                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-12-00144-CV


CHRIS LEISS AND ALL                                            APPELLANTS
OCCUPANTS

                                         V.

FEDERAL NATIONAL MORTGAGE                                         APPELLEE
ASSOCIATION A/K/A FANNIE MAE


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          FROM COUNTY COURT AT LAW NO. 1 OF TARRANT COUNTY

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                           MEMORANDUM OPINION1

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      Appellants Chris Leiss and All Occupants (collectively, Leiss), pro se,

appeal the county court’s judgment awarding possession of real property to

Appellee Federal National Mortgage Association a/k/a Fannie Mae.     We will

affirm.



      1
          See Tex. R. App. P. 47.4.
      Leiss executed a promissory note in March 2008 in the principal amount of

$185,000. To secure the debt created by the note, Leiss executed a home equity

security instrument that granted the lender a security interest in real property

located at 820 Forest Crossing Dr., Hurst, Texas 76053 (the property).             The

instrument contained the following provision:

      If the Property is sold pursuant to this Section 22, [Leiss] or any
      person holding possession of the Property through [Leiss] shall
      immediately surrender possession of the Property to the purchaser
      at that sale. If possession is not surrendered, [Leiss] or such person
      shall be a tenant at sufferance and may be removed by writ of
      possession or other court proceeding.

      Leiss defaulted under the terms of the security instrument, and a substitute

trustee was appointed to conduct a foreclosure sale of the property. Fannie Mae

purchased the property on November 1, 2011, and later sent written notice to

Leiss demanding that he vacate the property. In January 2012, Fannie Mae filed

a petition for forcible detainer in the justice court, alleging that Leiss had failed to

vacate, and was therefore in wrongful possession of, the property. The justice

court awarded Fannie Mae possession of the property, and Leiss pursued an

appeal in the county court, which, after a brief bench trial, found that Fannie Mae

was entitled to possession of the property and to attorney’s fees.2

      In a single issue, Leiss challenges the sufficiency of the evidence to

support the county court’s judgment awarding possession of the property to



      2
       Leiss did not appear at the trial in the county court.


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Fannie Mae and argues that the foreclosure sale was invalid because he did not

receive proper notice of the sale.3

      We may sustain a legal sufficiency challenge only when (1) the record

discloses a complete absence of evidence of a vital fact, (2) the court is barred

by rules of law or of evidence from giving weight to the only evidence offered to

prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a

mere scintilla, or (4) the evidence establishes conclusively the opposite of a vital

fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998),

cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, “No Evidence” and

“Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361, 362–63 (1960).

      A forcible detainer action is the procedure by which the right to immediate

possession of real property is determined.            See Cattin v. Highpoint Vill.

Apartments, 26 S.W.3d 737, 738–39 (Tex. App.—Fort Worth 2000, pet. dism’d

w.o.j.). Forcible detainer actions are intended to be a summary, speedy, and

inexpensive remedy for resolving the question of who is entitled to immediate

possession of real property. Id. Rule of civil procedure 746 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, 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

      3
        We construe Leiss’s sufficiency argument as a challenge to the legal
sufficiency of the evidence.


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possession. Hong Kong Dev., Inc. v. Nguyen, 229 S.W.3d 415, 433 (Tex. App.—

Houston [1st Dist.] 2007, no pet.).

      Generally, any defects in the foreclosure process or with appellee’s title to

the property may not be considered in a forcible detainer action. Shutter v. Wells

Fargo Bank, N.A., 318 S.W.3d 467, 471 (Tex. App.—Dallas 2010, pet. dism’d

w.o.j.); Williams v. Bank of N.Y. Mellon, 315 S.W.3d 925, 927 (Tex. App.—Dallas

2010, no pet.) (―Whether a sale of property under a deed of trust is invalid may

not be determined in a forcible detainer but must be brought in a separate suit.‖).

A forcible detainer action is cumulative, not exclusive, of other remedies that a

party may have; thus, the party may pursue both a forcible detainer action in

justice court and a suit to quiet title in district court. Scott v. Hewitt, 127 Tex. 31,

35, 90 S.W.2d 816, 818–19 (1936). There may exist, however, a question of title

so intertwined with the issue of possession as to preclude adjudication of the

right to possession without first determining title.         Terra XXI, Ltd. v. AG

Acceptance Corp., 280 S.W.3d 414, 417 (Tex. App.—Amarillo 2008, pet.

denied). In such a case, neither the justice court nor the county court on appeal

has jurisdiction. Id.

      At trial, Fannie Mae offered, and the trial court admitted, three exhibits:

(1) the home equity security instrument, (2) a substitute trustee’s deed, and

(3) several notices demanding that Leiss vacate the property.            The security

instrument evidenced Leiss’s status as a tenant at sufferance; the substitute

trustee’s deed evidenced Fannie Mae’s purchase of the property; and the notices


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to vacate evidenced Fannie Mae’s written notifications to Leiss that Fannie Mae

had purchased the property and that Leiss had to vacate the property. We hold

that the evidence is legally sufficient to support the trial court’s finding that Fannie

Mae demonstrated a superior right to immediate possession of the property.

      To the extent Leiss argues that the foreclosure sale was invalid, that

consideration is beyond the scope of this forcible detainer proceeding.            See

Shutter, 318 S.W.3d at 471; Williams, 315 S.W.3d at 927. Moreover, we cannot

conclude, based on this record—one in which Leiss did not even appear at trial

and present any evidence or arguments—that the trial court was incapable of

adjudicating the right to immediate possession of the property without addressing

any matters of title. See, e.g., Reynolds v. Wells Fargo Bank, N.A., 245 S.W.3d

57, 60–61 (Tex. App.—El Paso 2008, no pet.) (reasoning similarly).

      Accordingly, we overrule Leiss’s only issue and affirm the trial court’s

judgment.




                                                      BILL MEIER
                                                      JUSTICE

PANEL: DAUPHINOT, MEIER, and GABRIEL, JJ.

DELIVERED: April 25, 2013




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