REVERSE and REMAND and Opinion Filed August 28, 2019 

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In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-18-01017-CV LISA HAWKINS, Appellant V. MICHAEL JENKINS AND WANDA JENKINS, Appellees On Appeal from the County Court at Law No. 4 Dallas County, Texas Trial Court Cause No. CC-18-01539-D



### MEMORANDUM OPINION Before Justices Schenck , Osborne, and Reichek Opinion by Justice Reichek Lisa Hawkins appeals the trial court’s dismissal of her suit fo r eviction brought against her uncle, Michael Jenkins, and his wife, Wanda. In two issues, Ha wkins contends the trial court erred in dismissing her case for lack of subject matter jurisdiction. Because we conclude the right to immediate possession may be determined separately from any issu e of title in this case, we reverse the trial court’s dismissal orde r and remand the cause for furt her proceedings. Factual Background Hawkins owned and resided in a house in DeSoto, Texas for over twenty years. In the summer of 2015, Hawkins was in Chapter 13 bankruptcy and living with her mother while recovering from a hospital stay. At that time, Michael Jenkins expressed an interest in acquiring the DeSoto house because he and his wife wanted to relocate clo ser to her work. After some–2– negotiation, Hawkins agreed to sell the house to her uncle for $160,000 and she obtained permission from the bankruptcy court to do so. Hawkins allowed Jenkins and his wife to move into the house while they attempted to obtain financing for the purchase. Jenkins paid Hawkins $1,500 per month, which was roughly the amount of Hawkins’s mor tgage payment. The parties dispute whether these payments were rental payments or “house p ayments.” To effectuate the purchase, Jenkins filled out a form real est ate purchase agreement he obtained online. All three parti es signed the contract. By it s terms, the contract was made subject to Jenkins being approved for third-party financing. The closi ng date of the sale was set for February 19, 2016 and title to the property was to be transferr ed to Jenkins at that time. The contract stated that the cash portion of the sales price payabl e to Hawkins at closing was $159,990. There is no mention in the contract of the monthly payments mad e by Jenkins going towards the purchase price. In addition, the contract sta ted that, Possession of the Property in its current or required state, o rdinary wear and tear excepted, will be delivered by the Seller to the Buyer pur suant to a temporary residential lease form or any written lease as required by the parties. A tenancy at sufferance relationship will be created between the Parties whe re there is no authorized written lease agreement and either the Buyer has pos session prior to closing or the Seller has possession after closing. It is undisputed that Jenkins was unable to obtain financing t o purchase the house and the written contract expired under its own terms. The Jenkinses co ntinued to live in the house, however, and pay Hawkins $1,500 per month. According to Jenkin s, he and Hawkins had a “verbal contract” because she “told me that she was going to work with me and sign any papers necessary [to] get transfer of the title once we . . . secured financing. ” Jenkins testified he made significant improvements to the house includi ng installing a new air condit ioning system and building a patio. Over the next year and a half, Hawkins was able to negotiate a reduction in the amount she owed on a second lien on the home from $14,000 to $3,000 and Je nkins gave her the money to pay–3– off that lien. Additionally, Hawkins obtained debt forgiveness for some of what she owed on the first lien mortgage, reducing t he amount owed from approximatel y $152,000 to $84,000. In July 2017, Hawkins agreed t o provide Jenkins with an $11,500 “Gift of Equity to Fund a Loan” that allowed Jenkins to obtain third-party financing. After the Jenkinses were approved for a 95% loan, a dispute arose regarding the final purchase pr ice. An email from the loan officer stated that the price had to be adjusted to $175,000 for the cr edits and closing costs to work and for Hawkins to be paid the amount she expected to realize from the original $160,000 purchase price. Jenkins refused to pay a higher sales price claiming he had already paid Hawkins $7,500, which was the amount of profit she would have received from the $160,000 sale price based on the original mortgage amount. He also did not believe the hous e was worth what Hawkins was asking and wanted credit for the improvements he had made to th e house. Hawkins stated she never asked for the higher sale s price and she denied receiving a $7,500 payment from Jenkins. After the second closing did not occur, Hawkins and Jenkins dis cussed signing a lease agreement. Jenkins testified that Hawkins told him she would g ive him credit for the repairs he had done to the house in the lease. But, according to Jenkins, the lease did not reflect what they had discussed, so he refused to sign it. Jenkins then stopped making monthly payments for the house. Hawkins brought this forcible e ntry and detainer action to evi ct the Jenkinses from the house asserting they were in the house pursuant to a month-to-m onth tenancy and they continued to reside in the house after fail ing to pay the rent owed. The case was originally brought in the justice of the peace court and then appealed to the county cour t at law. After the case was appealed to the county court, the Jenkinses filed a suit to quiet title to the house in district court asserting equitable title to the property. The Jenkinses then filed a pl ea to the jurisdiction in this case asserting that the title issue rendered the county court withou t jurisdiction to render judgment. A–4– hearing was conducted at which b oth Hawkins and Jenkins testifi ed. After considering the pleadings, evidence, and arguments of counsel, the county court granted the plea and dismissed the case for lack of subject matter jurisdiction. This appeal followed. Analysis In her second issue, Hawkins contends the trial court erred in dismissing her suit for lack of subject matter jurisdiction. J urisdiction over forcible ent ry and detainer actions is expressly given to the justice courts and, on appeal, to the county court s at law de novo. See Rice v. Pinney , 51 S.W.3d 705, 708 (Tex. App.—Dallas 2001, no pet.). The count y court has no jurisdiction over the appeal unless the justice court had jurisdiction below. Id . The sole issue in a forcible entry and detainer action is who has t he right to immediate possessio n of the premises. Id . at 709. Where the right to immediate possession n ecessarily requires resoluti on of a title dispute, the justice court, and consequently the county court, has no jurisdiction to enter a judgment and the case must be dismissed. Id

