On
Appeal from the County Court at Law No. 4 Dallas County,
Texas Trial Court Cause No. CC-18-00955-D
Before
Justices Pedersen, III, Reichek, and Carlyle
MEMORANDUM OPINION
AMANDA
L. REICHEK JUSTICE.
Michael
Cary Snowden and Brenda Ascencio appeal the county
court's judgment awarding possession of certain
residential property to appellee Brandon Quach. Appellants
challenge the trial court's ruling in four issues, all of
which are based on an alleged defect in the substitute
trustee's deed. For reasons set out below, we dismiss the
appeal.[1]
Appellee
filed a pro se petition to evict appellants in justice court,
alleging he was the new owner of the property and had given
notice to vacate. The JP court awarded possession of the
property to appellee. Appellants timely appealed to the
county court at law. At the trial, both sides were
represented by counsel. Appellee testified he purchased the
property at a foreclosure sale and then provided written
notice to appellants to vacate he property. When appellants
failed to voluntarily vacate the property, he filed a
forcible detainer complaint in the JP court. Admitted as
evidence were (1) the certified copy of the substitute
trustee's deed, (2) the deed of trust, and (3) the notice
to vacate. After hearing the evidence, the county court
awarded possession of the property to appellee. Appellants
timely appealed.
During
the pendency of the appeal, appellee filed a motion to
dismiss for want of jurisdiction, asserting appellants lacked
standing to prosecute the appeal and the appeal has been
rendered moot. In the motion, appellee asserted that (1)
before he purchased the property, appellants conveyed all
their rights and interest in the property by General Warranty
Deed to Dolo Investment Group, LLC, a nonparty to this appeal
and (2) appellants voluntarily vacated the property several
months earlier and the property remains vacant. Appellee
noted that appellants brought a separate title suit against
appellee and others for, among other things, wrongful
foreclosure disputing appellee's ownership in the
property, and the trial court granted appellee's plea to
the jurisdiction and dismissed all of appellants' claims
against appellee.
The
motion was supported by evidence, including appellee's
affidavit. In his affidavit, appellee asserted that he
learned during the underlying proceedings that appellants had
executed a general warranty deed transferring all rights and
interests in the property at issue to Dolo. When appellee
visited the property, neighbors informed him that appellants
had moved out. On multiple occasions when appellee visited
the property, the house appeared vacant and remained so until
the making of the affidavit. A sign on the property said the
house was available for rent and additional signs indicated
the property was under Dolo's management.
Attached
to appellee's affidavit were (1) an email exchange
between appellee and Dolo; (2) photographs of the house
showing a "For Rent by Owner" sign in the front
yard and a warning on the front door stating the house was
under the management of Dolo; (3) photographs of the interior
of the home in July 2018 and January 2019 that show it
appears to be vacant; (4) the General Warranty Deed, dated
November 22, 2017 and recorded on December 12, 2017, from
appellants conveying the property to Dolo; (5) a Durable
Power of Attorney, dated November 22, 2107 and recorded
December 12, 2017, by which appellants appointed Dolo; (6)
appellants' original petition against appellee and the
foreclosing lender in Cause No. CC-18-03014-D, alleging among
other things, wrongful foreclosure and wrongful eviction; and
(7) the trial court's July 18, 2018 order granting
appellant's plea to the jurisdiction and dismissing
appellants' claims against appellee in Cause No.
CC-18-03015-D.
Appellants
filed a response to the motion to dismiss but did not support
their response with any evidence. In their response, they
asserted it was not their intent that the "superficial
conveyance [of the property to Dolo] be an irreversible
transfer" of the property. Rather, they contend the deed
and durable power of attorney indicate that the documents
were a mere attempt to "document dealings in such a
way" as to restructure financing on the property, repair
and remodel the property, and "enhance its
usability" for them to move back in after repairs were
made. Further, they asserted they moved out to
"facilitate repairs and remodeling" but were unable
to move back in because the City of Seagoville would not turn
on the water; however, appellants did not address the
evidence showing that Dolo was attempting to lease the
premises. Finally, appellants assert that appellee knew of
their intent to fight for their property.
It is
well settled that issues of title are not adjudicated in a
forcible detainer suit and the only issue to be decided is
the right to immediate possession of the property.
Marshall v. Housing Auth. of the City of San
Antonio, 198 S.W.3d 782, 785 (Tex. 2006); Rice v.
Pinney, 51 S.W.3d 705, 709 (Tex. App.-Dallas 2001, no
pet.). If a defendant in a forcible detainer action is no
longer in possession of the premises, then an appeal from the
forcible detainer judgment is moot unless the defendant
asserts "a potentially meritorious claim of right to
current, actual possession of the [premises]."
Marshall, 198 S.W.3d at 787.
Here,
the record shows (1) appellants conveyed the property to
Dolo, irrespective of their unsupported assertion that the
conveyance was "superficial," (2) appellants have
not occupied the property in months, (3) Dolo was seeking to
lease the property to another party, and (4) appellants'
suit against appellee has been dismissed for lack of
jurisdiction. Moreover, we note the substance of
appellants' arguments in their brief is that the
underlying substitute trustee's deed and the foreclosure,
through which appellee obtained title to the property, were
wrongful and invalid. But these challenges, even if
meritorious, cannot be resolved in a forcible-detainer action
and cannot form the basis of a "potentially meritorious
claim of right to current, actual possession." See
Schlichting v. Lehman Bros. Bank FSB, 346 S.W.3d 196,
199 (Tex. App.-Dallas 2011, pet. dism'd) ("Any
defects in the foreclosure process or with the
purchaser's title to the property may not be considered
in a forcible detainer action."); Wilhelm v. Federal
Nat'l Mortg. Ass'n, 349 S.W.3d 766, 768-69 (Tex.
App.-Houston [14th Dist. 2011, no pet.) (concluding that
pending suit for wrongful foreclosure did not provide
"potential basis for claim" that appellant was
"entitled to current, actual possession");
Resendez v. FV REO I, LLC, No. 03-13-00201-CV, 2014
WL 411720, at *2 (Tex. App.-Austin Jan. 31, 2014, no pet.)
(mem. op.) (concluding that claim of wrongful foreclosure
could not be resolved in forcible-detainer action and could
not provide basis for "potentially meritorious claim of
right to current, actual possession" because claim was
independent of issue of right to immediate possession).
We
conclude appellants have not shown a "potentially
meritorious claim of right to current, actual
possession" of the premises. Because appellants are no
longer in possession of the property and have not asserted a
potentially meritorious claim of right to current, actual
possession, their appeal is moot.
We
grant appellee's motion and ...