Dismissed In Part, Affirmed In Part, and Memorandum Opinion filed May 20, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-03-00567-CV
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TAMAR AVNI KAMINETZKY, DOV AVNI KAMINETZKY, SAMANTHA CORPORATION, INC., CHOICE ACQUISITIONS NO. FOUR, INC., HI-NOI CORPORATION, AND DISCOVERY & REPORTING OF AMERICA, INC., Appellants
V.
DOSOHS I, LTD., Appellee
On Appeal from the County Civil Court No. Three
Harris County, Texas
Trial Court Cause No. 789,733
M E M O R A N D U M O P I N I O N
Appellants Tamar Avni Kaminetzky (a/k/a Tamar Avni), Dov Avni Kaminetzky, and four corporations, Samantha Corporation, Inc., Choice Acquisitions No. Four, Inc., Hi-Noi Corporation, and Discovery & Reporting of America, Inc., appeal a county court=s judgment in favor of appellee Dosohs I, Ltd. (ADosohs@) in a forcible entry and detainer proceeding. Avni presents the following four issues for our review: (1) whether the county court committed reversible error by failing to give Avni notice of trial; (2) whether Avni=s failure to appear at trial in the county court was caused by Dosohs; (3) whether the justice court erred by not dismissing the forcible entry and detainer action while there were lawsuits concerning title to the same property pending in district court in Harris County, Texas; and (4) whether the justice court committed error by denying Kaminetzky=s objection to Judge Caroline D. Hobson.
In five points of error, the four corporate appellants also complain that (1) the county court did not have jurisdiction of the forcible entry and detainer proceeding because of the pendency of other lawsuits concerning title to the car wash; (2) the county court lacked jurisdiction of the forcible entry and detainer proceeding because Kaminetzky objected to Judge Lynn Bradshaw-Hull, pursuant to section 74.053(b) of the Government Code; (3) the county court=s May 5, 2003 judgment was void because of Kaminetzky=s objection to Judge Bradshaw-Hull; (4) Judge Bradshaw-Hull abused her discretion in affirming the justice court=s judgment because the four corporate appellants were not named as defendants in Dosohs= pleading; and (5) Judge Bradshaw-Hull abused her discretion in affirming the justice court=s judgment because the four corporate appellants were not served with process and did not receive notice of the appeal to county court.
We dismiss all points of error except for those concerning objections made to Judge Bradshaw-Hull because we lack jurisdiction to decide all of Avni=s issues presented and the corporate appellants= first, fourth, and fifth points of error.[1]
Background
This court previously considered the appeal of Kaminetzky, Avni=s former husband. See Kaminetzky v. Dosohs I, Ltd., No. 14-01-00767-CV, 2002 WL 1316148 (Tex. App.CHouston [14th Dist.] June 6, 2002, pet. denied). Claiming to have an 18% ownership interest in a car wash, Kaminetzky brought a trespass-to-try-title lawsuit against Dosohs. Samantha Corporation, Inc., of which Kaminetzky was the principal, had used the car wash as collateral for a loan, which it did not repay when the note matured. Samantha Corporation declared bankruptcy in 1995. Dosohs sued in bankruptcy court and obtained permission to foreclose upon the car wash.
Four state court actions were filed regarding the car wash in Harris County, Texas against Dosohs. Choice Car Wash, Inc. and Business Ownership and Liabilities Takeover Corporation filed the first lawsuit in August of 1997 in the 11th Judicial District Court, one month before the foreclosure. In 1998, Kaminetzky filed a second lawsuit, alleging the same causes of action asserted in the 1997 lawsuit. Thus, the 1998 lawsuit was consolidated with the 1997 lawsuit. In 1999, Kaminetzky filed a third lawsuit regarding the car wash. The 113th Judicial District Court dismissed the third lawsuit. Kaminetzky subsequently filed a third-party petition against Dosohs in the 1997 case. The 11th Judicial District Court dismissed the third-party action in May of 2000, and ordered Kaminetzky to obtain permission from the administrative judge of Harris County before he filed any other lawsuit regarding the car wash. Ignoring that order, Kaminetzky filed a fifth action in January of 2001, without having obtained the permission of the administrative judge. The 125th Judicial District Court dismissed the fifth lawsuit, and we affirmed the trial court=s dismissal. See Kaminetzky, 2002 WL 1316148, at *3B4.
