Brigetta D'Olivio v. Hilary Thompson Hutson

Affirmed and Opinion Filed July 28, 2022.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-01118-CV
BRIGETTA D'OLIVIO, Appellant
V.
HILARY THOMPSON HUTSON, Appellee
On Appeal from the County Court at Law No. 2
Collin County, Texas
Trial Court Cause No. 002-02704-2020
MEMORANDUM OPINION
Before Justices Partida-Kipness, Reichek, and Goldstein
Opinion by Justice Partida-Kipness
In this forcible entry and detainer case, pro se appellant Brigetta D’Olivio
appeals the county court at law’s judgment awarding possession of property to
appellee Hilary Thompson Hutson. In five issues, D’Olivio seeks reversal of the
judgment. Finding no error, we affirm the judgment.
BACKGROUND
In 2019, Hutson sued D’Olivio in district court for trespass to try title to a
home in Plano, which forms the basis for this eviction suit. D’Olivio had asserted
ownership of the home through a purported marriage to Richard W. Thompson, Jr.,
Hutson’s elderly father, and a will Thompson allegedly executed two weeks later,
the day before he died, giving her all his property. On August 11, 2020, the district
court rendered a final summary judgment declaring Hutson had superior title to the
home because the house passed automatically to Hutson through a joint tenancy with
right of survivorship. D’Olivio later appealed to this court, and we affirmed the
judgment. See D’Olivio v. Hutson, No. 05-20-00969-CV, 2022 WL 2800836, at *6
(Tex. App.—Dallas July 18, 2022, no pet. h.) (mem. op.). On August 12, 2020,
Hutson sent D’Olivio notice to vacate the home within three days. It is undisputed
that D’Olivio did not vacate.
On August 17, 2020, Hutson filed suit in justice court to evict D’Olivio from
the home. As evidence in support, Hutson offered the presuit notice to vacate
previously sent to D’Olivio, an affidavit confirming D’Olivio’s lack of military
status, and a deed showing the property had been transferred to Hutson and
Thompson as joint tenants with a right of survivorship. Hutson also offered a copy
of the August 11, 2020 district court judgment stating she had superior title to the
home. After hearing the evidence, the justice court rendered a judgment of
possession in Hutson’s favor on November 11, 2020. D’Olivio appealed to the
county court for a trial de novo.
During the December 2020 trial, Hutson did not introduce any new evidence
to support her forcible entry and detainer claim. Instead, she relied on the evidence
previously introduced in the justice court, along with the August 11, 2020 district
court judgment that resolved title in her favor. Hutson asserted these documents
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made a prima facie case for forcible entry and detainer. The county court agreed and
rendered a judgment of possession for Hutson. D’Olivio appeals.
STANDARD OF REVIEW
In an appeal from a bench trial where neither party has requested findings of
fact and conclusions of law, the trial court’s implied findings are reviewable for legal
and factual sufficiency of the evidence by the same standards as a jury verdict. Great
Am. Lloyds Ins. Co. v. Vines-Herrin Custom Homes, L.L.C., 596 S.W.3d 370, 374
(Tex. App.—Dallas 2020, pet. denied). Evidence is legally insufficient to support a
jury finding when (1) the record bears no evidence of a vital fact, (2) the court is
barred by rules of law or of evidence from giving weight to the only evidence offered
to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a
mere scintilla, or (4) the evidence conclusively establishes the opposite of a vital
fact. Shields LP v. Bradberry, 526 S.W.3d 471, 480 (Tex. 2017). When determining
whether legally sufficient evidence supports a finding, we consider evidence
favorable to the finding if the factfinder could reasonably do so and disregard
evidence contrary to the finding unless a reasonable factfinder could not. Id. “The
evidence is legally sufficient if it would enable reasonable and fair-minded people
to reach the finding under review.” Guillory v. Dietrich, 598 S.W.3d 284, 293 (Tex.
App.—Dallas 2020, pet. denied).
In addition to her sufficiency challenge, D’Olivio also raises jurisdictional
challenges. Whether a court has subject-matter jurisdiction is a question of law
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subject to de novo review. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d
217, 226 (Tex. 2004). “Exclusive jurisdiction is a question of law we review de
novo.” Emps. Ret. Sys. of Tex. v. Duenez, 288 S.W.3d 905, 909 (Tex. 2009).
ANALYSIS
D’Olivio brings five issues on appeal. Those issues center on D’Olivio’s
contentions the county court either lacked jurisdiction to determine possession rights
or failed to conduct a trial de novo as required by statute. Despite their common
themes, however, D’Olivio’s arguments are distinct for each issue. We will address
each in turn.
