NUMBER 13-17-00265-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

BERTA GARZA, Appellant,

v.

THE ESTATE OF ERNESTINA OLIVAREZ, Appellee.

On appeal from the County Court at Law No. 1

of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Justices Contreras, Longoria, and Hinojosa

Memorandum Opinion by Justice Contreras

This is an appeal of a summary judgment rendered in favor of appellee, the Estate 

of Ernestina Olivarez (hereinafter the Estate), in an eviction suit. Appellant Berta Garza 

contends by three issues that the county court erred by (1) “denying a trial de novo” 

because she perfected an appeal from the justice court, (2) granting summary judgment 
2

“due to insufficient evidence,” and (3) failing to grant her plea to the jurisdiction. We 

vacate the judgment and dismiss the Estate’s suit for want of jurisdiction.

I. BACKGROUND

Timothy Weaver, acting as temporary administrator of the Estate, filed suit in 

justice court seeking to evict Garza and all other occupants of the residence at 4120 West 

Houston Avenue in McAllen, Texas, for failure to pay rent.

1

 Garza answered and filed a 

plea to the jurisdiction alleging that the justice court lacked subject matter jurisdiction 

because the lawsuit involves issues of title to land. In particular, Garza argued that she 

is the rightful owner of the property because Daniel Olivarez, Ernestina Olivarez’s 

widower, transferred the property to his son Rogelio in 2012; Rogelio later contracted to 

sell the property to Garza; and Garza has since been making payments to Rogelio.

The justice court rendered default judgment on July 18, 2016, noting that Garza 

failed to appear for trial. See TEX. R. CIV. P. 510.6. The default judgment granted 

possession of the premises to the Estate and ordered Garza and all other occupants of 

the property to vacate. Garza then filed notice of her intent to appeal the default judgment 

to the county court. See TEX. R. CIV. P. 510.9. She also filed an appeal bond in the 

amount of $1,500 as per the justice court’s order. See id. Later, Garza filed a “Plea to 

 

1 The record reflects that the forcible detainer action was originally filed in justice court on March 9, 

2016 by Daniel Olivarez. On July 9, 2016, counsel for Weaver sent a letter to the justice court stating that 

Weaver was recently appointed as the temporary administrator of the Estate and that Weaver therefore

has the authority to bring suit on the Estate’s behalf. The justice court record contains a “Complaint for 

Forcible Detainer” filed by Weaver on behalf of the Estate but with no justice court cause number or file 

stamp. In any event, the justice court’s default judgment named the plaintiff as “Estate of Ernestina

Olivarez/Temporary Administrator Timothy Weaver” and the parties agree that the Estate replaced Daniel 

Olivarez as the plaintiff.

Though this information was not provided in either forcible detainer petition, the Estate mentions in 

its appellee’s brief that Ernestina Olivarez was the title owner of the subject property and that she died on 

July 15, 2010.
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the Jurisdiction and Original Answer” in the county court making the same arguments as 

the earlier plea to the jurisdiction filed in the justice court. The record contains no explicit 

ruling by the county court on the plea to the jurisdiction.

The Estate filed a motion for summary judgment in the county court arguing that 

Garza “cannot prove any legal relationship and further cannot provide any written 

documentation establishing that a contract for sale of the subject property was 

consummated between [Garza] and Olivarez’s [sic].” The motion for summary judgment 

argued that Garza lacked “standing to assert ownership interest in the property” because 

the transaction by which she claimed to acquire the property was an oral agreement that 

violated the statute of frauds. No evidence was attached to the motion.

In response to the Estate’s summary judgment motion, Garza argued that (1) the 

Estate failed to produce any evidence to support the elements of a forcible detainer, (2) 

her oral agreement to purchase the subject property is not barred by the statute of frauds

due to the partial performance doctrine, and (3) “the affirmative defense which [Garza] is 

alleging is sufficient to grant her standing to appear in this cause and urge her entitlement 

to an equitable title in the property.” Garza later filed a supplemental response containing 

an affidavit in which she averred in relevant part:

In early 2012 I and my husband Javier Solis made an agreement with Roy

Olivarez and Daniel Olivarez to purchase the residence at 4120 W. Houston 

Ave., McAllen, Texas for the sum of $70,000.00. I paid over $28,000.00 to 

Roy Olivarez and Daniel Olivarez during the time Daniel Olivarez was in 

bankruptcy. Attached as Exhibit BG-1 is a schedule of the payments and 

copies of the checks, wire transfers and MoneyGram remittances.

