713.995.4685
E: seminole85@peoplepc.com
Counsel for Appellant Jennie Larry Johnson



                                                /s/ Travis H. Gray
                                              Travis H. Gray




                                                                                 30
                     CERTIFICATE OF COMPLIANCE

      I certify that this document was produced using Microsoft Word 2010 and

Adobe Acrobat X and contains 4,863 words, as determined by the computer’s

software word-count function, excluding the sections of the document listed in

Texas Rules of Appellate Procedure 9.4(i)(1).


Dated: September 14 2015

                                              /s/ Travis H. Gray
                                            Travis H. Gray




                                                                           31
                         APPENDIX

(A)   JUDGMENT OF POSSESSION

(B)   OPINION IN MORTGAGE ELECTRONIC REGISTRATION SYSTEMS,

      INC. V. KNIGHT




                                                         32
Appendix
   A
   •



                                   CAUSE NO. 15-CCV-054223

 FREO TEXAS, LLC A DELAWARE                        §     IN THE COUNTY CIVIL COURT
 LIMITED LIABILITY COMPANY                         §

 v.                                                §     AT LAW NUMBER THREE (3)
                                                   §
 JENNIE LARRY JOHNSON                              §
 and/or All Occupants of                           §
 1907 Doliver Circle                               §
 Missouri City, Texas 77489                        §     FORT BEND COUNTY, TEXAS

                                          FINAL JUDGMENT

       On the 27'" day of January, 2015, came on to be heard the above-entitled and -numbered

cause wherein FREQ TEXAS, LLC A DELAWARE LIMITED LIABILITY COMPANY is the

Plaintiff, and JENNIE LARRY JOHNSON and/or All Occupants of I 907 Do liver Circle, Missouri

City, Fort Bend County, Texas 17489, are the Defendants.

       The Plaintiffs appeared by their local counsel William D. Kee, III, Attorney at Law, and




.---   Tire Defendant failed to apperu, OR

./     The Defendant appeared in person and announced ready for trial; OR

       Tke Qefemlaat app@ared in p9rson and through attorney,

       !Ille! amm anced ready for tdal.

       The Court finds that notice of trial setting was served on Defendant in accordance with

Rule 2la.

       Citation was served according to law and returned to the clerk where it remained on file for

the time required by law. The Court, having read the pleadings and the papers on file, and having

heard the evidence presented, is of the opinion that the allegations of the Plaintiffs' petition are true

and that Plaintiff is entitled to a judgment for possession.



                                                                                                       65
        IT IS THEREFORE, ORDERED, ADJUDGED, AND DECREED that Plaintiff, FREO

TEXAS, LLC A DELAWARE LIMITED LIABILITY COMP ANY, is awarded judgment against

Defendants, JENNIE LARRY JOHNSON and/or All Occupants. for possession of the property

located at 1907 Doliver Circle, Missouri City, Fort Bend County, Texas 77489, and that a Writ of

Possession issue to the proper officer commanding him to seize possession of said premises and

deliver same to Plaintiff after said Writ of Possession has been duly filed by Plaintiff if Defendants

have not vacated the herein described premises by            f .z h1.;'"' 'J   I(       '2015.

        II' IS FURI'HER ORDERED that the supersedeas bond 1s hereby set m the amount of

$_"'\v~1..,.1 ~'k~"~'J_._1~i'D~----   and shall be in the form of cash, cashier's check or corporate surety

licensed by and authorized to do business in the State of Texas for such purposes.

        All costs of court are hereby taxed agamst the party by whom mcurred, for all of which let

execution issue.

         Plaimiff is allewed stteh writs and prneesses as may be neeessary in the enforeement and

collection of this judgment.

         All relief not expressly granted herein is denied.




