Erica Pichardo De Ceja v. Shafaii Investments LTD

Affirmed and Memorandum Opinion filed March 19, 2024

In The

Fourteenth Court of Appeals

NO. 14-23-00012-CV

ERICA PICHARDO DE CEJA, Appellant

V.
SHAFAII INVESTMENTS LTD, Appellee

On Appeal from the County Civil Court at Law No. 3
Harris County, Texas
Trial Court Cause No. 1190316

MEMORANDUM OPINION

Appellant Erica Pichardo de Ceja appeals the trial court’s summary
judgment against her. In two issues she contends the trial court (1) lacked
jurisdiction; and (2) erroneously granted summary judgment in favor of appellee
Shafaii Investments Ltd. We affirm the trial court’s judgment.
 BACKGROUND

Appellee instituted foreclosure proceedings against appellant and foreclosed
on the property. Appellee purchased the property at a non-judicial foreclosure
sale. Thereafter, appellee sent a notice to vacate to appellant and filed a suit for
forcible detainer against appellant in the justice court. The justice court granted
possession to appellee, and appellant appealed to a county court.

Appellant filed a lawsuit against appellee in a district court alleging
wrongful foreclosure and other causes of action. Appellant then filed a plea to the
jurisdiction in the county court alleging a title dispute to the property that deprived
the county court of jurisdiction because an issue of title first needed to be
determined. In the plea to the jurisdiction, appellant argued that appellee
“consciously and fraudulently refused to accept payment from [appellant]” and that
such lack of payment was the pretext for foreclosing on the property. Appellant
further alleged that appellee was retaliating against appellant for her participation
in a separate civil lawsuit against appellee.

Appellee filed a motion for summary judgment in the county court.
Appellee argued that appellant executed a deed of trust and security agreement
wherein she granted a deed of trust lien in and against the property “to secure her
performance of obligations” in the real estate lien note executed by appellee. The
deed of trust contains a provision that any person in possession of any part of the
premises shall be deemed a tenant-at-will of the purchaser at the foreclosure sale
and shall be liable for a reasonable rental for the use of said premises. The deed of
trust further provides that “if any such tenants refuse to surrender possession of
said premises upon demand, the purchaser shall be entitled to institute and
maintain the statutory action of forcible entry and detainer.” Appellee contended
that it purchased the property at the non-judicial foreclosure sale pursuant to the

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deed of trust. Thereafter, appellee sent appellant a “Demand for Immediate
Possession and Notice to Vacate” letter. Appellant refused to vacate, and appellee
filed a forcible detainer action seeking a writ of possession.

Attached to the motion for summary judgment were four exhibits, including
the deed of trust, the substitute trustee’s deed, and the demand for immediate
possession and notice to vacate. The notice to vacate stated that appellee had
purchased the property at the foreclosure sale and demanded that appellant
immediately vacate and surrender possession of the property within three days or a
forcible detainer action would be filed. The notice to vacate was sent by first class
mail and certified mail on December 21, 2021. More than a month later, appellee
filed the forcible detainer action in the justice court.

Appellant responded arguing that because appellee had relied on the exhibits
which referenced the foreclosure sale, appellee had intertwined the issue of title
and possession, depriving the county court of jurisdiction to determine the issue of
possession. Appellant also argued that the notice of default prior to the foreclosure
sale was not properly delivered and disputed whether that notice was “proper.”

The county court granted appellee’s motion for summary judgment,
awarding possession to appellee.

JURISDICTION

In her first issue appellant argues that the trial court did not have jurisdiction
to decide the issue of possession of the real property at issue due to a title dispute.
Appellant argues that the trial court lacked jurisdiction because the foreclosure sale
conducted was wrongful and “any judicial order that stems from it would be
unjust.” Appellant’s argument is that the “question of title [is] so intertwined with
the issue of possession so as to preclude adjudication of the right to possession

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without first determining title.” Specifically, appellant argues that the notice of
default sent by appellee was “defective.” Appellant also contends that the notice to
vacate was inadequate, the forcible detainer action was filed too soon, and appellee
cannot assert a superior right to possession. Finally, appellant argues that “there is
no justiciable issue in this case that this court can resolve” and the case should be
dismissed.

A. Standard of Review

Whether a court has subject matter jurisdiction is a question of law. Tex.
Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Whether
a pleader has alleged facts that affirmatively demonstrate the trial court’s
jurisdiction is a question of law reviewed de novo. Id. Whether undisputed
evidence of jurisdictional facts establishes a trial court’s jurisdiction is also a
question of law. Id. “When a plea to the jurisdiction challenges the pleadings, we
determine if the pleader has alleged facts that affirmatively demonstrate the trial
court’s jurisdiction to hear the cause.” Id. “[I]n a case in which the jurisdictional
challenge implicates the merits of the plaintiffs’ cause of action and the plea to the
jurisdiction includes evidence, the trial court reviews the relevant evidence to
determine if a fact issue exists.” Id. at 227. This standard generally mirrors that of
a summary judgment under Texas Rule of Civil Procedure 166a(c). Id. at 228.