When we first made the agreement, there were renters in the house. After 

the renter’s lease expired in June of 2012, my family moved into this 

residence.

Since then, I have made improvements to the property, including tiling the 

floor in the living room and the 3 bedrooms, adding granite counters in the 
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kitchen, replacing the broken Central Air Conditioner, replacing the broken 

garage door, remodeling the kitchen and bathrooms, planting grass and 

trees in the backyard and other home improvements.

In about July of 2013, I sent over $15,000 to the mortgage company in an 

attempt to get the Note current, but the Creditor rejected the payment as it 

was not from Ernestina Olivare[z].

I have never paid any rent on this property. I occupy the property as an 

owner because I am paying for it. I would like to finalize the transaction but 

Daniel Olivarez refuses to complete the sale.

The trial court rendered judgment on March 24, 2017, finding that the Estate’s 

“Affirmative Motion for Summary Judgment” and “No-Evidence Motion for Summary 

Judgment” were well-taken and should be granted. The judgment stated that Garza’s 

appeal from the justice court is “hereby dismissed with prejudice.”

Garza’s counsel filed a motion for new trial and for reconsideration arguing that the 

trial court’s judgment was erroneous for four reasons: (1) the Estate did not request a 

no-evidence summary judgment; (2) Garza perfected her appeal from the justice court by 

filing a bond in the amount set by the justice court, and the Estate did not present any 

evidence to the contrary; (3) because Garza perfected her appeal, she was entitled to a 

trial de novo in the county court; and (4) Garza is not required to prove standing because 

she has not sought any affirmative relief.

The record contains no ruling on Garza’s motion for new trial and for 

reconsideration, but the trial court rendered an amended judgment on April 24, 2017, 

clarifying that the judgment was granted only on the Estate’s “Affirmative Motion for 

Summary Judgment” and not on no-evidence grounds. The amended judgment 

reiterated that Garza’s appeal from the justice court is “dismissed with prejudice.” This 

appeal followed.
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II. DISCUSSION

A. Standards of Review

A ruling on a plea to the jurisdiction is reviewed de novo. Tex. Dep’t of Parks & 

Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Tex. Natural Res. Conservation 

Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). The plaintiff has the initial burden 

to plead facts affirmatively showing that the trial court has jurisdiction. Tex. Ass’n of Bus. 

v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). We construe the pleadings 

liberally in favor of the pleader, look to the pleader’s intent, and accept as true the factual 

allegations in the pleadings. Miranda, 133 S.W.3d at 226, 228. If a plea to the jurisdiction 

challenges the existence of jurisdictional facts, we consider relevant evidence submitted 

by the parties when necessary to resolve the jurisdictional issues raised, even when the 

evidence implicates the merits of the cause of action. Id. at 227; see City of Waco v. 

Kirwan, 298 S.W.3d 618, 622 (Tex. 2009).

A review of a plea to the jurisdiction challenging the existence of jurisdictional facts 

mirrors that of a traditional motion for summary judgment. Miranda, 133 S.W.3d at 228. 

We view all the evidence in the light most favorable to the non-movant, indulging every 

reasonable inference in favor of the non-movant and resolving any doubts against the 

motion. See Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) 

(per curiam); Miranda, 133 S.W.3d at 228.

B. Applicable Law

An action for forcible detainer is the judicial procedure for determining the right to 

immediate possession of real property. It’s The Berrys, LLC v. Edom Corner, LLC, 271 

S.W.3d 765, 769 (Tex. App.—Amarillo 2008, no pet.); see TEX. R. CIV. P. 510.1. It exists 
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to provide a speedy, simple and inexpensive means for settling the right to possession of 

premises. It’s The Berrys, 271 S.W.3d at 769. Jurisdiction over forcible detainer actions 

is expressly given to the justice court of the precinct where the property is located and, 

on appeal, to the county court for a trial de novo. TEX. PROP. CODE ANN. § 24.004 (West, 

Westlaw through 2017 1st C.S.); TEX. R. CIV. P. 510.10(c); Ward v. Malone, 115 S.W.3d 

267, 270 (Tex. App.—Corpus Christi 2003, pet. denied). But a justice court is expressly 

deprived of jurisdiction to determine or adjudicate title to land. TEX. GOV’T CODE ANN. 

