Eviction suits & appeals are of limited scope

 
Limited nature of eviction suits does not change upon appeal from Justice Court to the County Court at Law even though county courts have broader jurisdiction with respect to suit that originate in those courts

 
The sole issue to be determined in a forcible detainer action is the entitlement to actual and immediate possession, and the merits of the title shall not be adjudicated. Hong Kong Dev., Inc. v. Nguyen, 229 S.W.3d 415, 434 (Tex. App.—Houston [1st Dist.] 2007, no pet.); Dass, Inc. v. Smith, 206 S.W.3d 197, 200 (Tex. App.—Dallas 2006, no pet.).
 
A justice court in the precinct in which real property is located has jurisdiction over a forcible detainer suit but is expressly deprived of jurisdiction to determine or adjudicate title to land. See Tex. Prop. Code Ann. § 24.004 (West 2000); Tex. Gov’t Code Ann. § 27.031(a)(2),(b)(4) (West Supp. 2011). A forcible detainer suit may be appealed to the county court, in which trial is de novo. Tex. R. Civ. P. 749; Hong Kong, 229 S.W.3d at 433–34. A county court’s appellate jurisdiction is confined to the limits of the justice court. Hong Kong, 229 S.W.3d at 433–34. Thus, a county court that conducts a de novo review of a forcible detainer action is restricted to the jurisdictional limits that existed in the justice court, regardless of other statutory grants of jurisdiction to the county court. Black v. Washington Mut. Bank, 318 S.W.3d 414, 417 (Tex. App.—Houston [1st Dist.] 2010, pet. dism’d w.o.j.).
 
The justice court, and a county court on appeal, lack jurisdiction to resolve any questions of title beyond the immediate right to possession but a justice court is not deprived of jurisdiction merely by the existence of a title dispute. See Rice v. Pinney, 51 S.W.3d 705, 713 (Tex. App.—Dallas 2001, no pet.). Rather, it is only deprived of jurisdiction if the right to immediate possession necessarily requires the resolution of a title dispute. Id. Courts have specifically addressed whether a justice court has jurisdiction over a forcible detainer suit where the case also involves a dispute over a trustee’s deed conveying property purchased at a foreclosure sale.
  
Courts have explained:
 
[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. . . . [Parties] have the right to sue in the district court to determine whether the trustee’s deed should be cancelled, independent of [the] award of possession of the premises in the forcible detainer action [.] Id. at 710 (quoting Martinez v. Beasley, 572 S.W.2d 83, 85 (Tex. Civ. App.—Corpus Christi 1978, no writ)) (emphasis in original). “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.” Id. at 709. In Rice, the Dallas Court of Appeals held that where a deed of trust established a landlord and tenant at sufferance relationship between the purchaser at the foreclosure sale and the previous owners or those holding under them, there was an “independent basis on which the trial court could determine the issue of immediate possession without resolving the issue of title to the property.” Id. at 712.

SOURCE: HOUSTON COURT OF APPEALS - 01-11-00546-CV - FIRST DISTRICT - 4/26/12

Do-it-Yourself in Justice Court (JP Court) not a good idea, much less on appeal

Pro Se Litigants (parties acting as their own attorney, also called pro-pers elsewhere) almost always come to grief, and have their legal incompetence pointed out for the whole world to see if they insist on pursuing their case in the court of appeals, as illustrated for the umptieth time in the following ….   

MEMORANDUM OPINION

In this forcible detainer case, [former homeowner], acting pro se, appeals the trial court’s judgment granting Wells Fargo Bank, National Association, as Trustee for Securitized Asset-Backed Receivables, LLC 2005 FR3 Mortgage Pass-Through Certificates, Series 2005-FR3 (Wells Fargo) possession of [former home  owner]’s former residence.  [Former home  owner] complains that the trial court erred by (1) denying her the opportunity to seek legal counsel; (2) awarding possession to Wells Fargo in spite of a conflicting claim to ownership; (3) failing to address Wells Fargo’s failure to attend court-ordered mediation; and (4) abusing its authority by requiring her to post a $34,200 supersedeas bond for the appeal.  We hold that [former home  owner] waived these complaints and affirm.

