AFFIRM; and Opinion Filed July 5, 2016.
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-15-00677-CV
SAMUEL G. BREITLING AND JOANN S. BREITLING, Appellants V. LNV CORPORATION, Appellee
On Appeal from the County Court at Law No. 3 Dallas County, Texas Trial Court Cause No. CC-15-00911-C
MEMORANDUM OPINION Before Justices Lang-Miers, Evans, and Brown Opinion by Justice Brown In this forcible detainer case, Samuel G. Breitling and JoAnn S. Breitling appeal the trial
court’s judgment awarding immediate possession of certain residential property in Sachse,
Texas, to LNV Corporation. The Breitlings raise four issues on appeal, contending among other
things that the trial court lacked jurisdiction. We affirm the trial court’s judgment.
In October 2000, the Breitlings took out a home equity loan on the Sachse property from
Aames Funding Corporation. In connection with the loan, they executed a security instrument
that specified the lender’s default remedies included the power of sale by foreclosure. The
security instrument further provided that if the property was sold at a foreclosure sale, “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.” The note and security interest were assigned several times, eventually to LNV.
The Breitlings defaulted on the home equity loan. Pursuant to rule of civil procedure
736, LNV applied to the 134th Judicial District Court for an expedited order allowing
foreclosure of the lien. See TEX. R. CIV. P. 736.1. That court granted a summary judgment
ordering that LNV was entitled to proceed with foreclosure of the property.
On September 2, 2014, LNV bought the property at the foreclosure sale. LNV later sent
a letter to the Breitlings notifying them that they were tenants at sufferance and demanding they
vacate the property within three days. When the Breitlings failed to vacate, LNV filed this action
in justice court, seeking immediate possession of the property. Following a jury trial, the justice
court rendered a judgment awarding possession of the property to LNV. The Breitlings appealed
that judgment to the county court for a trial de novo.
In the county court, the Breitlings filed a “Notice of Related Case and Motion to Stay
Proceedings.” In the motion, they alleged they were victims of mortgage fraud and that they and
LNV were in litigation about the title to the property. That litigation had been removed to
federal court, and the Breitlings were trying to remand the case to state court. The motion sought
a stay or abatement until the question of title could be decided. LNV filed a written response
opposing the motion to stay, arguing that the pending lawsuit did not deprive the county court of
jurisdiction to determine the issue of superior right to possession of the property.
When the case was called for trial, the trial court ruled that it was not going to stay the
case. The Breitlings stipulated that they were still living in the property in question. LNV then
offered evidence of its right to possession. The Breitlings did not put on any witnesses or present
any evidence. The county court rendered judgment ordering that LNV was entitled to immediate
possession of the property. This pro se appeal followed.
–2– In their first issue, the Breitlings contend the trial court lacked jurisdiction over the
forcible detainer action because an action for determination of title was pending in federal court.
They contend the justice court, and thus the county court, lacked jurisdiction because the
questions of title and possession are integrally intertwined such that possession may be not
determined without first determining title. We disagree.
A person commits forcible detainer if he is a tenant at sufferance and refuses to surrender
possession of real property on demand after his right to possession has ceased. TEX. PROP. CODE
ANN. § 24.002(a) (West 2014); Murphy v. Countrywide Home Loans, Inc., 199 S.W.3d 441, 445
(Tex. App.—Houston [1st Dist.] 2006, pet. denied). 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. Rice v. Pinney, 51 S.W.3d
705, 709 (Tex. App.—Dallas 2001, no pet.). It is intended to be a speedy, simple, and
inexpensive means to obtain possession without resorting to an action on the title. Williams v.
Bank of N.Y. Mellon, 315 S.W.3d 925, 927 (Tex. App.—Dallas 2010, no pet.). The only issue in
these cases is the right to actual possession. TEX. R. CIV. P. 510.3(e).
Jurisdiction to hear forcible detainer actions is vested in justice courts, and on appeal, to
county courts for trial de novo. TEX. PROP. CODE ANN. § 24.004 (West 2014); Dormady v.
Dinero Land & Cattle Co., 61 S.W.3d 555, 557 (Tex. App.—San Antonio 2001, pet. dism’d
w.o.j.). A justice court is without jurisdiction to adjudicate title to land. TEX. GOV’T CODE ANN.
§ 27.031(b)(4) (West Supp. 2015). Thus, neither a justice court, nor a county court on appeal,
has jurisdiction to determine the issue of title to real property in a forcible detainer suit.
Dormady, 61 S.W.3d at 557. A justice court or county court at law is not deprived of jurisdiction
merely by the existence of a title dispute; rather it is deprived of jurisdiction if the right to
immediate possession necessarily requires the resolution of a title dispute. Bruce v. Fed. Nat’l
–3– Mortg. Ass’n, 352 S.W.3d 891, 893 (Tex. App.—Dallas 2011, pet. denied). Tenant-at-sufferance
clauses separate the issue of possession from the issue of title. Pinnacle Premier Props., Inc. v.