              FILED FOR RECO
              N O - TIME......,,,t;-~.'~:



                                                               FILED FOR RECOR
                                                              NQ _ _ TIME___,~




                                                                                                          66
Appendix
   B
Mortgage Electronic Registration Systems, Inc. v. Knight, Not Reported in S.W.3d (2006)


                                                                   The events pertinent to this appeal began with Lorie H.
                                                                   Knight's purchase of real property in Montgomery County,
                  2006 WL 510338
                                                                   Texas. Knight purchased the property with the proceeds of
    Only the Westlaw citation is currently available.
                                                                   a loan from Mortgage Electronic Registration Systems, Inc.
          SEE TX R RAP RULE 47.2 FOR                               (“MERS”), and she secured her loan with a deed of trust.
    DESIGNATION AND SIGNING OF OPINIONS.                           Knight defaulted on the loan and MERS foreclosed as allowed
                                                                   by the deed of trust. After purchasing the property at the
             MEMORANDUM OPINION                                    substitute trustee's sale, MERS sent Knight written notice to
              Court of Appeals of Texas,                           vacate the premises, but Knight failed to do so.
                     Beaumont.
                                                                   Subsequently, MERS sued Knight and all occupants, seeking
            MORTGAGE ELECTRONIC
                                                                   possession of the premises. The justice court entered a default
      REGISTRATION SYSTEMS, INC., Appellant                        judgment against Knight and “all occupants” and awarded
                        v.                                         possession of the premises to MERS. Knight appealed the
            Lorie H. KNIGHT, Appellee.                             judgment to the county court at law and it awarded possession
                                                                   of the premises to her. 1
         No. 09-04-452 CV. | Submitted Oct.
       10, 2005. | Decided March 2, 2006.
                                                                   1      No appeal was brought by any occupants other than
        | Rehearing Overruled April 20, 2006.
                                                                          Knight.
On Appeal from the County Court at Law No. 2, Montgomery           On appeal from the judgment in county court, MERS brings
County, Texas, Trial Cause No. 04-18,044; Jerry Winfree,           two issues. We begin our review with the second issue as
Judge.                                                             its resolution is determinative of this appeal. The second
                                                                   issue attacks the legal and factual sufficiency of the evidence
Attorneys and Law Firms
                                                                   supporting the county court's judgment in Knight's favor. As
Thomas D. Pruyn, Brown & Shapiro, LLP, Pasadena, for               Knight did not file an appellate brief, we have no response
appellant.                                                         opposing issue two's arguments.

William H. Piper, Boyd, Munoz & Piper, Conroe, for
appellee.
                                                                                         Forcible Detainer
Before McKEITHEN, C.J., KREGER, and HORTON, JJ.
                                                                   “A forcible detainer action is a special proceeding governed
                                                                   by particular statutes and rules.” Rice v. Pinney, 51 S.W.3d
                                                                   705, 709 (Tex.App.-Dallas 2001, no pet.). The proceeding
               MEMORANDUM OPINION                                  exists “to provide a speedy, simple, and inexpensive means
                                                                   for resolving the question of the right to possession of
HOLLIS HORTON, Justice.
                                                                   premises.” Id. The Texas Property Code allows forcible
 *1 This appeal arises from a forcible detainer action initiated   detainer actions against persons (often tenants) who refuse to
in justice court by a lender. The justice court determined that    surrender possession of real property when demanded to do
the lender, who had foreclosed on real property pursuant to        so by one entitled to possession. See Tex. Prop.Code Ann. §§
a deed of trust, was entitled to possession of the property.       24.002, 24.0051, 24.0061 (Vernon 2000 & Supp.2005).
The borrower appealed to county court, which found that the
borrower was entitled to possession. The lender brings this        Our procedural rules highlight the action's limited purpose;
appeal. We reverse and render judgment in favor of the lender.     Rule 746 provides that the “only issue” in a forcible detainer
                                                                   action is “the right to actual possession; and the merits
                                                                   of the title shall not be adjudicated.” Tex.R. Civ. P. 746.
                                                                   Thus, the sole question for the trial court is who has the
                         Background
                                                                   right to immediate possession of the property. See Villalon
                                                                   v. Bank One, 176 S.W.3d 66, 70 (Tex.App.-Houston [1st



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            1
Mortgage Electronic Registration Systems, Inc. v. Knight, Not Reported in S.W.3d (2006)


