COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00125-CV
MIKE E. DEUBLER AND ALL APPELLANT
OTHER OCCUPANTS
V.
THE BANK OF NEW YORK APPELLEE
MELLON, AS SUCCESSOR
TRUSTEE UNDER NOVASTAR
MORTGAGE FUNDING TRUST
2005-1
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FROM COUNTY COURT AT LAW NO. 1 OF TARRANT COUNTY
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MEMORANDUM OPINION1
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Appellants Mike E. Deubler and all occupants of 7520 Wentwood Court,
North Richland Hills, Texas, (collectively, Deubler) appeal the trial court’s award
of possession of the Wentwood Court residence to The Bank of New York Mellon
(the Bank). We will affirm the trial court’s judgment.
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See Tex. R. App. P. 47.4.
Background Facts
The Bank filed a petition for forcible detainer in the justice of the peace
court. A trial was held, and the court rendered judgment in favor of the Bank.
Deubler appealed to the county court, which tried the case de novo. See Tex. R.
Civ. P. 749, 751. The county court also entered judgment in favor of the Bank.
Deubler now appeals to this court.
Forcible Detainer
In a forcible detainer action, the only issue the trial court determines is
whether the party seeking to obtain possession is entitled to actual and
immediate possession, and the merits of whether a party has title shall not be
determined. See Tex. R. Civ. P. 746; Black v. Wash. Mut. Bank, 318 S.W.3d
414, 416 (Tex. App.—Houston [1st Dist.] 2010, pet. dism’d w.o.j.); Williams v.
Bank of N.Y. Mellon, 315 S.W.3d 925, 927 (Tex. App.—Dallas 2010, no pet.).
Thus, questions over whether a sale of property in a deed of trust is invalid “must
be brought in a separate suit.” Williams, 315 S.W.3d at 927; Rice v. Pinney,
51 S.W.3d 705, 710 (Tex. App.—Dallas 2001, no pet.). “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.” Rice, 51 S.W.3d at 709.
Standard of Review
Deubler appeals the award of possession in two points. In his first point,
Deubler argues that there was no evidence establishing the chain of ownership
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of the note and lien. In his second point, Deubler argues there is no evidence
that Deubler continued to occupy the property after demand was made that he
vacate. We construe these points to be challenges to the legal sufficiency of the
evidence.
We may sustain a legal sufficiency challenge only when (1) the record
discloses a complete absence of evidence of a vital fact; (2) the court is barred
by rules of law or of evidence from giving weight to the only evidence offered to
prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a
mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital
fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998),
cert. denied, 526 U.S. 1040 (1999). In determining whether there is legally
sufficient evidence to support the finding under review, we must consider
evidence favorable to the finding if a reasonable factfinder could and disregard
evidence contrary to the finding unless a reasonable factfinder could not. Cent.
Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007); City of Keller
v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005).
Discussion
Chain of Ownership in Forcible Detainer Actions
Deubler’s first point challenges the trial court’s judgment because there
was not a linkage established “between the deed of trust offered . . . and the
substitute trustee’s deed” and that without that “linkage,” there was no proof that
the Bank’s right of possession is superior to Deubler’s. The only case Deubler
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cites in support of his argument is Goggins v. Leo, 849 S.W.2d 373 (Tex. App.—
Houston [14th Dist.] 1993, no writ). However, while Goggins does state that
proof of a superior right of possession is an element of forcible detainer, it also
states that the plaintiff need not prove up title in order to prove his superior right.
Id. at 377.
The Bank submitted to the trial court the deed of trust, the substitute
trustee’s deed showing that the Bank acquired the property at a foreclosure sale
on November 3, 2009, and the notice to Deubler to vacate. This evidence was
sufficient to establish the Bank’s right to immediate possession of the property.
See Shutter v. Wells Fargo Bank, 318 S.W.3d 467, 471 (Tex. App.—Dallas 2010,
pet. dism’d w.o.j.) (op. on reh’g) (holding that a deed of trust, a substitute
trustee’s deed, and notices to the defendant to vacate were sufficient to establish
the plaintiff’s right to immediate possession); Williams, 315 S.W.3d at 927
(same). We overrule Deubler’s first point.
Refusal to Leave Premises
In his second point, Deubler argues that the Bank did not prove that
Deubler refused to leave the premises after he received notice to vacate. The
record shows that a police constable delivered the eviction citation to Deubler at
the property at issue almost a month after the Bank sent its notice to vacate.
Deubler also represented that he continued to reside at the property when he
listed the property as his address on his appeal bond. We hold that the evidence
is sufficient to establish that Deubler continued to reside on the premises after
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proper demand that he vacate had been made. See Clarkson v. Deutsche Bank
Nat’l Trust Co., No. 07-10-00148, --- S.W.3d ---, 2011 WL 183981, at *3 (Tex.
App.—Amarillo Jan. 20, 2011, no pet. h.) (holding that more than a scintilla of
evidence existed to support finding that tenant refused to vacate when the record
reflected that the tenants were served at the residence in question); see also
Russell v. Russell, 865 S.W.2d 929, 933 (Tex. 1993) (noting that a fact may be
proved by circumstantial evidence when the fact may be fairly and reasonably
inferred from other facts proved in the case). We overrule Deubler’s second
point.
Conclusion
Having overruled both of Deubler’s points, we affirm the judgment of the
trial court.
LEE GABRIEL
JUSTICE
PANEL: DAUPHINOT, GARDNER, and GABRIEL, JJ.
DELIVERED: April 7, 2011
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