Court of Appeals of Texas, Twelfth District, Tyler
FROM THE COUNTY COURT UPSHUR COUNTY, TEXAS Tr.Ct.No.
consisted of Worthen, C.J., Hoyle, J., and Bass, Retired J.,
Twelfth Court of Appeals, sitting by assignment.
Anderson appeals the county court's judgment in a
forcible detainer action. In two issues, Anderson contends
the county court lacked jurisdiction over the case. We vacate
the judgment of the county court and dismiss the forcible
detainer action for want of jurisdiction.
property at issue in this case was previously owned by Eddie
Don Perry, now deceased. Perry was the uncle of Appellee Lisa
Chandler and the great uncle of Anderson.
trial, Anderson testified that in 2013, Perry made an oral
gift of the property to her in the presence of other family
members. When one of the relatives asked him if he was sure,
he said, "Yeah, " because he was going to live with
Shonda Dukes. Anderson testified that when Perry made the
gift, he told her that the house needed to be "fixed
up." Amanda Moon was present during this conversation,
and testified that she observed Perry tell Anderson that the
property was being given to Anderson. Anderson made
improvements to the property and took possession. She
continues to live on the property, has always treated the
property as her own, and has never paid rent.
years after the purported gift to Anderson, Perry became
gravely ill. On July 24, 2015, he entered hospice care. There
is testimony that he lapsed in and out of consciousness and
did not appear aware of his surroundings. A few days after
Perry entered hospice, Chandler took him to her home for
"a couple of days." During that period, Perry
signed a deed to a family trust, which named Chandler sole
trustee and beneficiary. After signing the documents on
Friday, July 29, 2015, he returned to hospice care and died
on August 2.
31, 2016, Chandler signed a petition for eviction. The
justice court signed an eviction judgment on June 16.
Anderson appealed. In her answer in the county court,
Anderson pleaded that she owned the property, and that
resolution of title was a necessary issue in the case. She
further asserted the justice court and county court had no
jurisdiction. The county court dismissed the case for lack of
jurisdiction because "land title is a necessary issue in
this case." Chandler filed a motion for rehearing and
for a new trial, which the county court granted.
trial, Chandler argued that, as record owner of the property,
she was entitled to possession. The county court rendered
judgment for Chandler and awarded her possession on August
11, 2016. Anderson filed a request for findings of fact and
conclusions of law. In its findings, the county court
determined that (1) Chandler "is the record owner of
title of the premises occupied by" Anderson, (2)
Chandler is entitled to possession of the property, (3) the
pleadings failed to raise a title issue, and (4) "the
occupant, Porsha Anderson, has no legal interest in the
property[.]" This appeal followed.
it implicates this Court's jurisdiction, we first address
Anderson's second issue, in which she contends that the
county court erred in determining that she waived the
jurisdictional issue by (1) failing to comply with Texas Rule
of Civil Procedure 93 when asserting the affirmative defense
of a title dispute, and (2) the affirmative defense was
ineffective. On appeal, Chandler claims that Anderson waived
the jurisdictional issue by (1) failing to file a sworn
pleading contending lack of jurisdiction, and (2) misstating
the name of the previous owner in her answer.
requires that certain pleas be verified. See Tex. R.
Civ. P. 93. However, a plea to jurisdiction need not be
sworn. Pakdimounivong v. City of Arlington, 219
S.W.3d 401, 413-14 (Tex. App.-Fort Worth 2006, pet. denied);
see Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547,
554 (Tex. 2000) (a plea to the jurisdiction is intended to
defeat a cause of action on lack of subject matter
jurisdiction rather than on the merits). Moreover, subject
matter jurisdiction is fundamental and may be raised for the
first time on appeal. Tex. Ass'n of Bus. v. Tex. Air
Control Bd., 852 S.W.2d 440, 445 (Tex. 1993).
Accordingly, we conclude that Anderson was not required to
verify her answer asserting a title dispute and challenging
the county court's jurisdiction.
the answer's effectiveness, Anderson's answer
identifies the previous owner as "Eddie Dunn"
rather than Eddie Don Perry. Nevertheless, Anderson claimed
that she had been given the property and, therefore, title
was at issue. This allegation was sufficient to inform the
county court that it lacked jurisdiction. Additionally, both
sides elicited testimony, without objection, that the
previous owner was Eddie Don Perry. Anderson specifically
testified that her answer contained a misspelling of the
name. The record does not demonstrate that anyone was misled
by the misnomer, and the correction of the name at trial is
allowed so long as no one was misled by the mistake. See
In re Greater Houston Orthopaedic Specialists, Inc., 295
S.W.3d 323, 325 (Tex. 2009) (per curiam) (orig. proceeding).