B. General Legal Principles

A justice court in the precinct in which real property is located has
jurisdiction over a forcible detainer suit. Tex. Prop. Code § 24.004; Tex. Gov’t
Code § 27.031(a)(2). The sole issue decided in a forcible detainer action is the
entitlement to actual and immediate possession and the merits of title shall not be
adjudicated. Black v. Wash. Mut. Bank, 318 S.W.3d 414, 416 (Tex. App.—
Houston [1st Dist.] 2010, pet. dism’d w.o.j.). A justice court has no jurisdiction to
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decide issues to determine or adjudicate title to land. See Tex. Gov’t Code
§ 27.031(b).

A forcible detainer suit may be appealed to the county court for a trial de
novo. Tex. R. Civ. P. 506.3. “A trial de novo is a new trial in which the entire
case is presented as if there had been no previous trial.” Id. The appellate
jurisdiction of the county court is limited to the jurisdictional limits of the justice
court. Black, 318 S.W.3d at 417. Thus, in an appeal of a forcible detainer action
to the county court, the court is restricted to the jurisdictional limits of the justice
court regardless of other statutory grants of jurisdiction to the county court. Id. A
county court on appeal of a forcible detainer action lacks jurisdiction to resolve
questions of title beyond the immediate right to possession. Id. “[A] justice court
is not deprived of jurisdiction merely by the existence of a title dispute; rather, it is
only deprived of jurisdiction if the right to immediate possession necessarily
requires the resolution of a title dispute.” Id.

A deed of trust may include a clause that creates a landlord-tenant
relationship when a property is foreclosed. See Pinnacle Premier Props., Inc. v.
Breton, 447 S.W.3d 558, 564 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
Under these circumstances, a defendant’s complaints about defects in the
foreclosure process generally do not require a justice court to resolve a title dispute
before determining the right to immediate possession, and the justice court has
jurisdiction. Id.; Williams v. Bank of New York Mellon, 315 S.W.3d 925, 927–28
(Tex. App.—Dallas 2010, no pet.); see also Wilder v. Citicorp Trust Bank, F.S.B.,
No. 03-13-00324-CV, 2013 WL 1207979, *2 (Tex. App.—Austin Mar. 18, 2014,
pet. dism’d w.o.j.) (mem. op.) (rejecting argument that landlord-tenant relationship
provided within deed of trust after foreclosure sale depended on resolution of
whether foreclosure sale was done properly); Onabajo v. Household Fin. Corp. III,

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No. 03-15-00251-CV, 2016 WL 3917140, *2 (Tex. App.—Austin July 14, 2016,
no pet.) (mem. op.) (“Defects in the foreclosure process cannot be used either to
negate a landlord-tenant relationship provision in a deed of trust or to raise a
question of title depriving the justice or county courts of jurisdiction to resolve the
question of immediate possession.”); Trujillo v. Shafaii Invsts., Ltd., No. 01-22-
00819-CV, 2024 WL 187440, *4 (Tex. App.—Houston [1st Dist.] Jan. 18, 2024,
no pet. h.) (mem. op.) (“It is well settled that defects in the foreclosure process do
not affect a justice court’s jurisdiction over a forcible detainer action.”).

C. Analysis

The deed of trust provides that a landlord-tenant relationship would result
after foreclosure sale and appellant would become a tenant at will. The deed of
trust further provides that “if any such tenants refuse to surrender possession of
said premises upon demand, the purchaser shall be entitled to institute and
maintain the statutory action of forcible entry and detainer.” Appellant does not
challenge the validity of the deed of trust.

Because the deed of trust creates a landlord-tenant relationship upon
foreclosure sale of the property, appellant’s complaints about defects in the
foreclosure process, such as defective notices, do not implicate questions of title
that must be decided prior to the issue of possession. See Yarbrough v. Household
Fin. Corp. III, 455 S.W.3d 277, 282 (Tex. App.—Houston [14th Dist.] 2015, no
pet.) (“Where there is no dispute that the parties agreed to a tenancy relationship in
the event of foreclosure, the tenancy relationship provides an independent basis for
resolving the issue of possession.”); Pinnacle Premier Props., 447 S.W.3d at 564;
Trujillo, 2024 WL 187440, at *2. Appellant’s contention that the notice to vacate
was “inadequate” also does not implicate the county court’s jurisdiction and,
instead, goes to the merits of the issue of possession.

