IN THE
TENTH COURT OF APPEALS
No. 10-01-275-CV
WAYNE COUGHRAN,
Appellant
v.
SADDLE BROOK APARTMENTS,
Appellee
From the County Court at Law No. 1
McLennan County, Texas
Trial Court # 200101197 CV1
CONCURRING OPINION
We not only miss the mark in this case, we go far beyond what we need to hold to resolve this case, thereby potentially prejudicing other litigation between these same parties, and compound the complexity of this area of law. To fully understand why our discussion is too broad, a general understanding of the very limited purpose of a forcible detainer action is necessary. Justice Sue LaGarde provided such a discussion and analysis in Rice v. Pinney. Rice v. Pinney, 51 S.W.3d 705, 709-712 (Tex. App.—Dallas 2001, no pet.). In Rice, Justice LaGarde reviews at length the nature of a forcible detainer action, or an FED, as it is commonly referred to in practice. I find no fault with her extensive analysis and quote from it at length.
Nature of a Forcible Detainer Action
The procedure to determine the right to immediate possession of real property, if there was no unlawful entry, is the action of forcible detainer. Kennedy v. Highland Hills Apartments, 905 S.W.2d 325, 326 (Tex. App.—Dallas 1995, no writ). A forcible detainer action is a special proceeding governed by particular statutes and rules. Id. It was created to provide a speedy, simple, and inexpensive means for resolving the question of the right to possession of premises. Id. To preserve the simplicity and speedy nature of the remedy, the applicable rule of civil procedure 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; see Johnson v. Fellowship Baptist Church, 627 S.W.2d 203, 204 (Tex. App.—Corpus Christi 1981, no writ). Thus, the sole issue in a forcible detainer suit is who has the right to immediate possession of the premises. Fandey v. Lee, 880 S.W.2d 164, 168 (Tex. App.—El Paso 1994, writ denied); Cuellar v. Martinez, 625 S.W.2d 3, 5 (Tex. Civ. App.—San Antonio 1981, no writ); Johnson v. Highland Hills Drive Apartments, 552 S.W.2d 493, 495 (Tex. Civ. App.—Dallas 1977), writ ref'd n.r.e. per curiam, 568 S.W.2d 661 (Tex. 1978).
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. Goggins, 849 S.W.2d at 377. However, where the right to immediate possession necessarily requires resolution of a title dispute, the justice court has no jurisdiction to enter a judgment and may be enjoined from doing so. Haith v. Drake, 596 S.W.2d 194, 196 (Tex. Civ. App.—Houston [1st Dist.] 1980, writ ref'd n.r.e.); see also Rodriguez v. Sullivan, 484 S.W.2d 592, 593 (Tex. Civ. App.—El Paso 1972, no writ) (justice court judgment void when possession depended on whether defendant complied with contract for deed); Am. Spiritualist Ass'n v. Ravkind, 313 S.W.2d 121, 124 (Tex. Civ. App.—Dallas 1958, writ ref'd n.r.e.) (same). Because a forcible detainer action is not exclusive, but cumulative, of any other remedy that a party may have in the courts of this state, the displaced party is entitled to bring a separate suit in the district court to determine the question of title. Scott v. Hewitt, 127 Tex. 31, 35, 90 S.W.2d 816, 818-19 (1936); Ramirez, 600 S.W.2d at 913; Martinez v. Beasley, 572 S.W.2d 83, 85 (Tex. Civ. App.—Corpus Christi 1978, no writ). Forcible detainer actions in justice courts may be brought and prosecuted concurrently with suits to try title in district court. Haith, 596 S.W.2d at 196; Hartzog v. Seeger Coal Co., 163 S.W. 1055, 1060 (Tex. Civ. App.—Dallas 1914, no writ).
Immediate Possession Determined Separately from Title
Relying exclusively on Mitchell v. Armstrong Capital Corp., 911 S.W.2d 169 (Tex. App.—Houston [1st Dist.] 1995, writ denied), the Rices argue that because their district court suit raised the issue of title to the property, they automatically removed the possession issue from the jurisdiction of the county court at law. According to the Rices, the issues of title to the property and possession of the property are inseparable, and it is unreasonable to determine possession of real estate without first determining who holds its title. We disagree.
Contrary to appellants' assertions, not only can the right to immediate possession be determined separately from the right to title in most cases, but the Texas Legislature purposely established just such a system. In Scott v. Hewitt, the supreme court was asked by certified question to determine whether a provision in a deed of trust that made a defaulted grantor a tenant at sufferance was valid and able to support a forcible detainer action. 90 S.W.2d at 818. After concluding that the provision was valid, the supreme court stated:
If [grantors] desire to attack the sale made under the deed of trust as being invalid, they may bring such suit in the district court for that purpose; but, in a suit for forcible detainer, such action is not permissible. The Legislature has expressly provided by forcible entry and detainer proceedings a summary, speedy, and inexpensive remedy for the determination of who is entitled to the possession of premises, without resorting to an action upon the title. This [forcible detainer] action allowed by law is not exclusive, but cumulative, of any other remedy that a party may have in the courts of this state.
