Lisa Hawkins v. Michael Jenkins and Wanda Jenkins ( 2019 )

ACCEPTED
05-18-01017-CV
FIFTH COURT OF APPEALS
DALLAS, TEXAS
6/19/2019 11:44 PM
LISA MATZ
CLERK
CASE NO. 05-18-01017-CV
IN THE COURT OF APPEALS FILED IN
5th COURT OF APPEALS
FOR THE FIFTH SUPREME JUDICIAL DISTRICT OFDALLAS,
TEXAS TEXAS
DALLAS, TEXAS 6/19/2019 11:44:39 PM
LISA MATZ
LISA HAWKINS, Clerk
Appellant
V.
MICHAEL JENKINS and WANDA JENKINS,
Appellees
Appeal from the County Court at Law No. 4, Dallas County, Texas
Cause No. CC-18-01539-D
APPELLEE’S BRIEF
Anthony W. Reed
Texas Bar No. 24029789
3245 W Main Street, Ste 235-346
Frisco, Texas 75034
Tel. (469) 579-5739
Fax. (214) 975-6854
E-Mail: areed@thereedlawfirm.com
Attorney for Appellees Michael Jenkins and
Wanda Jenkins
i
IDENTITY OF PARTIES AND COUNSEL
The following is a complete list of the parties, attorneys, and other persons
with an interest in the outcome of this lawsuit:
Lisa Hawkins, Appellant
Represented at trial and in this appeal by:
Walter L. Irvin
State Bar No. 10423000
5787 South Hampton Road, Ste 210, LB 122
Dallas, Texas 75232
(214) 330-1100 (p)
(214) 331-2595 (f)
wirvin@sbcglobal.net
Michael Jenkins and Wanda Jenkins, Appellees
Appellee’s Trial Counsel
Adam Stone
The Law Offices of Alex R. Herndandez, PLLC
111 Congress Ave., 4th Floor
Austin, Texas 78701
(888) 907-8984 (p)
(888) 278-9044 (f)
arh@alexhernadezcase.com
Appellee’s Appeal Counsel
Anthony W. Reed
The Reed Law Group, PLLC.
3245 W Main Street, Ste 235-346
Frisco, Texas 75034
(469) 579-5739 (p)
(214) 975-6854 (f)
areed@thereedlawfirm.com
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ii
TABLE OF CONTENTS iii
INDEX OF AUTHORITIES iv-v
STATEMENT OF THE CASE 1-2
RESTATED ISSUE(S) BEFORE THE COURT 2
STATEMENT OF FACTS 3-6
SUMMARY OF ARGUMENT 7-8
ARGUMENT 8-12
PRAYER 12-13
CERTIFICATE OF COMPLIANCE 13
CERTIFICATE OF SERVICE 13
iii
INDEX OF AUTHORITIES
Cases
Boyer v. Tauber, 834 S.W.2d 60 (Tex.1992) 11, 12
Chambers v. Pruitt, 241 S.W.3d 679, 684 9
(Tex.App.-Dallas 2007, no pet.)
Dent v. Pines, 394 S.W.2d 266, 268-269 9
(Tex.Civ.App—Houston [1St Dist.] 1965, no writ
Doggett v. Nitschke, 498 S.W.2d 339, 339 (Tex.1973) 8
Falcon v. Ensignia, 976 S.W.2d 336, 338 10
(Tex.App.—Corpus Christi 1998, no pet.)
Fandey v. Lee, 880 S.W.2d 164, 169 10
(Tex.App.—E1 Paso 1994, writ denied)
Haith v. Drake, 596 S.W.2d 194, 196 9
(Tex.Civ.App-Houston [1st Dist.] 1980, writ ref d n.r.e.)
Mitchell v. Armstrong, 911 S.W.2d 169, 271 9, 10
(Tex.App—Houston [1" Dist. 1995, writ denied.)
