Dennis D. Shaver v. Wells Fargo Bank, NA as Trustee for NCMT 2008-1

Affirmed and Memorandum Opinion filed July 1, 2014.

In The

Fourteenth Court of Appeals

NO. 14-13-00585-CV

DENNIS D. SHAVER, Appellant

V.

WELLS FARGO BANK, NA AS TRUSTEE FOR NCMT 2008-1, Appellee

On Appeal from the County Court at Law
Waller County, Texas
Trial Court Cause No. C12-102

MEMORANDUM OPINION

In this forcible-entry-and-detainer action, the appellant argues that the
judgment of the county court at law must be reversed because there is a title
dispute that must be resolved before the issue of possession can be addressed. We
conclude, however, that because the appellant is a tenant at sufferance, the lower
court was authorized to determine which party had the superior right of possession.
Because the appellant’s remaining arguments concern matters that were not tried in
these proceedings, we do not address them, but affirm the trial court’s judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellee Wells Fargo Bank, NA, as trustee for NCMT 2008-1, brought this
forcible-entry-and-detainer action in a justice-of-the-peace court to obtain
possession of a residence from appellant Dennis D. Shaver and all other occupants.
The court ruled in Shaver’s favor, and Wells Fargo appealed the judgment to the
county court at law. At the trial de novo, Wells Fargo presented evidence of the
following:

 National City Mortgage was named as the lender in the deed of trust when
Shaver and his wife purchased the property in 2007;
 the deed contains a “tenant-at-sufferance” clause, which provides that if the
property is sold at a foreclosure sale and the borrower fails to immediately
surrender possession to the purchaser, then the “[b]orrower or such person
shall be a tenant at sufferance and may be removed by writ of possession or
other court proceeding”;
 National City Mortgage purchased the property at the foreclosure sale in
November 2009;
 a division of National City Mortgage’s successor by merger conveyed the
property to Wells Fargo by special warranty deed on May 20, 2010;
 Wells Fargo notified Shaver, his wife, and all other tenants or occupants to
vacate the property in March 2012.
The county court at law rendered judgment in Wells Fargo’s favor, and Shaver
appealed.

II. ANALYSIS

In most of Shaver’s arguments, he asserts that there is a pending title
dispute, and thus, the lower courts erred in deciding the issue of the right to
possession of the property before the title dispute was resolved. We understand
these arguments to be directed to the lower courts’ jurisdiction, because the justice

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court of the precinct where the property is located has jurisdiction over forcible-
entry-and-detainer suits, and its judgment may be appealed to the county court at
law for trial de novo. See TEX. PROP. CODE ANN. § 24.004 (West Supp. 2013);
TEX. R. CIV. P. 749, 733–34 S.W.2d [Tex. Cases] lxxxi (repealed 2013; now see
TEX. R. CIV. P. 510.9). The justice court does not have jurisdiction to adjudicate
title to land. TEX. GOV’T CODE ANN. § 27.031(b)(4) (West Supp. 2013). Thus, the
justice court does not have original jurisdiction, and the county court at law does
not have appellate jurisdiction, over a forcible-entry-and-detainer action if there is
a title dispute that is “so integrally linked to the issue of possession that possession
may not be determined without first determining title.” Falcon v. Ensignia, 976
S.W.2d 336, 338 (Tex. App.—Corpus Christi 1998, no pet.).

A. The title dispute is not so intertwined with the issue of possession that it
was required to be decided first.
Shaver argues that the lower courts lacked jurisdiction over this action
because National City Mortgage had no authority to commence the foreclosure
sale, and “the issue of possession cannot be decided until the owner of the note and
deed is identified and authenticated.” We disagree.

To obtain the right of possession through a forcible-detainer action, the
plaintiff is not required to prove title, but need only supply sufficient evidence of
ownership to demonstrate a superior right to immediate possession. Glapion v.
AH4R I TX, LLC, No. 14-13-00705-CV, 2014 WL 2158161, at *2 (Tex. App.—
Houston [14th Dist.] May 22, 2014, no. pet. h.) (mem. op.) (citing Salaymeh v.
Plaza Centro, LLC, 264 S.W.3d 431, 435 (Tex. App.—Houston [14th Dist.] 2008,
no pet.)). Shaver’s argument has been presented to this court many times, and we
repeatedly have held that where the deed contains a tenant-at-sufferance clause
such as the one here, the issue of possession is not intertwined with the issue of
title, and the right to immediate possession can be decided regardless of whether
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there is an outstanding title dispute.1 We accordingly overrule these issues.2