§ 27.031(b)(4) (West, Westlaw through 2017 1st C.S.). Thus, neither a justice court, nor 

a county court on appeal, can resolve questions of title beyond the immediate right to 

possession. See Bacon v. Jordan, 763 S.W.2d 395, 396 (Tex. 1988); U.S. Bank Nat’l 

Ass’n v. Freeney, 266 S.W.3d 623, 625 (Tex. App.—Dallas 2008, no pet.); Rice v. Pinney, 

51 S.W.3d 705, 708–09 (Tex. App.—Dallas 2001, no pet.).

When there are issues concerning both title and possession, the issues may be 

litigated in separate proceedings in different courts with appropriate jurisdiction. Espinoza 

v. Lopez, 468 S.W.3d 692, 695 (Tex. App.—Houston [14th Dist.] 2015, no pet.). But in 

certain circumstances, the question of title may be so intertwined with the issue of 

possession that the latter may not be adjudicated without first determining the former. Id.; 

Dormady v. Dinero Land & Cattle Co., 61 S.W.3d 555, 557 (Tex. App.—San Antonio 

2001, pet. dism’d w.o.j.); Rice, 51 S.W.3d at 709. “In such a case involving a genuine 

issue of title, neither the justice court, nor the county court on appeal, has jurisdiction.” 

Dormady, 61 S.W.3d at 557; Rice, 51 S.W.3d at 709; see Lopez v. Sulak, 76 S.W.3d 597, 

605 (Tex. App.—Corpus Christi 2002, no pet.) (noting that the justice court lacks 
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jurisdiction when “the right to immediate possession necessarily requires resolution of a 

title dispute”).

To prevail in a forcible detainer action, the plaintiff must present sufficient evidence 

of ownership to demonstrate a superior right to immediate possession. Espinoza, 468 

S.W.3d at 695; Dormady, 61 S.W.3d at 557. Ordinarily, a forcible detainer action requires 

proof of a landlord-tenant relationship. Espinoza, 468 S.W.3d at 695. Although such a 

relationship is not a prerequisite to jurisdiction, the lack of such a relationship indicates 

that the case may present a title issue. Id.; see Rice, 51 S.W.3d at 712 n.4.

B. Analysis

Garza contends by her first issue that, because she perfected her appeal from the 

justice court, she was improperly deprived of a trial de novo at the county court. She 

notes that the county court’s judgment stated: “It is, therefore, ORDERED that Defendant, 

Berta Garza and all other occupants[’] appeal from Justice of the Peace Court of an Order 

Granting Forcible Entry and Detainer [sic] will not be considered on appeal to this Court.”

Despite the dismissive language used in the judgment, the record is clear that the 

county court considered Garza’s appeal on its merits and found that the Estate’s summary 

judgment motion was meritorious. Garza cites no authority, and we find none, stating 

that a trial de novo in a forcible detainer appeal may not be resolved by summary 

judgment procedure in the county court. Indeed, the Estate cites several cases where 

such proceedings have been disposed of in precisely that manner. See Volume Millwork, 

Inc. v. W. Houston Airport Corp., 218 S.W.3d 722, 725 (Tex. App.—Houston [1st Dist.] 

2006, pet. denied); see also Martinez v. Ditech Fin. LLC, No. 13-16-00295-CV, 2016 WL 

7011583, at *2 (Tex. App.—Corpus Christi Dec. 1, 2016, no pet.) (mem. op.); Vaiz v. Fed. 
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Nat’l Mortg. Ass’n, No. 13-14-00110-CV, 2015 WL 6768657, at *2 (Tex. App.—Corpus 

Christi Nov. 5, 2015, pet. dism’d) (mem. op.). Therefore, we overrule Garza’s first issue 

to the extent it argues she was procedurally deprived of a trial de novo in the county court.

