REVERSE and RENDER; Opinion Filed March 19, 2011

In The

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No 05-12-00100-CV

ONFWEST BANK, FSB, Appellant

V.

CLARK R, CARMAN AND ALL OTHER OCCUPANTS, Appellees

On Appeal from the County Court at Law No. I

Dallas County, Texas

Trial Court Cause No. CC-I 0-06587-A

MEMORANDUM OPINION

Before Justices Moseley, Fillmore, and Myers

Opinion By Justice Moseley

OneWest Bank, FSB filed a forcible detainer action against Clark R. Carman and all other

occupants of a residential property. The justice court enteredjudgment in OneWest’s favor. Carman

appealed to the county court at law, which conducted a trial de novo and entered judgment in

Carman’s favor. OneWest asserts three arguments in this appeal, including the trial court erred by

ignoring an independent basis for adjudicating possession of the property.

The background and facts of the case are well-known to the parties; thus, we do not recite

them here. Because all dispositive issues are settled in law, we issue this memorandum opinion.

TEx. R. App. P. 47.2(a), 47.4. We sustain OneWest’s third issue, reverse the trial court’s judgment,
and enter judgment in favor of OneWest for i umediate possession ot the property.

OneWcst acquired the property located at 532 Winchester Drive. Richardson. Texas 75Ot()

(the Property) at a foreclosure sale. After unsuccessful lv attempting to remove Carman and any

other persons living in the Property. OneWest filed a fore ible detainer action.

The trial court admitted four exhibits uttered by OneWest: a certified copy of the deed of

trust executed by Carman that encumbered the Property; a certified copy of the substitute trustee’s

deed; and the notices to vacate the Property that OneWest served on Carman and other occupants

of the Property (along with proof ofservice of the notices). Carman also testified and offered into

evidence a copy of a document titled “Assignment ofNote and Transfer of [ems.” The Assignment,

admitted over OneWest’s objection, showed it had been executed after the foreclosure sale with an

effective date before the foreclosure sale.

After the exhibits were admitted and Carman testified, the trial judge concluded: “I don’t

think you [OneWestj had the right to possess at the time that you took [the Property. I don’t think

you’re precluded Irom going through the process again now that you actually have the paperwork

in place. That being the case, I’m going to fncl for the defendant.” The trial court entered judgment

in Carman’s favor.

In its third issue, OneWest argues the trial court erred by ignoring the parties’ agreement in

the deed oftrust that, in the event of a foreclosure, Carman would become a tenant-at-sufferance and

OneWest would be entitled to institute a court proceeding to remove him (and others) from the

Property. OneWest’s claim to immediate possession of the Property is based on section 22 of the

deed of trust, which states:

As a result of our conclusion as to OneWest’s third issue. we need not address its first or second issue. Sce TEX. R. APP. P. 47.1 -
lithe Pmperty is sold pursuant to this Section 22, Borrower or any person holding

possession of the Property through Borrower shall immediately surrender possession

of the Property to the purchaser at that sale. It possession is not surrendered,

Borro\ver or such person ha1l he a tenant at sufferance and may he removed by writ

ol possession or other court proceeding.

The only issue in a forcible detainer action is the entitlement to actual and immediate

possession of real property. Whether a party has title shall not be adjudicated. See TIEX, R. OV. P.

746; Bruce r. F1\!,t 7 :fortç . lw i, 352 S.W.3d 891, 893 (Tex. App.— Dallas 2011, pet. denied).

A forcible detamer action is dependent on proofofa landlord-tenant relationship; without a landlordtenant relationship, the trial court cannot determine the issue of immediate possession without also

determining the owner of the property. Duss, Inc. .Smith, 206 SW.3d 197. 200 (Tex.

App.— Dallas 2006, no pet.).

The deed of trust expressly established a landlord and tenant—at-sufferance relationship

between Carman (and any other tenant of the Property) and OneWest beginning as ofthe date ofthe

foreclosure sale. See Rice v. Pinriey, 51 S.W.3d 705, 712 (Tex. App.—Dallas 2001, no pet.). “This

landlord—tenant relationship provided an independent basis on which the trial court could determine

the issue of immediate possession without resolving the issue of title to the property.” Id.; see also

Bruce, 352 S.W.3d at 893-94 (concluding similar provision in deed of trust established landlordtenant relationship that served as independent basis for determining right to immediate possession

without resolving title issue); U.S. Bank Nat’! Ass ‘n v. Freenev, 266 S.W.3d 623, 25-26 (Tex.

App.—Dallas 2008, no pet.) (same). The documents OneWest offered and the trial court admitted,

including the deed of trust and the substitute trustee’s deed, proved OneWest was entitled to

immediate possession of the Property as a matter of law. We sustain OneWest’s third issue.
We reverse the trial court’s judgment and render judgment of possession in favor ol

()neWest.

JIM M)SFLL

zJ’USTiCE

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JUDGMENT

ONEWEST BANK FS[3. Appellant

No. 05- 1 —(H) I U(J_C\/ V

CLARK R, CARMAN AND ALL OTHER

OCCU PANTS, Appellees

Appeal from the County Court at Law No. 1

of Dallas County, Texas. (Tr.Ct.No. Cause

No. CC-I 0065 87-A).

Opinion deIiered by Justice Moseley.

Justices Fillmore and Myers participating

In accordance with this Court’s opinion of this date, the judgment of the trial court is

REVERSED and judgment is RENDEREI) that OneWest Bank, FSB is entitled to immediate

possession of the property located at 532 Winchester Drive, Richardson, Texas 75080. It is

ORDERED that appellant OneWest Bank, FSB recover its costs of this appeal from appellees

Clark R. Carman and all other occupants.

Judgment entered March 19, 201 3.

JIM MOSELEY

JUSTICE

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