D’Olivio’s first two issues address her belief she did not receive a trial de
novo. First, D’Olivio argues the county court did not conduct a trial de novo as
required because it decided the case based on the evidence that was before the justice
court rather than receiving new evidence. Second, D’Olivio maintains the evidence
was insufficient to support the judgment of possession.
Cases first heard in justice courts may be appealed to a statutory county court
for a trial de novo. In re A.L.M.-F., 593 S.W.3d 271, 279 (Tex. 2019). The county
court’s jurisdiction extends as far as the justice court’s jurisdiction. In re Catapult
Realty Capital, L.L.C., Nos. 05-19-00109-CV, 05-19-01056-CV, 2020 WL 831611,
at *7 (Tex. App.—Dallas Feb. 20, 2020, no pet.) (mem. op.) (combined appeal &
orig. proceeding). When an appeal has been perfected in a forcible entry and detainer
suit, the judge must immediately send the county court clerk a certified copy of all
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docket entries, a certified copy of the bill of costs, and the original papers in the case.
TEX. R. CIV. P. 510.10(a). In this appeal, the county court enjoyed the same
jurisdiction as the justice court, and the evidence from the justice court was brought
before the county court and can be found in the record on appeal. Moreover, the
county court provided D’Olivio a full and complete de novo hearing during which
the court permitted D’Olivio to make lengthy arguments and make her case.
D’Olivio declined to introduce evidence and did not challenge the documents
already before the court. We conclude the county court was within its rights to
redetermine “all issues on which the judgment was founded” based on the evidence
that appeared before it through a transfer of records from the justice court. See
A.L.M.-F., 593 S.W.3d at 278.
Further, the evidence was sufficient to support a judgment of possession.
A forcible detainer action is a special proceeding created to provide a speedy,
simple, and inexpensive means for resolving the question of right to immediate
possession of real property. In re Am. Homes for Rent Props. Eight, LLC, 498
S.W.3d 153, 156 (Tex. App.—Dallas 2016, orig. proceeding) (mem. op. on reh’g).
Judgment of possession in a forcible detainer action is not intended to be a final
determination of whether the eviction is wrongful. Marshall v. Hous. Auth. of City
of San Antonio, 198 S.W.3d 782, 787 (Tex. 2006). Rather, “[t]he sole focus of a
forcible detainer action is the right to immediate possession of real property.”
Shields, 526 S.W.3d at 478. To establish a superior right to immediate possession,
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Hutson had the burden to prove (1) she owned the property; (2) D’Olivio was a
tenant at will, tenant at sufferance, or a tenant or subtenant willfully holding over
after the termination of the tenant’s right of possession; (3) Hutson gave proper
notice to D’Olivio to vacate the premises; and (4) D’Olivio refused to vacate.1 Id.
Hutson’s evidence demonstrated each of these elements. She established her
ownership and D’Olivio’s status (1) through a deed that created a joint tenancy with
right of survivorship and automatically endowed Hutson with ownership of the
house upon Thompson’s death, see Wagenschein v. Ehlinger, 581 S.W.3d 851, 858
(Tex. App.—Corpus Christi–Edinburg 2019, pet. denied), and (2) through the final
judgment based on that deed, in which the district court determined Hutson had
superior title to the property. See TEX. PROP. CODE § 22.003 (“A final judgment that
establishes title or right to possession in an action to recover real property is
conclusive against the party from whom the property is recovered . . . .”); Martin v.
McDonnold, 247 S.W.3d 224, 231 n.2 (Tex. App.—El Paso 2006, no pet.); see also
Fleming v. Wilson, 610 S.W.3d 18, 21 (Tex. 2020).
Hutson also produced sufficient evidence of adequate notice through a
certified letter from her attorney. In a suit involving a tenant by sufferance, section
1
D’Olivio has not asserted that the Centers for Disease Control and Prevention’s order concerning
eviction should have any effect on this case, and the record bears no evidence that D’Olivio filed an affidavit
that would have brought this case under the order. See Temporary Halt in Residential Evictions to Prevent
the Further Spread of COVID-19, 85 Fed. Reg. 55292-01 (Sept. 4, 2020); Johnson-Williams v. Idlewilde
Apartments, No. 14-19-00977-CV, 2021 WL 98895, at *1 n.2 (Tex. App.—Houston [14th Dist.] Jan. 12,
2021, no pet.) (mem. op.).
