In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

No. 06-18-00080-CV

TWAN BURGESS AND ERICA BURGESS, Appellants

V.

WINTERMUTE ENTERPRISES, LLC, AND 

ZACHARIAH A. WINTERMUTE, AGENT, Appellees

On Appeal from the County Court at Law No. 1

Bell County, Texas

Trial Court No. 86,846

Before Morriss, C.J., Burgess and Stevens, JJ.

Memorandum Opinion by Chief Justice Morriss
2

MEMORANDUM OPINION

After Wintermute Enterprises, LLC (Wintermute), purchased the house and real property 

located at 3709 Bassett Drive in Killeen (the Property) at a substitute trustee’s sale, Wintermute

presented a notice to vacate the Property to its occupants, Twan and Erica Burgess (collectively 

the Burgesses). When the Burgesses refused to vacate, Wintermute filed a forcible detainer action 

in the Justice Court of Bell County.1 The Burgesses appealed the Justice Court’s unfavorable 

judgment to the County Court at Law No. 1 of Bell County, where a jury determined that 

Wintermute had purchased the Property at a foreclosure sale, that Wintermute provided the 

Burgesses with a proper notice to vacate, that the Burgesses were tenants at sufferance, and that 

Wintermute had a greater right of possession to the Property. In accordance with the jury verdict, 

the trial court entered its judgment of possession in favor of Wintermute. 

In this pro se appeal, the Burgesses (1) challenge the validity of the substitute trustee’s sale 

and (2) contend that Wintermute could not bring a forcible detainer action against them. Because 

we find that (1) we do not have jurisdiction to entertain the Burgesses’ challenge to Wintermute’s 

title, and (2) the forcible detainer action was proper, we will affirm the trial court’s judgment.

In their first issue, the Burgesses complain that the substitute trustee’s sale was improper 

because they had, prior to the sale, filed for federal bankruptcy protection.2 We interpret this 

 1

Originally appealed to the Third Court of Appeals, this case was transferred to this Court by the Texas Supreme Court 

pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We are unaware of 

any conflict between precedent of the Third Court of Appeals and that of this Court on any relevant issue. See TEX.

R. APP. P. 41.3

2

The record contains a copy of an order of discharge under Title 11, Section 727, of the U.S. Code granted to Twan

Burgess and entered on August 10, 2016. However, there is no evidence in the record showing that the lien on the 
3

complaint as an attack on Wintermute’s title. However, the only issue in a forcible detainer action 

is who has the immediate right of possession to the property. Jae Yoo v. 4300 Burch, LLC, No. 03-

17-00709-CV, 2018 WL 3029035, at *2 (Tex. App.—Austin June 19, 2018, no pet.) (mem. op.) 

(citing Rice v. Pinney, 51 S.W.3d 705, 709 (Tex. App.—Dallas 2001, no pet.)). “Neither the justice 

court nor the county court on appeal has jurisdiction to resolve issues of title to real property in a 

forcible-detainer suit.” Id. (citing Dormady v. Dinero Land & Cattle Co., 61 S.W.3d 555, 557 

(Tex. App.—San Antonio, pet. dism’d w.o.j.)). Rather, “challenges to title or to the foreclosure 

process must be pursued, if at all, in a separate suit.” Id. (citing Schlichting v. Lehman Bros. Bank 

FSB, 346 S.W.3d 196, 199 (Tex. App.—Dallas 2011, pet. dism’d)).

Since the issues of title and the impropriety of the substitute trustee’s sale were not before 

the county court at law in this forcible detainer action, we cannot address the Burgesses’ challenge 

to the propriety of the substitute trustee’s sale. Tehuti v. Bank of New York Mellon Trust Co., Nat’l 

Ass’n, 517 S.W.3d 270, 274 (Tex. App.—Texarkana 2017, no pet.). We overrule the Burgesses’ 

first issue.

The Burgesses’ second issue contends that a forcible detainer action was not available 

against them. They argue that, since there was no lease, they were not tenants, and Wintermute 

was not a landlord. This issue is without merit.

The Texas Property Code provides that “[a] person who refuses to surrender possession of 

real property on demand commits a forcible detainer if the person: . . . (2) is a tenant at will or by 

 

Property was avoided or eliminated by the bankruptcy court. Wintermute purchased the Property at the substitute 

trustee’s sale on November 7, 2017. 
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sufferance, including an occupant at the time of foreclosure of a lien superior to the tenant’s lease.” 

TEX. PROP. CODE ANN. § 24.002(a)(2) (West 2014). The evidence at trial included a deed of trust 

executed by the Burgesses, as borrowers. The deed of trust provided that, upon default by the 

borrowers (i.e., the Burgesses) and a trustee’s sale of the Property, the Burgesses would surrender 

the property to the purchaser at the trustee’s sale. In the event the Burgesses did not surrender the 

property, the deed of trust provided that they would become tenants at sufferance. The evidence 

also showed that Wintermute was the purchaser at such sale. 

Thus, a landlord-tenant relationship between Wintermute and the Burgesses was created 

pursuant to the deed of trust when Wintermute purchased the Property at the substitute trustee’s 

sale. See Gonzalez v. Wells Fargo Bank, N.A., 441 S.W.3d 709, 713 (Tex. App.—El Paso 2014, 

no pet.); Rice v. Pinney, 51 S.W.3d 705, 711–12 (Tex. App.—Dallas 2001, no pet.). We overrule 

the Burgesses’ second issue.

For the reasons stated, we affirm the trial court’s judgment.

Josh R. Morriss III

Chief Justice

Date Submitted: March 14, 2019

Date Decided: April 3, 2019