Dosohs filed its first forcible entry and detainer action in September of 1997. Judgment was rendered against the car wash and Kaminetzky, but on appeal, the county court entered an order of abatement, pending the disposition of the 1997 lawsuit pending in the 11th Judicial District Court. In May of 2000, the 11th Judicial District Court granted summary judgment in favor of Dosohs and declared it the owner of the car wash. Before Kaminetzky=s fifth lawsuit in district court was dismissed, the county court entered an order dismissing Dosohs= forcible entry and detainer action for lack of subject-matter jurisdiction without prejudice to Dosohs refiling the case in justice court. In January of 2003, the supreme court denied review of our decision affirming the dismissal of Kaminetzky=s fifth lawsuit. Although Avni requests this court to Atake judicial notice@ that the lawsuit in the 11th Judicial District Court is pending, the only record evidence we have regarding that lawsuit is the order granting summary judgment in favor of Dosohs. No party to this appeal has informed this court that a postjudgment motion or appeal has been filed with respect to the summary judgment granted in favor of Dosohs. We therefore presume all litigation regarding the right to title to the car wash has been resolved.
Later in January of 2003, Dosohs filed another forcible entry and detainer action against Kaminetzky and the car wash in the justice court. The three named defendants were Kaminetzky, Business Ownership and Liabilities Takeover Corporation, Choice Car Wash, Inc., and all occupants of 8901 West Bellfort, Houston, Harris County, Texas 77031. The complaint states that Kaminetzky may be served at his residence and the two corporate defendants may be served with process by serving citation at their principal place of business, 8901 West Bellfort, Houston, upon Kaminetzky, the president of both entities.
On February 3, 2003, the justice court rendered judgment for Dosohs. Avni was not a named defendant or a designated agent for service of process. Nor were any of the corporate appellants named defendants in the forcible entry and detainer action. Likewise, none of them was a designated agent for service of process for the two named corporate defendants. Accordingly, neither Avni nor the four corporate appellants were served. The justice court=s judgment was appealed to county court. After a trial de novo, the county court rendered judgment in favor of Dosohs on May 5, 2003. It is that judgment from which Avni, Kaminetzky, and the four corporate appellants appeal.
Analysis
The forcible entry and detainer action is the procedural vehicle by which the right to immediate possession of real property is determined. Ward v. Malone, 115 S.W.3d 267, 270 (Tex. App.CCorpus Christi 2003, pet. denied) (citation omitted). The action was created to provide a speedy, simple, and inexpensive means for resolving the question of the right of possession of real property. Id. The rules of civil procedure provide that Athe only issue shall be as to the right of actual possession, and the merits of title shall not be adjudicated.@ Id. (citing Tex. R. Civ. P. 746). AThus, the sole issue in a forcible detainer action is who has the right to immediate possession of the premises.@ Id. (citations omitted).
AJurisdiction over forcible detainer actions is expressly given to the justice court of the precinct where the property is located and, on appeal, to the county court for trial de novo.@ Id. (citing Tex. Prop. Code Ann. ' 24.004 (Vernon 2000)); see also Tex. R. Civ. P. 749. Neither a justice court nor a county court, whose appellate jurisdiction is limited to the jurisdictional limits of the justice court, has jurisdiction to determine issues of title to real property in a forcible entry and detainer lawsuit. Ward, 115 S.W.3d at 269; see also Tex. R. Civ. P. 746. A plaintiff in a forcible entry and detainer action is not required to prove title, but is only required to show sufficient evidence of ownership to demonstrate a superior right to immediate possession. Ward, 115 S.W.3d at 270. A forcible entry and detainer action is not exclusive, but is cumulative of any other remedy a party may have in the courts of this state. Id. Thus, a displaced party may bring a separate suit in the district court to determine the issue of title. Id. (citations omitted).
