Terra XXI, Ltd., Terra Partners Veigel Farms, Inc., Robert W. Veigel and Ella Marie Veigel v. AG Acceptance Corporation

NO. 07-06-0419-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

OCTOBER 31, 2008

______________________________

TERRA XXI, LTD., TERRA PARTNERS, VEIGEL FARMS,

INC., ROBERT W. VEIGEL, AND ELLA MARIE VEIGEL, APPELLANTS

v.

AG ACCEPTANCE CORPORATION, APPELLEE

_________________________________

FROM THE COUNTY COURT OF DEAF SMITH COUNTY;

NO. CI-2006-04972; HON. ROLAND SAUL, PRESIDING

_______________________________

Before CAMPBELL and PIRTLE, JJ., and BOYD, S.J.

 

OPINION

          This is an appeal from a forcible detainer proceeding in which possession of the property was awarded to appellee Ag Acceptance Corporation. Appellants (who we will refer to collectively as “Terra”) present seven issues. We affirm.

Factual Background

          In September 2003, a substitute trustee for Ag Acceptance conducted a non-judicial foreclosure on property owned by Terra, pursuant to a deed of trust. Ag Acceptance acquired the property at the foreclosure sale, and demanded that Terra vacate the property. Terra did not do so and in early 2004, Ag Acceptance filed a petition for forcible detainer. The justice court awarded Ag Acceptance possession of the property. Terra then appealed to the county court for a trial de novo. Both parties filed motions for summary judgment. The county court granted summary judgment in favor of Ag Acceptance. This appeal followed.

Analysis

Texas Property Code § 24.007

          Terra’s second issue challenges the trial court’s grant of Ag Acceptance’s motion for summary judgment and its denial of Terra’s motion for summary judgment. By its third issue, Terra contends a fact issue was raised regarding Ag Acceptance’s capacity to maintain the forcible detainer action, and by its fourth issue contends the trial court erred by failing to strike an affidavit among Ag Acceptance’s summary judgment evidence and by denial of discovery on the subjects addressed in the affidavit. Terra’s fifth and sixth issues present appellants Robert and Ella Marie Veigel’s contention that the trial court erred by granting summary judgment against their claimed homestead rights in 200 acres of the property. Ag Acceptance responds that we lack jurisdiction under Property Code § 24.007 to address the issues. We agree with Ag Acceptance.

          Section 24.007 of the Property Code states, in part, “A final judgment of a county court in an eviction suit may not be appealed on the issue of possession unless the premises in question are being used for residential purposes only.” Tex. Prop. Code Ann. § 24.007 (Vernon 2000). Applying this statutory limitation on appellate jurisdiction, courts of appeals have found they lack authority to review determinations of the right of possession and findings essential to the issue of possession, but have reviewed trial court rulings on issues other than possession. See Volume Millwork, Inc. v. West Houston Airport Corp., 218 S.W.3d 727 (Tex.App.–Houston [1^st Dist.] 2006, pet. denied) (finding no jurisdiction to review issues of landlord’s capacity to evict or award of possession to landlord, but reviewing sufficiency of evidence supporting damages and attorney’s fees); Carlson’s Hill Country Beverage, L.C. v. Westinghouse Road Joint Venture, 957 S.W.2d 951, 952-53 (Tex.App.–Austin 1997, no pet.) (finding § 24.007 precluded review of issue of possession but reviewing challenges to damages and attorney’s fees awarded); A.V.A. Services, Inc. v. Parts Indus. Corp., 949 S.W.2d 852, 853 (Tex.App.–Beaumont 1997, no writ) (finding no jurisdiction over points relating to judgment awarding possession, but reviewing monetary judgment). Here, the county court awarded no relief other than possession of the property. It is undisputed that the property subject to the court’s judgment, comprising more than eight sections of land in Deaf Smith County, was not used for residential purposes only. Terra’s issue two, and its issues five and six regarding the Veigels’ homestead claim, directly challenge the court’s ruling on the issue of possession. Its third issue addresses Ag Acceptance’s capacity to seek possession through forcible detainer, and its fourth issue challenges evidentiary and procedural rulings of the county court, both of which issues challenge essential findings on the issue of possession. See Volume Millwork, 218 S.W.3d at 727 (treating landlord’s capacity or authority to proceed against tenant as essential finding on issue of possession); A.V.A. Services, 949 S.W.2d at 857 (also treating challenge to authority of foreign corporation to maintain forcible entry and detainer as question of possession). Again, the court awarded no relief but possession. Accordingly, we are precluded by § 24.007 from review of Terra’s second, third, fourth and fifth issues.

