## In the Court of A

ppeals Second Appel late Dist rict of Texas

at Fort Worth

___________________________ No. 02

- 20

- 00023

- CV

___________________________

On Appeal from County Court at Law No. 1

Tarrant County, Texas Trial Court No. 2019

- 005668

- 1
Before Sudderth, C.J.; Birdwell and Bassel, JJ. Memo randum Opinion by Chief Justice Sudderth 

### J OE 

### M. R OSALEZ 

### , Appellant

V



### . F OSON 

### I NVESTMENTS 

### , LLC , Appellee2 MEMORANDU M OPINION Joe M. Rosalez appeals from a judgment in a forcible det ainer suit granting Foson Investments, LLC ( “ F o son ” ) possession of certain real property

. He raises five point s challenging the ad equ a cy o f Foson ’ s p re suit dema n d for possession , F oson ’ s

st anding to sue for posses sion of the property , and the evidence demonstrating
Foson ’ s superior right to pos session , its entitlement to rely on language in the deed of trust, and Rosalez ’ s con tinued occupanc y of the premises. We affirm.
I. BACKGROU ND
Foson filed a forcible detainer action against Ro salez in Justice Court and
obtained a judgment granting it possession of the subject premises. Rosalez appealed that judgment to the County Cou rt at Law

. In a br i e f bench trial , Fos on introd uced
as exhibit s copies of a S u bstitute Trustee ’ s Deed, Deed of Trust, and notice letter all relating to the disputed property. The exhibits wer e adm itted without objection from
Rosalez. Foson then att e mpted to call Rosal ez as a w itness to esta blish that he had

re ceived the notice letter , but Ro salez ’ s attorney stipulated to Rosal ez ’ s signature on
the certified mail acknowledgment card. Rosalez did not present any evidence. The

c o urt rendered judgme nt from t he bench and si gned a judgment that same day
grant ing possession of the property to Foson

. Rosalez requested findings of fact and conclusions of law and also filed a
motion for new trial. The trial court d id not make any fin dings or conclusions and
did not rule on the mot

ion for new trial. Rosalez did not file a notice of past due3

findings of fact and conclusions of law and does not raise any point on appeal addressing t he trial court ’ s failure to make fi n dings and conclusio ns. 1 See Tex. R. Civ.
P. 297.
II. D ISCUS SION
A
. Elements of a F o rcible Detainer Action

“ The sole focus of a forcible

- detainer action is the right to immediate
posses sion of real property. ” Shields Ltd. P ’ ship v. Bradberry , 526 S.W.3 d 47 1, 478 ( Tex.
2017 )

. A plaintif

f in a for cible detainer ac tion aris ing after a foreclosure bears the
b urden of proving four element s : (1) the substitute trustee conveyed the property by deed to [plaintiff] after the foreclosure sale; (2) the deed of tr ust si gned by [defendant] establish ed a landlord[

– ]tenant rela tionship between [defendant] and [plaintiff] ; (3) [plai ntiff] gave proper notice to [defendant] to vacate the premises; and (4) [defendant] refused to vacate the premises.
Marti nez , 2019 WL 5996 984, a t *2

. A plaintiff “ establish es the superior right to im mediate p ossession by establishing the fact of a foreclosure pursuant to a deed of trust that created a tenancy
at sufferance after the foreclosure

. ” Id. The plaintiff is not required to prove tit le to the property

. I

d. at *3. For this reason, a forcib le deta in er suit is not the appropriate arena to challenge the propriety of a foreclosure

. Id. That challenge must be brought

1 Any complaint concerning the failure to make findings of fact and con clusion s of law is waived

. See Martinez v. Cerberus SFR Holdings, L.P. , No. 02

- 19

- 00076

- CV, 2019 WL 5996984, at *1 n .1 (Tex. App.

— Fort W orth Nov. 14, 2019 , pet. den ied ) (mem. op .)

.4

in a separate suit for wrongful foreclosure or to set aside a subs titu te trustee ’ s deed.
Id

. B
. Pre s uit Demand For Possession
R o salez fi rst conte nds that Foson ’ s presuit demand for possession of the premis es was inadequate. A demand for possession “ must be made in writing by a person entitled to possession of the prope rty an d must comply with t he requir ements for notice to vacat e under Section 24.005. ” Tex. Prop. Code Ann. § 24.002 (b). Section 24.005 provides that if, as in this case, the occup ant is a te nant by sufferance, the landlord must give at least three days ’ writ te n notice to vacate b efore fil ing a forcible detainer su it unles s the parties have contracted in writing for a different notice perio d

. Id. § 24.005 (b). Rosalez appears to argue that a demand for possession must have been made by Foson itself rather than b y an agent acting on its beha lf. We cons idered

— and

r ej ected

— th is identical argument in Enriquez v. Cap ital Plus Fin inancial , LLC , No. 02

- 19

- 00184

- CV, 2020 WL 71 9441 ( Tex. App.

