Court of Appeals of Texas, Fifth District, Dallas
Appeal from the County Court at Law No. 5 Dallas County,
Texas Trial Court Cause No. CC-16-03356-E
Justices Lang, Myers, and Stoddart
Johnson a/k/a Cheryl Angrum (Johnson) appeals the trial
court's judgment awarding possession of a property to
CitiMortgage, Inc., which foreclosed a lien on the property.
In two issues, Johnson contends CitiMortgage did not have
standing to obtain a judgment of possession and that the
trial court abused its discretion because there was a factual
issue of title and it did not have jurisdiction to decide the
case. We affirm the trial court's judgment.
August 5, 2014, CitiMortgage purchased a property located at
1908 Courtside Drive, Grand Prairie, Texas 75051, at a
Trustee's sale. On June 6, 2016, CitiMortgage filed its
original petition for forcible detainer in the justice of the
peace court seeking possession of the property. The justice
court entered a judgment for possession in favor of
CitiMortgage on June 30, 2016. Johnson appealed to the county
court at law, which after hearing the petition, signed a
judgment on August 4, 2016, finding Johnson was a tenant at
sufferance pursuant to the foreclosure and that CitiMortgage
was entitled to judgment for possession of the premises.
Johnson did not request any findings of fact or conclusions
of law from the county court. She has brought this appeal
from the county court at law's decision.
is pro se before this Court. Pro se pleadings and briefs are
liberally construed, but we hold pro se litigants to the same
standards as attorneys and require them to comply with all
applicable laws and rules of procedure. Washington v.
Bank of N.Y., 362 S.W.3d 853, 854 (Tex. App.--Dallas
2012, no pet.); Mansfield State Bank v. Cohn, 573
S.W.2d 181, 184-85 (Tex. 1978). To do otherwise would give
pro se litigants an unfair advantage over litigants who are
represented by counsel. Washington, 362 S.W.3d at
854; Shull v. United Parcel Serv., 4 S.W.3d 46, 53
(Tex. App.--San Antonio 1999, pet. denied).
begin with Johnson's second issue, in which she appears
to challenge the sufficiency of the evidence to show
CitiMortgage had a superior right to immediate possession of
the property, arguing "[t]he trial court abused its
discretion because a factual issue of title existed."
Johnson also contends, without evidentiary support or
citation to the record, that CitiMortgage had "no right
to possession regarding the property, and that she is the fee
simple title holder to the subject property."
forcible detainer action, the only issue is which party has
the right to immediate possession of the premises; the merits
of title are not adjudicated. See Williams v. Bank of
N.Y. Mellon, 315 S.W.3d 925, 927 (Tex. App.--Dallas
2010, no pet.); U.S. Bank Nat'l Ass'n v.
Freeney, 266 S.W.3d 623, 625 (Tex. App.--Dallas 2008, no
pet.); Rice v. Pinney, 51 S.W.3d 705, 708 (Tex.
App.--Dallas 2001, no pet.). Furthermore, when, as in this
case, there is no reporter's record and findings of fact
and conclusions of law are neither requested nor filed, the
judgment of the trial court implies all necessary findings of
fact to sustain its judgment. Waltenburg v.
Waltenburg, 270 S.W.3d 308, 312 (Tex. App.--Dallas 2008,
no pet.); Williams v. Americas Tire Co., Inc., 190
S.W.3d 796, 803 (Tex. App.--Dallas 2006, pet. denied);
Sharp v. Woodridge Props. Co., No. 05-13-00869-CV,
2015 WL 370026, at *2 (Tex. App.--Dallas Jan. 29, 2015, no
pet.) (mem. op.); Reese v. Bank of America, No.
05-13-00560-CV, 2014 WL 4057435, at *1 (Tex. App.--Dallas
Aug. 15, 2014, no pet.) (mem. op.). We presume the missing
reporter's record supports the decisions of the trial
court. See Bennett v. Cochran, 96 S.W.3d 227, 230
(Tex. 2002) ("[C]ourt of appeals was correct in holding
that, absent a complete record on appeal, it must presume the
omitted items supported the trial court's
judgment."); Lyons v. Polymathic Properties,
Inc., No. 05-15-00408-CV, 2016 WL 3564210, at *2 (Tex.
App.-- Dallas June 29, 2016, no pet.) (mem. op.) ("The
absence of a reporter's record obligates us to presume
the evidence presented supports the judgment.");
Heckendorn v. First Mortgage Co., No.
13-12-00451-CV, 2013 WL 5593520, at *4 (Tex. App-Corpus
Christi 2013, no pet.) ("The reporter's record does
not appear in the appellate record. Because there is no
reporter's record, we must presume the missing record
would support the trial court's decision."). In the
absence of a reporter's record in this case, we therefore
presume the evidence supports the trial court's ruling.
