cameron-d-henderson-individually-and-as-president-of-foremost-holdings ( 2001 )

Cameron D. Henderson, Individually, and as President of Foremost Holdings, inc. v. FDIC, Receiver for University National Bank

    IN THE

TENTH COURT OF APPEALS

No. 10-99-013-CV

     CAMERON D. HENDERSON,

     INDIVIDUALLY AND AS PRESIDENT

     OF FOREMOST HOLDINGS, INC.,

                                                                         Appellant

     v.

     FEDERAL DEPOSIT INSURANCE

     CORPORATION, RECEIVER FOR

     UNIVERSITY NATIONAL BANK,

                                                                         Appellee

From the County Court at Law No. 1

Brazos County, Texas

Trial Court # 4613-B

OPINION ON REHEARING

      This is an appeal of an eviction proceeding. Cameron Henderson was evicted from the property by the justice of the peace. He appealed the eviction to the county court. Eviction proceedings on appeal to the county court are tried de novo. Henderson was also evicted by the county court. Henderson appealed. Because the FDIC did not introduce any evidence at the de novo trial, we reversed the judgment of eviction and remanded the cause for proceedings consistent with the opinion.

      In a motion for rehearing, Henderson asserts that we should have addressed his issue on whether the trial court had jurisdiction to decide the case. Henderson’s contention is that the county court does not have jurisdiction of a suit in which title to property is a necessary issue. We agree. Additionally, Henderson contends that title to the tract must necessarily be decided in this matter. We disagree.

      Title to this property has already been litigated in federal court. The trespass to try title action in federal court sought a determination of title and gave a proper legal description of the property. But the federal court judgment did not contain a complete metes and bounds description of the tract. However, from reading the judgment, and its reference to the volume and page records in Brazos county of a deed that was fraudulently filed by Foremost Holdings which does contain a complete description of the property, we believe the legal description of the property can be adequately determined.

      Further, in an eviction proceeding the question is not whether title can be established. The question in an eviction proceeding is right to possession Haginas v. Malbis Memorial Foundation, 354 S.W.2d 368, 371 (Tex. 1962). Based on the limited record before us, we do not believe that Henderson’s or FDIC’s title is at issue in this case. Even as construed by Henderson, the federal court judgment grants title and possession of part of an identified tract to the FDIC. However, Henderson contends that the description of the particular tract at issue is defective because it is only referenced as part of a larger tract and that the precise legal description would have to be established in the eviction proceeding. There has been no suggestion that Henderson is entitled to possession of any portion of the larger tract specifically described in the federal court judgment. On retrial, the FDIC may show by any means available what property it claims and the basis of its claim of a right to immediate possession. We have found no authority for the proposition that an adequate legal description is necessary to sustain an order of eviction. Many, if not most, eviction proceedings are made on nothing more than a street address. Based upon the record before us, the county court has jurisdiction to determine the issue as discussed herein.

      Henderson’s motion for rehearing is denied.

                                                                               TOM GRAY

                                                                               Justice

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Rehearing denied

Opinion delivered and filed March 21, 2001

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