Richard Kirby v. Benny Fletcher

NO. 12-23-00279-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

RICHARD KIRBY, § APPEAL FROM THE 241ST
APPELLANT

V. § JUDICIAL DISTRICT COURT

BENNY FLETCHER,
APPELLEE § SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Richard Kirby, proceeding pro se, appeals following the trial court’s order awarding
sanctions against him and in favor of Appellee Benny Fletcher and dismissing his suit. Kirby
raises two issues on appeal. We affirm.

BACKGROUND
Kirby was a tenant on property owned by Fletcher by virtue of a lease between Agrinomics,
LLC and Fletcher. Separately, the parties entered into a “Farm and Ranch Contract,” by which
Agrinomics, LLC sought to purchase the property from Fletcher. That contract stated that the lease
agreement would terminate upon default of the purchase contract. After a period of years, when
the purchase contract did not close, Fletcher demanded that Kirby and his wife vacate the premises.
Kirby, who contended that Fletcher was responsible for addressing certain alleged deficiencies of
the property, filed the instant suit in the 241st Judicial District Court of Smith County, Texas
against Fletcher, by which he sought relief pursuant to Title 8, Chapter 92 of the Texas Property
Code 1 and asked the court to order Fletcher to “cease and desist any further demands or attempts
to evict [him] from the property.”
Days later, Fletcher filed suit in Justice Court, Precinct 5, of Smith County Texas to evict
Kirby from the property. Following a hearing, the Justice Court ordered Kirby to vacate the
premises and entered judgment in Fletcher’s favor. Kirby appealed the Justice Court’s order to the
County Court at Law of Smith County, Texas for a trial de novo. There, Kirby filed a plea to the
jurisdiction, in which he argued that the Justice Court lacked jurisdiction to entertain the eviction
suit in light of his pending petition for relief in the underlying case. The court denied his plea to
the jurisdiction and, ultimately, entered judgment in Fletcher’s favor.
Kirby appealed the County Court at Law’s judgment to this court. We dismissed the appeal
due to Kirby’s failure to comply with Texas Civil Practice and Remedies Code, Section 51.017. 2
Kirby filed a petition for review with the Texas Supreme Court, which was denied. Following our
dismissal of Kirby’s appeal, the County Court at Law issued a writ of possession and ordered the
clerk of the court to issue the writ in accordance with its final judgment. Kirby appealed this order.
We dismissed Kirby’s appeal because we determined we lacked jurisdiction to review the trial
court’s order issuing a writ of possession because it was not a final judgment or an otherwise
appealable order. 3 Kirby filed a petition for review with the Texas Supreme Court, which was
dismissed for want of jurisdiction.
Thereafter, Kirby filed a petition for writ of mandamus in this court, in which he argued
that the County Court at Law abused its discretion by refusing to rule on his plea to the jurisdiction
when it had reasonable time to do so. See In re Kirby, No. 12-21-00191-CV, 2021 WL 5500524,
at *2 (Tex. App.–Tyler Nov. 23, 2021, no pet.) (mem. op.). In his plea, Kirby argued that the
Justice Court lacked jurisdiction to entertain Fletcher’s eviction petition because the action he filed
in the District Court was filed first and involved the same parties. See id. In support of his
argument, he contended that Texas Property Code, Sections 92.006, 92.052, and 92.331 prevented
the Justice Court and County Court at Law from exercising jurisdiction when Fletcher had been

1
See, e.g., TEX. PROP. CODE ANN. §§ 92.006, 92.061, 92.331 (West 2023).
2
See Kirby v. Fletcher, No. 12-21-00146-CV, 2021 WL 4313862, at *1 (Tex. App.–Tyler Sept. 22, 2021, pet.
denied) (mem. op).
3
Kirby v. Fletcher, No. 12-21-00160-CV, 2021 WL 5118410, at *2 (Tex. App.–Tyler Nov. 3, 2021, pet.
dism’d w.o.j.) (mem. op.).

2
served with a notice of repairs, and the Justice Court and County Court at Law cannot exercise
jurisdiction when the property was under contract between the parties. See id. In denying Kirby’s
petition, we held that Kirby’s arguments were heard and denied by the County Court at law, both
explicitly by order and implicitly in the court’s final judgment. See id. We further held that Kirby
conceivably could challenge the implicit denial of his plea on appeal from the County Court at
Law’s final judgment. 4 See id. Kirby did not appeal our denial of his petition for writ of mandamus
to the Texas Supreme Court.
In the underlying suit, as it pertains to this appeal, after filing an answer, Fletcher filed a
motion for sanctions against Kirby pursuant to Texas Civil Practice and Remedies Code, Chapter
10, 5 to which Kirby filed a response. Following an evidentiary hearing on the matter, the trial
court granted Fletcher’s motion for sanctions, awarded attorney’s fees as sanctions against Kirby
in the amount of $12,775.00, and dismissed his suit. This appeal followed.