By her third issue, Garza argues that the county court erred by failing to grant her 

plea to the jurisdiction, in which she argued that the court lacked jurisdiction because the 

case involves title to property.2 She alleged that she obtained title to the property by 

virtue of an oral agreement with Ernestina Olivarez’s widower and son, and that the 

agreement is enforceable in equity despite the statute of frauds because she partially 

performed the agreement.

Under the doctrine of partial performance as applied to the statute of frauds, an 

oral contract for the purchase of real property is enforceable if the purchaser: (1) pays 

the consideration; (2) takes possession of the property; and (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. Boyert v. Tauber, 834 S.W.2d 60, 63 

(Tex. 1992) (citing Hooks v. Bridgewater, 229 S.W. 1114, 1116 (Tex. 1921)); see Burrus 

v. Reyes, 516 S.W.3d 170, 181 (Tex. App.—El Paso 2017, pet. denied) (same). In an

affidavit attached to her supplemental response to the summary judgment motion, Garza 

averred that she entered into an oral agreement with Ernestina Olivarez’s widower and 

son to purchase the property; that she paid over $28,000 in consideration; that she took 

 

2 As noted, no ruling on the plea appears in the record. Ordinarily, a party must obtain an adverse 

ruling to preserve an issue for appeal, see TEX. R. APP. P. 33.1(a)(2)(A); however, the issue of whether a 

court has subject matter jurisdiction need not be preserved at the trial court. See M.O. Dental Lab v. Rape, 

139 S.W.3d 671, 673 (Tex. 2004) (“[W]e are obligated to review sua sponte issues affecting jurisdiction.”).
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possession of the property in 2012; and that she made significant improvements to the 

property.

On appeal, the Estate contends that Garza cannot establish the partial 

performance exception to the statute of frauds because she did not show “that she has a 

relationship or agreement with [Ernestina Olivarez] or the Estate.” The Estate argues that 

“[t]itle to the Property was solely in the name of [Ernestina Olivarez], and neither Roy 

Olivarez nor Daniel Olivarez had authority to act on behalf of the Estate.” But in support 

of this contention, the Estate refers us only to the following documents in the record: (1)

a “General Warranty Deed With Vendor’s Lien” dated 1999 granting the property to 

Ernestina Olivarez; and (2) a March 2016 order from the Hidalgo County Probate Court 

appointing Weaver as temporary administrator of the Estate. These documents do not 

establish, as the Estate suggests, that “neither Roy Olivarez nor Daniel Olivarez had 

authority to act on behalf of the Estate.”

Additionally, the Estate’s pleading in justice court specifically conceded that there 

was “no lease agreement” between Garza and Ernestina Olivarez or the Estate. The 

undisputed fact that there was no lease agreement, and therefore no landlord-tenant 

relationship, indicates that there is a genuine issue of title that must be resolved. See

Espinoza, 468 S.W.3d at 695; Rice, 51 S.W.3d at 712 n.4 (“[O]ne indication that a justice 

court, and on appeal a county court, may be required to adjudicate title to real estate in a 

forcible detainer case—and, thus, exceed its jurisdiction—is when a landlord-tenant 

relationship is lacking.”).

Considering the pleadings and record evidence, see Miranda, 133 S.W.3d at 227, 

we conclude that “the right to immediate possession necessarily requires resolution of a 
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title dispute.” Lopez, 76 S.W.3d at 605. Therefore, the justice court, and county court on 

appeal, lacked jurisdiction. See id. We sustain Garza’s third issue on appeal.3

III. CONCLUSION

We vacate the county court’s judgment and dismiss the Estate’s forcible detainer 

suit for want of jurisdiction. See TEX. R. APP. P. 43.2(e); Goodman-Delaney v. Grantham, 

484 S.W.3d 171, 175 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (“When a court's 

void judgment is appealed, we have jurisdiction to declare the judgment void and render 

judgment dismissing the case.”).

DORI CONTRERAS

Justice

Delivered and filed the

9th day of August, 2018.

 

3

In light of this ruling, we need not consider Garza’s second issue, arguing that summary judgment 

in favor of the Estate was improper. See TEX. R. APP. P. 47.1.