### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00608- CV
Nina Regalado, App ellant

v. U.S. Ban k N.A., Appellee

F ROM TH E CO UNTY COURT AT LAW NO . 2 O F CO MAL CO UNTY NO. 201 0CV040 8, H ONO RAB LE CHARLES A. STEP HENS II , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Ap p el lee U.S. Ba

nk N.A. filed a petition for forc ible detainer in the justice co u rt , asser ting that J ose Reg alado and pro se appellant Nina Reg alado had “bee n in wrong ful possession

o f t h e p ro p erty since the date of a fore closure sale,” attaching a copy of the fore closure sale deed dated Aug ust 3, 2010, and a copy of the notices to vacate sent to the Reg alados on Aug ust 19, 2010. The rec ord does not ref lect that the Reg alados filed any documents in justice court, and the court signed a judgme nt in favor of t he Bank. The Rega lados appeal ed to the county court, filing

an answe r that stated that althoug h the fore closu re sale occur red on Aug ust 3, their mortg ag e servicing company told them to file additional documentation for a loan modification by Aug ust 13, and that they filed the reque sted documents on Aug ust 12. The Reg alados attache d to their answe r a copy of the mortg ag e ser

vicing company ’s re quest for doc umentation, dated July 14, 2010. Thecounty court signed a judgme nt g rant i n g t h e Bank possession of t he property , and Nina Reg alado

appea led. We affir

m the county

court’s judg ment of possession. 1 I n a letter that we are construing as her bri ef, Reg alado asser ts that she was wrong fully evic ted, explaining some of the communications she had with her mortg ag e servicing

co m pany from J anuar

y 2008 until the Aug ust 2010 fore closure sale. She states that afte r s h e appea led from the jus t i ce co u rt ’s judgme nt, “they never serve d me paper s from the court house signe d by the J udg e like the f

irst time,” and that instead, she was locke d out of the house. 2 I n a forc ible detainer suit, the only issue is which party has the rig ht to possession of the proper ty
. Dormady v. Dinero Land & Cattl e Co. , 61 S.W .3d 555, 557 (Tex. App.—San Antonio 2001, pet. dism’d w.o.j.). Be cause the justice court lacks jurisdiction to deter mine title to proper

ty , neither it nor the county court on appea l may consider the issue. Id

. “[I ]f the question of title is so i n t er t wi n ed with the issue of possession, then possession may not be adjudicate d without first deter mining ti tle” and “neither the j u stice court, nor t he county court on appea l, has j urisdiction.” Id. at 557-58.

Reg alado’ s notice of appea l filed in this C ourt stated that she and J ose R eg alado wished 1 to appea l, but only she si g ned the notice of appea l. See Tex. R. App
. P
. 9
. 1 (b) (pro se party must sign a ny document he or

she files). Reg alado attache d to her brief a number of documents related to her communicati o n s 2 with her m o rt gage company , but we may not consider any documents that do not appea r in the cler k’s re cord. W

orldPeace v. Comm’n for Lawyer Discipline , 183 S.W .3d 451, 465 n.23 (Tex. App.—Houston [14t h Dist.] 2005, pet. denied) (“w e cannot con s i d er documents attache d as appendic es to briefs and must consider a case based solely upon the rec ord filed”)

. The appellate rec ord consists only of the cler k’s rec ord, and the Ba

nk states in its brief that it “inquire[d] with the trial court, a

nd no repor

ter’s r ecor d appea

rs to exis t.” 2Although Reg alado contests the propriety of the fore closure sale, th e Ba nk, as in

Dormady , s howed that it owns the proper ty by virtue of a deed from the fore closure sale, that Reg alado is a tenant at suffe ranc e, and that the Ba nk has a supe rior rig ht to immediate possession. See id. at 558. Reg alado has not asser ted that her rig ht to title was so intertwined with the question of possession that the justice and c ounty courts lac ked jurisdi ction over the case . And even if she had, as in Dormady , “[t] he ty pes of case s which preclude forcible detainer actions in justice court beca use of interconne cted title and possession issues are far d i ff er en t than what is prese nt in this

case .” Id. at 558-59 (citing sever al cases i n which questi o n of poss ession involved deter mination of claims to title). Whether the fo re cl o sure sale was proper is an issue for a differ ent kind of proce edingthan this forcible de tainer suit. 3

We affir m the county

court’s judg ment.

__________________________________________ David Pury ear , J ustice Be fore J ustices Pury ear , Pemberton and F ield Affir med Filed: August 2, 2013

The Ba nk states in its brief that t h e R ega l ados “ar e entitled to bring a separ ate suit in 3 district court to deter

mine their title questions.” 3