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Date: 07-05-2017

Case Style: Cheryl Johnson a/k/a Cheryl Angrum v. Citimortgage, Inc.

Case Number: 05-16-00931-CV

Judge: Lana Myers

Court: Texas Court of Appeals, Fifth District on appeal from the County Court at Law No. 5 of Dallas County

Plaintiff's Attorney: Kirk A. Schwartz, Robert Petersen and H. Gray Burks IV

Defendant's Attorney: Cheryl Johnson

Description: Cheryl Johnson a/k/a Cheryl Angrum (Johnson) appeals the trial court’s judgment awarding possession of a property to CitiMortgage, Inc., which foreclosed a lien on the property. In two issues, Johnson contends CitiMortgage did not have standing to obtain a judgment of possession and that the trial court abused its discretion because there was a factual issue of title and it did not have jurisdiction to decide the case. We affirm the trial court’s judgment.
On August 5, 2014, CitiMortgage purchased a property located at 1908 Courtside Drive, Grand Prairie, Texas 75051, at a Trustee’s sale. On June 6, 2016, CitiMortgage filed its original petition for forcible detainer in the justice of the peace court seeking possession of the property. The justice court entered a judgment for possession in favor of CitiMortgage on June 30, 2016. Johnson appealed to the county court at law, which after hearing the petition, signed a judgment
on August 4, 2016, finding Johnson was a tenant at sufferance pursuant to the foreclosure and that CitiMortgage was entitled to judgment for possession of the premises. Johnson did not request any findings of fact or conclusions of law from the county court. She has brought this appeal from the county court at law’s decision.
Johnson is pro se before this Court. Pro se pleadings and briefs are liberally construed, but we hold pro se litigants to the same standards as attorneys and require them to comply with all applicable laws and rules of procedure. Washington v. Bank of N.Y., 362 S.W.3d 853, 854 (Tex. App.––Dallas 2012, no pet.); Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex. 1978). To do otherwise would give pro se litigants an unfair advantage over litigants who are represented by counsel. Washington, 362 S.W.3d at 854; Shull v. United Parcel Serv., 4 S.W.3d 46, 53 (Tex. App.––San Antonio 1999, pet. denied).
We begin with Johnson’s second issue, in which she appears to challenge the sufficiency of the evidence to show CitiMortgage had a superior right to immediate possession of the property, arguing “[t]he trial court abused its discretion because a factual issue of title existed.” Johnson also contends, without evidentiary support or citation to the record, that CitiMortgage had “no right to possession regarding the property, and that she is the fee simple title holder to the subject property.”
In a forcible detainer action, the only issue is which party has the right to immediate possession of the premises; the merits of title are not adjudicated. See Williams v. Bank of N.Y. Mellon, 315 S.W.3d 925, 927 (Tex. App.––Dallas 2010, no pet.); U.S. Bank Nat’l Ass’n v. Freeney, 266 S.W.3d 623, 625 (Tex. App.––Dallas 2008, no pet.); Rice v. Pinney, 51 S.W.3d 705, 708 (Tex. App.––Dallas 2001, no pet.). Furthermore, when, as in this case, there is no reporter’s record and findings of fact and conclusions of law are neither requested nor filed, the judgment of the trial court implies all necessary findings of fact to sustain its judgment.
Waltenburg v. Waltenburg, 270 S.W.3d 308, 312 (Tex. App.––Dallas 2008, no pet.); Williams v. Americas Tire Co., Inc., 190 S.W.3d 796, 803 (Tex. App.––Dallas 2006, pet. denied); Sharp v. Woodridge Props. Co., No. 05–13–00869–CV, 2015 WL 370026, at *2 (Tex. App.––Dallas Jan. 29, 2015, no pet.) (mem. op.); Reese v. Bank of America, No. 05–13–00560–CV, 2014 WL 4057435, at *1 (Tex. App.––Dallas Aug. 15, 2014, no pet.) (mem. op.). We presume the missing reporter’s record supports the decisions of the trial court. See Bennett v. Cochran, 96 S.W.3d 227, 230 (Tex. 2002) (“[C]ourt of appeals was correct in holding that, absent a complete record on appeal, it must presume the omitted items supported the trial court’s judgment.”); Lyons v. Polymathic Properties, Inc., No. 05–15–00408–CV, 2016 WL 3564210, at *2 (Tex. App.––Dallas June 29, 2016, no pet.) (mem. op.) (“The absence of a reporter’s record obligates us to presume the evidence presented supports the judgment.”); Heckendorn v. First Mortgage Co., No. 13–12–00451–CV, 2013 WL 5593520, at *4 (Tex. App—Corpus Christi 2013, no pet.) (“The reporter’s record does not appear in the appellate record. Because there is no reporter’s record, we must presume the missing record would support the trial court’s decision.”). In the absence of a reporter’s record in this case, we therefore presume the evidence supports the trial court’s ruling. Doing this, we conclude there is sufficient evidence to show CitiMortgage had a superior right to possession of the property in question.
As part of her second issue, Johnson also suggests the trial court did not have jurisdiction to decide possession, pointing out there was a pending federal lawsuit, styled Cheryl Johnson-Williams, also known as Cheryl Angrum v. Mortgage Electronic Registration Systems, Inc., CitiMortgage, Inc., Shelley Ortolani, Substitute trustees, in which she attempted to challenge the foreclosure. The federal district court rendered final judgment against Johnson dismissing her suit with prejudice, and she appealed to the Fifth Circuit Court of Appeals, which affirmed the judgment on January 4, 2017. See No. 16–10276, 675 Fed. Appx. 396, 2017 WL 56053, at *1
(5th Cir. Jan. 4, 2017) (per curiam).