THE JUSTICE COURT’S AND COUNTY COURT AT LAW’S JURISDICTION
In his first issue, Kirby seeks to collaterally attack the judgment and writ of possession of
the County Court at Law because, as he contends, the underlying cause of action deprived the
Justice Court and the County Court at Law of jurisdiction over Fletcher’s eviction suit.
Inadequate Briefing
Although Kirby is proceeding pro se, he still is held to the same standards as a licensed
attorney and must comply with all applicable rules of procedure; otherwise, he would benefit from
an unfair advantage over parties represented by counsel. See Kirby v. Fletcher, No.
12-21-00146-CV, 2021 WL 4313862, at *1 n.1 (Tex. App.–Tyler Sept. 22, 2021, pet. denied)
(mem. op). In the briefing of his first issue, Kirby does little more than state legal propositions
with citations to authority. He provides no citations to the record, nor does he seek to apply the
facts to the legal authority he cites, so as to provide any substantive analysis of his claim.
Accordingly, Kirby’s first issue is inadequately briefed and presents nothing for our review. See

4
We noted that the appeal of this case was dismissed due to Kirby’s failure to comply with Texas Civil
Practice and Remedies Code, Section 51.017(a). See In re Kirby, No. 12-21-00191-CV, 2021 WL 5500524, at *2
(Tex. App.–Tyler Nov. 23, 2021, no pet.) (mem. op.). Thus, we held that because Kirby had not acted diligently to
protect his rights, he could not use mandamus as a substitute for an appeal, even though the appellate remedy no longer
was available. See id.
5
See TEX. CIV. PRAC. & REM. CODE ANN. §§ 10.001–10.005 (West 2017).

3
J.C. Gen. Contractors v. Chavez, 421 S.W.3d 678, 682 (Tex. App.–El Paso 2014, pet. denied)
(citing TEX. R. APP. P. 38.1(i)). As such, because Kirby’s brief lacked the necessary components
of a clear and concise argument, we could decline to reach the merits of his first issue. See Chavez,
421 S.W.3d at 682. But even had Kirby adequately briefed his first issue, the outcome would not
differ.
Concurrent Jurisdiction for Forcible Detainer Actions
In his first issue, Kirby argues that according to specified legal precedent, the justice court
and county court at law did not have jurisdiction to resolve the forcible detainer action against him
because the cause of action in the underlying case deprives the other courts of jurisdiction. 6
Whether a court has subject-matter jurisdiction is a question of law, which we review de novo.
Wagner v. D’Lorm, 315 S.W.3d 188, 191 (Tex. App.–Austin 2010, no pet.).
Governing Law
“The procedure to determine the right to immediate possession of real property, if there
was no unlawful entry, is the action of forcible detainer.” Hong Kong Dev., Inc. v. Nguyen, 229
S.W.3d 415, 433 (Tex. App.–Houston [1st Dist.] 2007, no pet.); Rice v. Pinney, 51 S.W.3d 705,
709 (Tex. App.–Dallas 2001, no pet.); see TEX. PROP. CODE ANN. § 24.002 (West 2023) (defining
forcible detainer). A justice court in the precinct in which the subject real property is located has
jurisdiction in eviction suits, including forcible entry and detainer suits and forcible detainer suits.
See TEX. PROP. CODE ANN. § 24.004(a) (West 2023); Town of Anthony v. Lopez, 661 S.W.3d 667,
670 (Tex. App.–El Paso 2023, pet. denied). Determinations by a justice court in such cases may
be appealed to a county court for a trial de novo. Padilla v. NCJ Dev., Inc., 218 S.W.3d 811, 815
(Tex. App.–El Paso 2007, pet. dism’d w.o.j.).
To prevail in a forcible detainer action, a plaintiff is not required to prove title but only is
required to show sufficient evidence of ownership to demonstrate a superior right to immediate
possession. Nguyen, 229 S.W.3d at 433; Ward v. Malone, 115 S.W.3d 267, 270 (Tex. App.–
Corpus Christi 2003, pet. denied). Such evidence of ownership often may be satisfied by proof of

6
Although, in his first issue, Kirby seeks to collaterally attack an allegedly void judgment, the relevance of
his argument to this court is most pertinent to the issue of whether the trial court abused its discretion in granting
Fletcher’s motion for sanctions and dismissing his suit since these same arguments were raised in response to
Fletcher’s motion. See Wagner v. D’Lorm, 315 S.W.3d 188, 192 (Tex. App.–Austin 2010, no pet.) (void judgment
resulting from court’s lack of jurisdiction may be subject to collateral attack); see also Cire v. Cummings, 134 S.W.3d
835, 838 (Tex. 2004) (court of appeals reviews ruling on motion for sanctions for abuse of discretion). Kirby makes
no mention in his brief of the trial court’s order awarding sanctions and dismissing his suit.