Background  

After [former home  owner] defaulted on her mortgage, her private residence became the subject of a nonjudicial foreclosure sale.  Wells Fargo became owner of the residence under a substitute trustee’s deed.  [former home  owner] continued to live in the residence, so Wells Fargo instituted this forcible detainer lawsuit in justice court to obtain possession of the property.  The justice court granted Wells Fargo possession of the property, and [former home  owner] appealed that judgment to the county court at law.  The court at law tried the case de novo and entered final judgment in favor of Wells Fargo.

Discussion

In its response brief, Wells Fargo contends that [former home  owner] failed to preserve any of her complaints on appeal.  In order to properly preserve a complaint for appellate review, the record must show that (1) the complaint was made to the trial court by a timely request, objection, or motion and (2) the trial court ruled on or refused to rule on the request, objection, or motion.  Tex. R. App. P. 33.1(a).  This rule applies equally to pro se litigants as it does to those represented by counsel.  “Pro se litigants,” like [former home  owner], “are held to the same standards as licensed attorneys and must comply with all applicable laws and rules of procedure.”  Hope’s Fin. Mgmt. v. Chase Manhattan Mortg. Corp., 172 S.W.3d 105, 107 (Tex. App.—Dallas 2005, pet. denied); Kanow v. Brownshadel, 691 S.W.2d 804, 806 (Tex. App.—Houston [1st Dist.] 1985, no writ); see West Columbia Nat’l Bank v. Griffith, 902 S.W.2d 201, 206 (Tex. App.—Houston [1st Dist.] 1995, writ denied); accord Scoville v. Shaffer, 9 S.W.3d 201, 204 (Tex. App.—San Antonio 1999, no pet.); see also Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex. 1978).

With respect to [former home  owner]’s first complaint, the record nowhere reflects that [former home  owner] asked for additional time to seek legal counsel before trial or that the trial court denied such a request.  On the contrary, the trial court’s final judgment states, “Defendant Cynthia [former home  owner] appeared pro se and announced ready.”  After the close of trial, [former home  owner] asked the trial court, “Could I have gotten an attorney?”  As [former home  owner]’s question reflects, this request was untimely.  Thus, [former home  owner] did not preserve this issue for appellate review.  See Tex. R. App. P. 33.1(a).

[former home  owner]’s complaint that the trial court’s ruling does not acknowledge a conflicting claim to ownership is likewise unpreserved.  [former home  owner] did not object to the admissibility of the evidence that Wells Fargo presented to the trial court, nor did she offer any evidence of her own to show that she or another had a superior right to immediate possession, which is the only issue in a forcible detainer action.  Tex. R. Civ. P. 746; see Dormady v. Dinero Land & Cattle Co., 61 S.W.3d 555, 557 (Tex. App.—San Antonio 2001, pet. dism’d w.o.j.).  To the extent [former home  owner] alleges that a conflicting right to ownership exists, that issue lies beyond the scope of a forcible detainer action.  Dormady, 61 S.W.3d at 557; see Fandey v. Lee, 880 S.W.2d 164, 169 (Tex. App.—El Paso 1994, writ denied) (“Where title to the property is directly involved in the suit, the justice and county courts lack jurisdiction.”). 

With respect to [former home  owner]’s third issue, the record does not contain any written order requiring the parties to mediate their dispute.  It shows only that the trial court delayed entry of judgment for half an hour so that [former home  owner] could “go talk to” Wells Fargo’s counsel “and see if you can’t work out an arrangement.”  This language does not require Wells Fargo to take any action.  Further, [former home  owner] did not move for sanctions against Wells Fargo based on any failure to attend mediation.  As a result, [former home  owner] waived this issue as well.

