Larry Burton and Evangeline Burton-Dawson v. Jesse Smith and Margie C. Smith ( 2009 )

Vacated and Dismissed and Memorandum Opinion filed January 15, 2009

Vacated and Dismissed and Memorandum Opinion filed January 15, 2009.

In The

Fourteenth Court of Appeals

____________

NO. 14-08-00796-CV

____________

LARRY BURTON and EVANGELINE BURTON DAWSON, Appellants

V.

JESSE SMITH and MARGIE SMITH, Appellees

On Appeal from the County Civil Court at Law No. 2

Harris County, Texas

Trial Court Cause No. 908745

M E M O R A N D U M   O P I N I O N

This is an appeal from a summary judgment signed May 30, 2008.  Appellants= notice of appeal was not filed until August 20, 2008.  Appellees filed a motion to dismiss the appeal, asserting that the notice of appeal was untimely.

Appellants filed a motion for new trial on August 1, 2008, more than 30 days after judgment.  At the same time, appellants also filed a motion under Texas Rule of Civil Procedure 306a(4) to extend time to perfect their appeal, claiming lack of notice of the signing of the judgment.  Appellants assert they did not learn of the judgment until July 7, 2008.  The record confirms that the notice was mailed to the property address rather than appellants= post office box.  Although the motion is verified as required and contained a request for a hearing, appellants assert that the trial court refused to grant a hearing.

Appellants= sworn motion established a prima facie case that they did not receive notice of the judgment until July 7, 2008, thereby extending the trial court=s plenary power.  See In re The Lynd Co., 195 S.W.3d 682, 685 (Tex. 2006).  When the trial court fails to find a specific date that notice was received, the finding may be implied.  See id.; Powell v. McCauley, 126 S.W.3d 158, 162 (Tex. App.CHouston [1st Dist.] 2003, no pet.) (appellate court may imply finding of date of notice if supported by record). Based on this record, a finding that notice was not received until July 7, 2008, is implied.  Therefore, appellants= motion for new trial and notice of appeal are timely.  We deny appellees= motion to dismiss the appeal for want of jurisdiction.

There is, however, another jurisdictional defect in this case.  Suit was originally filed as a forcible detainer action and appealed to the county court.  In the county court, appellees filed a third party petition for trespass to try title and alleged other causes of action.  In its judgment, the trial court determined appellees have superior title to the property at issue and awarded attorney=s fees.  By statute, a justice court has jurisdiction over a forcible entry and detainer action.  Tex. Prop .Code ' 24.004.  A justice court is expressly deprived of jurisdiction to determine or adjudicate title to land.  Tex. Gov't Code ' 27.031(b).  The justice court judgment may be appealed to the county court.  Tex. R. Civ. P. 749.  The appellate jurisdiction of the county court is confined to the jurisdictional limits of the justice court.  Salaymeh v. Plaza Centro, LLC, 264 S.W.3d 431, 435 (Tex. App.CHouston [14 Dist.] 2008, no pet.). Therefore, neither the justice court, nor a county court on appeal, can resolve questions of title beyond the immediate right to possession.  See Bacon v. Jordan, 763 S.W.2d 395, 396 (Tex. 1988).

A forcible detainer action is cumulative, not exclusive, of other remedies a party may have in the courts of this State, including a suit to try title.  Rice v. Pinney, 51 S.W.3d 705, 709 (Tex. App.CDallas 2001, no pet.).  If the resolution of a title dispute is necessarily intertwined with the issue of possession, so that the right of possession depends upon it, possession may not be adjudicated without first determining title.  Id.  In such a case, neither the justice court nor the county court, on appeal, has jurisdiction.  Id. at 708-09 (holding that notwithstanding its grant of general jurisdiction over title to land, a statutory county court has no jurisdiction to adjudicate title to real estate in a de novo trial following an appeal of a forcible detainer suit from justice court); see also Mitchell v. Armstrong Capital Corp., 911 S.W.2d 169, 171 (Tex. App.CHouston [1st Dist.] 1995, writ denied) (holding where an issue regarding title exists in a forcible detainer suit, neither justice court nor county court has jurisdiction).  Harris County Courts at Law have general jurisdiction to determine title to real property.  Tex. Gov't Code ' 25.1032.  However, their appellate jurisdiction is limited to that of the lower court.  See Mitchell, 911 S.W.2d at 171.  In this case, the determination of title to the subject property is the dispositive issue.  Therefore, both the justice and county courts lacked jurisdiction to resolve the title dispute.

The trial court=s subject matter jurisdiction is reviewed de novo.  Texas Natural Res. Conservation Comm=n v. IT‑Davy, 74 S.W.3d 849, 855 (Tex. 2002).  If we determine the trial court lacks subject‑matter jurisdiction, we must vacate the trial court=s judgment and dismiss the case.  See City of Garland v. Louton, 691 S.W.2d 603, 605 (Tex. 1985).

The county court lacked subject matter jurisdiction.  Accordingly, we vacate the judgment below, order any writ of possession dissolved, and dismiss the cause.

PER CURIAM

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.