Yarto v. Gilliland, 287 S.W.3d 83 (Tex.App—Corpus Christi 2009) 10
STATUTES
Tex. Govt. Code Ann. §27.031(b) (Vernon Supp. 2001)
iv
1. STATEMENT OF THE CASE
The appeal in this matter proceeds in the same manner in which the matter
proceeded previously from a factual basis. In typical fashion, Appellant’s counsel
quips that Shakespeare “said it best” and writes, “What a web we weave when at
first we try to deceive”, however, the quoted line is actually a phrase from Sir
Walter Scott in a poem named Marmion, Canto VI, Stanza 17, published in 1808,
and more specifically states, “Oh, what a tangled web we weave, When first we
practise to deceive!” What truly began as an attempt by an uncle attempting to bail
out a niece and salvage a home had disintegrated into a litany of misrepresentations
and fallacies perpetrated to facilitate an unfair, irresponsible, and unequitable
attempt to obtain the fruit of Appellees labor, benefit of Appellees funds, benefit of
Appellees kind-hearted gestures, and obtain an unjust enrichment and unlawful
dispossession of Appellees from the property the subject of this suit, 504 Dogwood
Trail, Dallas, Texas 75115. This is an appeal from an Order of Dismissal granting a
dismissal of an eviction appeal in favor of the Appellees Michael and Wanda
Jenkins that was filed in Dallas County Court at Law No. 4, Dallas County, Texas
on or about August 3, 2018. The Order of Dismissal was based upon the trial court
granting Appellees Michael Jenkins and Wanda Jenkins Plea to the Jurisdiction
and Plaintiff’s eviction appeal/petition was dismissed for lack of subject matter
Appellee Brief Page 1 of 13
jurisdiction because the trial court determined there was a factual dispute
concerning whether Appellees had equitable title and Appellees put on the record
that the title issue was an open issue in another court, and the trial court determined
the possession issue could not be addressed until the title issue was addressed.
Appellant appeals the decision based upon the restated issues identified herein
below.
2. RESTATED ISSUES BEFORE THE COURT
2.1. Whether the Trial Court erred in dismissing Appellant’s claims for subject
matter jurisdiction after determining there were fact issues concerning equitable title
that needed to be addressed before the Trial Court could exert subject matter
jurisdiction over an eviction matter?
2.2 Whether the Trial Court erred in dismissing Appellants Wrongful Detain suit
more specifically:
A. Whether Appellees established fact issues to establish their equitable title remedy
1. Whether Appellees established an oral contract
2. Whether Appellees equitable title remedy is quashed by the written contract
B. Whether the Trial Court could determine possession without entertaining title
issues
Appellee Brief Page 2 of 13
3. STATEMENT OF FACTS
3.1 Lisa Hawkins owned a property located at 504 Dogwood Trail, Dallas, Texas
75115, hereinafter the “Property.” Lisa Hawkins filed for bankruptcy due to
falling behind on her first and second mortgage and was no longer living at the
Property the summer of 2015.
3.2 During the summer of 2015, Michael Jenkins approached his niece, Lisa
Hawkins, about purchasing the property located at 504 Dogwood Trail, Dallas,
Texas 75115. Lisa Hawkins obtained approval from the bankruptcy court to sell
her property. Lisa Hawkins indicated an intent, whether to obtain a more
favorable position with her second mortgage or not with Dyck Oneal, to walk
away from her property as evidenced by her email to David Arledge (Appellant’s
Exhibit to Transcript Tab 7, Page 19 Defendant’s Exhibit 1), and her testimony
concerning the second lien on the Property where she testified to the Trial Court,
“That’s the second lien. I talked to them about reducing my loan, and then they
– we had a back-and-forth. And then I asked them – I told them, well, if I – if I
don’t get this done, then I’ll walk away from the house, you don’t get anything.
So at that time they considered they would reduce what was $!4,000 to $3,000.”
(Appellant’s Transcript Tab 5, Page 54).
