NO. 12-14-00212-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

ROBERT ROBINSON, 

APPELLANT

V.

WELLS FARGO BANK, N.A.,

APPELLEE

§

§

§

APPEAL FROM THE

COUNTY COURT AT LAW

CHEROKEE COUNTY, TEXAS

MEMORANDUM OPINION

Robert Robinson appeals the trial court’s judgment in favor of Wells Fargo Bank, N.A. in 

this forcible detainer action. He raises four issues on appeal. We affirm.

BACKGROUND

Kenneth Houston purchased a home in 2007 and executed a note, securing the note with a 

deed of trust. Houston died less than a year later. The Bank purchased the property at a 

nonjudicial foreclosure sale. At the time of Houston’s death and thereafter, Robert Robinson and 

Mary Edmiston lived in the residence. The Bank filed a forcible detainer action against 

Robinson and Edmiston in justice court to have them removed from the home. The justice court 

ruled in the Bank’s favor, and Robinson and Edmiston appealed to the county court at law. The 

county court at law also found in favor of the Bank. Robinson appealed to this court.

EX PARTE COMMUNICATION

In his first issue, Robinson asserts that the trial judge and opposing counsel engaged in ex 

parte communications during a recess on the day of the summary judgment hearing. He 

references a letter he wrote to the trial judge in which he explained to the judge that an 

acquaintance of his had told him that the Bank’s lawyer was in the judge’s office during the 
2

recess. Robinson asked the judge to provide a written response to clear up the “appearance of 

impropriety.”

The Code of Judicial Conduct prohibits a judge from initiating, permitting, or considering 

ex parte communications concerning the merits of a pending case. TEX. CODE JUD. CONDUCT, 

Canon 3(B)(8), reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. G, app. B (West 2013). An ex 

parte communication is one that involves fewer than all parties who are legally entitled to be 

present during the discussion of any matter. Randolph v. Texaco Exploration and Prod., Inc., 

319 S.W.3d 831, 836 (Tex. App.—El Paso 2010, pet. denied). 

Although Robinson attempted to present this issue to the trial court, he did not do so in a 

formal motion filed with the clerk of the court and served on the Bank as required by the rules of 

procedure. See TEX. R. CIV. P. 21(a). Furthermore, even if his letter could be considered a 

motion requesting relief, there is no ruling on the complaint in the record as required by the rules 

of appellate procedure for preservation of error. See TEX. R. APP. P. 33.1(a). Accordingly, this 

complaint is waived. See Lake v. Premier Transp., 246 S.W.3d 167, 174 (Tex. App.—Tyler 

2007, no pet.). We overrule Robinson’s first issue.

FORCIBLE DETAINER

In his second issue, Robinson asserts that the trial court erred in granting the Bank’s 

motion for summary judgment because the Bank relied on fabricated evidence. He argues that,

in a “robosigned” document containing a forged notary signature and filed in the county deed 

records, the Bank falsely identified the lender and falsely represented that it complied with the 

property code. He further complains that the Bank did not produce evidence that the note had 

been transferred or assigned to the Bank. In his third issue, Robinson contends that the Bank 

lacks standing to bring a forcible detainer action because, due to the Bank’s alleged fraudulent 

activity, it cannot prove it is the rightful owner of the property.

Standard of Review

A party moving for traditional summary judgment bears the burden of showing that no 

genuine issue of material fact exists and that it is entitled to judgment as a matter of law. TEX. R.

CIV. P. 166a(c). The movant must prove all elements of the movant’s cause of action. RhonePoulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999). Once the movant establishes its right 

to summary judgment as a matter of law, the burden shifts to the nonmovant to present evidence 
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raising a genuine issue of material fact. See City of Houston v. Clear Creek Basin Auth., 589 

S.W.2d 671, 678-79 (Tex. 1979). To determine if there is a fact issue, we review the evidence in 

the light most favorable to the nonmovant, crediting favorable evidence if reasonable jurors 

could do so, and disregarding contrary evidence unless reasonable jurors could not. City of 

Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). 

Applicable Law

The sole issue in a forcible detainer action is which party has the right to immediate 

possession of the property. TEX. R. CIV. P. 510.3(e); Chinyere v. Wells Fargo Bank, N.A., 440 

S.W.3d 80, 82 (Tex. App.—Houston [1st Dist.] 2012, no pet.). To prevail, the plaintiff is only 

required to show sufficient evidence of ownership to demonstrate a superior right to immediate 

possession. Morris v. Am. Home Mortg. Servicing, Inc., 360 S.W.3d 32, 34 (Tex. App.—

Houston [1st Dist.] 2011, no pet.).

Justice courts and county courts are expressly deprived of jurisdiction to determine or 

adjudicate title to land. TEX. GOV’T CODE ANN. §§ 26.043(8), 27.031(b) (West 2004 & Supp. 

