Opinion
No. 05-11-01075-CV
08-16-2012
FELIX JAMES HORNSBY AND ALL OCCUPANTS OF 1741 STEWART STREET, CEDAR HILL, TEXAS 75104, Appellants v. SECRETARY OF VETERANS AFFAIRS, Appellee
AFFIRM;
On Appeal from the County Court at Law No. 5
Dallas County, Texas
Trial Court Cause No. CC-11-04325-E
MEMORANDUM OPINION
Before Justices Bridges, Francis, and Lang
Opinion By Justice Lang
This is an appeal from a judgment in a forcible detainer action awarding possession of property located at 1741 Stewart Street, Cedar Hill, Texas 75104 ("property") to the Secretary of Veterans Affairs ("SVA"). In a single issue, Felix James Hornsby and all occupants of the residence on the property (collectively, "Hornsby") argue the trial court erred in concluding the SVA was entitled to possession of the property because there was no evidence in the record that the SVA and Hornsby had a landlord-tenant relationship as required by section 24.002(a) of the Texas Property Code. See Tex. Prop. Code Ann. § 24.002(a) (West 2000). We affirm the trial court's judgment.
I. BACKGROUND
On October 24, 2003, Felix and his wife Donjell executed a $100,740 promissory note that was secured by a deed of trust covering the property. The deed of trust identified the lender as Franklin American Mortgage Company or "any holder of the Note who is entitled to receive payments under the Note" and identified Mortgage Electronic Registration Systems, Inc. ("MERS") "as a nominee for Lender and Lender's successors and assigns." MERS was also identified as the beneficiary of the deed of trust.
The deed of trust provided the method for the lender to invoke the power of sale in the event of default on the note. In addition, section 22 required Felix, Donjell, or any other occupant to surrender possession of the property if the property was sold at foreclosure. Specifically, section 22 provided that
[i]f the Property is sold pursuant to this Section 22, [Felix and Donjell] or any person holding possession of the property through [Felix and Donjell] shall immediately surrender possession of the Property to the purchaser at that sale. If possession is not surrendered, [Felix and Donjell] or such person shall be a tenant at sufferance and may be removed by writ of possession or other court proceeding.
Felix and Donjell defaulted on the note, and Franklin's successor to the note and deed of trust, U.S. Bank National Association, as trustee for CWMBS 2006-R2, invoked the power of sale. U.S. Bank, through its mortgage servicer Wells Fargo Bank, N.A., appointed a substitute trustee to sell the property and then U.S. Bank purchased the property at the foreclosure sale on February 1, 2011. Two months later, U.S. Bank conveyed the property to the SVA.
After Felix, Donjell, and all occupants failed to vacate the residence upon demand, the SVA instituted a forcible detainer action, pursuant to section 24.002(a)(2) of the property code, against them. The justice court rendered judgment against the SVA, and the SVA appealed to the county court at law. At the de novo bench trial, the SVA offered into evidence without objection (1) the substitute trustee's deed showing U.S. Bank purchased the property at the foreclosure sale, (2) the warranty deed transferring title of the property from U.S. Bank to the SVA, (3) the deed of trust executed by Felix and Donjell in October 2003, and (4) the notices to vacate sent to Felix, Donjell, and all occupants cautioning them that failure to move within three days of the notice would result in suit being filed. The SVA also offered testimony showing the property was still occupied. Based on this evidence, the trial court rendered judgment in favor of the SVA. II. FORCIBLE DETAINER
In a single issue, Hornsby argues the trial court erred in finding the SVA entitled to possession of the property because there was no evidence in the record the SVA and Hornsby had a landlord-tenant relationship as required by section 24.002(a) of the property code. Specifically, Hornsby argues the SVA had to show it was entitled to enforce the terms of the deed of trust in order to establish a landlord-tenant relationship between them, and it failed to do so. Hornsby contends there was no evidence of (1) any assignments or transfers from MERS to U.S. Bank National Association, (2) any "mortgage servicing agreements authorizing Wells Fargo Bank, N.A., the purported 'Mortgage Servicer' stated in the Substitute Trustee's Deed, to enforce the terms of the Deed of Trust," (3) of "the circumstances of the appointment of L. Patton, the purported 'Substitute Trustee,'" (4) that U.S. Bank "was or is the beneficiary, successor beneficiary, assignee, or transferee of the Deed of Trust, or a person legally entitled to enforce the Deed of Trust," and (5) that Wells Fargo Bank "was or is the beneficiary, successor beneficiary, assignee, or transferee of the Deed of Trust, or the person legally entitled to enforce the Deed of Trust." In response, the SVA asserts Hornsby's complaint is a challenge to the title of the property which is not a proper issue to be addressed in a forcible detainer action.
