Opinion
No. 05-15-00624-CV
06-24-2016
BARBARA F. LOVING AND ALL OCCUPANTS OF 210 WILLOWBROOK DRIVE, DUNCANVILLE, TEXAS 75116, Appellant v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, A/K/A FANNIE MAE, Appellee
On Appeal from the County Court at Law No. 5 Dallas County, Texas
Trial Court Cause No. CC-15-01818-E
MEMORANDUM OPINION
Before Justices Francis, Fillmore, and Schenck
Opinion by Justice Schenck
In this forcible detainer action, appellant Barbara F. Loving ("Ms. Loving") appeals the trial court's judgment awarding possession of certain real property to appellee Federal National Mortgage Association A/K/A Fannie Mae ("Fannie Mae"). On appeal, Ms. Loving claims the trial court erred by excluding evidence her lender wrongfully foreclosed on the property and violated her constitutional right to due process and trial by jury, by directing a verdict in favor of Fannie Mae at the close of evidence. For the reasons set forth in this opinion, we affirm the trial court's judgment. Because the dispositive issues in this case are settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.
FACTUAL AND PROCEDURAL BACKGROUND
In connection with her purchase of 210 Willowbrook Drive in Duncanville, Texas (the "Property"), Ms. Loving executed a promissory note secured by a deed-of-trust on the Property for the benefit of her lender. In the event Ms. Loving defaulted on the note, the deed-of-trust provided the lender with remedies, including the power to sell the Property at foreclosure. Ms. Loving's lender declared a default on the note and proceeded to sell the Property at foreclosure. In addition to providing the lender with remedies upon default, the deed-of-trust provided that after foreclosure, Ms. Loving would become a tenant at sufferance if she failed immediately to surrender possession of the Property. As a tenant at sufferance, Ms. Loving would be subject to a forcible detainer action if she refused to vacate the property after the new owner gave notice to vacate. See TEX. PROP. CODE ANN. § 24.005 (West Supp. 2015).
Whether the foreclosure was wrongful is the subject of a separate lawsuit and has no bearing on the trial court's decision or this Court's decision on appeal.
Fannie Mae purchased the Property at the foreclosure sale. At that time, Ms. Loving was still in possession of the Property and became a tenant at sufferance. Five years after purchasing the Property, Fannie Mae sent notices, addressed to Ms. Loving and to any other residents of the Property, demanding that they vacate the Property within three days. They refused to do so. Fannie Mae then filed a forcible detainer action in the justice court seeking possession of the Property. The justice court awarded Fannie Mae possession of the Property, and Ms. Loving appealed seeking a trial de novo in county court.
The case was tried before a jury in county court. During the trial, Fannie Mae introduced into evidence (1) the substitute trustee's deed, showing Fannie Mae's purchase of the Property at the foreclosure sale, (2) the deed-of-trust, showing Ms. Loving's tenant at sufferance status, and (3) the notices to vacate, establishing Fannie Mae gave the statutory notice required prior to instituting suit. While Ms. Loving testified briefly at trial, she did not present any evidence to challenge whether a foreclosure had occurred, the deed-of-trust was valid, or that she received notice to vacate. Although it is difficult to discern what Ms. Loving was trying to tell the jury, it appears she was attempting to call into question the validity of the foreclosure itself. At the close of evidence, Fannie Mae moved for a directed verdict. The trial court granted the motion and awarded Fannie Mae immediate possession of the Property. This appeal followed.
DISCUSSION
In her first issue, Ms. Loving argues the trial court should have allowed her to present critical evidence, which we understand to be evidence supporting her wrongful foreclosure claim, which was pending before another court.
A. Standard of Review - Evidentiary Rulings
The admission or exclusion of evidence is within the trial court's discretion. Owens-Corning Fiberglas Corp. v. Wasiak, 972 S.W.2d 35, 43 (Tex. 1998). To obtain reversal on appeal, an appellant must show that the trial court's ruling was in error and that the error was calculated to cause and probably did cause the rendition of an improper judgment. Id.
B. Application of the Law to the Facts - Exclusion of Evidence
As an initial matter, the record before this Court does not show Ms. Loving actually attempted to present evidence of payment or wrongful foreclosure and was precluded from doing so. Nevertheless, if the trial court excluded evidence of wrongful foreclosure in this case, it did not err in doing so, because the validity of foreclosure and sale cannot be challenged in forcible detainer proceedings. Shutter v. Wells Fargo Bank, 318 S.W.3d 467, 470 (Tex. App.—Dallas 2010, pet. dism'd w.o.j.). Accordingly, we overrule Ms. Loving's first issue.
In her second issue, Ms. Loving argues the trial court denied her right to a jury trial by directing a verdict.
