NO. 07-06-0419-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
OCTOBER 31, 2008
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TERRA XXI, LTD., TERRA PARTNERS, VEIGEL FARMS, INC.,
ROBERT W. VEIGEL, AND ELLA MARIE VEIGEL, APPELLANTS
V.
AG ACCEPTANCE CORPORATION, APPELLEE
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FROM THE COUNTY COURT OF DEAF SMITH COUNTY;
NO. CI-2006-04972; HONORABLE ROLAND SAUL, JUDGE
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Before CAMPBELL, and PIRTLE, JJ. AND BOYD, S.J.
DISSENTING OPINION
The majority opinion finds that, in the context of a forcible detainer proceeding following foreclosure of a deed of trust, where the opposing party contests the superiority of the right to possession based upon an allegation of wrongful foreclosure, a plaintiff (in this case Ag Acceptance) is not required to prove title but is only required to show “sufficient evidence of ownership to demonstrate [its] superior right to immediate possession.” (emphasis added). Notwithstanding apparent authority to the contrary, where the superiority of Ag Acceptance’s right to immediate possession manifestly depends upon the validity of its trustee’s deed, an issue simultaneously being contested by a wrongful foreclosure proceeding in the district court, I fail to see how Ag Acceptance could ever meet its burden without title being an issue. In cases involving a genuine issue of title, neither the justice court nor the county court on appeal has jurisdiction. Haith v. Drake, 596 S.W.2d 194, 196 (Tex.Civ.App.–Houston [1st Dist.] 1980, writ ref’d n.r.e.). For these reasons, I would sustain Appellants’ first point of error, reverse the judgment of the trial court, and enter judgment dismissing the forcible detainer cause of action for want of jurisdiction.
Patrick A. Pirtle
Justice