in Re: It's the Berry's, LLC

NO. 12-06-00298-CV IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS § IN RE: IT’S THE BERRY’S, LLC, § ORIGINAL PROCEEDING RELATORS § MEMORANDUM OPINION In this original proceeding, It’s The Berry’s, LLC (“Berry’s”) complains of the trial court’s order setting the amount of the bond necessary to supersede a judgment. The judgment awarded Edom Corner, LLC (“Edom”) possession of the disputed premises, costs, attorney’s fees, and postjudgment interest.1 The trial court set the amount of the bond required to supersede only the monetary component of the judgment. Berry’s seeks mandamus relief contending that the trial court abused its discretion when it declined to set a bond amount for the entire judgment. We conditionally grant the writ. Procedural Background Edom filed a forcible detainer action seeking to evict Berry’s from the premises it occupied pursuant to a commercial lease with Edom. The action was filed in the Justice Court, Precinct 4, Van Zandt County, Texas. Berry’s filed a motion to transfer the case to the 294th Judicial District Court of Van Zandt County (the “district court” or the “trial court”) alleging that the issues in the case were “matters of property ownership, possession and leasehold, which matters are within the jurisdiction of the District Court and are between parties who are affiliated with or owned and controlled by parties to another real property action before the District Court.” The justice court granted Berry’s motion. In its order transferring the case to the district court, the justice court included a finding that “the matter concerns issues within [the district court’s] jurisdiction.” Following a bench trial, the trial court on August 7, 2006 signed a judgment awarding Edom possession of the leased premises, costs, attorney’s fees, and postjudgment interest. Berry’s filed a notice of appeal to this Court. Berry’s also filed a motion requesting the trial court to determine the amount of the bond necessary to supersede and suspend enforcement of the judgment pending appeal (the “bond amount”). On August 11, 2006, the trial court conducted a hearing on Berry’s motion and informed the parties that they could expect a ruling the following Monday morning (August 14, 2006). On August 18, 2006, Berry’s filed this original proceeding alleging that the trial court had not ruled on its motion to determine the bond amount and interpreting the trial court’s delay as a refusal to rule. Berry’s also filed a motion for emergency relief asserting that unless the judgment was stayed, a writ of possession would issue resulting in a loss of the subject matter of its appeal and this proceeding. We granted the motion and stayed all proceedings in the trial court pending this Court’s issuance of further orders. After we granted the stay, the trial court issued a writ of possession and an order staying all trial court proceedings.2 Three days after our stay was issued, Edom filed a motion for reconsideration. We granted the motion in part and modified our stay to permit the trial court to rule on Berry’s motion to determine the bond amount. On September 11, 2006, approximately three weeks after we modified our stay, Edom filed a second motion for reconsideration. As grounds for this motion, Edom submitted a copy of the trial court’s order signed on August 19, 2006 setting “the amount of the bond to supersede and suspend enforcement of the monetary judgment pending appeal of the final judgment . . . .”3 We ordered Berry’s to show cause why this proceeding should not be dismissed as moot. Berry supplemented its mandamus petition stating that the trial court set the bond amount for the monetary component of the judgment but not for the possession component. Therefore, Berry’s urged, this proceeding is not moot because the issue remains whether the trial court abused its discretion in not permitting Berry’s to supersede the entire judgment pending appeal. Having reviewed Berry’s response and Edom’s reply, we conclude that this proceeding is not moot and turn to the merits of Berry’s petition. Prerequisites To Mandamus Mandamus relief is proper only to correct a clear abuse of discretion when there is no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). A trial court has no discretion in determining what the law is or applying the law to the facts. Walker, 827 S.W.2d at 840. Thus, a clear failure by the trial court to analyze or apply the law correctly is an abuse of discretion. Id. Generally, the right to supersede a judgment is absolute and is not a matter within the trial court’s discretion. See Elizondo v. Williams, 643 S.W.2d 765, 767 (Tex. App.