4
a landlord-tenant relationship. See Rice, 51 S.W.3d at 712. For these reasons, “a judgment of
possession in a forcible detainer action is a determination only of the right to immediate possession
and does not determine the ultimate rights of the parties to any other issue in controversy relating
to the realty in question.” Lopez v. Sulak, 76 S.W.3d 597, 605 (Tex. App.–Corpus Christi 2002,
no pet.); see Martinez v. Beasley, 572 S.W.2d 83, 85 (Tex. Civ. App.–Corpus Christi 1978, no
writ).
But a forcible detainer action is not exclusive, but cumulative, of any other remedy that a
party may have in the courts of this state. See Rice, 51 S.W.3d at 709. Thus, the displaced party
is entitled to bring a separate suit concurrently in the district court to determine the question of
title. See id. Accordingly, even in situations where a contract-for-sale of property is pending at
the time an eviction suit is filed against a prospective buyer, the alleged existence of such a contract
does not deprive a justice court of jurisdiction to consider a forcible entry and detainer action. See
Lugo v. Ross, 378 S.W.3d 620, 623–24 (Tex. App.–Dallas 2012, no pet.); Falcon v. Ensigna, 976
S.W.2d 336, 338 (Tex. App.–Corpus Christi 1998, no pet.) (justice courts may adjudicate
possession in forcible entry and detainer suit when issues related to title of real property only are
tangentially or collaterally related to possession). Moreover, in situations where a defendant
alleges the existence of a boundary dispute in a separate action brought in district court, such an
allegation, which necessarily involves an issue of title, does not deprive a justice court of
jurisdiction to consider a forcible entry and detainer because it may be brought concurrently with
the title dispute in district court. Cf. Rice, 51 S.W.3d at 709.
Discussion
In the instant case, there is no question that the parties had a landlord-tenant relationship.
Indeed, one of the bases of Kirby’s suit arises from a statute which sets forth a landlord’s duties
and a tenant’s remedies. See TEX. PROP. CODE ANN. § 92.006 (West 2023). And to the extent that
Kirby’s allegations in this case pertain to the existence of a lease-purchase, real-estate contract or
a boundary dispute between the parties, such allegations do not deprive the Justice Court or County
Court at Law of jurisdiction to consider and resolve Fletcher’s forcible detainer action against
Kirby. See Rice, 51 S.W.3d at 709; see also Ross, 378 S.W.3d at 623–24; Falcon, 976 S.W.2d at
338. Accordingly, we hold that the trial court did not abuse its discretion in awarding sanctions in
light of Kirby’s seeking a “cease and desist” order and in light of these jurisdictional arguments.
Kirby’s first issue is overruled.

5
RELIEF PURSUANT TO TEXAS PROPERTY CODE, CHAPTER 92
In his second issue, Kirby argues that “No one in Smith County has a Department that has
the statutory jurisdiction to fulfill the requirements of the Texas Property Code, Title 8, Chapter
92.”
Once again, in his briefing, Kirby does little more than state legal propositions with
citations to authority. He provides no citations to the record, nor does he seek to apply the facts to
the legal authority he cites, so as to provide any substantive analysis of his claim. Accordingly,
Kirby’s second issue is inadequately briefed and presents nothing for our review. See Chavez, 421
S.W.3d at 682 (citing TEX. R. APP. P. 38.1(i)). Further still, none of the statutory authority Kirby
cites supports or even vaguely relates to his proposition that no entity has jurisdiction to enforce
or consider actions related to such statutes. Nor does any of Kirby’s briefing of this issue suggest
that the trial court in this case lacked jurisdiction to consider Kirby’s suit. 7 Therefore, because
Kirby’s brief lacked the necessary components of a clear and concise argument and does not
suggest that the trial court in the underlying proceedings lacked jurisdiction, we decline to reach
the merits of his second issue. See Chavez, 421 S.W.3d at 682. Kirby’s second issue is overruled.

DISPOSITION
Having overruled Kirby’s first and second issues, we affirm the trial court’s judgment.

BRIAN HOYLE
Justice

Opinion delivered August 15, 2024.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

7
The trial court concluded that Chapter 92 of the Texas Property Code is inapplicable to this case because
the lease establishing the landlord-tenant relationship was entered into by a business, Agrinomics, LLC, and did not
involve residential rental property. See TEX. PROP. CODE ANN. § 92.002 (West 2023) (Chapter 92 applies only to
relationship between landlords and tenants of residential rental property). In his brief, Kirby does not challenge this
conclusion of law in the trial court’s order awarding sanctions and dismissing his case. See Akhtar v. Leawood HOA,
Inc., 525 S.W.3d 814, 819 (Tex. App.–Houston [14th Dist.] 2017, no pet.) (appellant must challenge all independent
grounds supporting judgment or legal conclusion under attack).

6
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

AUGUST 15, 2024

NO. 12-23-00279-CV

RICHARD KIRBY,
Appellant
V.
BENNY FLETCHER,
Appellee

Appeal from the 241st District Court
of Smith County, Texas (Tr.Ct.No. 21-1098-C)

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 all costs of this appeal are hereby adjudged
against the appellant, Richard Kirby, for which execution may issue, and that this decision be
certified to the court below for observance.

Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.