Dist.] 2004, pet. denied); Ward v. Malone, 115 S.W.3d 267,                   and intestacy statutes because “title necessarily
270 (Tex.App.-Corpus Christi 2003, pet. denied); Dormady                     involved”); [American Spiritualist Ass'n v.] Ravkind,
v. Dinero Land & Cattle Co., L.C., 61 S.W.3d 555, 557                        313 S.W.2d [121,] 125 [ (Tex.Civ.App.-Dallas 1958,
(Tex.App.-San Antonio 2001, pet. dism'd w.o.j.).                             writ ref'd n.r.e.) ] (no jurisdiction when right to
                                                                             possession depended on disputed compliance with
                                                                             “contract to purchase”).
In a forcible detainer action, the law requires the plaintiff to
                                                                             Rice, 51 S.W.3d at 713.
introduce sufficient evidence of ownership to show a superior
right to immediate possession; the plaintiff, however, does not    A forcible detainer action is not an exclusive remedy and is
have to prove that he holds title to the property. See Rice, 51    cumulative of other remedies. Scott v. Hewitt, 127 Tex. 31,
S.W.3d at 709. For example, a superior right to possession         90 S.W.2d 816, 818-19 (1936); Villalon, 176 S.W.3d at 70.
may occur in the context of a landlord-tenant relationship         A party who loses possession in a detainer action may sue in
arising after a foreclosure sale under a deed of trust. See        the district court to decide who has legal title to the property.
Villalon, 176 S.W.3d at 71. A deed of trust may establish a        Scott, 90 S.W.2d at 818; Villalon, 176 S.W.3d at 70. Also,
landlord-tenant relationship between the buyer at foreclosure      a party may bring a separate detainer action in justice court
and the current possessor of the property, as it does here.        and prosecute it concurrently with a suit to try title pending
See id. Though the possessor may question the validity of          in district court. Villalon, 176 S.W.3d at 70-71.
a foreclosure sale and the quality of the buyer's title, the
court hearing a forcible detainer action retains the power to
decide which of the parties is entitled to the immediate right                          Standard of Review
of possession. Id.
                                                                   When reviewing the legal sufficiency of the evidence, we
 *2 An exception to the court's forcible detainer jurisdiction     “view the evidence in the light most favorable to the verdict,
may occur, however, when the title issue is “so intertwined”       crediting favorable evidence if reasonable jurors could,
with the possession issue that “possession may not be              and disregarding contrary evidence unless reasonable jurors
adjudicated without first determining title.” Dormady, 61          could not.” City of Keller v. Wilson, 168 S.W.3d 802, 807
S.W.3d at 557. Still, this exception to the justice court's        (Tex.2005). Legally insufficient evidence or “no evidence”
jurisdiction occurs “only when the justice or county court         of a vital fact exists when (a) the record contains a complete
must determine title issues....” Rice, 51 S.W.3d at 713. 2         absence of evidence of a vital fact; (b) rules of law or rules
                                                                   of evidence bar the court from giving weight to the only
2                                                                  evidence offered to prove a vital fact; (c) the evidence offered
       As shown below, the Rice Court collected cases
                                                                   to prove a vital fact is no more than a mere scintilla; or (d)
       illustrating when the necessity of determining title
                                                                   the evidence conclusively establishes the opposite of the vital
       deprives the justice or county court of jurisdiction in a
       forcible detainer action:                                   fact. See Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d
          See, e.g., Guyer v. Rose, 601 S.W.2d 205,                706, 711 (Tex.1997). If someone attacks the legal sufficiency
          205-206 (Tex.Civ.App.-Dallas 1980, writ ref'd n.r.e.)    of an adverse finding on an issue for which he has the burden
          (enjoinder of forcible detainer suit proper when         of proof, and if there is no evidence to support the finding, we
          right to possession depended on compliance with          review all the evidence to decide whether the record shows
          contract for sale); Gentry v. Marburger, 596 S.W.2d      that the party attacking the finding established the contrary
          201, 203 (Tex.Civ.App.-Houston [1st Dist.] 1980,         proposition as a matter of law. See Dow Chem. Co. v. Francis,
          writ ref'd n.r.e.) (justice court without jurisdiction   46 S.W.3d 237, 241 (Tex.2001).
          when possession based on assertion of life estate
          or adverse possession because “title to premises
                                                                   The county court did not issue any findings of fact or
          was directly involved”); Rodriguez [v. Sullivan], 484
                                                                   conclusions of law regarding its determination that Knight
          S.W.2d [592,] 593 [ (Tex.Civ.App.-El Paso 1972, no
                                                                   was entitled to possess the property. Thus, we infer all
          writ) ] (justice court judgment void when possession
          depended on construction of real estate “purchase-sale
                                                                   necessary facts to support the trial court's ruling if the
          contract”); Dent v. Pines, 394 S.W.2d 266, 268-69        evidence supports the inferred facts. BMC Software Belgium,
          (Tex.Civ.App.-Houston [1st Dist.] 1965, no writ)         N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex.2002). However,
          (justice court without jurisdiction when possession      if “the appellate record includes the reporter's and clerk's
          required resolution of claims under competing wills      records, these implied findings are not conclusive and may be