[former home  owner] waived her final complaint, that the trial court abused its authority in requiring her to supersede the judgment, by failing to present it to the trial court in the first instance.  The record shows that, although the justice court granted [former home  owner]’s request to proceed in forma pauperis, [former home  owner] informed the court that she was going to post the bond “right now because I do have $34,000.”  By agreeing to post the bond, [former home  owner] waived any complaint about the bond requirement.[1] 

Conclusion

We hold that [former home  owner] waived her appellate complaints.  We therefore affirm the judgment of the trial court.

                                                                      Jane Bland

                                                                      Justice

Panel consists of Justices Keyes, Bland, and Sharp.

SOURCE:  First Court of Appeals - 01-10-00931-CV - 4/12/12 [ "former home owner" substituted for name of appellant ]

DWOJ: Bond disbursement order not appealable, court of appeals says in dismissing case

Houston Court of Appeals, in memo opinion by Chief Justice Adele Hedges, holds that it lacks jurisdiction over the attempted appeal because the order appealed from did not constitute a final and appealable order or judgment (and was not otherwise authorized by statute).

Lovall v. Yen No. 14-07-00770-CV (Tex.App.- Houston [14th Dist.] Feb. 12, 2008) (lease law, eviction, lease, unpaid rent, bond, supersedeas, registry of the court) (jurisdictional dismissal of appeal, interlocutory orders, finality, final and appealable order)

Opinion by Chief Justice Adele Hedges
Panel composition: Chief Justice Hedges, Justices John Anderson and William Boyce
Full case style: Lizzie Lovall v. Judy Yen
Appeal from County Civil Court at Law No 3 of Harris County
Trial court judge: Judge Hon. Lynn Bradshaw-Hull
Disposition: DWOJ = Dismissed for Want of Jurisdiction

M E M O R A N D U M O P I N I O N

This appeal involves a forcible entry and detainer suit, wherein appellant, Lizzie Lovall, appeals a judgment granted in favor of appellee, Judy Yen. We dismiss the appeal for lack of jurisdiction.

BACKGROUND

Appellee originally filed her lawsuit against appellant in a justice of the peace court to regain possession of residential property and to recover unpaid rents. The justice court granted judgment in favor of appellee. On August 15, 2001, appellant perfected her appeal to County Civil Court at Law Number 3 by paying a cash bond in the amount of $2,400.00 (the amount for which she was liable in unpaid rents).[1]

While appellant's appeal was pending before the county court, appellant filed an accelerated appeal with this court on an order by the county court requiring her to deposit $550.00 into the court registry. We dismissed the appeal for lack of jurisdiction and issued our mandate on April 2, 2002. See Lovall v. Yen, 14-01-01108-CV, 2002 WL 58925 (Tex. App.- Houston [14th Dist.] 2002, no pet.) (mem. op., not designated for publication). On November 21, 2001, the county court entered a final judgment in favor of appellee.[2] On December 5, 2001, appellant's husband filed for bankruptcy; the notice of bankruptcy was filed with the county court on December 6, 2001.[3]

Almost four years later, no further appeals had been taken and appellee set a motion for bond disbursement to retrieve the $2,400.00 cash bond. Notice was sent to appellant. On September 14, 2005, the county court signed an order directing the clerk's office to release the cash bond from the court registry to appellee.[4] Appellant now appeals the bond disbursement order. In three issues, appellant argues that (1) the trial court did not have jurisdiction to disburse the cash bond to appellee; (2) the trial court abused its discretion by granting relief not requested by appellee; and (3) the trial court erred in failing to produce findings of fact and conclusions of law.