Doing this, we conclude there is sufficient evidence to show
CitiMortgage had a superior right to possession of the
property in question.
of her second issue, Johnson also suggests the trial court
did not have jurisdiction to decide possession, pointing out
there was a pending federal lawsuit, styled Cheryl
Johnson-Williams, also known as Cheryl Angrum v. Mortgage
Electronic Registration Systems, Inc., CitiMortgage, Inc.,
Shelley Ortolani, Substitute trustees, in which she
attempted to challenge the foreclosure. The federal district
court rendered final judgment against Johnson dismissing her
suit with prejudice, and she appealed to the Fifth Circuit
Court of Appeals, which affirmed the judgment on January 4,
2017. See No. 16-10276, 675 Fed.Appx. 396, 2017 WL
56053, at *1 (5th Cir. Jan. 4, 2017) (per curiam).
noted earlier, the only issue in a forcible detainer action
is which party has the right to immediate possession of the
property. Williams, 315 S.W.3d at 927. Whether a
sale of property under a deed of trust is invalid may not be
determined in a forcible detainer action but must be brought
in a separate suit. Id. And the existence of a
separate suit involving title does not deprive the county
court at law of jurisdiction. See Villalon v. Bank
One, 176 S.W.3d 66, 68-71 (Tex. App.-Houston [1st Dist.]
2004, pet. denied) ("Forcible detainer actions in
justice courts may be brought and prosecuted concurrently
with suits to try title in district court.");
Dormady v. Dinero Land & Cattle Co., 61 S.W.3d
555, 558 (Tex. App.-San Antonio 2001, pet. dism'd) (op.
on reh'g); Rice, 51 S.W.3d, at 709. Johnson may
not avoid judgment by alleging an improper foreclosure or
title defect in the forcible detainer proceeding. The record
shows she offered no evidence that CitiMortgage did not own
the property, and there is more than a scintilla of evidence
to support the trial court's judgment that CitiMortgage
was entitled to possession of the property. We overrule
Johnson's second issue.
first issue, Johnson challenges CitiMortgage's standing
to bring this forcible detainer action. Standing is a
component of subject-matter jurisdiction and is a
constitutional prerequisite to maintaining a lawsuit. In
re I.I.G.T., 412 S.W.3d 803, 805 (Tex. App.--Dallas
2013, no pet.). The plaintiff has the burden of alleging
facts, which if taken as true, affirmatively demonstrate a
court's jurisdiction to hear a case. Asshauer v.
Wells Fargo Foothill, 263 S.W.3d 468, 471 (Tex.
App.--Dallas 2008, pet. denied); Nausler v. Coors Brewing
Co., 170 S.W.3d 242, 248 (Tex. App.--Dallas 2005, no
pet.); Fed. Nat'l Mortg. Ass'n v. Ephriam,
No. 05-13- 00984-CV, 2014 WL 2628036, *2 (Tex. App.--Dallas
June 12, 2014, no pet.) (mem. op.). In addition, Johnson
attacks the supporting affidavit and verification from
CitiMortgage's co-counsel, Timothy Swanson, that
accompanied the original petition, arguing it was not based
on personal knowledge. She also alleges CitiMortgage
"did not present any evidence establishing its
It is a
well-settled principle of law that "[t]o 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." Rice, 51 S.W.3d at 709.
CitiMortgage established it is the owner of the property in
question by producing the Substitute Trustee's Deed
showing it was the purchaser of the property at the
Trustee's sale, the Notice of Trustee's Sale, and the
Deed of Trust. CitiMortgage also produced the March 11, 2016,
Notice to Vacate and documentation from the Department of
Defense showing Johnson was not engaged in active duty
military status as of March 16, 2016. Johnson did not produce
any evidence that CitiMortgage is not the owner of the
property. Accordingly, there is sufficient evidence in the
record to establish CitiMortgage's ownership interest in
the property, and, hence, its "standing" to bring
the forcible detainer action. We also note that because of
Johnson's failure to file the reporter's record and
the absence of pertinent findings, we must presume the
evidence presented supports the trial court's implicit
finding that CitiMortgage had standing to bring the forcible
detainer action. See, e.g., Lyons, 2016 WL 3564210,
at *2 ("Given Lyons's failure to file the
reporter's record and the absence of pertinent findings,
we must presume the evidence presented supports the trial
court's implicit finding that Polymathic had standing to
bring this forcible detainer action.").
Johnson's attack on Timothy Swanson's affidavit,
Swanson is listed as a counsel of record for CitiMortgage and
the affidavit asserts he is the custodian of records for
Shapiro Schwartz LLP, the firm representing CitiMortgage. It
also asserts he is personally acquainted with the facts
stated in the affidavit and that "[e]ach of the
statements contained therein are within my personal knowledge
or are made after an examination of the record of Shapiro
Schwartz as kept and maintained in the ordinary course of
business and under my overall supervision." There is no
qualifying language within the affidavit. See, e.g.,
Mekeel v. U.S.Bank Nat'l Ass'n, 355
S.W.3d 349, 355 (Tex. App.--El Paso 2011, no pet.) (upholding
verification affidavit as sufficient under rule 510.3 when
there was no qualifying language about personal knowledge);
Banks v. Bank of America, N.A., No. 03-16-00046-CV,
2017 WL 1832489, at *2 (Tex. App.--Austin May 4, 2017, no
pet.) (mem. op.). We also note that a verification signed by
the bank's attorney, even if defective, does not deprive
a county court of jurisdiction to hear a forcible detainer
action. See Norvelle v. PNC Mortgage, 472 S.W.3d
444, 446 (Tex. App.-Fort Worth 2015, no pet.) (affidavit
signed by bank's attorney and not the bank); Shutter
v. Wells Fargo Bank, N.A., 318 S.W.3d 467, 469 (Tex.
App.-Dallas 2010, pet. dism'd w.o.j.) (op. on reh'g)
(same); see also Randle v. Deutsche Bank Nat'l Trust
Co., No. 05- 14-01439-CV, 2016 WL 308711, at *6 (Tex.