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  2
Mortgage Electronic Registration Systems, Inc. v. Knight, Not Reported in S.W.3d (2006)


challenged for legal and factual sufficiency in the appropriate     county court had jurisdiction to decide whether MERS was
appellate court.” Id.                                               entitled to “immediate possession” without also determining
                                                                    whether MERS wrongfully foreclosed against Knight, an
After admitting documentary evidence and hearing counsels'          issue directly related to property title. See id. Even if MERS
arguments, the county court determined that Knight was              prevailed on its forcible detainer action, Knight retains the
entitled to possession. In support of her request for               right to pursue a wrongful foreclosure action in district court.
possession, Knight offered only one document-a certified            See id. at 558.
copy of a petition filed in district court by many home-buyer
plaintiffs, including Knight, against many mortgage-lender          3      Other allegations included deceptive trade practices,
defendants. However, the named defendants did not include                  common law fraud, negligence, and usury.
MERS. At the hearing, Knight's attorney asserted that MERS
                                                                    We find that a reasonable fact-finder could not resolve the
was “being served now,” but did not offer a copy of the
                                                                    disputed issues of fact in Knight's favor based solely on the
citation the court issued against MERS.
                                                                    certified copy of the plaintiffs' petition. The evidence offered
                                                                    by Knight does not show that the court lacked jurisdiction
 *3 The county court admitted the certified plaintiffs' petition
                                                                    in MERS's forcible detainer action against Knight. Further,
as proof that there was “a lawsuit pending in District Court on
                                                                    we have reviewed the clerk's and reporter's records and find
the legality of the foreclosure.” Knight's attorney argued that
                                                                    no evidence that would support the award of possession to
entitlement to possession involves “title.” During the trial,
                                                                    Knight.
Knight's attorney asked the court “to enforce the law which
says that this Court has no subject matter [ ] jurisdiction
                                                                    Next, we review all of the evidence to decide whether
pending the outcome of that other trial, and [ ] therefore to
                                                                    MERS established the contrary proposition-that it is entitled
abate the proceeding until that time.”
                                                                    to possession-as a matter of law. See Francis, 46 S.W.3d at
                                                                    241. For MERS to prevail and obtain possession in its forcible
After hearing arguments from both sides, the court stated that
                                                                    detainer action against Knight, the law requires MERS to
in similar cases, it granted requests to abate cases pending
                                                                    show that: (1) the substitute trustee conveyed the property by
resolution by the district court of the title question and would
                                                                    deed to MERS after the foreclosure sale; (2) the deed of trust
do so here unless MERS “chooses that I find in favor of the
                                                                    signed by Knight established a landlord-tenant relationship
Defendant.” The court informed MERS that it could either
                                                                    between MERS and Knight; (3) MERS gave proper notice
acquiesce in the court's abatement of the detainer action,
                                                                    to Knight that it required her to vacate the premises; and
pending resolution of the district court case, or suffer an award
                                                                    (4) Knight refused to vacate the premises. Tex. Prop.Code
by the court of possession to Knight so that MERS could
                                                                    Ann. §§ 24.002(a)(2), 24.002(b), 24.005 (Vernon 2000); see
appeal. MERS asked for twenty-four hours to decide. The
                                                                    Villalon, 176 S.W.3d at 71; Dormady, 61 S.W.3d at 558.
record shows that the court ultimately awarded possession to
Knight.
                                                                     *4 As no witnesses testified for either party, the evidence
                                                                    supporting MERS's position consists of the attorneys'
While plaintiffs' allegations in the district court case
                                                                    stipulations and certain documents that the court admitted
included one of wrongful foreclosure, 3 Knight's pending            into evidence as well. The stipulation of Knight's attorney
wrongful foreclosure suit does not deprive the county               provided evidence of Knight's possession of the property and
court of jurisdiction. See Villalon, 176 S.W.3d at 71. To           her refusal to vacate. Counsel agreed that Knight bought
affect the county court's jurisdiction of the detainer action       the property, was a homeowner there, and still occupied the
under these circumstances, the district court lawsuit must
                                                                    premises. 4
involve a question of title “so intertwined with the issue
of possession” that the county court could not determine
                                                                    4      During the proceedings, the court requested that the
possession without first determining title. Dormady, 61
S.W.3d at 557. MERS's forcible detainer action does not                    attorneys listen “carefully” to its recitation of facts and
                                                                           determine if the parties could stipulate to those facts. The
necessarily require a determination of title. Here, as in
                                                                           court stated:
Villalon, a landlord-tenant relationship resulting from the
                                                                              Defendant homeowner bought a lot, financed the
foreclosure sale arose between MERS and Knight. Because
                                                                              purchase with a loan from the Plaintiff. Plaintiff
MERS and Knight had a landlord-tenant relationship, the                       probably signed a deed of trust or a mortgage or



