Charles Tuncle v. Roosevelt Jackson--Appeal from County Court at Law No 3 of Smith County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-05-00021-CV

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CHARLES TUNCLE, Appellant

V.

ROOSEVELT JACKSON, Appellee

On Appeal from the County Court at Law No. III

Smith County, Texas

Trial Court No. 50,020-B

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

The County Court at Law held it lacked subject-matter jurisdiction over Charles Tuncle's suit against Roosevelt Jackson for forcible entry and detainer. The trial court then dismissed the case for want of jurisdiction. Tuncle appeals and raises two points of error. // For the reasons set forth below, we affirm the trial court's judgment.

I. Factual and Procedural Background

On August 24, 2004, Tuncle sued to evict Jackson from land located in Smith County, Texas. See Tex. Prop. Code Ann. 24.001 .008 (Vernon 2000). The suit was filed in the Justice Court for Precinct 5 of that county. See Tex. R. Civ. P. 738 755; Tex. Civ. Prac. & Rem. Code Ann. 15.011 (Vernon 2002). The justice court subsequently entered a judgment of dismissal in favor of Jackson on September 7. Six days later, Tuncle appealed to the County Court at Law No. III of Smith County.

On appeal, the county clerk mailed via certified mail notices of the appeal to both Tuncle and Jackson. Both certified mail return receipts were returned to the clerk. Tuncle's notice was sent to, and received by, Tuncle's attorney of record. Jackson's notice, however, was sent to him personally, even though the record showed Jackson was represented by counsel at the proceedings in the justice court. On October 25, the county court at law found Jackson had failed to file a written answer to Tuncle's petition after having been "duly and properly advised by the Smith County Clerk of the Notice of Appeal and the requirement to file written answer pursuant to Rule 751 of the Texas Rules of Civil Procedure . . . ." The court then awarded a default judgment in Tuncle's favor.

On November 1, 2004, Jackson's attorney (the same attorney who had represented Jackson in the justice court) filed a motion to set aside the default judgment. The motion alleged Jackson had not, in fact, received proper notice because the clerk had not sent notice of the appeal to Jackson's counsel of record. The trial court heard argument on Jackson's motion November 10, 2004, and thereafter set aside the default judgment.

Jackson then moved to dismiss the suit for want of subject-matter jurisdiction. Jackson argued that justice courts have jurisdiction over forcible entry and detainer suits until a genuine fact issue arises regarding title. According to Jackson's argument, when an issue regarding title arises, the justice court loses jurisdiction and an action for trespass to try title must be submitted to a Texas district court. See also Tex. R. Civ. P. 746.

Jackson submitted evidence consisting of two certified documents from the Smith County Clerk's office: (1) a warranty deed transferring title of the property in question from Patricia Johnson to Jackson on September 8, 1982; and (2) a warranty deed, dated December 8, 1988, from Hazel Johnson to Tuncle transferring title of a smaller portion of the same property in question. The Jackson deed concerned property described as:

Undivided interest in 160 acres out of the W.P. Stapp Survey, Smith County, Texas, Abstract No. 944, and being more particularly described as follows, to wit: BEGINNING at the North East corner of said Survey; THENCE West 367 Vrs; THENCE South about 1242 vrs. to corner of said tract; THENCE South 79 W. 761 vrs. to West side of said Headright; THENCE South about 300 vrs. to corner of said tract; THENCE East about 848 vrs. to E. line of said Survey; THENCE North to inner N.W. corner of said East line; THENCE East 280 vrs. to East outer line of said headright; THENCE about 1400 vrs. to the place of beginning.

The property in Tuncle's deed was described as:

All that certain tract or parcel of land situated in the William P. Stapp Survey, Abstract 944, Smith County, Texas, being out of and a part of that certain 160 acre tract described in a Warranty Deed from Ella Neal et al to Robert Larkin, dated January 22, 1938, and recorded in Volume 372, Page 240, of the Deed Records of Smith County, Texas, and being more particularly described by metes and bounds as follows:

BEGINNING at a " iron rod found for the northeast corner of said William P. Stapp Survey, same being the northeast corner of said 160 acre tract;

THENCE, SOUTH, with the east line of said William P. Stapp Survey and said 160 acre tract, a distance of 1915.24 feet to a " iron rod set for the southeast corner of the herein described tract;

THENCE, South 89 26'53" West, a distance of 381.29 feet to a " iron rod set for the southwest corner of the herein described tract;

THENCE, North 00 05'52" West, a distance of 1915.21 feet to a " iron rod set for corner in the north line of said William P. Stapp Survey, same being the north line of said 160 acre tract; said " iron rod being in County Road 487, from which a " iron rod set for reference bears South 00 05'52" East, 30.00 feet;

THENCE, North 89 26'53" East, with the north line of said Stapp Survey and said 160 acre tract, a distance of 384.56 feet to the POINT OF BEGINNING and containing 16.836 acres of land.