Breton, 447 S.W.3d 558, 564 (Tex. App.—Houston [14th Dist.] 2014, no pet.). Under these
provisions, a foreclosure sale transforms the borrower into a tenant at sufferance who must
immediately relinquish possession to the purchaser at the foreclosure sale, and defects in the
foreclosure process are not relevant in the forcible detainer suit. Id. The displaced party is still
entitled to bring a separate suit to determine the question of title. Id.
The security instrument at issue here contained a tenant-at-sufferance clause. The issues
of possession and title are therefore not intertwined. The justice court, and the county court on
appeal, had jurisdiction over the issue of possession. We overrule the Breitlings’ first issue.
In their second issue, the Breitlings complain of various actions allegedly taken by the
justice of the peace who presided over this case in justice court. It is well settled that perfection
of an appeal to county court from a justice court for a trial de novo vacates and annuls the
judgment of the justice court. Villalon v. Bank One,
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AFFIRM; and Opinion Filed July 5, 2016.
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-15-00677-CV
SAMUEL G. BREITLING AND JOANN S. BREITLING, Appellants V. LNV CORPORATION, Appellee
On Appeal from the County Court at Law No. 3 Dallas County, Texas Trial Court Cause No. CC-15-00911-C
MEMORANDUM OPINION Before Justices Lang-Miers, Evans, and Brown Opinion by Justice Brown In this forcible detainer case, Samuel G. Breitling and JoAnn S. Breitling appeal the trial
court’s judgment awarding immediate possession of certain residential property in Sachse,
Texas, to LNV Corporation. The Breitlings raise four issues on appeal, contending among other
things that the trial court lacked jurisdiction. We affirm the trial court’s judgment.
In October 2000, the Breitlings took out a home equity loan on the Sachse property from
Aames Funding Corporation. In connection with the loan, they executed a security instrument
that specified the lender’s default remedies included the power of sale by foreclosure. The
security instrument further provided that if the property was sold at a foreclosure sale, “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.” The note and security interest were assigned several times, eventually to LNV.
The Breitlings defaulted on the home equity loan. Pursuant to rule of civil procedure
736, LNV applied to the 134th Judicial District Court for an expedited order allowing
foreclosure of the lien. See TEX. R. CIV. P. 736.1. That court granted a summary judgment
ordering that LNV was entitled to proceed with foreclosure of the property.
On September 2, 2014, LNV bought the property at the foreclosure sale. LNV later sent
a letter to the Breitlings notifying them that they were tenants at sufferance and demanding they
vacate the property within three days. When the Breitlings failed to vacate, LNV filed this action
in justice court, seeking immediate possession of the property. Following a jury trial, the justice
court rendered a judgment awarding possession of the property to LNV. The Breitlings appealed
that judgment to the county court for a trial de novo.
In the county court, the Breitlings filed a “Notice of Related Case and Motion to Stay
Proceedings.” In the motion, they alleged they were victims of mortgage fraud and that they and
LNV were in litigation about the title to the property. That litigation had been removed to
federal court, and the Breitlings were trying to remand the case to state court. The motion sought
a stay or abatement until the question of title could be decided. LNV filed a written response
opposing the motion to stay, arguing that the pending lawsuit did not deprive the county court of
jurisdiction to determine the issue of superior right to possession of the property.
When the case was called for trial, the trial court ruled that it was not going to stay the
case. The Breitlings stipulated that they were still living in the property in question. LNV then
offered evidence of its right to possession. The Breitlings did not put on any witnesses or present
any evidence. The county court rendered judgment ordering that LNV was entitled to immediate
possession of the property. This pro se appeal followed.
–2– In their first issue, the Breitlings contend the trial court lacked jurisdiction over the
forcible detainer action because an action for determination of title was pending in federal court.
They contend the justice court, and thus the county court, lacked jurisdiction because the
questions of title and possession are integrally intertwined such that possession may be not
determined without first determining title. We disagree.
A person commits forcible detainer if he is a tenant at sufferance and refuses to surrender
possession of real property on demand after his right to possession has ceased. TEX. PROP. CODE
ANN. § 24.002(a) (West 2014); Murphy v. Countrywide Home Loans, Inc., 199 S.W.3d 441, 445
(Tex. App.—Houston [1st Dist.] 2006, pet. denied). 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. Rice v. Pinney, 51 S.W.3d
705, 709 (Tex. App.—Dallas 2001, no pet.). It is intended to be a speedy, simple, and
inexpensive means to obtain possession without resorting to an action on the title. Williams v.
Bank of N.Y. Mellon, 315 S.W.3d 925, 927 (Tex. App.—Dallas 2010, no pet.). The only issue in
these cases is the right to actual possession. TEX. R. CIV. P. 510.3(e).
Jurisdiction to hear forcible detainer actions is vested in justice courts, and on appeal, to
county courts for trial de novo. TEX. PROP. CODE ANN. § 24.004 (West 2014); Dormady v.
