REVERSE and RENDER; Opinion Filed March 19, 2011

In The 

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## FiftI! thitrirt of ixa at OaLtwii 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-I0-06587-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 ofaresidentialproperty. ThejusticecourtenteredjudgmentinOneWest’s favor. Carman appealed to the county court at law, which conducted a trial de novo and enteredjudgment in Carman’s favor. OneWest asserts three arguments in this appeal, including the trial court erredby ignoring an independent basis for adjudicating possession ofthe property. The background and facts ofthe 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, reversethe trial court’sjudgment,and enterjudgment in favor ofOneWest 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 unsuccessfullv attempting to remove Carman and any other persons living in the Property. OneWest filed a foreible detainer action. The trial court admitted four exhibits uttered by OneWest: a certified copy ofthe deed of trust executed by Carman that encumbered the Property; a certified copy ofthe substitute trustee’s deed; and the notices to vacate the Property that OneWest served on Carman and other occupants ofthe Property (along with proofofservice ofthe notices). Carman also testified and offered into evidence a copy ofa documenttitled “Assignment ofNote andTransferof[ems.” TheAssignment, admitted over OneWest’s objection, showed it had been executed afterthe 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 rightto 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. Thatbeing the case, I’m going to fncl forthe defendant.” The trial court enteredjudgment in Carman’s favor. In its third issue, OneWest argues the trial court erred by ignoring the parties’ agreement in the deed oftrustthat, inthe eventofaforeclosure, Carmanwouldbecome atenant-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 ofthe Property is based on section 22 ofthe deed oftrust, which states:

As a result ofour 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 ofthe Propertythrough Borrowershall immediately surrenderpossession 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 notbe 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). Aforcible detameraction isdependentonproofofa landlord-tenantrelationship; withoutalandlordtenant relationship, the trial court cannot determine the issue ofimmediate 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 othertenant ofthe Property) and OneWestbeginning 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 relationshipprovided an independent basis on which the trial court coulddetermine the issue ofimmediate possession without resolving the issue oftitle to the property.” Id.; see also Bruce, 352 S.W.3d at 893-94 (concluding similar provision in deed oftrust 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 ofthe Property as a matter oflaw. 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 1201 OOFP05

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### zü t11&t!5 JUDGMENT ONEWEST BANK FS[3. Appellant No. 05- 1 —(H) IU(J_C\/ V CLARK R, CARMAN AND ALL OTHER OCCUPANTS, 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 ofthe property located at 532 Winchester Drive, Richardson, Texas 75080. It is ORDERED that appellant OneWest Bank, FSB recover its costs ofthis appeal from appellees Clark R. Carman and all other occupants. Judgment entered March 19, 201 3.

JIM MOSELEY JUSTICE /