Twan Burgess and Erica Burgess v. Wintermute Enterprises, LLC And Zachariah A. Wintermute, Agent

• Court: Court of Appeals of Texas
• Decided: April 3, 2019
• Docket: 06-18-00080-CV
• Status: Published

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-18-00080-CV

TWAN BURGESS AND ERICA BURGESS, Appellants

V.

WINTERMUTE ENTERPRISES, LLC, AND ZACHARIAH A. WINTERMUTE, AGENT, Appellees

On Appeal from the County Court at Law No. 1 Bell County, Texas Trial Court No. 86,846

Before Morriss, C.J., Burgess and Stevens, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION After Wintermute Enterprises, LLC (Wintermute), purchased the house and real property

located at 3709 Bassett Drive in Killeen (the Property) at a substitute trustee’s sale, Wintermute

presented a notice to vacate the Property to its occupants, Twan and Erica Burgess (collectively

the Burgesses). When the Burgesses refused to vacate, Wintermute filed a forcible detainer action

in the Justice Court of Bell County. 1 The Burgesses appealed the Justice Court’s unfavorable

judgment to the County Court at Law No. 1 of Bell County, where a jury determined that

Wintermute had purchased the Property at a foreclosure sale, that Wintermute provided the

Burgesses with a proper notice to vacate, that the Burgesses were tenants at sufferance, and that

Wintermute had a greater right of possession to the Property. In accordance with the jury verdict,

the trial court entered its judgment of possession in favor of Wintermute.

In this pro se appeal, the Burgesses (1) challenge the validity of the substitute trustee’s sale

and (2) contend that Wintermute could not bring a forcible detainer action against them. Because

we find that (1) we do not have jurisdiction to entertain the Burgesses’ challenge to Wintermute’s

title, and (2) the forcible detainer action was proper, we will affirm the trial court’s judgment.

In their first issue, the Burgesses complain that the substitute trustee’s sale was improper

because they had, prior to the sale, filed for federal bankruptcy protection. 2 We interpret this

1 Originally appealed to the Third Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We are unaware of any conflict between precedent of the Third Court of Appeals and that of this Court on any relevant issue. See TEX. R. APP. P. 41.3 2 The record contains a copy of an order of discharge under Title 11, Section 727, of the U.S. Code granted to Twan Burgess and entered on August 10, 2016. However, there is no evidence in the record showing that the lien on the

2 complaint as an attack on Wintermute’s title. However, the only issue in a forcible detainer action

is who has the immediate right of possession to the property. Jae Yoo v. 4300 Burch, LLC, No. 03-

17-00709-CV, 2018 WL 3029035, at *2 (Tex. App.—Austin June 19, 2018, no pet.) (mem. op.)

(citing Rice v. Pinney, 51 S.W.3d 705, 709 (Tex. App.—Dallas 2001, no pet.)). “Neither the justice

court nor the county court on appeal has jurisdiction to resolve issues of title to real property in a

forcible-detainer suit.” Id. (citing Dormady v. Dinero Land & Cattle Co., 61 S.W.3d 555, 557

(Tex. App.—San Antonio, pet. dism’d w.o.j.)). Rather, “challenges to title or to the foreclosure

process must be pursued, if at all, in a separate suit.” Id. (citing Schlichting v. Lehman Bros. Bank

FSB, 346 S.W.3d 196, 199 (Tex. App.—Dallas 2011, pet. dism’d)).

Since the issues of title and the impropriety of the substitute trustee’s sale were not before

the county court at law in this forcible detainer action, we cannot address the Burgesses’ challenge

to the propriety of the substitute trustee’s sale. Tehuti v. Bank of New York Mellon Trust Co., Nat’l

Ass’n, 517 S.W.3d 270, 274 (Tex. App.—Texarkana 2017, no pet.). We overrule the Burgesses’

first issue.

The Burgesses’ second issue contends that a forcible detainer action was not available

against them. They argue that, since there was no lease, they were not tenants, and Wintermute

was not a landlord. This issue is without merit.

The Texas Property Code provides that “[a] person who refuses to surrender possession of

real property on demand commits a forcible detainer if the person: . . . (2) is a tenant at will or by

Property was avoided or eliminated by the bankruptcy court. Wintermute purchased the Property at the substitute trustee’s sale on November 7, 2017. 3 sufferance, including an occupant at the time of foreclosure of a lien superior to the tenant’s lease.”

TEX. PROP. CODE ANN. § 24.002(a)(2) (West 2014). The evidence at trial included a deed of trust

executed by the Burgesses, as borrowers. The deed of trust provided that, upon default by the

borrowers (i.e., the Burgesses) and a trustee’s sale of the Property, the Burgesses would surrender

the property to the purchaser at the trustee’s sale. In the event the Burgesses did not surrender the

property, the deed of trust provided that they would become tenants at sufferance. The evidence

also showed that Wintermute was the purchaser at such sale.

Thus, a landlord-tenant relationship between Wintermute and the Burgesses was created

pursuant to the deed of trust when Wintermute purchased the Property at the substitute trustee’s

sale. See Gonzalez v. Wells Fargo Bank, N.A., 441 S.W.3d 709, 713 (Tex. App.—El Paso 2014,

no pet.); Rice v. Pinney, 51 S.W.3d 705, 711–12 (Tex. App.—Dallas 2001, no pet.). We overrule

the Burgesses’ second issue.

For the reasons stated, we affirm the trial court’s judgment.

Josh R. Morriss III Chief Justice

Date Submitted: March 14, 2019 Date Decided: April 3, 2019