Tuncle's deed and Jackson's deed appear to convey title to the same parcel of land (although Jackson's title clearly intended to convey a substantially larger land mass). Thus, the evidence before the county court at law fairly raised a question of title as to the property at issue in the underlying detainer suit. The county court at law (because its appellate jurisdiction is limited to the justice court's original jurisdiction) then determined it lacked subject-matter jurisdiction to proceed further and, on December 8, 2004, granted Jackson's motion to dismiss.

II. The Trial Court Did Not Err In Granting Jackson's Motion for New Trial

In his first point of error, Tuncle contends the trial court erred by granting Jackson's motion for new trial. A trial court has broad discretion to grant or deny a motion for new trial. Champion Int'l Corp. v. Twelfth Court of Appeals, 762 S.W.2d 898, 899 (Tex. 1988) (orig. proceeding). We will not reverse a trial court's ruling on a motion for new trial absent a clear showing that the trial court abused its discretion. Pessel v. Jenkins, 125 S.W.3d 807, 810 (Tex. App. Texarkana 2004, no pet.).

The Texas Rules of Civil Procedure expressly require "[a]ll communications from the court or other counsel with respect to a suit shall be sent to the attorney in charge." Tex. R. Civ. P. 8. Moreover, the fact that a party has been denied due process through a lack of notice satisfies the first Craddock // factor of showing the failure to answer before judgment was not intentional or the result of indifference and, in such event, the party need not satisfy the remaining Craddock requirements. Pessel, 125 S.W.3d at 810.

Neither Tuncle nor the county clerk provided Jackson's counsel with proper notice of the appeal. The evidence before the trial court supports the trial court's conclusion that the failure to notify Jackson's counsel of the appeal directly caused Jackson's failure to answer the appeal. We cannot say the trial court abused its discretion by granting Jackson's motion for new trial. Cf. Lopez v. Lopez, 757 S.W.2d 721, 722 23 (Tex. 1988); Leon's Fine Foods of Tex., Inc. v. Merit Inv. Partners, L.P., 160 S.W.3d 148, 154 (Tex. App. Eastland 2005, no pet.). We overrule Tuncle's first point of error.

III. The Trial Court Did Not Err by Dismissing Tuncle's Suit

In his second point of error, Tuncle contends the trial court erred by dismissing his suit for forcible entry and detainer. A forcible entry and detainer action is not an exclusive remedy; it is cumulative. Holcombe v. Lorino, 124 Tex. 446, 79 S.W.2d 307, 309 (1935). Suits for forcible entry and detainer may be prosecuted concurrently with a trespass to try title claim filed with the district court. Id.; Hartzog v. Seeger Coal Co., 163 S.W. 1055, 1059 (Tex. Civ. App. Dallas 1914, no writ). However, when the question of title to the property "is so integrally linked to the issue of possession that the right to possession cannot be determined without first determining title, then the justice courts and, on appeal, the county courts, lack jurisdiction over the matter." Gibson v. Dynegy Midstream Servs., L.P., 138 S.W.3d 518, 522 (Tex. App. Fort Worth 2004, no pet.) (citing Dormady v. Dinero Land & Cattle Co., 61 S.W.3d 555, 557 58 (Tex. App. San Antonio 2001, pet. dism'd w.o.j.); Falcon v. Ensignia, 976 S.W.2d 336, 338 (Tex. App. Corpus Christi 1998, no pet.); Mitchell v. Armstrong Capital Corp., 911 S.W.2d 169, 171 (Tex. App. Houston [1st Dist.] 1995, writ denied)).

The county court at law dismissed Tuncle's appeal after the court had been presented with two different deeds, each suggesting a different party to this suit owned the property in question. Thus, the facts of this case are different from the typical landlord-tenant dispute over who should possess the rental property; the parties are actually at odds over who owns the property. We therefore conclude that the questions of title and possession are given the facts of this case so integrally linked that the justice court (and also the county court at law) could not have decided Tuncle's claims for forcible entry and detainer without first deciding Jackson's title claim. Accordingly, the justice court and county court at law properly dismissed Tuncle's suit for want of jurisdiction. Cf. Gibson, 138 S.W.3d at 522 (citing Dormady, 61 S.W.3d at 557 58; Falcon, 976 S.W.2d at 338; Mitchell, 911 S.W.2d at 171)). We overrule Tuncle's second point of error.

IV. Conclusion

We affirm the trial court's judgment.

Jack Carter

Justice

Date Submitted: August 8, 2005

Date Decided: August 9, 2005