— Fort Worth Feb. 13, 2020 , no pet. ) (mem. op.)

. We noted that corporations act only th r o u gh th eir agents and concluded
that the presui t demand in that c ase was properly sent through the plaintiff ’ s agent. See id. at * 1. We likewise conclude in this case that it was sufficient under the statute
for Foson to send its presuit demand throu gh a n a uthorized agent.
Ro sal ez nex t argu es that Fo son did not establ ish that it made a demand for possession through an authorized agent because the notice letter does not me ntion5

Foson

. But t he notice letter shows on its face that it i s from “ Nicholas R . Ve ac h , Attorney for Foso n Investm ents, LLC

. ” It thus identifies Fo son as the party seeking possession and Veach as Foson ’ s authorized repres entativ e. See Martinez , 2019 WL 5996984, at *6

– 7 (

recognizing sufficiency of notice sent by law fi rm on plaintiff entity ’ s b ehalf

) ; N orvelle v. PNC Mortg ., 472 S.W .3d 444, 449 (Tex. App.

— Fort Worth
2015 , no pet. ) (recognizing author ity of attorney to act as entity ’ s agent in forcible detainer action).
Fi nally, Rosalez complai ns that the letter ’ s saluta ti on r eads “ Dear Maria E.
Rosalez ” rather than “ Dear Joe M. Rosal ez. ” But the lett er was addressed to “ Joe M. Rosalez, and all occupants. ” In addition, the evidence shows that the notice was actually received by Joe Rosalez

. R osalez has not demonstr ated any deficiency in Foson ’ s presuit demand for possession. Point one is o verruled. 2
C
. Jurisdiction
Rosalez asserts in his second point that Foson ’ s live pleading was “ not a v alid pleading on which judgment could be grante d ” be c ause it was ba sed on a faulty

su bstitute trustee ’ s deed

. His specific compla int is that t he Substitute Tr u stee ’ s Deed
is not supported by the affidavit of a person with personal knowledge sufficient to

2 Rosalez also states in his argument under point o ne that the Substitute T rustee ’ s Deed was defective because it d id not conta in an appropriate affidavit

. That assertion is addressed in ou r di scuss ion of point two.6

establish prima fac ie evid ence o f service unde r Propert y Code Section 51.002

. See
Te x. Prop. Code Ann. § 51.002(e) (providing that “ [t] he affi davit of a perso n knowledgeable of the facts to the effect that service was completed is prima facie
evidence of servic e. ” )

. Rosale z conte nds th at this consti tutes a d efect in the sale of the property to Foson that renders the S ubstitute T rustee ’ s D eed in valid , deprives
Foson of standing to prosecute its forcible detainer action , and de prive s the court s of jurisdiction

. See Enriquez

, 2020 W L 71 94 41, at *2 ( add ressing t he identical argument).
As we recognized in Enriquez , an alleged defect in the Substitu te Trus tee ’ s Dee d
does not r elate to the plaintiff ’ s standing in a forcible detainer action : A ny defects in the foreclos ure process or with appel lee ’ s title t o the property may not be considered in a forcible

- detainer action. Those defects may be pursued in suits for wron gful foreclosure or to set aside the substitute trustee ’ s deed, but they are not relevant in this forcib le

detainer action. Id. ( quot ing Marti nez , 2019 WL 5996984, at *3 )

. Further, a title dispute does not deprive a justice court of juris diction unless re solution of such a dispute is a
prerequ isite to determ in ing the right of immediate possession

. Id. A tit le dispute
likewise does not de prive a county court of jurisdict ion over a forcible detainer appeal
because that court ’ s jurisdiction is coextensive wit h the justice court ’ s . See i d

. Ros alez relies on our opinion in A Plus I n vestments , Inc. v. Rushton , N o. 02

- 03

- 00174

- CV, 2004 W L 86 8866 (Tex . App.

— Fort Worth Apr. 22, 2004 , no pet.) (mem. op.) , for the propositi on that the alleged defe ct in the Substitut e Trustee ’ s Deed require d th e trial court to a bate or dismiss this case. We held in A Plus that the7

cou nty court lacked ju risdic tion over a f orcible detainer suit “ [

b ] ecause an unresolved question of title was so intertwined with the ri ght to possession t hat the action could not have been adjudicated without first d etermining title

. ” Id. at *1.
We later ad dressed our opinion in A Plus and clar ified that “ [a] challenge to the
form of the trustee ’ s deed does not forestall a claim of su per ior title

. ” Martine z

, 2019 WL 5996984, a t *5

. As we explained,
A Plus dealt with a title issue that was of a different or der of magnitude th an a c hall enge to t he form of the substitute trustee ’ s deed. The issue in A Plus was not o ne in which the substi tute trustee ’ s deed might be challenged because of a defect in form but instead dealt with a lack of statutory authority to foreclose that crea t ed a ques tion abou t whether the party filing the FED action held any right to possession a t all