C. Right to Trial by Jury
The jury's function is to determine questions of fact. Fort Worth & D.C. Ry. Co. v. Yantis, 185 S.W. 969, 972 (Tex. Civ. App.—Fort Worth 1916, writ ref.). When the facts are undisputed, only a legal question obtains. City of Dallas v. Frank, 69 S.W.2d 830 (Tex. Civ. App.—Dallas 1934, no writ). Questions of law are decided by the court. Therefore, when the facts are undisputed, the trial court may decide whether a party is entitled to judgment. Szczepanik v. First S. Trust Co., 883 S.W.2d 648, 649 (Tex. 1994). Under those circumstances, a party's constitutional right to a trial by jury is not violated. See Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 336 (1979) (noting that procedural devices such as summary judgment and directed verdict do not violate the federal constitution's right to jury trial in civil cases); Rosenthal v. Boyd, No. 03-11-00037-CV, 2013 WL 1876513, at *4 (Tex. App.—Austin May 1, 2013, no pet.) (mem. op.) (in civil cases the right to a jury trial applies only where there are issues of fact to be resolved).
Therefore, the only question before this Court germane to Ms. Loving's second issue is whether a fact issue exists precluding the grant of a directed verdict. For the reasons set forth in this opinion, we conclude no fact issue exists as to Fannie Mae's right to possession of the Property.
D. Standard of Review - Directed Verdict
A directed verdict is proper if there is no probative evidence to raise a fact issue on the material questions presented. Szczepanik, 883 S.W.2d at 649. In reviewing a directed verdict, we consider all the evidence in a light most favorable to the party against whom the directed verdict was granted. Id. If the record established that that the movant was entitled to the judgment as a matter of law, we may affirm the directed verdict. Victory Park Mobile Home Park v. Booher, No. 05-12-01057-CV, 2014 WL 1017512, at *4 (Tex. App.—Dallas 2014 Feb. 26, 2014, no pet.) (mem. op.).
E. Application of the Law to the Facts
In a forcible detainer action a court must determine which party has the right to immediate possession, not the right to title. TEX. R. CIV. P. 510.3(e). Counterclaims and the joinder of suits against third parties are not permitted in eviction cases. Id. Thus, Ms. Loving's wrongful foreclosure claim is not permitted in this case and she can, and did, bring that claim in a separate suit in a court of proper jurisdiction. Id. The only question before the trial court was whether Fannie Mae was entitled to immediate possession of the Property. Hornsby v. Secretary of Veterans Affairs, No. 05-11-01075-CV, 2012 WL 3525420, at *2 (Tex. App.—Dallas Aug. 16, 2012, no pet.) (mem. op.).
A forcible detainer action is not exclusive, but cumulative, of any other remedy that a party may have in the courts of this state, and the displaced party is entitled to bring a separate suit in the district court to determine the question of title. Scott v. Hewitt, 90 S.W.2d 816, 818-19 (Tex. 1936). --------
In order to establish an immediate right of possession, Fannie Mae had the burden of proving (1) it had a right to possession of the Property, (2) Ms. Loving's right of possession had ended, and (3) Ms. Loving refused to vacate. Id. at *3. Fannie Mae introduced into evidence (1) the substitute trustee's deed, showing Fannie Mae's purchase of the Property at the foreclosure sale, (2) the deed-of-trust, showing Ms. Loving's tenant at sufferance status following the foreclosure sale, and (3) the notices to vacate, establishing Fannie Mae gave the required notice to vacate. Rodriguez v. Citimortgage, Inc., No. 03-10-00093-CV, 2011 WL 182122, at *2 (Tex. App.—Austin Jan. 6, 2011, no pet.) (mem. op.). Ms. Loving tacitly conceded that she refused to vacate the Property and remained in possession thereof by continuing to prosecute appeals from and superseding lower court judgments awarding Fannie Mae possession. Id. at *6. Therefore, the evidence established Fannie Mae's immediate right to possession of the Property. Id. at *2. Ms. Loving's testimony did not create a fact issue concerning Fannie Mae's right to possession. Consequently, the trial court did not err in directing a verdict in Fannie Mae's favor. Accordingly, we overrule Ms. Loving's second issue.
CONCLUSION
We affirm the trial court's judgment.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE 150624F.P05
JUDGMENT
On Appeal from the County Court at Law No. 5, Dallas County, Texas
Trial Court Cause No. CC-15-01818-E.
Opinion delivered by Justice Schenck. Justices Francis and Fillmore participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee FEDERAL NATIONAL MORTGAGE ASSOCIATION, A/K/A FANNIE MAE recover its costs of this appeal from appellant BARBARA F. LOVING. Judgment entered this 24th day of June, 2016.