David Brodsky and Julieta Brodsky v. Gervacio R. Vega--Appeal from County Court of Wilson County

MEMORANDUM OPINION
No. 04- 05-00799-CV
David BRODSKY and Julieta Brodsky,

Appellants
v.
Gervacio R. VEGA,

Appellee
From the County Court, Wilson County, Texas

Trial Court No. 2911

Honorable Marvin Quinney , Judge Presiding

Opinion by: Sandee Bryan Marion , Justice

Sitting: Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Rebecca Simmons, Justice

Delivered and Filed: September 13, 2006

AFFIRMED

This is an appeal from an Order for Possession of Property and Damages in favor of appellee, following a hearing on appellee's petition for forcible entry and detainer. In a single issue on appeal, appellants assert the county court lacked jurisdiction over the underlying action. We affirm.

BACKGROUND

In August 2004, appellants and appellee executed a contract under which appellants agreed to buy from appellee approximately twenty-two acres of land. In September 2004, before closing, appellee allowed appellants to move onto the property. The contract provided that "[a]ny possession by Buyer prior to closing or by Seller after closing which is not authorized by a written lease will establish a tenancy at sufferance relationship between the parties." On appeal, neither party contends a written lease exists.

The sale never closed, and in October 2004, appellee gave appellants notice to quit. Appellants sued appellee in district court for specific performance of the contract. Appellee sued appellants in a justice of the peace court for possession of the property. Judgment was rendered in appellee's favor in the forcible entry and detainer action, and following an appeal to county court, judgment was again rendered in favor of appellee for possession of the property.

On appeal, appellants assert the issue of title is intertwined with the issue of possession because their right of possession depends upon appellee's compliance with the earnest money contract. Therefore, because a genuine issue of title exists, appellants contend neither the justice court nor the county court had jurisdiction. Appellee counters that a tenancy at sufferance relationship exists; therefore, the jurisdiction of the justice court and county court was properly invoked.

DISCUSSION

A justice court, and a county court on appeal by trial de novo, has jurisdiction over a forcible entry and detainer action. Tex. Prop. Code Ann. 24.004 (Vernon 2000); Mitchell v. Armstrong Capital Corp., 911 S.W.2d 169, 171 (Tex. App.--Houston [1st Dist.] 1995, writ denied). The only issue in a forcible entry and detainer action is the right to actual possession of the property. Tex. R. Civ. P. 746. Thus, to prevail in such a proceeding, the plaintiff is not required to prove title, but must present sufficient evidence of ownership to demonstrate a superior right to immediate possession. Dormady v. Dinero Land & Cattle Co., 61 S.W.3d 555, 557 (Tex. App.--San Antonio 2001, pet. dism'd w.o.j.) (op. on reh'g).

Justice courts may adjudicate possession even though issues related to the title of real property are tangentially or collaterally related to possession. Falcon v. Ensignia, 976 S.W.2d 336, 338 (Tex. App.-- Corpus Christi 1998, no pet.). However, if the issue of title is so intertwined with the issue of possession, then possession may not be adjudicated without first determining title.Dormady, 61 S.W.3d at 557. Neither a justice court, nor a county court on appeal, has jurisdiction to adjudicate title to land. Tex. Gov't Code Ann. 27.031(b)(4) (Vernon 2004); Dormady, 61 S.W.3d at 557. Under these circumstances, only district courts have jurisdiction to adjudicate title to real property. Falcon, 976 S.W.2d at 338.

Here, appellants agreed that their possession of the property prior to closing would establish a tenancy at sufferance relationship between the parties, absent authorization under a written lease. Thus the issue of possession did not depend solely upon the issue of title to the property. The tenancy at sufferance relationship provided an independent basis for determining the issue of immediate possession without resolving the issue of title to the property. Dormady, 61 S.W.3d at 559 (deed of trust provided that if property was sold and grantor failed to immediately surrender property, grantor became a tenant at sufferance); Rice v. Pinney, 51 S.W.3d 705, 712 (Tex. App.--Dallas 2001, no pet.) (same).

CONCLUSION

Because it was not necessary for the justice court and county court to determine the issue of title to the property, these courts had jurisdiction over appellee's forcible entry and detainer action. Accordingly, we affirm the trial court's order for possession of the property.

Sandee Bryan Marion, Justice