. Id. (citing A P

lus , 2004 WL 868866, at *2). In addition, we specifica lly recognized in Martinez that an alleged defect in an affidavit att ached to a substitu te tru stee ’ s deed i s

not an issue that is so intertwined with title that a county court hearing a forcible
detain er appeal lacks juri sdiction

. Id. at *4.
T he defect alleged by Rosalez does not present the same fundamental issue as

was present in A Plus

. On th e co ntrary, Rosalez presents the type of defect that we recognized in Martine z

, a defect that does not dive st a county court of jurisdiction

ov er a forcible detainer action

. See id. Ro salez has thus no t demonstrated that Foso n lacked standi ng to pu r sue i ts forcible detainer act ion or th at the courts below lack ed jurisdiction ove r that action

. Point two is ov erruled.8

D
. Super ior Right to Possession
Rosalez ’ s third point again centers on his contention tha t the a ffidavit
suppor ting the Substitute Tru stee ’ s Deed is defective. He argues th at, because of that

a lleged defect , the Substitute Trustee ’ s Deed is not entitled to any pr esumption of validity and c annot be considered as evidence of Foson ’ s superior right to possession.
Ro salez relies solely on Sauced a v. GMAC Mortg

age Corp

. , 268 S.W .3d 135 (Tex. App.

— Corpus Christi

– Edinburg 2008 , no pet. ) , a s support fo r this proposition

. But Sau ceda
concerned a suit for wrongful foreclosure , one element of which is proof of a defect
in t he foreclosure sale pro ceedin gs. See id. at 136, 139

. As not ed a bove, defects in the foreclosure process are not relevant in a forci ble detainer action

. See Enriquez , 2020 WL 719441, at *2

. Point three is overruled.
E
. Tenancy at Suffera nc e
In point fo ur, Ro sal ez asse rts tha t the trial court erred by gra nting Fos on possession beca use Foson was not in privity o f contract with Rosalez in relation to
the Deed of Trust and therefore did not show that it was entitled to rely on “ ten ancy at suffera nc e ” langua ge in that instrument. We ha ve at least twice reject ed this s ame argument : [W] e have recently stated that “[t]he fact that the lende r in the Deed of Tr ust does not match the holder identified in the Substitute Trustee ’ s Deed

. . . presents a questi on of title” and “does not und ermine the showing of superi or right to possession accorded Appel lee because it was the grantee in the Substit ute Trustee ’ s Deed. ” Martinez , 2019 WL9

5996984, at *8 ( citing Deubler v. Bank of N.Y. Mellon , No. 02

- 10

- 00125

- CV, 2 011 WL 1331540, at *2 (Tex. Ap p.

— For t Worth Apr. 7, 2011, no pet.) (mem. op.) (holding that part y was not required to present evidence estab lishing connection between deed of trust and substitute truste e ’ s deed to establish superior right to possession)). Askew v. Mena Homes, Inc ., No. 02

- 19

- 00181

- CV, 2020 WL 579 121, at * 3 (Tex. App.

— Fort Worth Feb. 6, 2020 , pet. denied ) (mem. op.)

. Foson was not required to est ablish privity of contract with Rosalez in relation
to the Deed of Trust. See id. It is sufficient that the Substitute Truste e ’ s De ed sh ows that Foson purchased the subject property at a foreclosure sale and so acquired the right to en force the tenancy

- a t

- sufferance clause in the Deed of Trust

. See Enriquez , 2020 WL 71 9441, at * 3 (concluding that pur chaser at foreclo sure sale a c q uire d rig ht to enforce tenancy

- at

- sufferance clause in d eed of trust)

. Point four is overruled.
F
. C o ntinu ed Occupancy
In hi s final point , Rosalez conte nds that the trial court erre d by granting possession to Foson because Foson did not pres en t an y evi dence of Rosalez ’ s continued occupancy of the subject property. See Bradberry , 526 S.W.3d at 478 (citing
refu sal to vacate prem ises as an element of f orcible detainer action). Foson r esponds
that the evidence shows that Rosalez signed for cert if ied mail addressed to him at the address of the subject property. This cons titutes som e evidence of his continu ed

occu pancy of the prope rty
. In addition, t he fact that Rosalez ap pealed a judgment depri ving him of possession is some evidenc e that he w as in possession of the property at the time of10

trial and had refused to vacate it as demanded by Foson. See Martinez , 2019 WL 5996984, at *9 ; see also Askew , No. 2020 WL 579121, at * 3 n.2

. Point five is overruled.
III. CONCLUSION
The trial court ’ s j udgm ent i s affirmed.

/s/ Bonnie Sudderth Bonnie Sudderth Chief Justice
Delivered: May 13, 2021