Jurisdiction of Courts Below

          Terra’s first issue asserts the justice court and county court lacked subject matter jurisdiction over the forcible detainer action because, it contends, the question of entitlement to possession of the property also involved questions of title. The sole issue in a forcible detainer action is which party has the right to immediate possession of the property. Dormady v. Dinero Land & Cattle Co., L.C., 61 S.W.3d 555, 557 (Tex.App.–San Antonio 2001, pet. dism’d w.o.j.). In a forcible detainer proceeding, “the merits of the title shall not be adjudicated.” Tex. R. Civ. P. 746. Accordingly, to prevail in a forcible detainer action, the plaintiff need not prove title but merely present sufficient evidence of ownership to demonstrate a superior right to immediate possession. Dormady, 61 S.W.3d at 557, citing Goggins v. Leo, 849 S.W.2d 373, 377 (Tex.App.–Houston [14^th Dist.] 1993, no writ).

          There may exist in a case, 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. In such a case involving a genuine issue of title, neither the justice court nor the county court on appeal, has jurisdiction. Dormady, 61 S.W.3d at 557-58; Mitchell v. Armstrong Capital Corp., 911 S.W.2d 169, 171 (Tex.App.–Houston [1^st Dist.] 1995, writ denied). Terra contends that it raised title questions that deprived the justice and county courts of jurisdiction.

          We addressed this contention in 2004 in the first of Terra’s appeals arising from the foreclosure. Terra XXI, Ltd. v. Ag Acceptance Corp., No. 07-04-0325-CV, 2004 WL 2559940 (Tex.App.–Amarillo Nov. 10, 2004, pet. dism’d w.o.j.) (mem. op.). There we cited Villalon v. Bank One, 176 S.W.3d 66 (Tex.App.–Houston [1^st Dist.] 2004, pet. denied), among other cases, in support of our conclusion Terra had not shown a probable basis for recovery on the issue of the justice court’s jurisdiction. Like here, in Villalon the foundation for the forcible detainer action arose under the terms of a deed of trust, by which, after foreclosure, the grantor became a tenant at sufferance. Villalon, 176 S.W.3d at 68-69. The grantor there argued that Bank One’s failure to comply with a federal debt collection statute made the foreclosure wrongful, precluding the bank’s enforcement of the tenant at sufferance language. Id. at 70. The appellate court disagreed, finding the post-foreclosure tenant at sufferance relationship established by the terms of deed of trust provided a basis for a determination of the right to immediate possession of the property, apart from a determination whether the trustee’s deed should be set aside because of wrongful foreclosure. Id. at 71. The presence of the wrongful foreclosure issue thus did not preclude the bank’s pursuit of forcible detainer in the justice court.

          Other courts have reached similar conclusions in cases in which forcible detainer actions were based on tenant at sufferance language in deeds of trust. See Dormady, 61 S.W.3d at 559; Rice v. Pinney, 51 S.W.3d 705 (Tex.App.–Dallas 2001, no pet.). The courts in Rice and Dormady distinguished such situations from that presented in Mitchell, in which the entitlement to immediate possession depended solely on title to the property in question under a home improvement note and mechanic’s lien contract. Dormady, 61 S.W.3d at 559; Rice, 51 S.W.3d at 711-12 (both citing Mitchell, 911 S.W.2d at 170).

          Having re-examined the question on the record before us in this appeal, we reach the same conclusion as in our 2004 opinion. The title issues Terra raises are similar in nature to those raised in Rice. See Rice, 51 S.W.3d at 709-13. They are not so intertwined with the issue of Ag Acceptance’s entitlement to immediate possession under its trustee’s deed and the terms of the deed of trust as to deprive the justice court of jurisdiction over the possession issue. We overrule Terra’s first issue.

          By its seventh issue, Terra raises another issue it perceives as jurisdictional. It contends the county court erred by refusing to dismiss the appeal from the justice court despite what Terra describes as “motions and pleadings” requesting that it do so.           Terra’s appellate contention is premised on its assertion that Ag Acceptance’s pleadings in the justice court asked for rent in excess of the court’s jurisdictional amount. Terra asserts the justice court thus lacked jurisdiction over the proceeding. As Ag Acceptance points out, Terra’s premise is faulty. Ag Acceptance’s petition for forcible detainer contained no plea for rent. It plead for attorney’s fees and costs, in an amount within the jurisdictional limits of the court. See Tex. Prop. Code Ann. § 24.006 (Vernon 2000). We see nothing about Ag Acceptance’s pleadings in the justice court that casts doubt on that court’s jurisdiction, and we overrule Terra’s seventh issue.

          Having overruled each of Terra’s issues, we affirm the trial court’s judgment.

James T. Campbell

Justice

Pirtle, J., dissents.

                                                                                                 

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Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

  This appeal returns to us via the directive of the Texas Court of Criminal Appeals.  It vacated our prior decision and remanded the cause to enable us to consider the impact, if any, of Kirkpatrick v. State, 279 S.W.3d 324 (Tex. Crim. App. 2009) upon the dispute.  The dispute in question involved the trial court’s jurisdiction over the criminal prosecution, the sufficiency of the evidence supporting the conviction and the purported illegality of the punishment levied.  We conclude that Kirkpatrick is indeed influential and affirm the trial court’s judgment. 