Id. at 818-19 (emphasis supplied). Though not specifically addressing the jurisdictional issue now before us, the supreme court nevertheless expressly stated that in cases challenging the validity of a trustee deed--as in this case--the legislature contemplated concurrent actions in the district and justice courts to resolve issues of title and immediate possession, respectively.
Similarly, in Martinez v. Beasley, the appellate court was charged with determining whether a district court properly sustained a plea to its jurisdiction in a suit to cancel a trustee's deed. 572 S.W.2d at 84. The district court had concluded it was jurisdictionally barred from hearing the suit because a justice court previously awarded possession of the premises pursuant to the challenged trustee deed. In concluding the district court erred in granting the plea to its jurisdiction, the Corpus Christi Court of Appeals stated:
[A] judgment of possession in a forcible detainer action is a determination only of the right to immediate possession of the premises, and does not determine the ultimate rights of the parties to any other issue in controversy relating to the realty in question. Therefore, in this case, plaintiffs have the right to sue in the district court to determine whether the trustee's deed should be cancelled, independent of defendant's award of possession of the premises in the forcible detainer action, which determined the right to immediate possession of the premises, and nothing else. An action in forcible detainer in the justice court is one thing, and an action in the district court to determine whether a trustee's deed to the premises involved in the forcible detainer action should be set aside i[s] something else.
Id. at 85 (emphasis supplied).
Three years later, in Home Savings Ass'n v. Ramirez, the same court of appeals had to determine if a district court properly enjoined a justice court's judgment awarding possession of certain premises. (FN3) 600 S.W.2d at 912. The underlying facts in Ramirez are similar to those in this case, except for the procedural posture. In Ramirez, a note holder foreclosed on a house pursuant to a deed of trust after the homeowner defaulted on payments for repairs. The trust deed contained a provision similar to the one in this case. It provided that after a foreclosure sale, the owners or those holding under them became tenants at sufferance of the purchaser and that their refusal, after demand, to surrender possession subjected them to a forcible detainer action by the purchaser. The house was sold at a foreclosure sale. Pursuant to the deed of trust, the purchaser brought a forcible detainer action and evicted the homeowner while the homeowner's breach of contract action against the note holder was pending in district court. The homeowner brought another action in district court seeking to enjoin execution of the county court's writ of restitution. Believing the county court had exceeded its jurisdiction by trying title, the district court granted the injunction. The Corpus Christi Court of Appeals reversed and dissolved the injunction, concluding the district court had abused its discretion. Id. at 913-14. After reiterating the legislative intent for parallel and concurrent resolution of issues of immediate possession and title in different courts, the appellate court stated, "The only issue presented to the justice and county court was who was entitled to immediate possession. The appellant, as grantee in the trustee's deed, was entitled to possession." Id. at 914. Thus, the court of appeals rejected the argument that the justice and county courts exceeded their jurisdiction in awarding immediate possession based on a disputed trustee deed.
The reasoning of Ramirez is applicable to this case. Here, the county court at law had before it a March 1998 deed of trust wherein the Rices, as grantors, conveyed the property to a trustee for the benefit of NMC. The deed of trust stated that upon a sale pursuant to the deed of trust, the Rices would become tenants at sufferance and subject to a forcible detainer action if they refused to vacate the property after request. Also before the court was a September 1999 substitute trustee's foreclosure sale deed and related documents establishing the default on the note, a notice of eviction, the foreclosure pursuant to the deed of trust, and the sale of the property to Pinney. Based on this evidence, it was not necessary for the county court at law to determine the issue of title to the property, nor did it. The county court merely determined who was entitled to immediate possession. To hold, as the Rices suggest, that the filing of a concurrent suit in district court challenging the validity of the substitute trustee deed precludes a forcible detainer suit in justice court would ignore the long-established legislative scheme of parallel resolution of immediate possession and title issues.
Nevertheless, the Rices assert that Mitchell v. Armstrong Capital Corp. supports their argument. There, a homeowner signed a promissory note for improvements to her house. Mitchell, 911 S.W.2d at 170. This note was secured by a "Builder's and Mechanic's Lien Contract." When the homeowner defaulted, the note holder requested a substitute trustee post the house for foreclosure pursuant to the lien contract. After purchasing the house from the substitute trustee, the note holder filed a forcible detainer action in justice court to evict the homeowner. By written answer, the homeowner asserted the justice court lacked jurisdiction because of a pending lawsuit in district court challenging the note holder's title. The justice court awarded possession to the note holder. On trial de novo, the county court at law also awarded possession to the note holder. On appeal, the Houston First District Court of Appeals concluded the homeowner had raised a "title issue" in the courts below that deprived both the justice court and the county court at law on appeal of subject matter jurisdiction. Id. at 171.