–San Antonio 1982, no writ); see also Tex. R. App. P. 24.1(a); but see, e.g., Tex. R. App. P. 24.2(3) (trial court may decline to permit judgment to be superseded if for something other than money or interest in property, provided judgment creditor posts adequate security as ordered by trial court). When a party has the right to supersede a judgment, the trial court has no discretion to refuse to fix the amount of the supersedeas bond. Houtchens v. Mercer, 119 Tex. 431, 437-47, 29 S.W.2d 1031, 1033-37 (1930) (orig. proceeding); see also Tex. R. App. P. 24.2. Mandamus is appropriate to compel a trial court to set the amount of a supersedeas bond. See Houtchens, 119 Tex. at 447, 29 S.W.2d at 1037; Continental Oil Co. v. Lesker, 500 S.W.2d 183, 185 (Tex. Civ. App.–Houston [1st Dist.] 1973, orig. proceeding). Forcible Detainer A forcible detainer action is a procedure to determine the right to immediate possession of real property where there was no unlawful entry. Tex. Prop. Code Ann. § 24.002 (Vernon 2000); Rice v. Pinney, 51 S.W.3d 705, 709 (Tex. App.–Dallas 2001, no pet.). Justice courts have exclusive original jurisdiction of forcible detainer actions. McGlothin v. Kliebert, 672 S.W.2d 231, 232 (Tex. 1984). Either party may appeal from a final judgment in a forcible detainer action to the county court of the county in which the judgment was rendered. Tex. R. Civ. P. 749. The appeal is by trial de novo. Tex. R. Civ. P. 751. The sole issue in a forcible detainer action is the right to immediate possession. Dormady v. Dinero Land & Cattle Co., 61 S.W.3d 555, 557 (Tex. App.–San Antonio 2001, pet. dis’md w.o.j.) (op. on reh’g); see also Tex. R. Civ. P. 746 (sole issue in forcible detainer is right to actual possession). “[T]he merits of the title shall not be adjudicated.” Tex. R. Civ. P. 746. Although justice courts have exclusive original jurisdiction of forcible detainer actions, district courts have general jurisdiction to determine the right to possession of real property. McGlothin, 672 S.W.2d at 232; Breceda v. Whi, No. 08-04-00173-CV, 2005 WL 552164, at *2-3 (Tex. App.–El Paso 2005, no pet.). Thus, justice courts and district courts have concurrent jurisdiction to determine the question of possession. McCloud v. Knapp, 507 S.W.2d 644, 647 (Tex. Civ. App.–Dallas 1974, no writ). As a general rule, district courts have sole jurisdiction to adjudicate title.4 Falcon v. Ensignia, 976 S.W.2d 336, 338 (Tex. App.–Corpus Christi 1998, no pet.). If the question of title is so integrally linked to the issue of possession that possession may not be determined without first determining title, justice courts have no jurisdiction to enter a judgment. Rice, 51 S.W.3d at 709. A forcible detainer action is cumulative of other remedies, not exclusive. Scott v. Hewitt, 127 Tex. 31, 35, 90 S.W.2d 816, 818-19 (1936). Therefore, the displaced party is entitled to bring a separate suit in the district court to determine the question of title. Villalon v. Bank One, 176 S.W.3d 66, 70 (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, 61 S.W.3d at 558. When both title and possession are involved, a district court suit to try title takes precedence, and the district court may restrain the justice court proceedings by injunction until the district court has determined title. Breceda, 2005 WL 552164, at *3. In this case, however, the underlying proceeding was filed as a forcible detainer action in justice court and then transferred to the district court. Edom states that it agreed to the transfer and does not contend that the transfer was improper. Right To Supersede The Entire Judgment Unless the law or the rules of appellate procedure provide otherwise, a judgment debtor may supersede a judgment pending appeal. Tex. R. App. P. 24.1(a). When the judgment is for something other than money or an interest in property, the trial court must set the amount and type of security that the judgment debtor must post unless the judgment creditor posts the security ordered by the trial court. Tex. R. App. P. 24.2(a)(3). According to Berry’s, Rule 24.1(a)(3) applies here, and the trial court was required to set a bond amount for the possession component of the judgment. Edom disagrees pointing out that a writ of possession issued by a county court after a trial de novo in a forcible detainer case “shall not be suspended or superseded in any case by appeal from such final judgment in the county court, unless the premises in question are being