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 We conclude that neither the county court nor the justice court were required
to resolve issues of title to determine the parties’ rights to immediate possession of
the property. See Yarbrough, 455 S.W.3d at 282; Salaymeh v. Plaza Centro, LLC,
264 S.W.3d 431, 436 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (justice
court not required to resolve title issues to determine immediate right to possession
where party “presented duly executed and recorded special warranty deed
reflecting conveyance . . ., and [party] asserted that [the] appellant was occupying
premises as a tenant-at-will . . . and held over following a written demand to vacate
the premises”); Onabajo, 2016 WL 3917140, at *2 (“Defects in the foreclosure
process cannot be used either to negate a landlord-tenant relationship provision in a
deed of trust or to raise a question of title depriving the justice or county courts of
jurisdiction to resolve the question of immediate possession.”).

We overrule appellant’s first issue.

SUMMARY JUDGMENT

In her second issue appellant argues that the notice to vacate “references a
foreclosure sale and states that notice of that sale was ‘posted as required by
applicable law and the terms of the Deed of Trust.’” Appellant contends that
because the notice to vacate invokes the sale and loan documents relating to the
foreclosure, appellee “creates its own fact issue and intertwines the issue of
possession directly with the pending issue of title” pending in the district court.
Appellee contends that referencing these documents “invites the Trial Court to
investigate the documents in question” and whether the notices were actually
delivered or proper at all.

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A. Standard of Review

We review a trial court’s summary judgment de novo. Exxon Mobil Corp. v.
Rincones, 520 S.W.3d 572, 579 (Tex. 2017). We take as true all evidence
favorable to the nonmovant and indulge every reasonable inference and resolve
any doubts in the nonmovant’s favor. Id. The evidence is conclusive only if
reasonable people could not differ in their conclusions. Universal MRI &
Diagnostics, Inc. v. Med. Lien Mgmt. Inc., 497 S.W.3d 653, 658 (Tex. App.—
Houston [14th Dist.] 2016, no pet.). A trial court must grant a motion for summary
judgment if the evidence shows that there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law on the issues expressly
set out in the motion. Draughon v. Johnson, 631 S.W.3d 81, 87 (Tex. 2021)
(citing Tex. R. Civ. P. 166a(c)). “A plaintiff moving for summary judgment must
conclusively establish all essential elements of its cause of action as a matter of
law.” Universal MRI, 497 S.W.3d at 658.

B. General Legal Principles

A forcible detainer action is the procedure used to determine the right to
immediate possession of real property if there is no unlawful entry. Hong Kong
Dev., Inc. v. Nguyen, 229 S.W.3d 415, 433 (Tex. App.—Houston [1st Dist.] 2007,
no pet.). A forcible detainer action is a special proceeding designed to be a speedy,
simple, and inexpensive means to obtain immediate possession of the property.
Coinmach Corp. v. Aspenwood Apt. Corp., 417 S.W.3d 909, 919 (Tex. 2013).
Consistent with this purpose we have repeatedly recognized that a judgment of
possession in a forcible detainer action is a determination only of the right to
immediate possession and does not determine the ultimate rights of the parties to
any other issue in controversy relating to the property at issue. See, e.g., Williams
v. Bayview-Realty Assocs., 420 S.W.3d 358, 361 (Tex. App.—Houston [14th Dist.]

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2014, no pet.); Nguyen, 229 S.W.3d at 437; Valencia v. Garza, 765 S.W.2d 893,
899 (Tex. App.—San Antonio 1989, no writ).

Under the Texas Property Code, if a person is a tenant at will and refuses to
surrender possession of real property on demand, then that person commits a
forcible detainer. Tex. Prop. Code § 24.002(a)(2). “A demand for possession must
be made in writing by a person entitled to possession of the property and must
comply with the requirements for notice to vacate under Section 24.005.”1 Id.
§ 24.002(b). Under Section 24.005(b), if the occupant is a tenant at will, then the
landlord must give the tenant at least three days’ written notice to vacate prior to
filing a forcible detainer suit unless the parties have a written contract providing
for a shorter or longer notice period. Id. § 24.005(b). The notice may be given by
regular mail, registered mail, or certified mail, return receipt requested, sent to the
premises in question. Id. § 24.005(f).

A forcible detainer suit requires proof of a landlord-tenant relationship.
Yarbrough, 455 S.W.3d at 280. While such a relationship is not a prerequisite to
jurisdiction, the lack of such a relationship may indicate a title issue. Id. (citing
Academy Corp. v. Sunwest N.O.P., Inc., 853 S.W.2d 833, 834 (Tex. App.—
Houston [14th Dist.] 1993, writ denied); Pinnacle Premier Props., Inc., 447
S.W.3d at 564 n.9).