. To defeat the county court’s jurisdiction, the defendant must p rovide “specific evidence” of a genuine title dispute that i s intertwined with the issue o f immediate possession. See Yarto v.
Gilliland , 287 S.W.3d 83, 93 (Tex. App.—Corpus Christi 2009, no pet.). Specific evidence of a title dispute exists if a party asserts a basis for title owner ship that is not patently ineffective under the law. Id . Filing a separate suit in district court to determine the qu estion of title does not automatically remove the issue of the right to immediate posses sion from the jurisdiction of the justice court or county court. Rice , 51 S.W.3d at 710. Indeed, in most cases the issues of title and right to immediate possession ca n be determined separately. Id

. The Jenkinses contend there is a genuine title dispute in this case because they are claiming equitable title pursuant to an oral agreement. For an oral con tract for sale of property to be enforceable, the legal obligati ons and liabilities of the parti es must be sufficiently definite.–5– Gutierrez v. Gonzalez , No. 05-16-00631-CV, 2017 WL 2729901, *2 (Tex. App.—Dallas Jun e 26, 2017, pet. denied)(mem. op.). The c ontract must be certain and clear as to all essential terms. Id

. In this case, the only specific evidence of an oral agreement p roduced at the hearing was Jenkins’s testimony that Hawkins told him she would “work with him” to tr ansfer title once he secured financing to pay for the property. Although it is undisputed t he parties originally agreed to a purchase price of $160,000, and th ey signed a written contract to this effect, there is no evidence of any agreement regarding the sales price, or any other terms other than the identity of the property, after the first attempted sale failed to close and th e written contract expired. It is because the parties actively disagreed about the sales price that the s econd attempted closing did not occur. Even if the evidence showed the existence of an oral contract, the Jenkinses produced no evidence that they fully performed under the alleged contract s uch that they became vested with equitable title to the property. See Yarto , 287 S.W.3d at 89–90; see also, Siddiq v. Hawkins , No. 05-09-00581-CV, 2011 WL 3211254, *4 (Tex. App.—Dallas July 29, 2011, pet. denied)(mem. op.). Until the purchaser fully performs, he has only an equit able right to acquire title in the future by carrying out the agreement. Siddiq , 2011 WL 3211254, *4; see also, Lugo v. Ross , 378 S.W.3d 620, 623 (Tex. App.—Dallas 2012, no pet.). A claim based on an equitable right to complete performance of the agreement is not the same as present, equita ble title and does not defeat the county court’s jurisdiction to render a judgment of immediate p ossession. Gober v. Bulkley Props.,
LLC , No. 06-18-00031-CV, 2019 WL 321326, *3 (Tex. App.—Texarkana J an. 25, 2019, pet. denied)(mem. op.). Although the Jenkinses assert in their brief that they “fully p erformed their obligations under the contract,” all of the evidence showed the parties did not intend for title to be conveyed until the entire purchase price was paid. There is no evidence this occurred. Absent full payment, the Jenkinses have, at most, an equitable right to enforce the sale and not equitable title that creates–6– a genuine title dispute. See Haith v. Drake , 596 S.W.2d 194, 197 (Tex. App.—Houston [1st Dist.] 1980, writ ref’d n.r.e.). The Jenkinses rely heavily on case law regarding the enforceabi lity of oral agreements for the purchase of property to support their title claim. See Boyert v. Tauber , 834 S.W.2d 60, 63 (Tex. 1992). An oral contract fo r the purchase of real propert y is enforceable if the purchaser: (1) pays the consideration; (2) tak es possession of the property; a nd (3) makes permanent and valuable improvements on the property with the consent of the seller, or , without such improvements, other facts are shown that would make the transaction a fraud on the purchaser if the oral contract was not enforced. Id . As stated above, however, the fact that the alleged oral con tract may be enforceable only vests the Jenkinses with an equitable right to complete performance of the agreement. Until they have completed performance, they do not have a claim of equitable title that would defeat the cou nty court’s jurisdiction. See Haith , 596 S.W.2d at 197. We conclude the trial court erred in determining there was titl e dispute in this case that rendered it without subject matte r jurisdiction. We resolve Ha wkins’s second issue in her favor. In her first issue, Hawkins contends the trial court erred in “ deciding the issue of equitable title.” The court’s order makes no title determination, but on ly dismisses the cause for lack of subject matter jurisdiction. Although the trial judge discusse d the arguments being made by the parties during the hearing, we do not read these comments as “d eciding the issue” o f title. To the extent the comments could be understood differently, Hawkins co rrectly notes that the county court had no jurisdiction t o decide the title dispute. See Rice , 51 S.W.3d at 709.–7– Based on the foregoing, we reverse the trial court’s order of d ismissal and remand the cause for further proceedings.

181017F.P05 /Amanda L. Reichek/ AMANDA L. REICHEK JUSTICE–8– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
LISA HAWKINS, Appellant

No. 05-18-01017-CV V.

MICHAEL JENKINS AND WANDA JENKINS, Appellees On Appeal from the County Court at Law No. 4, Dallas County, Texas Trial Court Cause No. CC-18-01539-D. Opinion delivered by Justice Reichek. Justices Schenck and Os borne participating.

In accordance with this Court’s opinion of this date, the tria l court’s Order of Dismissal is REVERSED and this cause is REMANDED to the trial court for furth er proceedings consistent with this opinion. It is ORDERED that appellant LISA HAWKINS rec over her costs of this appeal f rom appellees MICHAEL JENKINS AND WANDA JENKINS.
Judgment entered August 28, 2019