A final judgment of a county court in a forcible entry and detainer 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). In this case, the premises are commercial. Consequently, this court does not have jurisdiction of the appeal as it relates to the issue of possession. Avni complains that she was not given notice of the appeal to the county court and that the justice court should not have ruled in the forcible entry and detainer proceeding because of pending lawsuits in district court concerning right to title to the car wash. The corporate appellants also argue that Judge Bradshaw-Hull=s judgment is void because of pending lawsuits in district court and that the county court abused its discretion in affirming the justice court=s judgment because the corporate appellants were not named as defendants in the forcible entry and detainer action, were not served with process in that action, and did not receive notice of the appeal to the county court. We do not have jurisdiction to decide the foregoing complaints, all of which relate to the issue of possession. See, e.g., A.V.A. Servs., Inc. v. Parts Indus. Corp., 949 S.W.2d 852, 853 (Tex. App.CBeaumont 1997, no writ) (stating that appellate court did not have jurisdiction to review justice court=s denial of motion to quash forcible detainer proceeding based on absence of landlord-tenant relationship or point of error arguing that landlord was a foreign corporation transacting business in Texas without a certificate of authority because those points of error related to question of possession); Academy Corp. v. Sunwest N.O.P., Inc., 853 S.W.2d 833, 834 (Tex. App.CHouston [14th Dist.] 1993, writ denied) (stating that existence of landlord-tenant relationship is element of possession issue and therefore not reviewable). Thus, we do not have jurisdiction to decide Avni=s first, second, and third issues presented or the corporate appellants= first, fourth, and fifth points of error.
Avni also complains that the justice court should have sustained Kaminetzky=s objection to Judge Hobson, the presiding judge of the justice court. That complaint was rendered moot by the trial de novo in the county court. See, e.g., Sullivan v. Tex. Dep=t. of Pub. Safety, 93 S.W.3d 149, 152 (Tex. App.CBeaumont 2002, no pet.) (ATrial de novo, therefore, is not an >appeal,= but is a new and independent action.@) (citation omitted); Lamar Cty. Appraisal Dist. v. Campbell Soup Co., 93 S.W.3d 642, 645 (Tex. App.CTexarkana 2002, no pet.) (stating that Athe phrase >trial de novo= is generally defined as a new trial on the entire case, on both questions of fact and issues of law, conducted as if there had been no trial in the first instance@) (citing Black=s Law Dictionary 1512 (7th ed. 1999)). Thus, we overrule Avni=s fourth issue. Furthermore, although we have disposed of Avni=s third issue on jurisdictional grounds, we also overrule her third issue because it, too, is moot due to the trial de novo in the county court.
The only point of error asserted by the corporate appellants that we have jurisdiction to decide is their third point of error, which does not relate to the issue of possession. In their third point of error, they assert that Kaminetzky=s objection to Judge Bradshaw-Hull required her automatic disqualification. However, even if we had jurisdiction to decide all issues raised by Avni and the corporate appellants, including the latter=s third point of error, we hold that Avni and the corporate appellants do not have standing to complain on appeal about the judgment of the county court. Avni and the corporate appellants were not parties to the forcible entry and detainer action, nor were they virtually represented by a named party. See generally, e.g., City of San Benito v. Rio Grande Valley Gas Co., 109 S.W.3d 750, 754B55 (Tex. 2003) (AUnder Texas jurisprudence, an appeal can generally only be brought by a named party to the suit.@). Although Avni or one or more of the corporate appellants filed a special appearance, a motion for change of venue, a motion for continuance, a motion for dismissal for lack of subject-matter jurisdiction, and a notice of appeal, there is no indication that the justice court ruled on any of those motions. Avni and the corporate appellants have failed to demonstrate to this court that they have standing to appeal the judgment rendered in favor of Dosohs.