A. Applicable Law
Forcible detainer occurs when a person, who is a tenant at sufferance, refuses to surrender possession of real property after his right to possession has ceased. Tex. Prop. Code Ann. § 24.002(a)(2) (West 2000); Aspenwood Apartment Corp. v. Coinmach, Inc., 349 S.W.3d 621, 632 (Tex. App.-Houston [1st Dist.] 2011, pet. denied) (op. on reh'g). A forcible detainer action is "a summary, speedy, and inexpensive" procedure for determining the right to immediate possession of real property where no claim of unlawful entry exists. Williams v. Bank of N.Y. Mellon, 315 S.W.3d 925, 926-27 (Tex. App.-Dallas 2010, no pet.). To prevail in a forcible detainer action, a plaintiff is required to show sufficient evidence of a superior right to possession. See Rice v. Pinney, 51 S.W.3d 705, 709 (Tex. App.-Dallas 2001, no pet.). Under Texas Rule of Civil Procedure 746, the only issue in a forcible detainer action is the right to possession. Tex. R. Civ. P. 746. The merits of title "shall not be adjudicated." Tex. R. Civ. P. 746. In forcible detainer actions, entitlement to possession of premises is decided "without resorting to an action upon the title." Rice, 51 S.W.3d at 710 (quoting Scott v. Hewitt, 127 Tex. 31, 35, 90 S.W.2d 816, 818-19 (Tex. 1936)).
B. Standard of Review
When, as here, a party challenges the evidence supporting a finding upon which he did not bear the burden of proof, the appellate court will sustain the challenge if the evidence offered to support the finding is no more than a scintilla. Smith v. KNC Optical, Inc., 296 S.W.3d 807, 811 (Tex. App.-Dallas 2009, no pet.). Evidence is no more than a scintilla if it is so weak that it does no more than create a surmise or suspicion of its existence. Id. (citing Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)). In conducting its review, the appellate court considers the evidence in the light most favorable to the verdict, indulging every reasonable inference in support. Id. (citing City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005)).
C. Application of Law to Facts
To prevail on its claim, the SVA was required to present more than a scintilla of evidence showing it had a right to possession of the property, Hornsby's right of possession had ended, and Hornsby refused to vacate the property. To satisfy its burden, the SVA offered into evidence (1) the deed of trust which provided that if the property was sold due to non-payment of the note and Hornsby failed to surrender possession of the property to the purchaser, Hornsby became a tenant at sufferance; (2) the substitute trustee's deed which showed the property was sold to U.S. Bank in February 2011; (3) the warranty deed which showed U.S. Bank subsequently conveyed the property to the SVA; (4) the notice to vacate sent to Hornsby; and, (5) testimony showing the property was still occupied at the time of trial. We conclude this evidence, viewed in the light most favorable to the judgment, was legally sufficient to establish Hornsby was a tenant at sufferance and the SVA was entitled to immediate possession of the property. See Clarkson v. Deutsche Bank Nat'l Trust Co., 331 S.W.3d 837, 840 (Tex. App.-Amarillo 2011, no pet.) (concluding Bank proved its right to possession by presenting evidence of the foreclosure, substitute trustee's deed, notice to vacate, and appellant's failure to vacate after demand); Shutter v. Wells Fargo Bank, N.A., 318 S.W.3d 467, 471 (Tex. App.-Dallas 2010, pet. dism'd w.o.j.) (concluding Bank proved its right to possession by presenting evidence showing it purchased the property in a public auction following appellant's default on the deed of trust, appellant was a tenant at sufferance when she failed to vacate the property after the Bank purchased it, and gave appellant notice to vacate). Although Hornsby challenges the chain of title to the property, "the merits of the title shall not be adjudicated" in a forcible detainer action. See Tex. R. Civ. P. 746; Shutter, 318 S.W.3d at 471; Rice, 51 S.W.3d at 710. Accordingly, we conclude the trial court did not err in granting judgment for the SVA. We decide Hornsbys' sole issue against him.
III. Conclusion
Having resolved Hornsby's sole issue against him, we affirm the trial court's judgment.
DOUGLAS S. LANG
JUSTICE
111075F.P05
FELIZ JAMES HORNSBY AND ALL OCCUPANTS OF 1741 STEWART STREET, CEDAR HILL, TEXAS 75014, Appellants
V.
SECRETARY OF VETERANS AFFAIRS, Appellee
No. 05-11-01075-CV
Appeal from the County Court at Law No. 5 of Dallas County, Texas. (Tr.Ct.No. CC-11- 04325-E).
Opinion delivered by Justice Lang, Justices Bridges and Francis participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED. It is ORDERED that appellee Secretary of Veterans Affairs recover its costs of this appeal from appellant Felix James Hornsby and All Occupants of 1741 Stewart Street, Cedar Hill, Texas 75014.
Judgment entered August 16, 2012.
DOUGLAS S. LANG
JUSTICE