As we noted earlier, the only issue in a forcible detainer action is which party has the right to immediate possession of the property. Williams, 315 S.W.3d at 927. Whether a sale of property under a deed of trust is invalid may not be determined in a forcible detainer action but must be brought in a separate suit. Id. And the existence of a separate suit involving title does not deprive the county court at law of jurisdiction. See Villalon v. Bank One, 176 S.W.3d 66, 68–71 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (“Forcible detainer actions in justice courts may be brought and prosecuted concurrently with suits to try title in district court.”); Dormady v. Dinero Land & Cattle Co., 61 S.W.3d 555, 558 (Tex. App.—San Antonio 2001, pet. dism’d) (op. on reh’g); Rice, 51 S.W.3d, at 709. Johnson may not avoid judgment by alleging an improper foreclosure or title defect in the forcible detainer proceeding. The record shows she offered no evidence that CitiMortgage did not own the property, and there is more than a scintilla of evidence to support the trial court’s judgment that CitiMortgage was entitled to possession of the property. We overrule Johnson’s second issue.
In her first issue, Johnson challenges CitiMortgage’s standing to bring this forcible detainer action. Standing is a component of subject-matter jurisdiction and is a constitutional prerequisite to maintaining a lawsuit. In re I.I.G.T., 412 S.W.3d 803, 805 (Tex. App.––Dallas 2013, no pet.). The plaintiff has the burden of alleging facts, which if taken as true, affirmatively demonstrate a court’s jurisdiction to hear a case. Asshauer v. Wells Fargo Foothill, 263 S.W.3d 468, 471 (Tex. App.––Dallas 2008, pet. denied); Nausler v. Coors Brewing Co., 170 S.W.3d 242, 248 (Tex. App.––Dallas 2005, no pet.); Fed. Nat’l Mortg. Ass’n v. Ephriam, No. 05–13–00984–CV, 2014 WL 2628036, *2 (Tex. App.––Dallas June 12, 2014, no pet.) (mem. op.). In addition, Johnson attacks the supporting affidavit and verification from CitiMortgage’s co-counsel, Timothy Swanson, that accompanied the original petition, arguing it was not based on
personal knowledge. She also alleges CitiMortgage “did not present any evidence establishing its standing.”
It is a well-settled principle of law that “[t]o prevail in a forcible detainer action, a plaintiff is not required to prove title, but is only required to show sufficient evidence of ownership to demonstrate a superior right to immediate possession.” Rice, 51 S.W.3d at 709. CitiMortgage established it is the owner of the property in question by producing the Substitute Trustee’s Deed showing it was the purchaser of the property at the Trustee’s sale, the Notice of Trustee’s Sale, and the Deed of Trust. CitiMortgage also produced the March 11, 2016, Notice to Vacate and documentation from the Department of Defense showing Johnson was not engaged in active duty military status as of March 16, 2016. Johnson did not produce any evidence that CitiMortgage is not the owner of the property. Accordingly, there is sufficient evidence in the record to establish CitiMortgage’s ownership interest in the property, and, hence, its “standing” to bring the forcible detainer action. We also note that because of Johnson’s failure to file the reporter’s record and the absence of pertinent findings, we must presume the evidence presented supports the trial court’s implicit finding that CitiMortgage had standing to bring the forcible detainer action. See, e.g., Lyons, 2016 WL 3564210, at *2 (“Given Lyons’s failure to file the reporter’s record and the absence of pertinent findings, we must presume the evidence presented supports the trial court’s implicit finding that Polymathic had standing to bring this forcible detainer action.”).
As for Johnson’s attack on Timothy Swanson’s affidavit, Swanson is listed as a counsel of record for CitiMortgage and the affidavit asserts he is the custodian of records for Shapiro Schwartz LLP, the firm representing CitiMortgage. It also asserts he is personally acquainted with the facts stated in the affidavit and that “[e]ach of the statements contained therein are within my personal knowledge or are made after an examination of the record of Shapiro
Schwartz as kept and maintained in the ordinary course of business and under my overall supervision.” There is no qualifying language within the affidavit. See, e.g., Mekeel v. U.S. Bank Nat'l Ass’n, 355 S.W.3d 349, 355 (Tex. App.––El Paso 2011, no pet.) (upholding verification affidavit as sufficient under rule 510.3 when there was no qualifying language about personal knowledge); Banks v. Bank of America, N.A., No. 03–16–00046–CV, 2017 WL 1832489, at *2 (Tex. App.––Austin May 4, 2017, no pet.) (mem. op.). We also note that a verification signed by the bank’s attorney, even if defective, does not deprive a county court of jurisdiction to hear a forcible detainer action. See Norvelle v. PNC Mortgage, 472 S.W.3d 444, 446 (Tex. App.—Fort Worth 2015, no pet.) (affidavit signed by bank’s attorney and not the bank); Shutter v. Wells Fargo Bank, N.A., 318 S.W.3d 467, 469 (Tex. App.—Dallas 2010, pet. dism’d w.o.j.) (op. on reh’g) (same); see also Randle v. Deutsche Bank Nat’l Trust Co., No. 05–14–01439–CV, 2016 WL 308711, at *6 (Tex. App.––Dallas Jan. 26, 2016, no pet.) (mem. op.); Banks, 2017 WL 1832489, at *2 n.2. Additionally, Johnson does not argue, much less show, that the allegedly defective verification or pleading posed any impediment to the trial court’s determination of possession or otherwise resulted in harm to appellant. See Banks, 2017 WL 1832489, at *3. We overrule Johnson’s first issue.

Outcome: We affirm the trial court’s judgment.

Plaintiff's Experts:

Defendant's Experts:


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