Background

Appellant was charged with attempted aggravated assault and plead guilty in exchange for a recommended sentence of ten years in prison probated for ten years.  Subsequently, the State filed a motion to revoke probation.  A hearing was held and the trial court found that appellant had violated his probation and sentenced appellant to ten years in prison. 

In reviewing the facts of the case, we note that the record contains a stipulation of evidence signed by appellant.  Through it, he admitted that on “the 25^th day of February . . . 2006, . . . [he] did then and there: intentionally, knowingly, or recklessly attempt to cause serious bodily injury to Norma Marmolego, by striking . . . [her] in the face with a closed fist.”¹ (Emphasis added).  Furthermore, a document entitled the “Presentment of Complaint and Information” included in the appellate record described the offense for which appellant was charged as “Attempt to Commit Agg Assault W/Deadly Weapon, a Felony.”  In conjunction with waiving his right to a jury trial, appellant also signed a document entitled “Admonition of Rights.”  Through it, he waived “service of indictment,” acknowledged that the range of punishment for the offense of “attempt to commit aggravated assault with a deadly weapon” was “2 to 10 YEARS [with] AN OPTIONAL FINE NOT TO EXCEED $10,000 . . . ,” and represented that he was entering a guilty plea “because I am guilty of the offense of Attempt[ing] to Commit AGG ASSAULT W/DEADLY WEAPON, and for no other reason.”

Another instrument appearing of record is appellant’s written “. . . Waiver of Rights to Indictment by a Grand Jury.”  It too describes the offense for which he was being prosecuted as the attempt to commit aggravated assault with a deadly weapon, and through the same instrument he agreed to “be charged . . . by a written information . . . .”  That the “offense with which [he was] charged [was] a non-capital felony” was also mentioned in the writing.

We allude to the foregoing circumstances because the information filed by the State averred that appellant had “intentionally, knowingly, or recklessly attempt[ed] to cause bodily injury . . .  by striking . . . [the victim] in the face with a closed fist.”  Given the absence from the information of the word “serious” before the phrase “bodily injury” as well as any allusion to appellant’s purported use or exhibition of a deadly weapon, the actual charge it described was nothing more than a misdemeanor.   And, therein lies the problem since appellant was convicted of and punished for committing a felony.   

So, what the Court of Criminal Appeals has effectively done by reversing our prior decision and directing us to consider the circumstances through its opinion in Kirkpatrick is to require us to determine if the State really intended to charge appellant with a felony and if appellant had notice of that.  Garza v. State, No.PD-1761-08, 2010, Tex. Crim. App. Lexis 93 (Tex. Crim. App. February 10, 2010) (not designated for publication).  If the answer to those questions is “yes,” then the district court had jurisdiction over the cause, and the punishment levied was legal.  

Discussion

The answer to both questions is “yes.” 

The circumstances in Kirkpatrick were similar to those before us.  The trial court had convicted Kirkpatrick of a felony while the State simply charged him with a misdemeanor via the “indictment.”  As noted by the Court of Criminal Appeals, omitted from the “indictment” was “an element necessary to charge a felony.” Kirkpatrick v. State, 279 S.W.3d at 328-29.  Nonetheless, the Court concluded that the State had intended to charge appellant with a felony and he had notice of that.  Id. at 329.  And, it reached that conclusion because 1) the felony offense existed, 2) the indictment was returned to a “felony court,” 3) the indictment described the crime as a “. . . 3^rd Degree Felony . . . ,” 4) the section of the Penal Code implicated by appellant’s conduct was stated in the indictment, and 5) that Code section “was easily ascertainable.”  Id.  So, since appellant knew the State intended to charge him with a felony, the district court had subject-matter jurisdiction over the proceeding, and appellant was obligated to voice any complaint about the sufficiency of the charging instrument before the date of trial.  Id.  Simply put, we are told from Kirkpatrick that if the circumstances illustrate that the State intended to charge the accused with a felony and the appellant had notice of that, then the offense charged is actually a felony.  And, it is this test that we apply here. 

While the charging instrument before us described a misdemeanor, appellant executed documents alluding to the offense as a “felony,” acknowledging that he was charged with “a non-capital felony,” and stipulating to factual circumstances constituting the felony offense of attempting to commit aggravated assault.  Thus, we cannot but conclude that the State intended to charge him with a felony and he knew it.  This in turn means that the charge brought against appellant was a felony, the district court had jurisdiction over the criminal prosecution, the sentence it levied (that applicable to the felony in question) was legal, any complaints regarding the sufficiency of the information could not be considered via an appeal from the decision to revoke probation, and the evidence was more than sufficient to support the conviction. 

We overrule the issues and affirm the judgment.

 

                                                                        Brian Quinn

                                                                        Chief Justice

 

 

Hancock, J., concurs.

 

 

 

Do not publish.

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¹While most all of the statement appears to have been printed or typed, the word “serious” was included after the fact via handwriting.  Moreover, several sets of initials appear next to the word.