3.3 Lisa Hawkins verbally agreed to sell the Property to Appellees for $160k. Lisa
Appellee Brief Page 3 of 13
Hawkins testified she consistently intended to sell the Property to Appellees for
$160k, including, but not limited to her testimony, “he did not offer me what we
agreed upon at the $160,000.” (Appellant’s Transcript Tab 5, Page 62)
Furthermore, Lisa Hawkins testified to a sell price of $160k, “if he would have
signed for the 160 – that he was approved for, then I would have sold the house
to him at 160. That was our agreement.” (Appellant’s Transcript Tab 5, Page 65)
3.4 On or about August 3, 2018 based upon what Appellees testified to in the prior
hearing on or about April 27, 2018, of which Appellant did not refute, and of
which the Court based its’ ruling upon such facts and evidence of record in the
hearings and arguments made before the Trial Court in the prior hearing and the
August 3, 2018 hearing, that after the contract that was executed in the underlying
case was no longer of effect, that “Ms. Hawkins was still trying to sell the
property.” (Appellant’s Transcript Tab 6, Page 32) The Trial Court further held,
“I don’t really think it’s deniable that there was an understanding or their (sp)
position or oral contract to sell the house.” (Appellant’s Transcript Tab 6, Page
32) The Trial Court further held regarding Appellees conduct with Appellant,
“They clearly made improvements. They made payments to her on a monthly
basis, at least until September of last year when they stopped making payments
after this dispute about what the ultimate sales price was going to be. Because
Appellee Brief Page 4 of 13
that Defense Exhibit 5, October 17th about this Ms. Lisa saying she wants the
price to be 175 so she wont net what expected, equitable 160.” (Appellant’s
Transcript Tab 6, Page 62) That Appellees remained in the Property after the
financing was not approved binding the written contract and ultimate
performance by February 2016, continued to make improvements, continued to
make payments to Appellant and pursuant to the Court, “isn’t there at least a
factual dispute on whether or not they’ve sent some equitable title to the property,
is the point.” (Appellant’s Transcript Tab 6, Page 33) The Trial Court did not
resolve the equitable title dispute and stated, “Foreclosure can happen. Or even
if they litigate equitable title, they’ll have to, at best, get a percentage and then
she can – Ms. Hawkins can force the sale of the property because she’ll have the
title interest as well.” (Appellant’s Transcript Tab 6, Page 34) The Court on the
record recognized the payments as house payments and thus, no landlord-tenant
relationship existed between the parties. (Appellant’s Transcript Tab 6, Page 35)
3.5 The Trial Court granted Appellees plea to the jurisdiction because there was
enough evidence to create a fact issue concerning equitable title, and thus, the
Trial Court could not exercise jurisdiction over the possession issue.
4 The issue of whether Appellee performed its’ obligations under a contract or
not is the basis for the merit of Appellee’s breach of contract claim. Appellant
Appellee Brief Page 5 of 13
entered into a verbal contract with the Appellees, in which she sold all her
rights and interest to the property in question located at 504 Dogwood Trail,
Desoto, Texas 75115, Dallas County, Texas. The Plaintiff paid the Defendant
more than $7500.00 in cash and other consideration for all of Appellant’s rights
and interest in the Property, paid off a second lien worth $14,000.00 for $3,000
after negotiating the second lien down, and paid over $36,000.00 in mortgage
payments to Appellant. Appellees have spent more than $50,000.00 renovating
and repairing the Property. These renovations constitute permanent and
valuable improvements on the property. Appellant agreed to sign any and all
the documents to transfer the title to the Appellees once financing was secured.
However, when financing was secured with Quicken Loans in 2017 Appellees
discovered that Appellant had not been paying the mortgage payments. In fact,
Appellant was cashing the mortgage checks and using the funds for her personal
use. Quicken Loans had approved Appellees for a loan, but not on the property
in question due to Appellant not paying the mortgage and letting the property go
into pre-foreclosure status. Appellees fully performed their obligations under the
contract and thus are entitled to transfer of 100% equitable title to Appellees.
This title issue takes the possession issue outside the jurisdiction of the Trial
Court. Appellant failed and refused to transfer her ownership as promised.