2014). Thus, whether the sale of property under a deed of trust is invalid may not be determined 

in a forcible detainer action and must be brought in a separate suit. Shutter v. Wells Fargo 

Bank, N.A., 318 S.W.3d 467, 471 (Tex. App.—Dallas 2010, pet. dism’d w.o.j.). 

A person who refuses to surrender possession of real property on demand commits a 

forcible detainer if the person is a tenant at will or by sufferance. TEX. PROP. CODE ANN. 

§ 24.002(a)(2) (West 2014). Consequently, a forcible detainer action requires proof of a 

landlord-tenant relationship. Yarbrough v. Household Fin. Corp. III, 455 S.W.3d 277, 280

(Tex. App.—Houston [14th Dist.] 2015, no pet.). Where a deed of trust established a landlord 

and tenant-at-sufferance relationship between the purchaser at the foreclosure sale and the 

previous owners, an independent basis for possession exists on which the justice or county court 

could determine the issue of immediate possession without resolving the issue of title to the 

property. Black v. Washington Mut. Bank, 318 S.W.3d 414, 418 (Tex. App.—Houston [1st 

Dist.] 2010, pet. dism’d w.o.j.). This is so even if the possessor questions the validity of a 

foreclosure sale and the quality of the buyer’s title. Wells Fargo Bank, N.A. v. Ezell, 410 

S.W.3d 919, 921 (Tex. App.—El Paso 2013, no pet.). 
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Analysis

As summary judgment evidence, the Bank produced copies of Houston’s deed of trust, 

the substitute trustee’s deed naming the Bank as current mortgagee and grantee/buyer, and 

notices to vacate sent to Edmiston and Robinson. Houston’s deed of trust provides as follows:

If the Property is sold pursuant to [a power of sale after acceleration 

following default], Borrower or any person holding possession of the Property 

through Borrower shall immediately surrender possession of the Property to the 

purchaser at that sale. If possession is not surrendered, Borrower or such person 

shall be a tenant at sufferance and may be removed by writ of possession.

The county court at law had before it documentation showing that the Bank purchased the 

property at a foreclosure sale creating a landlord and tenant-at-sufferance relationship between 

Robinson and the Bank. See Black, 318 S.W.3d at 418. Thus, the Bank showed a superior right 

to possession of the property. Robinson essentially contends that the Bank has not shown that it 

has good title to the property. Defects in the foreclosure process or in the Bank’s title to the 

property may not be considered in this forcible detainer suit. See Shutter, 318 S.W.3d at 471. 

Accordingly, Robinson did not raise any issues of material fact, and the trial court did not err in 

granting the Bank’s motion for summary judgment. See City of Houston, 589 S.W.2d at 678-79. 

We overrule Robinson’s second and third issues.

CONSTITUTIONALITY OF FORCIBLE DETAINER LAW

In his fourth issue, Robinson asserts that Texas’s nonjudicial foreclosure/forcible detainer 

laws violate the Texas and federal constitutions. He argues it is a forbidden special law that 

violates the defendant’s due process and equal protection rights leading to an unconstitutional 

deprivation. He also contends that the process is an invitation to commit document fraud that 

has resulted in no criminal convictions. 

Our review of the record reveals that Robinson failed to raise these complaints in the trial 

court.1 A party to a lawsuit waives the right to raise even a constitutional claim on appeal if that 

 

1

In paragraph 52 of his response to the Bank’s motion for summary judgment, Robinson references a 

portion of Texas Constitution Article III, Section 56(a)(16), but he makes no argument regarding the 

constitutionality of Texas’s forcible detainer law.
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claim is not presented to the trial court. City of El Paso v. Heinrich, 284 S.W.3d 366, 377 (Tex. 

2009). We overrule Robinson’s fourth issue.

DISPOSITION

We affirm the trial court’s judgment. All pending motions are dismissed.

BRIAN HOYLE

Justice

Opinion delivered September 30, 2015.

Panel consisted of Hoyle, J. and Neeley, J.

Worthen, C.J., not participating.

(PUBLISH)
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

SEPTEMBER 30, 2015

NO. 12-14-00212-CV

ROBERT ROBINSON,

Appellant

V.

WELLS FARGO BANK, N.A.,

Appellee

Appeal from the County Court at Law 

of Cherokee County, Texas (Tr.Ct.No. CV9282)

THIS CAUSE came to be heard on the appellate record and briefs filed 

herein, and the same being considered, it is the opinion of this court that there was no error in the 

judgment.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment of 

the court below be in all things affirmed, and that the decision be certified to the court below 

for observance.

Brian Hoyle, Justice.

Panel consisted of Hoyle, J. and Neeley, J.

Worthen, C.J., not participating.