Furthermore, even assuming Avni or any of the four corporate appellants has an ownership interest in the car wash or the two corporate defendants named in Dosohs= complaint, only the corporate entity named must be served by service of process on its designated agent for service of process or upon its president or one of its vice presidents. See Tex. Bus. Corp. Act Ann. art. 2.11(A) (Vernon 2003) (stating that actual service of process is made upon corporation by serving its registered agent for service of process, president, or any of its vice presidents). In this appeal, neither Avni nor the corporate appellants have informed this court that the two named corporate defendants in Dosohs= complaint were not properly served. Nor have they adequately briefed any argument that the wrong corporate entities were served. See Tex. R. App. P. 38.1(h). Thus, neither Avni nor the four corporate appellants have presented any argument for why they should have been served with process, and their issues relating to service of process are without merit.[2] Accordingly, the appeal is ordered dismissed for this additional reason.[3]
/s/ Leslie Brock Yates
Justice
Judgment rendered and Memorandum Opinion filed May 20, 2004.
Panel consists of Justices Yates, Anderson, and Hudson.
[1] Kaminetzky, who was a party to the judgment, did not timely file an appellant=s brief. Two days after this appeal was submitted to this court, Kaminetzky filed a motion Ato stop argument currently set by submission on 4/14/04, allow him to file appellant=s brief and a supplemental appendix out of time, take judicial notice of undisputable facts and compel Mr. Jason Westmoreland to prove he is a licensed Tx. attorney and to show his authority B for good cause shown.@ We denied Kaminetzky=s motion. In the absence of an appellant=s brief timely filed by Kaminetzky, we presume Dosohs= presentation of the facts is correct and affirm the county court=s judgment against Kaminetzky. See Tex. R. App. P. 38.8(a)(3). A litigant acting pro se is held to the same standards applicable to licensed attorneys and must comply with all applicable procedural rules. Weaver v. E‑Z Mart Stores, Inc., 942 S.W.2d 167, 169 (Tex. App.CTexarkana 1997, no writ).
[2] Furthermore, based on our review of Avni=s brief and other filings, her complaints are essentially directed to establishing that she or her mentally incompetent son has an ownership interest in the car wash, Samantha Corporation, or other affiliated corporations. As we have noted, neither the justice court nor the county court has the authority to decide matters of title, and the record does not reflect that the county court decided questions of title in this case. Thus, the issue of right to title to the car wash is not properly before this court. The question of whether Avni or her son has a valid interest in the car wash should have been raised in one of the district court lawsuits filed to determine the right to title to the car wash or in the federal bankruptcy proceeding.
[3] Although we have jurisdiction to decide whether Kaminetzky=s objection to Judge Bradshaw-Hull required her automatic disqualification, the resolution of that question is not necessary to our disposition of this appeal because we have resolved all of the complaints of Avni and the corporate appellants on the basis that we either do not have jurisdiction to address the issues or that they lack standing to raise the complaints. Nonetheless, we note that none of the appellants has informed this court how section 74.053 of the Court Administration Act, which provides that a former judge or justice who is not a retired judge may not sit in a case if either party objects, mandates the automatic disqualification of Judge Bradshaw-Hull, who is an elected judge. See Tex. Gov=t Code Ann. ' 74.053 (Vernon 1998). Thus, appellants= complaints about Judge Bradshaw-Hull presiding over the appeal to the county court are without merit. Moreover, the record reflects that Kaminetzky moved to recuse Judge Bradshaw-Hull under Texas Rule of Civil Procedure 18b. The corporate appellants do not complain about the denial of that motion in their brief. See Tex. R. App. P. 38.1(h). Thus, the corporate appellants= third point of error is overruled.