Opinion
NO. 02-15-00337-CV
04-28-2016
LARRY GRESHAM APPELLANT v. US BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR CITIGROUP MORTGAGE LOAN TRUST 2006-WFHE4, ASSET-BACKED PASS-THROUGH CERTIFICATES, SERIES 2006-WFHE4 APPELLEE
FROM COUNTY COURT AT LAW NO. 2 OF DENTON COUNTY
TRIAL COURT NO. CV-2014-01818 MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
I. Introduction
In a single point, appellant Larry Gresham appeals the trial court's judgment for possession of the premises in favor of appellee US Bank National Association, As Trustee For Citigroup Mortgage Loan Trust 2006-WFHE4, Asset-Backed Pass-Through Certificates, Series 2006-WFHE4 (USBNA). We affirm.
II. Factual and Procedural Background
For background we quote the following from the Fifth Circuit's March 21, 2016 disposition of Gresham's related case referenced in this appeal:
Appellant Larry Gresham defaulted on his loans from Appellee Wells Fargo Bank in 2010. In January 2011, Gresham filed suit in a Texas state court to prevent foreclosure upon property securing the debt, claiming wrongful acceleration, breach of contract, and negligence. The state court granted summary judgment to Wells Fargo in May 2013, and the bank reinstituted foreclosure proceedings. Two months later, Gresham sued Wells Fargo's foreclosure counsel, later adding the bank, which removed the case to federal court. Gresham then filed an Emergency Application for a Temporary Restraining Order. Upon its denial, Wells Fargo foreclosed. Gresham amended his complaint, and Wells Fargo responded with . . . [M]otions to Dismiss and for Summary Judgment, which the district court granted. Gresham appealed.Gresham v. Wells Fargo Bank, N.A., No. 15-40748, 2016 WL 1127717, at *1 (5th Cir. Mar. 21, 2016); see also Gresham v. Wells Fargo Bank, N.A., No. 4:13-cv-711, 2015 WL 1966721, at *1, *4 (E.D. Tex. Apr. 25, 2015) (dismissing Gresham's claims with prejudice), aff'd, 2016 WL 1127717, at *1.
On April 1, 2014, USBNA purchased the property at a nonjudicial foreclosure sale, filed a forcible detainer action in justice court, and prevailed. Gresham appealed to the county court at law for a trial de novo and informed the county court that he had an active lawsuit against the foreclosing law firm and Wells Fargo Bank N.A., the original lienholder and mortgage servicer, for wrongful foreclosure, which he had previously filed in state district court and which Wells Fargo had removed to federal court. The county court at law abated the case but eventually granted USBNA's motion to end the abatement and set the case for trial. The county court at law ultimately granted judgment of possession for USBNA.
The substitute trustee's deed reflects that USBNA bought the property pursuant to sale under a June 23, 2006 deed of trust. The June 23, 2006 deed of trust, which was recorded on June 27, 2006, provided that if the subject property was sold after acceleration of the purchase money note, if the borrower did not surrender possession, he would become a tenant at sufferance and could be removed by writ of possession or other court proceeding. USBNA gave Gresham his statutory notice to vacate on May 1, 2014.
III. Discussion
In his sole point, Gresham argues that the trial court erred by lifting the abatement and hearing the forcible entry and detainer case brought by USBNA prior to the conclusion of the federal action. But as we have stated previously,
In his reply brief, for the first time in this appeal, Gresham attempts to add a second point, arguing that title was intertwined with the right of immediate possession such that the justice court and county court at law lacked jurisdiction. But a reply brief may not be utilized to raise issues not asserted in a party's brief on the merits. See Tex. R. App. P. 38.3; Rollins v. Denton Cty., No. 02-14-00312-CV, 2015 WL 7817357, at *2 n.6 (Tex. App.—Fort Worth Dec. 3, 2015, no pet.) (mem. op.). Further, in his "Original Sworn Answer, Plea to the Jurisdiction, Motion to Abate, and Request for Jury," Gresham argued that the county court lacked jurisdiction "over an eviction where title to the property involved is actively being litigated in federal court." [Emphasis added.] This is different from an allegation that title was an issue in the instant forcible detainer action, and as set out below, under the circumstances here, the justice and county courts were not deprived of jurisdiction to determine possession. Finally, as noted above, the Fifth Circuit has already issued its judgment, affirming the dismissal of Gresham's suit with prejudice.
"[A] justice court or county court at law is not deprived of jurisdiction in a forcible detainer action merely because of the existence of a title dispute." "[I]n most cases the right to immediate possession can be determined separately from the right to title," and a court hearing an eviction proceeding "is deprived of jurisdiction only if the determination of the right to immediate possession necessarily requires the resolution of the title dispute."Fields v. Varrichio, No. 02-15-00060-CV, 2015 WL 5778694, at *2 (Tex. App.—Fort Worth Oct. 1, 2015, no pet.) (mem. op.) (citations omitted); see also Olufemi-Jones v. Le, No. 05-14-00430-CV, 2015 WL 3657598, at *1 n.2 (Tex. App.—Dallas June 15, 2015, no pet.) (mem. op.) ("[T]he issue here is that of immediate possession, and therefore the outcome of the federal proceedings is not relevant in this forcible detainer action."); Rippey v. Chase Home Fin., LLC, No. 02-13-00190-CV, 2014 WL 982373, at *3 n.6 (Tex. App.—Fort Worth Mar. 13, 2014, no pet.) (mem. op.) ("Even if Rippey's federal case had remained pending, a forcible detainer action may be prosecuted concurrently with a dispute over the property in another court because 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 realty in question."); Girard v. AH4R I TX DFW, LLC, No. 02-13-00112-CV, 2014 WL 670198, at *2 (Tex. App.—Fort Worth Feb. 20, 2014, no pet.) (mem. op.) ("Therefore, even if we were to reach the merits of Girard's third issue, the action she filed in federal court regarding the property's title does not affect the judgment in the forcible detainer action.").
Texas courts, including this one, have repeatedly held that "subject matter jurisdiction in a forcible detainer action is not defeated simply by the fact that a concurrent suit is pending in federal court." "[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 realty in question."
As in Fields, the eviction proceedings below involved the adjudication only of who had the superior right to immediate possession and neither impaired nor interfered with the federal court's jurisdiction to adjudicate Gresham's wrongful foreclosure and other claims.See Fields, 2015 WL 5778694, at *2. Accordingly, we overrule his sole point.
Further, Gresham has not alleged any grounds, other than the existence of the federal lawsuit, on which the courts below should have found that Gresham had a superior right to possession, nor does he argue that USBNA failed to establish the statutory criteria for eviction or to follow the rules applicable to such proceedings. See Fields, 2015 WL 5778694, at *2. --------
IV. Conclusion
Having overruled Gresham's sole point, we affirm the trial court's judgment.
/s/ Bonnie Sudderth
BONNIE SUDDERTH
JUSTICE PANEL: WALKER, GABRIEL, and SUDDERTH, JJ. DELIVERED: April 28, 2016