JURISDICTION

The order involved in this appeal is not the judgment in the lawsuit, but a post judgment order designed to enforce the judgment. An appeal may be taken from a final judgment disposing of all legal issues between all parties or from an interlocutory order for which an appeal is authorized by statute. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992). Appellant argues that the post judgment disbursement order in this case is a final and appealable judgment because it is tantamount to a turnover order. See Schultz v. The Fifth Judicial District Court of Appeal at Dallas, 810 S.W.2d 738 (Tex. 1991) (turnover orders are final and appealable orders), abrogated on other grounds by In re Sheshtawy, 154 S.W.3d 114 (Tex. 2004). The bond disbursement order in this case, however, is not equivalent to a turnover order under section 31.002 of the Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. ' 31.002 (Vernon Supp. 2006). Section 31.002, commonly known as the turnover statute, allows a court to order a judgment debtor to surrender or "turn over" her property for liquidation to satisfy a judgment rendered against her. See id.; see also Qualia v. Qualia, 37 S.W.3d 128, 129 (Tex. App.CSan Antonio 2001, no pet.) (reasoning that a turnover order is analogous to a mandatory injunction, requiring a factual showing of non-exempt property owned by the debtor and resolving the property rights as in a mandatory injunction). In this case, the county court did not order appellant to turn over non-exempt property for liquidation to satisfy the judgment against her. Nor did the order resolve the property rights between the parties. Instead, the bond disbursement order was directed to the clerk=s office to release a cash bond previously paid to the court=s registry by appellant. We hold that the 2005 bond disbursement order is not a section 31.002 turnover order.

Moreover, the bond disbursement order is not a final appealable order. A judgment is final for purposes of appeal when it determines the rights of all parties and disposes of all issues in a case, so that no future action by the court will be necessary to settle the entire controversy. State ex rel. Latty v. Owens, 907 S.W.2d 484, 485 (Tex. 1995); see also Hinde v. Hinde, 701 S.W.2d 637, 639 (Tex. 1985) (holding that a judgment settling all legal issues and rights between the parties is final and appealable, although further proceedings may be necessary in its execution).

Here, the November 2001 final judgment determined that appellee had the right to possession of the property and was entitled to $2,400.00 in unpaid rents. Thus, it is a final and appealable order.[5]

The bond disbursement order was merely a ministerial act incident to the final judgment, providing for disbursement of funds directed by the November 2001 judgment, akin to a writ of execution. See Wolter v. Donaldson, 79 S.W.3d 160, 162 (Tex. App.- Texarkana 2002, no pet.) (stating that post judgment order to release funds to prevailing party is in the nature of a writ of execution).

The usual writs and orders aiding execution to collect a final money judgment are not, in general, appealable orders. Id.; Qualia, 37 S.W.3d at 129. Neither a writ of execution nor an order incident to a writ of execution is appealable. Wolter, 79 S.W.3d at 162.

We hold that the December 2005 bond disbursement order is not final and appealable. See Myers v. Myers, 515 S.W.2d 334, 335 (Tex. App.- Houston [1st Dist.] 1974, writ dism'd) (stating that the court's order to pay the judgment out of funds deposited pursuant to a supersedeas bond was ancillary to the cause on the merits and therefore not a final judgment for purposes of appeal).

Having concluded the complained of order is not final and appealable, we dismiss the appeal for lack of jurisdiction.

/s/ Adele Hedges
Chief Justice

Judgment rendered and Memorandum Opinion filed February 12, 2008.
Panel consists of Chief Justice Hedges and Justices Anderson and Boyce.
Do Not Publish C Tex. R. App. P. 47.2(b).

[1] The cash bond was paid to the justice court and subsequently transferred to the county court on December 28, 2001.
[2] Though the county court's judgment is not apart of this record, the clerk's docket sheet reflects the November 21, 2001 judgment.
[3] Although appellant alleges that a bankruptcy proceeding was commenced over six years ago, she neither alleges, nor does the record reflect, that the 2001 bankruptcy proceeding in still ongoing, or would otherwise affect our jurisdiction in the instant appeal.
[4] Appellant produces no evidence that the 2001 bankruptcy proceeding was still pending at the time the court entered the September 2005 disbursement order.
[5] The record reflects that appellant did not further perfect her appeal on the November 21, 2001 judgment to our Court. Therefore, we have no jurisdiction to review an appeal of this judgment.