The Rices argue this case presents "[t]he exact same set of facts [as] existed in Mitchell." Although the cases are similar, Mitchell is distinguishable in at least one material way. In Mitchell, the lien contract apparently permitted the note holder to sell the property at a foreclosure sale like the deed of trust did in this case. However, in this case the Rices agreed that a foreclosure pursuant to the deed of trust established a landlord and tenant-at-sufferance relationship between the Rices and Pinney. This landlord-tenant relationship provided an independent basis on which the trial court could determine the issue of immediate possession without resolving the issue of title to the property. There is no indication, however, that the lien contract in Mitchell created any type of landlord-tenant relationship or any other independent basis on which the trial court could decide the immediate possession issue. Because the issue of immediate possession in Mitchell depended solely upon title to the house under the terms of the note and lien contract, neither the justice court nor the county court at law on appeal had subject matter jurisdiction to issue the writ of possession. (FN4) See id. (citing Rodriguez, 484 S.W.2d at 593 and Ravkind, 313 S.W.2d at 124).
Rice v. Pinney, 51 S.W.3d 705, 709-712 (Tex. App.—Dallas 2001, no pet.) (emphasis added).
Our opinion should be strictly limited to the issue of the right to immediate possession. It is not. To the extent we go beyond the issue, we err. The court’s entire opinion erroneously relies on the theory that the lease signed by Coughran was “modified.” It was not. As the majority notes, Coughran marked on the lease that it was “?ambiguous?” in one place and “contradictory--ambiguous!” in another. If the marks made on the lease do not vary or amend the provisions of the lease, such that it would be a rejection of the terms as offered in the lease and would thereby constitute a counter-offer, there is no modification. The markings Coughran made on the lease form do not modify any term or provision of the agreement. He signed the lease and returned it to the manager. Coughran also tendered a check in the amount of the rental due under the new lease agreement, less a coupon discount for entering into a new lease. The check was accepted by Saddle Brook Apartments and cashed. Saddle Brook concedes that the manager has the authority to accept lease contracts that are not modified. So not only did she have apparent authority to accept the contract, she also had actual authority to accept this contract, because its terms had not been modified.
So who was entitled to immediate possession of the apartment, which is the only issue in an FED action. Saddle Brook. But only because Coughran could not present a lease agreement signed by Saddle Brook that was for the contested time period and for the lease payment he proved he had paid. The only fully executed lease presented was for the prior period. But Coughran would be holding over under that lease and had not payed the lease payment required as a holdover and had been notified to vacate under the terms of that lease. Thus Saddle Brook, without trying the issue of title to the property, established a right to immediate possession based upon the documents. That should be the basis of the opinion; but the majority attempts to resolve the title dispute and discusses issues of construction, apparent authority, and estoppel. These are not the proper subject of an FED action and are only proper discussions in an action for damages for wrongful eviction or breach of contract. An action for damages is pending and, no doubt, the cost and expense of this litigation will become part of the damages sought in that litigation. A finding of a right to immediate possession does not necessarily mean that a landlord is not liable in other causes of action relating to the FED action such as wrongful eviction or breach of contract. We should studiously avoid prejudging any other action or making holdings that could be misconstrued as affecting the decision in another proceeding between these parties. I address these other issues only because the majority does.
For example, on the issue of accepting benefits under the new lease agreement, there is no dispute between the parties. The check was tendered for payment of the new lease. It was cashed. For Saddle Brook to now argue that it did not accept benefits under the new lease is contrary to what everybody thought the payment was for. Also the evidence was that the manager told Coughran after he had paid the rent specified by the new lease, “Looks like we have you for another year,” a statement that only had meaning under the new lease. Coughran was subsequently asked to initial a space that he had overlooked on the lease form when he had signed it, which the manager had him initial after she had reviewed the lease form he had signed and returned to her.
Finally, I specifically draw the reader’s attention to the jurisdictional issue. I note that the issues, particularly the estoppel defense and the issue of apparent authority, cannot control the disposition of this proceeding. This case is about superior right to possession, not breach of contract or wrongful eviction. If the issues decided by the majority regarding the validity of the new lease agreement have to be decided, the trial court and this court moved from litigating the right to immediate possession, to issues of title, issues beyond the jurisdiction of a court deciding an FED, and accordingly, issues beyond our jurisdiction to resolve in this appeal of a forcible detainer action.
Accordingly, because the majority decides the appeal on issues based on the resolution of issues over which the trial court and this court have no jurisdiction, but nevertheless reaches the proper result, I respectfully concur only in affirming the judgment of the trial court.
TOM GRAY
Chief Justice
Concurring opinion delivered and filed February 18, 2004