Appellee Brief Page 6 of 13
4. SUMMARY OF ARGUMENT
4.1 Appellees will address the issues and attempt in all means to be brief.
Appellant is correct as it pertains to the history and well-established principles as it
pertains to a claim for equitable title. The Trial Court found that after the written
contract was extinguished, Appellees and Appellant continued to conduct
themselves in furtherance of an oral real estate purchase without the terminated
written contact, whereby Appellees continued to perform fulfilling the statutory
grounds to factually argue an equitable title dispute that was actively being pursued
in a suit to quiet title in Dallas County District Court after the expiration and/or
termination of the written contract between the parties. The continued performance
pursuant to an oral contact included Appellees making permanent improvements,
including, but not limited to HVAC system, paint, install security system, replaced
trees, plants, sod, built a fence around the house, cleaned, bleached and sanitized
the walls and house, removed a large tree and replaced rotted siding on the home
and trim around doors and windows, and financial contributions including
continued making mortgage payments after the written contract did not close, gave
Appellant a 2002 S-Type Jaguar, valued at approximately $4,000.00, paid-off
the second lien for $3,000.00. Appellant suggests the Trial Court should have
deferred to the Dallas County District Court on the title issue and seek a ruling
Appellee Brief Page 7 of 13
from the Dallas County District Court, but Appellant provides no record of having
made such a request in either dispute, the Trial Court nor the District Court
referenced in Appellant’s summary. Appellant offers a cursory “what if” argument
to boot strap her unripe case for possession instead of addressing the title issue
head-on.
5. ARGUMENT
5.1 Whether the Trial Court erred in dismissing Appellant’s claims for subject
matter jurisdiction after determining there were fact issues concerning equitable
title that needed to be addressed before the Trial Court could exert subject matter
jurisdiction over an eviction matter? The Trial Court did not exercise jurisdiction
over the equitable title issue. First and foremost, no landlord-tenant relationship
existed between the parties. Appellant has not offered any signed lease agreement
between the parties. Furthermore, even if Appellant was attempting to proceed in a
forcible detainer action against Appellees, title to property must be determined
before this forcible detainer matter can continue, and a suit "for the recovery of
land" is a suit that determines title and falls outside the purview of the County
Court. Doggett v. Nitschke, 498 S.W.2d 339, 339 (Tex.1973) Neither a justice
court nor a county court on appeal has jurisdiction to determine the issue of title to
Appellee Brief Page 8 of 13
real property in a forcible detainer suit. Tex.Civ.P.746; Mitchell v. Armstrong,
911 S.W.2d 169, 271 (Tex.App—Houston [1" Dist. 1995, writ denied.) Chambers
v. Pruitt, 241 S.W.3d 679, 684 (Tex.App.-Dallas 2007, no pet.) ("District courts
generally have exclusive jurisdiction to determine title to real property.") Appellees
are disputing title through an equitable title dispute based upon partial performance
and due to the nature of the title disputes, the title issue is significantly intertwined
with possession. Dent v. Pines, 394 S.W.2d 266, 268-269 (Tex.Civ.App—Houston
[1St Dist.] 1965, no writ. In cases involving a genuine issue of title, neither the
justice court, nor the county court on appeal has jurisdiction. Mitchell, 911 S.W.2d
at 171; Haith v. Drake, 596 S.W.2d 194, 196 (Tex.Civ.App-Houston [1st Dist.]
1980, writ ref d n.r.e.). The factual history of this dispute is complex and involves
bankruptcy, permission for Appellant to sell to Appellees, payment of a second
lien by Appellees, substantial permanent improvement to the property leading to an
increase in the value of the Property, payment of mortgage payments, approval of
two occasions for a loan that were frustrated by Appellant, and an unfettered
willingness throughout the process for Appellees to make payments, an on-going
verbal understanding that the Property will be sold to Appellees, continued
improvements, transfer title to a vehicle all while Appellees lived at the Property,
and thus the issue of possession is not simple and is substantially intertwined with
Appellee Brief Page 9 of 13
the title issue and cannot be adjudicated without first determining the title issue(s).
Falcon v. Ensignia, 976 S.W.2d 336, 338 (Tex.App.—Corpus Christi 1998, no
pet.; Mitchell, 911 S.W.2d at 171; Fandey v. Lee, 880 S.W.2d 164, 169
(Tex.App.—E1 Paso 1994, writ denied). The Trial Court simply did not have
jurisdiction due to the affirmative defense and plea to the jurisdiction filed by
Appellees, Dass, Inc. v. Smith, 206 S.W.3d 197, 200 (Tex.App.—Dallas, 2006, no
pet.) held that justice court did not have jurisdiction when one party argued that it
bought the property and the other party argued that there was a landlord-tenant
relationship. As specified herein above, the Trial Court did not exercise jurisdiction
but specified fact issues existed as it pertained to an equitable title issue and thus,
due to multiple parties arguing an ownership interest in the Property. Appellees
established a 100% equity interest in the Property. Appellant has set forth the case
law and statutory basis that the Trial Court could not proceed due to subject matter
jurisdiction. Yarto v. Gilliland, 287 S.W.3d 83 (Tex.App—Corpus Christi 2009),
the Court held that because the purchaser performed all the obligations under the
oral contract, the issue of equitable title was raised, thus removing the case from
the jurisdiction of the justice court. A Justice Court is expressly denied jurisdiction
to determine or adjudicate title to land. Tex. Govt. Code Ann. §27.031(b) (Vernon
Supp. 2001) As Appellant has argued, if the Justice Court lacked jurisdiction, the
Appellee Brief Page 10 of 13
County Court likewise lacks jurisdiction. The Trial Court did not err in dismissing
the matter for lack of subject matter jurisdiction.