Dinero Land & Cattle Co., 61 S.W.3d 555, 557 (Tex. App.—San Antonio 2001, pet. dism’d
w.o.j.). A justice court is without jurisdiction to adjudicate title to land. TEX. GOV’T CODE ANN.
§ 27.031(b)(4) (West Supp. 2015). Thus, neither a justice court, nor a county court on appeal,
has jurisdiction to determine the issue of title to real property in a forcible detainer suit.
Dormady, 61 S.W.3d at 557. A justice court or county court at law is not deprived of jurisdiction
merely by the existence of a title dispute; rather it is deprived of jurisdiction if the right to
immediate possession necessarily requires the resolution of a title dispute. Bruce v. Fed. Nat’l
–3– Mortg. Ass’n, 352 S.W.3d 891, 893 (Tex. App.—Dallas 2011, pet. denied). Tenant-at-sufferance
clauses separate the issue of possession from the issue of title. Pinnacle Premier Props., Inc. v.
Breton, 447 S.W.3d 558, 564 (Tex. App.—Houston [14th Dist.] 2014, no pet.). Under these
provisions, a foreclosure sale transforms the borrower into a tenant at sufferance who must
immediately relinquish possession to the purchaser at the foreclosure sale, and defects in the
foreclosure process are not relevant in the forcible detainer suit. Id. The displaced party is still
entitled to bring a separate suit to determine the question of title. Id.
The security instrument at issue here contained a tenant-at-sufferance clause. The issues
of possession and title are therefore not intertwined. The justice court, and the county court on
appeal, had jurisdiction over the issue of possession. We overrule the Breitlings’ first issue.
In their second issue, the Breitlings complain of various actions allegedly taken by the
justice of the peace who presided over this case in justice court. It is well settled that perfection
of an appeal to county court from a justice court for a trial de novo vacates and annuls the
judgment of the justice court. Villalon v. Bank One, 176 S.W.3d 66, 69–70 (Tex. App.—
Houston [1st Dist.] 2004, writ denied). Because the Breitlings appealed to the county court for a
trial de novo, their complaints about the actions of the justice court are moot. See Garofalo v.
Dallas Area Rapid Transit, No. 05-13-01595-CV, 2015 WL 1568440, at *1 (Tex. App.—Dallas
Apr. 7, 2015, no pet. h.) (mem. op.). We overrule their second issue.
In their third issue, the Breitlings contend the county court erred by denying them a trial
de novo. They maintain the county court ruled in favor of LNV without allowing them to
present a case. The record reveals otherwise. A trial de novo occurred on May 8, 2015. LNV
offered into evidence eleven exhibits, including the security instrument, the substitute trustee’s
deed showing it bought the property at the foreclosure sale, and its demand for the Breitlings to
vacate the premises. LNV rested its case. The trial court then gave the Breitlings, who were
–4– represented by counsel at that time, a chance to respond. In response, counsel merely reurged
the Breitlings’ motion to abate. Thus, the court held a trial and gave the Breitlings the
opportunity to present their case. The Breitlings chose not to present any evidence or argument
about the right to immediate possession of the property. We overrule the Breitlings’ third issue.
In their fourth issue, the Breitlings contend both the justice court and the county court
judgments are void because both judges deprived them of due process and equal protection. As
stated earlier, any complaints about the actions of the justice court are moot. See id. The
Breitlings contend the county court judge denied them due process and equal protection of the
law because she denied them the opportunity to be heard. We have already determined in our
discussion of the previous issue that the county court gave the Breitlings an opportunity to
present a case. To the extent the Breitlings assert the county court deprived them of due process
and equal protection for additional reasons, it is not clear from their briefing of this issue what
those reasons are and therefore any additional arguments have been improperly briefed. See
TEX. R. APP. P. 38.1(i). We overrule the Breitlings’ fourth issue.
We affirm the trial court’s judgment.
/Ada Brown/ ADA BROWN JUSTICE
150677F.P05
–5– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
SAMUEL G. BREITLING AND JOANN S. On Appeal from the County Court at Law BREITLING, Appellants No. 3, Dallas County, Texas Trial Court Cause No. CC-15-00911-C. No. 05-15-00677-CV V. Opinion delivered by Justice Brown, Justices Lang-Miers and Evans participating. LNV CORPORATION, Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee LNV Corporation recover its costs of this appeal and the full amount of the trial court’s judgment from appellants Samuel G. Breitling and JoAnn S. Breitling and from the cash deposit in lieu of cost bond. To the extent the costs of this appeal and the full amount of the trial court’s judgment exceed the amount of the cash deposit in lieu of cost bond, it is ORDERED that appellee recover its costs of this appeal and the full amount of the trial court’s judgment from appellants Samuel G. Breitling and JoAnn S. Breitling and from the cash deposit in lieu of supersedeas bond. After all costs have been paid, the clerk of the county court is directed to release the balance, if any, of the cash deposit in lieu of cost bond and the balance, if any, of the cash deposit in lieu of supersedeas bond to Samuel G. Breitling and JoAnn S. Breitling.
Judgment entered this 5th day of July, 2016.
–6–