Tiquabo, Rusom v. Nassrallah, Chris and Al Nayem International Irrevocable Trust

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Court at Appeals Jfltftif Utatrict of Sterna at Dallas

JUDGMENT

RUSOM TIQUABO, Appellant Appeal from the County Court at Law No. 2 of Dallas County, Texas. (Tr.Ct.No. cc-99- No. 05-99-00491-CV V. 325-b). Opinion delivered by Justice Kinkeade, AL NAYEM INTERNATIONAL TRUST, Justices James and FitzGerald participating. Appellee

In accordance with this Court's opinion of this date, the judgment of the trial court is REVERSED and the case is DISMISSED for want ofjurisdiction. It is ORDERED that appellant Rusom Tiquabo recover his costs of this appeal from appellee Al Nayem International Trust.

Judgment entered April 12^, 2000.

EDKINKE JUSTICE

REVERSE, DISMISS; Opinion Filed April /2-, 2000

In The

Court of Appcala JTtftlj ^tatrtct of Stexaa at £allaa No. 05-99-00491-CV

RUSOM TIQUABO, Appellant

V.

AL NAYEM INTERNATIONAL BRREVOCABLE TRUST, Appellee

On Appeal from the County Court at Law No. 2 Dallas County, Texas Trial Court Cause No. cc-99-00325-b

OPINION

Before Justices Kinkeade, James, and FitzGerald Opinion By Justice Kinkeade

In this forcible entry and detainer case, Rusom Tiquabo appeals atrial court's judgment in favor of Al Nayem International Irrevocable Trust (the Trust). In three issues, Tiquabo contends the trial court erred by (1) failing to dismiss the action for lack of jurisdiction, because Tiquabo presented evidence that agenuine issue oftitle existed; (2) failing to dismiss the case because ofthe absence of anecessary party; and (3) finding conscious indifference under the facts of this case. Because we conclude Tiquabo presented a genuine issue as to title that rendered the trial court without jurisdiction, we reverse the trial court's judgment and order the case dismissed.

Factual Background

On July 14,1998, Tiquabo and Samrawit Gebreyohannes entered into acontractto purchase property from the Trust. In January of 1999, the Trust filed acomplaint for eviction in the justice court, alleging that Tiquabo and Gebreyohannes were tenants in the property and had failed to pay $2,400 in rent. Only Tiquabo was served with citation. Thejustice court entered ajudgmentagainst Tiquabo, and he appealed to the county court at law. The county court set the case for trial, and when Tiquabo did not appear at trial, the county court entered default judgment against him. Tiquabo filed amotion for new trial, alleging that he was never notified ofthe trial setting. He then filed an amended motion for new trial, alleging that he owned the property under acontract for deed, acopy ofwhich he attached to the motion. The trial court denied the motion for new trial, and Tiquabo appealed. Jurisdiction

In his first issue, Tiquabo contends the trial court was required to dismiss the case when title became an issue, because acounty court does not have thejurisdiction to determine title in aforcible entry and detainer suit. We agree. Aforcible entry and detainer suit is initiated for the sole purpose ofdetermining who has the right to immediate possession ofthe premises that are the subject ofthe suit. Fandey v. Lee, 880 S.W.2d 164, 168 (Tex. App.-El Paso 1994, writ denied). The only issue is the right to actual possession; iftitle to the property is directly involved in the suit, thejustice and county courts lack jurisdiction. Tex. R. Civ. P. 746 (in aforcible entry and detainer action, "the merits oftitle shall not be adjudicated"); Johnson v. FellowshipBaptist Church, 627 S.W.2d 203,204 (Tex. App.-Corpus

-2-Christi 1981, no writ).

Here, Tiquabo presented evidence that put title to the property in dispute. Tiquabo filed an amended motion for new trial, alleging he owned the property in question under acontract for deed, acopy ofwhich was attached to the motion. The contract showed that Tiquabo and Gebreyohannes had entered into the contract with the Trust to purchase the property. This Court has consistently held that apurchaser under acontract for deed is invested with equitable title from the date ofthe contract. Williams v. Ballard, 722 S.W.2d 9, 11 (Tex. App.-Dallas 1986, no writ); Darn v. Cartwright, 392 S.W.2d 181, 184 (Tex. Civ. App.-Dallas 1965, writ refdn.r.e.); City ofGarland v. Wetzel, 294 S.W.2d 145, 147 (Tex. Civ. App.-Dallas 1956, writ refdn.r.e.); see also Fant v. Howell, 547 S.W.2d261,264-65 (Tex. 1977); butsee, e.g., Gravesv. Diehl, 958 S.W.2d468,471- 72 (Tex. App.-Houston [14th Dist] 1997, no writ) (discussing the split ofauthority in Texas courts as to whether acontractfor deed bestows equitable title or equitable rights). Once this evidence was presented to the trial court, the trial court had no choice other than to dismiss the suit for lack of jurisdiction. Mitchell v. Armstrong Capital Corp., 911 S.W.2d 169, 171 (Tex. App.-Houston [1st Dist.] 1995, writ denied) (if it becomes apparent that agenuine issue regarding title exists in a forcible detainer suit, the court does not have jurisdiction over the matter). We hold that once the issue oftitle was raised in the county court, the court was required to

-3-dismiss the case. We therefore reverse the trial court's judgment and order the case dismissed for want ofjurisdiction.

ED KINKEADE JUSTICE

Do Not Publish TEX. R. APP. P. 47 990491.OP

Fifth Court of Appeals Case Attorney Address List Page: 1 Date Printed: 04/12/2000

Case Number: 05-99-00491-CV Date Filed: 03/25/1999

Style: Tiquabo, Rusom v. Nassrallah, Chris and Al Nayem International Irrevocable Trust

Trial Judge: Lopez, Carlos Trial Court Reporter: Steen, Sherry Trial Court: COUNTY COURT AT LAW NO 2 Trial County: DALLAS ANT Charles W. McGarry ATT 013610650 Law Offices of Charles W. McGarry 900 Jackson Street, Suite 600 Dallas, TX 75202 Phone 214/748-0800 Fax 214/712-9254

APE Jules Slim ATT 000793026 Attorney at Law 1725 Medina Drive Mesquite, TX 75150 Phone 972/613-7733 Fax 972/613-7734