5.2 Whether Appellees established fact issues to establish their equitable title
remedy as Appellees established an oral contract and was not subject to a written
signed earnest money contract. The Trial Court record shows as specified factually
herein above that Appellant continued, after expiration and termination of the written
contract between the parties for Appellees to purchase the property. Appellant
specifically stated her intent, and through her counsel’s argument that the contract
was repudiated and terminated, yet Appellant verbally continued to seek to sell the
Property to Appellees as specified herein above in her testimony. In Boyer v.
Tauber, 834 S.W.2d 60 (Tex.1992), the Texas Supreme Court set forth the elements
of the doctrine of partial performance, opining that an oral contract for the purchase
of real property is sufficiently corroborated and enforceable if the purchaser:
(1) Pays consideration.
(2) Takes possession of the property; and
(3) Makes permanent and valuable improvements on the property with the
consent of the seller.
The Trial Court record shows that Appellees continued to pay consideration after
February 2016, remained in possession of the property, and continued to make
permanent improvements to the property with the consent of Appellant. Jenkins has
Appellee Brief Page 11 of 13
satisfied every element of the partial performance doctrine, as previously set forth
herein above. Boyer v. Tauber, 834 S.W.2d 60 (Tex.1992). The parties were no
longer operating under the written agreement. The Trial Court recognized
through Appellant’s testimony her intent to sell, the house payments made, the
improvements to the Property, and had possession. Appellant grants possession
in her appeal. The agreement referenced by Appellant does not contain any lease
attached to the Agreement as no lease existed between the parties. Appellees
performance and Appellants conduct after the expiration and termination of the
Real Estate Purchase Agreement ratified Appellees equitable title.
5.3 The final point as to whether the Trial Court could make a determination
concerning possession without addressing title has been addressed in the prior
arguments, but will be replied to herein specifically by stating that due to the
intertwined nature of the transaction, and Appellees factual disputes concerning
their ownership interest through equitable principles, the title issue must be
resolved before any possession issues through forcible detainer can be addressed.
6. PRAYER
6.1 The Court should rule for the Appellees pursuant to the procedural,
administrative, common law and statutory law. The Trial Court should have, upon a
review of the appeal, deny Appellant’s requests, and affirm the ruling of the Trial
Appellee Brief Page 12 of 13
Court, and award Appellees reasonable attorney fees and cost incurred in this
appeal, and grant Appellees such other and further relief, at law, or in equity, as
Appellees may show themselves to be entitled or the Court deems proper.
Respectfully submitted,
By: /s/ Anthony W. Reed, Esq.
Anthony W. Reed, Esq.
Texas Bar No. 24029789
3245 Main Street, Ste 235-346
Frisco, Texas 75034
Tel. (469) 579-5769
Fax. (214) 975-6854
areed@thereedlawfirm.com
CERTIFICATE OF COMPLIANCE
I hereby certify that this document complies with the brief requirements of this
Court and is 2877 words long.
By: /s/ Anthony W. Reed
Anthony W. Reed, Esq.
CERTIFICATE OF SERVICE
I hereby certify that on the 19th day of June 2019, a true and correct copy of the
foregoing Appellee Brief was duly served to Appellant through his counsel of
record, Walter Lewis Irvin, 5787 S. Hampton, Rd., Ste 210, One West Hill, LB 122,
Dallas, Texas 75232-6333, (214) 330-1100, wirvin@sbcglobal.net.
By: /s/ Anthony W. Reed
Anthony W. Reed, Esq.
Appellee Brief Page 13 of 13