Tiquabo, Rusom v. Nassrallah, Chris and Al Nayem International Irrevocable Trust ( 2000 )

WfaiV/
Court at Appeals
Jfltftif Utatrict of Sterna at Dallas
JUDGMENT
RUSOM TIQUABO, Appellant Appeal from the County Court at Law No. 2
of Dallas County, Texas. (Tr.Ct.No. cc-99-
No. 05-99-00491-CV V. 325-b).
Opinion delivered by Justice Kinkeade,
AL NAYEM INTERNATIONAL TRUST, Justices James and FitzGerald participating.
Appellee
In accordance with this Court's opinion of this date, the judgment of the trial court is
REVERSED and the case is DISMISSED for want ofjurisdiction. It is ORDERED that
appellant Rusom Tiquabo recover his costs of this appeal from appellee Al Nayem International
Trust.
Judgment entered April 12^, 2000.
EDKINKE
JUSTICE
REVERSE, DISMISS; Opinion Filed April /2-, 2000
In The
Court of Appcala
JTtftlj ^tatrtct of Stexaa at £allaa
No. 05-99-00491-CV
RUSOM TIQUABO, Appellant
V.
AL NAYEM INTERNATIONAL BRREVOCABLE TRUST, Appellee
On Appeal from the County Court at Law No. 2
Dallas County, Texas
Trial Court Cause No. cc-99-00325-b
OPINION
Before Justices Kinkeade, James, and FitzGerald
Opinion By Justice Kinkeade
In this forcible entry and detainer case, Rusom Tiquabo appeals atrial court's judgment in
favor of Al Nayem International Irrevocable Trust (the Trust). In three issues, Tiquabo contends
the trial court erred by (1) failing to dismiss the action for lack of jurisdiction, because Tiquabo
presented evidence that agenuine issue oftitle existed; (2) failing to dismiss the case because ofthe
absence of anecessary party; and (3) finding conscious indifference under the facts of this case.
Because we conclude Tiquabo presented a genuine issue as to title that rendered the trial court
without jurisdiction, we reverse the trial court's judgment and order the case dismissed.
Factual Background
On July 14,1998, Tiquabo and Samrawit Gebreyohannes entered into acontractto purchase
property from the Trust. In January of 1999, the Trust filed acomplaint for eviction in the justice
court, alleging that Tiquabo and Gebreyohannes were tenants in the property and had failed to pay
$2,400 in rent. Only Tiquabo was served with citation. Thejustice court entered ajudgmentagainst
Tiquabo, and he appealed to the county court at law. The county court set the case for trial, and
when Tiquabo did not appear at trial, the county court entered default judgment against him.
Tiquabo filed amotion for new trial, alleging that he was never notified ofthe trial setting.
He then filed an amended motion for new trial, alleging that he owned the property under acontract
for deed, acopy ofwhich he attached to the motion. The trial court denied the motion for new trial,
and Tiquabo appealed.
Jurisdiction
In his first issue, Tiquabo contends the trial court was required to dismiss the case when title
became an issue, because acounty court does not have thejurisdiction to determine title in aforcible
entry and detainer suit. We agree.
Aforcible entry and detainer suit is initiated for the sole purpose ofdetermining who has the
right to immediate possession ofthe premises that are the subject ofthe suit. Fandey v. Lee, 880
S.W.2d 164, 168 (Tex. App.-El Paso 1994, writ denied). The only issue is the right to actual
possession; iftitle to the property is directly involved in the suit, thejustice and county courts lack
jurisdiction. Tex. R. Civ. P. 746 (in aforcible entry and detainer action, "the merits oftitle shall not
be adjudicated"); Johnson v. FellowshipBaptist Church, 627 S.W.2d 203,204 (Tex. App.-Corpus
-2-
Christi 1981, no writ).
Here, Tiquabo presented evidence that put title to the property in dispute. Tiquabo filed an
amended motion for new trial, alleging he owned the property in question under acontract for deed,
acopy ofwhich was attached to the motion. The contract showed that Tiquabo and Gebreyohannes
had entered into the contract with the Trust to purchase the property. This Court has consistently
held that apurchaser under acontract for deed is invested with equitable title from the date ofthe
contract. Williams v. Ballard, 722 S.W.2d 9, 11 (Tex. App.-Dallas 1986, no writ); Darn v.
Cartwright, 392 S.W.2d 181, 184 (Tex. Civ. App.-Dallas 1965, writ refdn.r.e.); City ofGarland
v. Wetzel, 294 S.W.2d 145, 147 (Tex. Civ. App.-Dallas 1956, writ refdn.r.e.); see also Fant v.
Howell, 547 S.W.2d261,264-65 (Tex. 1977); butsee, e.g., Gravesv. Diehl, 958 S.W.2d468,471-
72 (Tex. App.-Houston [14th Dist] 1997, no writ) (discussing the split ofauthority in Texas courts
as to whether acontractfor deed bestows equitable title or equitable rights). Once this evidence was
presented to the trial court, the trial court had no choice other than to dismiss the suit for lack of
jurisdiction. Mitchell v. Armstrong Capital Corp., 911 S.W.2d 169, 171 (Tex. App.-Houston [1st
Dist.] 1995, writ denied) (if it becomes apparent that agenuine issue regarding title exists in a
forcible detainer suit, the court does not have jurisdiction over the matter).
We hold that once the issue oftitle was raised in the county court, the court was required to
-3-
dismiss the case. We therefore reverse the trial court's judgment and order the case dismissed for
want ofjurisdiction.
ED KINKEADE
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
990491.OP
Fifth Court of Appeals
Case Attorney Address List
Page: 1
Date Printed: 04/12/2000
Case Number: 05-99-00491-CV Date Filed: 03/25/1999
Style: Tiquabo, Rusom
v.
Nassrallah, Chris and Al Nayem International Irrevocable Trust
Trial Judge: Lopez, Carlos
Trial Court Reporter: Steen, Sherry
Trial Court: COUNTY COURT AT LAW NO 2 Trial County: DALLAS
ANT Charles W. McGarry
ATT 013610650
Law Offices of Charles W. McGarry
900 Jackson Street, Suite 600
Dallas, TX 75202
Phone 214/748-0800
Fax 214/712-9254
APE Jules Slim
ATT 000793026
Attorney at Law
1725 Medina Drive
Mesquite, TX 75150
Phone 972/613-7733
Fax 972/613-7734