B. We cannot consider arguments based on evidence that is not part of the
appellate record.
Shaver further contends that he “commenced a private administrative
remedy . . . by and through an officer of the court, a Notary Public,” and refers us
to copies of correspondence he attached to his brief. He argues that National City
Mortgage’s failure to respond to his correspondence creates a genuine issue of title
that must be decided before possession. We do not address the legal effect of
Shaver’s letters to a non-party while this appeal has been pending, because the
correspondence itself is not part of the appellate record. See Ramex Constr. Co. v.
Tamcon Servs. Inc., 29 S.W.3d 135, 138 (Tex. App.—Houston [14th Dist.] 2000,
no pet.) (op. on reh’g). We overrule this issue.3

C. Shaver was not entitled to findings of fact and conclusions of law on an
issue that was not tried.
Shaver also argues that he was prejudiced by the trial court’s failure to

1
See, e.g., id.; Gardocki v. Fed. Nat’l Mortg. Ass’n, No. 14-12-00921-CV, 2013 WL
6568765, at *3–4 (Tex. App.—Houston [14th Dist.] Dec. 12, 2013, no pet.) (mem. op.);
Woodfork v. Bank of Am., No. 14-12-00927-CV, 2013 WL 5637751, at *2 (Tex. App.—Houston
[14th Dist.] Oct. 15, 2013, no pet.) (mem. op.); Maxwell v. US Bank Nat’l Ass’n, No. 14-12-
00209-CV, 2013 WL 3580621, at *3 (Tex. App.—Houston [14th Dist.] July 11, 2013, pet.
dism’d w.o.j.) (mem. op.); Trotter v. Bank of N.Y. Mellon, No. 14-12-00431-CV, 2013 WL
1928776, at *3 (Tex. App.—Houston [14th Dist.] May 9, 2013, no pet.) (mem. op.); Fashakin v.
Fed. Home Loan Mortg. Corp., No. 14-11-01079-CV, 2013 WL 1316694, at *1 (Tex. App.—
Houston [14th Dist.] Apr. 2, 2013, pet. denied) (mem. op.); Bittinger v. Wells Fargo, N.A., No.
14-10-00698-CV, 2011 WL 4793828, at *2 (Tex. App.—Houston [14th Dist.] Oct. 11, 2011, no
pet.) (mem. op.); Modelist v. Deutsche Bank Nat’l Trust Co., No. 14-09-00134-CV, 2010 WL
3002099, at *3 (Tex. App.—Houston [14th Dist.] Aug. 3, 2010, pet. dism’d w.o.j.) (mem. op.);
Heard v. Mingyi Chowwang, No. 14-09-00100-CV, 2010 WL 2103942, at *2 (Tex. App.—
Houston [14th Dist.] May 27, 2010, pet. dism’d) (mem. op.); Black v. Wash. Mut. Bank, 318
S.W.3d 414, 417–18 (Tex. App.—Houston [14th Dist.] 2010, pet. dism’d w.o.j.); Salaymeh, 264
S.W.3d at 436.
2
These are Shaver’s fourth and sixth issues.
3
This is his third issue.

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address his arguments about title to the property by making the findings of fact and
conclusions of law that he requested. Shaver was not entitled to such findings,
because the issue of title was not tried in this forcible-entry-and-detainer action.
Indeed, Shaver’s attorney stated in the court below that he would address that issue
later in district court, and elsewhere in his brief, Shaver represents that the issue of
title has since been tried in federal court. Thus, we overrule this issue.4

D. We cannot consider Shaver’s arguments based on an affirmative
defense that was not raised in the county court at law.
Shaver’s remaining argument turns on his assertion that a promissory note is
the same as money, and thus, one can pay a debt by tendering a promissory note.
Citing section 3.311 of the Business and Commerce Code, Shaver asserts that at
the closing when he purchased the house, he extinguished the mortgage debt by
tendering a promissory note as payment in full, and he therefore is entitled to a
release of all liens on the property.

We cannot consider these arguments. As can be seen from the section of the
Uniform Commercial Code on which he relies, Shaver is attempting to raise the
affirmative defense of accord and satisfaction. See TEX. BUS. & COM. CODE ANN.
§ 3.311 (West 2002) (entitled “Accord and Satisfaction by Use of Instrument”); TEX.
R. CIV. P. 94 (providing that accord and satisfaction is an affirmative defense). An
affirmative defense cannot be raised on appeal if it was not raised in the trial court.
See MAN Engines & Components, Inc. v. Shows, No. 12-0490, 2014 WL 2535963,
at *3 (Tex. June 6, 2014). Because accord and satisfaction was not raised in
Shaver’s pleading or tried by consent, we cannot consider this defense on appeal.
We overrule these issues.5

4
This is Shaver’s fifth issue.
5
These are Shaver’s first and second issues.

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 III. CONCLUSION

Having overruled each of the issues presented, we affirm the judgment.

/s/ Tracy Christopher
Justice

Panel consists of Justices Christopher, Jamison, and McCally.

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