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24.005(b) requires the plaintiff to give the tenant written notice to vacate three days
before the plaintiff files a forcible detainer suit unless the parties contracted for a
different notice period. TEX. PROP. CODE. § 24.005(b); Lua v. Capital Plus Fin.,
LLC, No. 05-19-01227-CV, 2022 WL 1681702, at *2 (Tex. App.—Dallas May 26,
2022, no pet. h.); Onabajo v. Household Fin. Corp. III, No. 03-15-00251-CV, 2016
WL 3917140, at *4 (Tex. App.—Austin July 14, 2016, no pet.) (mem. op.). The
demand for possession must be made in writing by a person entitled to possession
of the property. Lua, 2022 WL 1681702, at *2. Here, the written demand for
possession came from a person entitled to possession, the notice gave D’Olivio five
days’ notice to vacate, and it is undisputed D’Olivio did not vacate as instructed. We
conclude the evidence was sufficient to support the judgment of possession in favor
of Hutson. D’Olivio’s first and second issues are overruled.
In her third issue, D’Olivio contends the county court was prohibited from
deciding possession rights because the issues of title and possession were
inextricably intertwined. More specifically, D’Olivio maintains the issue of title had
to be resolved by the district court before the county court could adjudicate the right
to possession. D’Olivio based this argument in part on her contention Hutson forged
the deeds relied on by Hutson to establish her right to title of the property. We
disagree for two reasons.
First, the district court resolved the issue of title before either the justice court
or the district court determined possession rights. Any allegation concerning the
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timing of the proceedings is without merit. See Brooks v. Wells Fargo Bank, N.A.,
No. 05-16-00616-CV, 2017 WL 3887296, at *8 (Tex. App.—Dallas Sept. 6, 2017,
no pet.) (mem. op.) (“[B]y the time of trial on May 12, 2016, the issue of title to the
Property had been resolved by the district court, and the county court’s adjudication
of Wells Fargo’s right to immediate possession of the Property, therefore, was not
intertwined with a determination of title to the Property.”). Second, the county court
lacked jurisdiction to address or consider D’Olivio’s allegations of forgery and fraud
because those issues were irrelevant to the question of possession rights. See TEX.
R. CIV. P. 510.3 (“The court must adjudicate the right to actual possession and not
title.”); Clarkson v. Deutsche Bank Nat’l Trust Co., 331 S.W.3d 837, 839 (Tex.
App.—Amarillo 2011, no pet.) (“In fact, whether or not a sale pursuant to a deed of
trust is invalid may not be determined in a forcible detainer action.”); Williams v.
Bank of New York Mellon, 315 S.W.3d 925, 927 (Tex. App.—Dallas 2010, no pet.)
(“[T]he only issue in a forcible detainer action is which party has the right to
immediate possession of the property.”). We overrule D’Olivio’s third issue.
In her fourth issue, D’Olivio argues the county court erred in rendering
judgment because the probate court that heard a dispute over Thompson’s will had
exclusive jurisdiction. She relies on section 32.005 of the Texas Estates Code, which,
when it applies, provides probate courts with exclusive jurisdiction over probate
proceedings and causes of action “related to the probate proceeding” unless
jurisdiction is made concurrent by the statute. TEX. ESTATES CODE § 32.005(a).
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D’Olivio argues that because Hutson’s claims were not listed among the types of
claims for which there is concurrent jurisdiction under section 32.007, the probate
court’s jurisdiction over the case is exclusive rather than concurrent. See id. § 32.007.
We rejected this argument in D’Olivio’s appeal from the district court action:
For section 32.005 to apply, the case must be either a probate
proceeding or a case involving matters related to a probate proceeding.
Matters related to a probate proceeding are defined to include “an action
for trial of title to real property that is estate property,” and “an action
for trial of the right of property that is estate property.” Id.
§ 31.002(c)(1). In this case, the sole issue was Hutson’s superior title to
the property, which she obtained before her father died. The evidence
conclusively showed that Hutson and Thompson were joint tenants of
the property based on the May 2018 deed. Thompson and his counsel
ratified that deed and agreed Thompson had only a life estate in the
property at issue. A life estate terminates upon the death of the life
tenant and the life tenant has no power to devise the property that
remains at his death. In re Estate of Hernandez, No. 05-16-01350-CV,
2018 WL 525762, at *6 (Tex. App.—Dallas Jan. 24, 2018, no pet.)
(mem. op.). The property, therefore, passed outside of the estate and is
not a part of, or related to, the probate proceeding. See Wallace v.
Wallace, No. 05-17-00447-CV, 2017 WL 4479653, at *4 (Tex. App.—
Dallas 2017, no pet.) (mem. op.) (probate court did not have exclusive
jurisdiction where former wife was seeking to partition property as
tenant in common and not as heir).
D’Olivio, 2022 WL 2800836, at *6. Our answer to D’Olivio’s argument is the same
in this appeal. We overrule her fourth issue.
