### 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. 03-13-00297- CV

Wells F argo, N.A., A ppellan t

v. Jonathan Steel and/or All Other Occupants 1321 Mim osa P ass, Cedar P ark, TX 78613, Appellees

F ROM TH E CO UNTY COURT O F LAW NO . 4 O F WI LLIAM SO N COUNTY NO. 12- 1789 -CC4, HO NORAB LE JO HN Mc MASTER, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N

Wells Fa rg o, N.A., appea ls a trial court judgme nt dismiss in g a f o r c ib le d e ta in e r action it had filed aga i n s t J o n athan Steel and other occupa nts of 1321 Mimosa Pass, Cedar Park, TX 78613. To elab o ra t e on the bases of its judgme nt, the trial court prepa red “finding s of fac t and 1

con cl u s i o n s of l aw” to the effec t that Wells Fa rg o had failed to prove the exis tence of a landlordtenant rela tionship betwee n it and Steel and that, in the absenc e of such a rela tionship, Wells Fa rg o’s claim to a superior rig ht to immediate possession was so intertwined with questio n s of title

as to be bey ond i t s s u b

j ec t -matter jurisdiction to adjudicate

. Wells Fa rg o’s core contention on 2

S o metime afte r he purcha sed t he property at i ssue, S teel lega lly chang ed his surname t o 1 Martindale, and he is ide ntified by both sur names in the rec ord. I n his br ief on appea l, he uses the Steel surname f

or consistenc y , and so will we. S ee R i ce v. Pinney , 51 S.W .3d 705, 709 (Tex. App.—Dallas 2001, no pet.); id

. at 713 2 (collec ting case s); see also Chinyere v. W ells Fargo Bank, N.A. , No. 01-11-0 0 3 0 4 -C V, 2012 WL 2923189, at *3–5 (Tex. App.—Houston [1st Dist.] J uly 12, 2012, no pet.) (holding lowerappea l is that, co n t rary to the trial court’s holdings, the substitut e trustee’ s deed convey ing it the
proper ty and Steel’s deed of tru s t co n clusively established the landlord-tena nt rela tionship and, in turn, Wells Fa

rg o’s superior rig ht to immediate possession. More specific ally , in three issues, Wells Fa rg o acc uses the trial court of err oneously “excludin g” “evide nce” of the substitut e trustee’ s deed and deed of trust (first issue), of simply “ig noring ” this “evide nce” (seco n d issue), and of improperly delving i n t o the underly ing validity of t he foreclosure sale (third issue). These contentions are without merit, and quickly disposed of. As Wells Fa

rg o tacitly acknow ledg es in its first issue, no evide n ce o f t h e purported instruments on which it relies was ev er ad m i t ted at trial—in fac t, the sole evidenc e contained in the repor

ter’s rec ord from trial was prese n t ed b y S teel, and consisted only of his

counse l ’s testimony proving up his attorney ’s fee s. Nor did Wells Fa rg o prese rve any complaint
reg arding the trial cour t ’s supposed “exclusion” of its evidenc e—to the contra ry , the trial rec ord ref lects that Wells Fa

rg o mere ly prese nted arg ument and did not attempt to introduce any evidenc e, much less make a rec ord of any adver se evidentiar y ruling s for appellate revie w. Cf

. Tex. R. App. P. 33.1(a)( 1). Ac cording ly , we ove rrule Wells Fa rg o’s first issue. I n its second issue, Wells Fa rg o in s i n uates that evidenc e of the substitut e trustee’ s deed and deed of trust was “alr eady admit t ed i n t o t h e court rec ord.” Wells Fa rg o is
appar ently ref

err ing to the cler

k’s rec ord, which contains, as an attachme nt to its orig inal petition in

courts lacke d subject-matter j urisdiction over forc ible detainer action wher e evidenc e failed to establish landlord-tena nt rela tionship). The trial court further took judicial notice o f a pending district court lawsuit that, acc ording to the court, disputed the question of title. See Falcon v. Ensignia , 976 S.W .2d 336, 338 (Tex. App.—Corpus Christi 1998, no pet.) (“Specif ic evidenc e of title disput e is requir ed to ra ise an issue of a justice court’ s jurisdiction.”). 2justi ce court, a document titled “Truste e’s Dee d (B y Substi tute Trustee ),” as well as notices to

vacate, accompanied by a business-re cords aff idavit. Even assuming that these documents wer e proper ly made part of the evidentiar y rec ord on which the trial court could have relied in the de novo appea l, they alone would not have suffice d to establish Wells Fa rg o’s rig ht to immediate possession. I nstead, as Wells Fa

rg o acknow ledg es, it could preva il only if it prese nted evidenc e of, among other things, a landlord-tena

nt rela tionship betwee n it and Steel. See Rice v. Pinney , 51 S.W .3d 705, 712 (Tex. App.—Dallas 2 0 0 1 , n o p e t.) (“This landlord-tena nt rela tionship provided an independe nt basis

on which the trial court could deter mine the issue of immediate possession without resolving the i s sue of title to the proper ty .”); see id

. at 712 n.4 (“[O]ne indication that a justice court, and on appea l a county co u rt , m ay be require d to adjudicate title to rea l estate in a forc ible detainer

case —and thus, exceed its jurisdiction—is when a landlord-tena nt rel a ti o n s h ip is lacking .”); see also Tex. Prop. Code § 24.002(a) (2). The substitut e tru s t ee’s deed in itself did not establish that rela tionship, so Wells Fa

rg o ultimately relies on the deed of trust, which, acc ording to Wells Fa rg o, provi d ed t h at if Steel did not surre nder possession of the disputed proper ty following fore closure sale, he would become a tenant at suffe ranc e. Howeve r, the deed of trust is nowher e to be found in the clerk’s record, and, although W el l s Fa rgo attaches what purports t o be a copy to its appellate 3 brief, we may not consider it. Nor does Wells Fa rg o point to any o t h er gro u n d that would 4

Whil e the deed of trust was purportedly rec orded in the Wil liamson County rea l proper ty 3 rec ords, Wells Fa

rg o does not sug g est that this fac t alone would relieve it of its evidentiar y burden. See In re Guardianship of W inn , 372 S.W .3d 291, 297 (Tex. App.—Dallas 2012, no pet.) 4 (re viewing courts ca

nnot consider matter s outside the appellate rec ord). Simi larly , Wells Fa

rg o repr esents that Steel’s coun sel “stipulated” below that Steel had “sig ned and ag ree d to the terms contained in the Dee d of Trust,” further insinuating that Steel 3compel the county court to hold that it had the rig ht of immediate possession. Cf. Rice , 51 S.W .3d

at 709–13; see also Chinyere v. W ells Fargo Bank, N.A. , No. 01-11-00304- CV, 2012 WL 2923189,
at *3–5 (Tex. App.—Houston [ 1 st Dist.] J uly 12, 2012, no pet.). We overr ule Wells Fa

rg o’s second issue. As for Wells Fa rg o’s third issue, it amounts to littl e more than an implication of the
arg uments advanc ed in its first two issues. W e likewise ove rrule it.

CONCLUSION We affir m the trial court’ s judgme nt.

__________________________________________ Bob Pembe rton, J ustice Be fore Chief J ustice Jones, J ustices Pemberton a nd Field Affir med Filed: January

7, 2014

conce ded the exis tence of a landlord-tena nt rela tionship. Steel denies this, and the appellate rec ord supports only

Steel’s ac count of the pr ocee dings. 4