Roy Mitchell v. Wells Fargo Bank ( 2008 )

IN THE
TENTH COURT OF APPEALS
No. 10-07-00296-CV
ROY MITCHELL,
Appellant
v.
WELLS FARGO BANK,
Appellee
From the County Court at Law
Ellis County, Texas
Trial Court No. 07C3984
MEMORANDUM OPINION
Mitchell appeals the county court at law’s judgment in favor of Wells Fargo Bank in
Mitchell’s appeal to the county court at law of the justice court’s judgment in Wells
Fargo’s action for forcible detainer. We affirm.
We assume without deciding that Mitchell’s issues are adequately briefed. See TEX.
R. APP. P. 38.1(h).
1. In Mitchell’s first issue, he contends that items of evidence of payments to
Wells Fargo “were presented in the County Court at Law No. 1, and were not taken as
facts.” (Br. at 9.) We assume without deciding that the county court at law implicitly
sustained Wells Fargo’s relevance objection to the evidence. See TEX. R. APP. P. 33.1(a);
TEX. R. EVID. 403; TEX. R. CIV. P. 746. The appellate record does not contain an offer of
proof of the excluded evidence. See TEX. R. APP. P. 33.1(a); TEX. R. EVID. 103(a)(2); In re
Canales, 113 S.W.3d 56, 68 (Tex. Rev. Trib. 2003, pet. denied); Wilson v. Estate of Williams,
99 S.W.3d 640, 649-50 (Tex. App.—Waco 2003, no pet.). Mitchell waives his first issue.
2. In Mitchell’s second issue, he complains that the “District Court in which
Tresspass [sic] to try Title has been filed” did not “enjoin the County Court from
attempting to adjudicate title.” (Br. at 9.) Mitchell thus does not assign error to the
county court at law. See TEX. R. APP. P. 33.1(a). We overrule Mitchell’s second issue.
3. In Mitchell’s third issue, he contends, “Appellant has the right to have his”
wrongful-foreclosure “suit heard in District Court before a Forcible Detainer can be
carried out, since the County Court has no Jurisdiction in such matters.” (Br. at 10.) We
assume without deciding that Mitchell presented his complaint in the county court at
law. See TEX. R. APP. P. 33.1(a). As authority, Mitchell cites Martinez v. Beasley for the
proposition, “Judgment in favor of the Vendor in Forcible Detainer action did not
deprive District Court of Jurisdiction to hear and determine purchaser’s suit to cancel
Trustee’s Deed to subject property.” (Br. at 10 (purporting to quote Martinez v. Beasley,
572 S.W.2d 83 (Tex. Civ. App.—Corpus Christi 1978, no writ)). We agree that “[t]he
forcible entry and detainer action is not exclusive, but cumulative, of any other remedy
that a party may have in the courts of this state.” McGlothlin v. Kliebert, 672 S.W.2d 231,
233 (Tex. 1984); accord Holcombe v. Lorino, 124 Tex. 446, 452, 79 S.W.2d 307, 309 (1935);
Aguilar v. Weber, 72 S.W.3d 729, 732 (Tex. App.—Waco 2002, no pet.); Hong Kong Dev.,
Mitchell v. Wells Fargo Bank Page 2
Inc. v. Nguyen, 229 S.W.3d 415, 437 (Tex. App.—Houston [1st Dist.] 2007, no pet.). But
“forcible detainer actions in justice court may be brought and prosecuted concurrently
with suits to try title in district court.” Aguilar at 732; accord Hong Kong Dev. at 437;
Hartzog v. Seeger Coal Co., 163 S.W. 1055, 1060 (Tex. Civ. App.—Dallas 1914, no writ).
This is so “even if the other action adjudicates matters that could result in a different
determination of possession from that rendered in the forcible detainer suit.” Hong
Kong Dev. at 437. Mitchell cites no authority to the contrary. See TEX. R. APP. P. 38.1(h).
The trial court would not have erred in overruling a motion to abate. We overrule
Mitchell’s third issue.
CONCLUSION. Having overruled Mitchell’s issues, we affirm.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
Affirmed
Opinion delivered and filed September 3, 2008
[CV06]
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