used as the principal residence of a party.” See Tex. R. Civ. P. 755. Berry’s counters that Rule 755 is inapplicable because the appeal in the instant case is not from a judgment of the county court. Edom calls our attention to Texas Government Code section 24.471, which provides that the 294th District Court has concurrent jurisdiction with the county court in Van Zandt County over all matters of civil and criminal jurisdiction, both original and appellate. See Tex. Gov’t Code Ann. § 24.471(b) (Vernon 2004). Edom acknowledges that the original jurisdiction of a forcible detainer suit is in the justice court, with the appeal normally being to the county court for a trial de novo. However, Edom contends that section 24.471 establishes a “special relationship” between the county court and the district court in Van Zandt County. Because of this special relationship, Edom’s argument continues, the docketing of the forcible detainer case in the district court rather than in the county court was proper. Therefore, Edom concludes, rule 755 applies, and the writ of possession cannot be superseded because the lease in question is a commercial lease. We disagree. Section 24.471 gives the district court and the county court in Van Zandt County concurrent jurisdiction only of those civil and criminal matters over which the county court has jurisdiction under the constitution and laws of this state. Id. The jurisdiction of county courts in forcible detainer actions is appellate only. Tex. R. Civ. P. 749; see also McGlothin, 672 S.W.2d at 232 (justice courts have exclusive original jurisdiction of forcible detainer actions). It therefore follows that under section 24.471, the concurrent jurisdiction of the county court and the district court in forcible detainer actions would be appellate only. In the instant case, the justice court did not enter a judgment in the forcible detainer action. The district court exercised its original jurisdiction to determine the issues raised by the parties, including the issue of possession. Consequently, section 24.471 is not applicable here, and the trial court was not, as Edom contends, “sitting as a County Court in this case.” Because Berry’s appeal is not from a final judgment of the county court after a trial de novo, Rule 755 does not apply, and Berry’s was entitled to supersede the entire judgment. Accordingly, the trial court abused its discretion when it set a bond amount for only the monetary component of the judgment. Conclusion The trial court abused its discretion in failing to set a bond amount that allowed Berry’s to supersede the entire August 7, 2006 judgment. Mandamus is appropriate to correct the trial court’s action. See Houtchens, 119 Tex. at 447, 29 S.W.2d at 1037; Continental Oil Co., 500 S.W.2d at 185. We therefore conditionally grant the writ of mandamus. We are confident, however, that the trial court will promptly vacate its August 19, 2006 order and issue an order setting the bond amount necessary for Berry’s to supersede the entire judgment. The writ of mandamus will issue only if the trial court fails to do so within ten days of the date of this opinion. The stay is lifted, and all pending motions are overruled as moot. JAMES T. WORTHEN Chief Justice Opinion delivered October 25, 2006. Panel consisted of Worthen, C.J.,Griffith, J., and Hoyle, J. (PUBLISH) 1 The respondent is the Honorable Teresa Drum, Judge of the 294th Judicial District Court, Van Zandt County, Texas. The real party in interest is Edom Corner, LLC. 2 Orders issued by a trial court after an appellate court has stayed all trial court proceedings are void. In re El Paso County Commissioners Court, 164 S.W.3d 787, 787-88 (Tex. App.–El Paso 2005, orig. proceeding). 3 This Court had no prior notice that the trial court had ruled on Berry’s motion to set the bond amount. This order was signed two days before Edom filed its first motion for reconsideration asking that we modify our stay to permit the trial court to rule. 4 Justice courts have no jurisdiction to adjudicate title to land. Ward v. Malone, 115 S.W.3d 267, 269 (Tex. App.–Corpus Christi 2003, pet. denied). In some counties, courts other than district courts have jurisdiction to determine title. See, e.g., Tex. Gov’t Code Ann. § 25.2142 (Vernon 2004) (with certain exceptions not relating to determination of title to real property, county court at law in Smith County has jurisdiction provided by constitution and by general law for district courts). In Van Zandt County, however, only the district court has jurisdiction to determine title.