C. Analysis

In its summary judgment motion appellee presented a duly executed and
recorded substitute trustee’s deed reflecting conveyance of the property to

1
We acknowledge that while there are legal differences between a tenancy at will and a
tenancy at sufferance, they are treated the same in the Property Code for purposes of a forcible
detainer action as far as notice and entitlement to file a suit for possession. See Tex. Prop. Code
§§ 24.002, 24.005; see also Coinmach, 417 S.W.3d at 915–16 (discussing legal distinction
between tenancy at will and tenancy at sufferance).

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appellee. Appellee asserted that appellant was occupying the property as a tenant
at will under the deed of trust. The notice to vacate demanded immediate
possession and provided for three days’ notice to vacate the premises. The notice
to vacate further states that appellee would institute a forcible detainer action if
appellant did not vacate in that time. The notice to vacate was sent by first class
mail and certified mail on December 21, 2021. More than a month later appellee
filed the forcible detainer lawsuit.

Appellee attached the deed of trust, the substitute trustee’s deed, and the
notice to vacate as exhibits to its motion for summary judgment. Appellee also
attached the affidavit of its president and director attesting that appellant executed
the deed of trust, the property was foreclosed by a substitute trustee, appellee
purchased the property at the foreclosure sale, and such purchase was reflected by
the substitute trustee’s deed. Appellee’s president further attested that the notice to
vacate was sent on December 21, 2021, by both regular mail and certified mail to
appellant at the property.

Appellee sought summary judgment on its forcible detainer suit as the owner
of the property pursuant to the substitute trustee’s deed, that as the owner it
provided the notice to vacate by certified mail, return receipt requested, sent to the
property in question, and demanded that appellee vacate the property. The notice
to vacate terminated appellant’s tenancy at will, as provided under the Texas
Property Code and the deed of trust. The teed of trust indicated that the purchaser
at a foreclosure sale would be entitled to possession upon demand, which appellee
sent as provided under the Texas Property Code. Through the evidence presented,
appellee established its right to immediate possession of the property as a matter of
law. See Williams, 315 S.W.3d at 927 (“[The] appellee proved its right to
possession of the property by presenting in evidence the substitute trustee’s deed,

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the deed of trust, and notice to [the] appellant and the other residents of the
property to vacate.”); Gardocki v. Fed. Nat’l Mortg. Ass’n, No. 14-12-00921-CV,
2013 WL 6568765, at *4 (Tex. App.—Houston [14th Dist.] Dec. 12, 2013, no pet.)
(mem. op.) (“[Plaintiff] presented (1) the original deed of trust containing a
tenancy at sufferance clause; (2) the special warranty deed . . . after purchasing the
property []; (3) the substitute trustee’s deed []; and (4) proof of its demand to [the
defendant] to vacate the property. These documents showed that [the defendant]
was a tenant at sufferance who had refused to surrender possession, satisfying the
elements of a forcible detainer.”). As a result, the burden shifted to appellant to
present a fact issue to prevent summary judgment.

Appellant contended in the county court and here on appeal that the notice of
default was not properly delivered and disputed that the notice of default was
“proper.” Appellant also asserted that she attempted to make the note payment to
appellee but appellee refused to accept payment. Both arguments allege defects in
the foreclosure process. See Pinnacle Premier Props., Inc., 447 S.W.3d at 564
(“Appellees articulate a title dispute, but it is based entirely on their contention that
the foreclosure was improper . . . . However, because the deed of trust contained a
valid tenant-at-sufferance clause, appellees do not allege a title dispute that is
intertwined with the right of immediate possession.”); Williams, 315 S.W.3d at
927–28 (“Any defects in the foreclosure process or with appellee’s title to the
property may not be considered in a forcible detainer action.”); Trujillo, 2024 WL
187440, at *4 (“It is well settled that defects in the foreclosure process do not
affect a justice court’s jurisdiction over a forcible detainer action.”).

Appellant further contends that appellee intertwined the issue of possession
and title by relying on the deed of trust and substitute trustee’s deed to prove the
landlord-tenant relationship in its motion for summary judgment. However, this

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argument has already been rejected by this court. See Reynoso v. Dibs US, Inc.,
541 S.W.3d 331 337–38 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (“In such
cases, the need to introduce the deed of trust to prove the landlord-tenant
relationship does not affect the justice (or county) court’s jurisdiction because the
validity of the title is not in issue. The tenancy-at-sufferance status suffices as a
basis for the forcible-detainer action even though the foreclosure sale later might
be set aside.”).

In short, appellant does not cite to any evidence raising a fact issue on
possession and instead only alleges defects in the foreclosure process. Having
concluded that appellee established its right to summary judgment on the issue of
possession, we conclude that the county court properly granted summary judgment
in favor of appellee.

We overrule appellant’s second issue on appeal.

CONCLUSION

We affirm the judgment of the trial court.

/s/ Ken Wise
Justice

Panel consists of Justices Wise, Zimmerer, and Poissant.

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