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                       3
Mortgage Electronic Registration Systems, Inc. v. Knight, Not Reported in S.W.3d (2006)



         something .... The ... Defendant homeowner probably           sufferance.” Second, the substitute trustee's deed established
         defaulted in their payments. The Plaintiff foreclosed         that MERS was entitled to possession of the property. The
         their deed of trust, their mortgage. The Defendant            substitute trustee conveyed the property by deed to MERS
         homeowner then filed a lawsuit in District Court,             after it purchased the property at the foreclosure sale. Finally,
         which is still pending, challenging the legality of           the notice to vacate provided proof of proper notice to
         the foreclosure. And the Defendant still occupies the         Knight that MERS required her to vacate the premises. See
         premises. (Emphasis added.)                                   Tex. Prop.Code Ann. §§ 24.002(b); 24.005 (Vernon 2000).
         Knight's attorney agreed that the trial court correctly       Nothing in the record controverts these three legal documents.
         stated the facts and MERS's attorney agreed that the          Thus, on this record, MERS established its entitlement to
         trial court had not omitted any facts.
                                                                       possession as a matter of law.
MERS further relied on three documents: (1) a certified copy
of the deed of trust; (2) a certified copy of the substitute           We find the evidence is legally insufficient to support
trustee's deed; and (3) a copy of the certified notice to              the award of possession to Knight and find that MERS
vacate sent to Knight. First, the deed of trust signed by              established as a matter of law that it is legally entitled to
Knight established a landlord-tenant relationship between              possession of the premises. We find the county court erred in
MERS and Knight. The deed of trust required Knight, or                 awarding possession to Knight. Accordingly, we reverse the
any person holding possession through her, to “immediately             court's judgment and render judgment that MERS is entitled
surrender possession of the Property to the purchaser at               to possession.
[the foreclosure] sale.” The deed of trust further provided
that failure to surrender possession would cause Knight,               REVERSED AND RENDERED.
or anyone possessing through her, to become a “tenant at


End of Document                                                    © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   4