In her fifth issue, D’Olivio argues the trial court erred in rendering judgment
because the district court retained plenary power after its judgment. D’Olivio likens
the district court’s plenary power to exclusive jurisdiction, and she maintains the
district court’s plenary power should have prevented the county court from assuming
jurisdiction over the case. D’Olivio provides no authority for the proposition that
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one court’s plenary power deprives all other courts of subject matter jurisdiction to
consider related matters. Even liberally construing her brief in the interest of justice,
we interpret her fifth issue as an assertion the district court had dominant jurisdiction,
which should have precluded the county court from hearing a related suit. So
construed, we disagree with this argument.
The general rule is the court in which suit is first filed acquires dominant
jurisdiction to the exclusion of other coordinate courts.2 In re J.B. Hunt Transp., Inc.,
492 S.W.3d 287, 294 (Tex. 2016) (orig. proceeding). With some exceptions, when
cases involving the same subject matter are brought in different courts, the court
with the first-filed case has dominant jurisdiction and should proceed, and the other
cases should abate. Perry v. Del Rio, 66 S.W.3d 239, 252 (Tex. 2001) (combined
appeal & orig. proceeding). “This first-filed rule flows from principles of comity,
convenience, and the necessity for an orderly procedure in the trial of contested
issues.” J.B. Hunt, 492 S.W.3d at 294 (internal quotation marks omitted); see Perry,
66 S.W.3d at 252. “The default rule thus tilts the playing field in favor of according
dominant jurisdiction to the court in which suit is first filed.” J.B. Hunt, 492 S.W.3d
at 294.
2
The term “dominant jurisdiction” is a misnomer because it is not a doctrine of jurisdiction but of venue.
In re Powell, 644 S.W.3d 753, 759 n.1 (Tex. App.—Texarkana 2022, orig. proceeding) (citing, inter alia,
Phillips v. Phillips, No. 14-19-00618-CV, 2021 WL 3879262, at *4 n.4 (Tex. App.—Houston [14th Dist.]
Aug. 31, 2021, no pet.)).
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The same is not true in a forcible-detainer suit where, as here, the issues of
title and possession are not so intertwined that the right of possession cannot be
determined. “[A] forcible-detainer suit in justice court may run concurrently with
another action in another court—even if the other action adjudicates matters that
could result in a different determination of possession from that rendered in the
forcible-detainer suit.” In re Am. Nat’l Inv’rs, Corp., No. 05-17-00937-CV, 2017
WL 6503101, at *2 (Tex. App.—Dallas Dec. 19, 2017, orig. proceeding) (mem. op.)
(quoting Hong Kong Dev., Inc. v. Nguyen, 229 S.W.3d 415, 437 (Tex. App.—
Houston [1st Dist.] 2007, no pet.) (op. on reh’g)); see Cook v. Mufaddal Real Estate
Fund, No. 14-15-00651-CV, 2017 WL 1274118, at *4 (Tex. App.—Houston [14th
Dist.] Apr. 4, 2017, no pet.) (mem. op.). Matters relating to possession may overlap
in the two proceedings without affecting a county court’s right to determine
immediate possession. Am. Nat’l Inv’rs, 2017 WL 6503101, at *2. That is because
resolving a forcible detainer action determines only the right to immediate
possession, not the ultimate rights regarding title. Id. (quoting Hong Kong Dev., 229
S.W.3d at 437); accord Gober v. Bulkley Props., LLC, No. 06-18-00031-CV, 2019
WL 321326, at *4 (Tex. App.—Texarkana Jan. 25, 2019, pet. denied) (mem. op.).
We have determined the suits in county court and district court were not so
intertwined that the county court was required to abate this eviction suit. The suit in
county court properly proceeded unhindered by any purported dominant jurisdiction
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of the district court. See Am. Nat’l Inv’rs, 2017 WL 6503101, at *2. We overrule
D’Olivio’s fifth and final issue.
CONCLUSION
D’Olivio has challenged the judgment on several grounds: the conduct of the
trial de novo, sufficiency of the evidence, intertwinement of the proceedings,
exclusive jurisdiction, and dominant jurisdiction. None of these arguments disturb
the soundness of the judgment of possession. We overrule Appellant’s issues and
affirm the judgment.
/Robbie Partida-Kipness/
ROBBIE PARTIDA-KIPNESS
JUSTICE
201118F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
BRIGETTA D'OLIVIO, Appellant On Appeal from the County Court at
Law No. 2, Collin County, Texas
No. 05-20-01118-CV V. Trial Court Cause No. 002-02704-
2020.
HILARY THOMPSON HUTSON, Opinion delivered by Justice Partida-
Appellee Kipness. Justices Reichek and
Goldstein participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellee HILARY THOMPSON HUTSON recover
her costs of this appeal from appellant BRIGETTA D’OLIVIO.
Judgment entered this 28th day of July 2022.
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