Anthony L. Hutchison v. Kensington Station, LLC

Affirmed and Memorandum Opinion filed August 1, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00391-CV

ANTHONY L. HUTCHISON, Appellant
V.
KENSINGTON STATION, LLC, Appellee

On Appeal from the County Civil Court at Law No. 3
Harris County, Texas
Trial Court Cause No. 1201868

MEMORANDUM OPINION

Anthony L. Hutchison appeals from a final judgment and order of
possession entered in a forcible detainer action after a foreclosure sale. Appellee
Kensington Station, LLC bought property formerly owned by Hutchison at a
foreclosure sale and then brought this forcible detainer action. On appeal,
Hutchison contends that the junior lien that was foreclosed upon had been
extinguished by a prior foreclosure sale on a senior lien. Because the record does
not contain any evidence supporting Hutchison’s contention, we affirm.
Background

On September 6, 2022, Kensington purchased the residential property
located at 4241 Purdue Street in Houston, Texas at a foreclosure sale involving a
deed of trust executed by Hutchison. Kensington’s attorney subsequently sent a
notice to vacate to Hutchison and all other occupants of the property. When
Hutchison failed to vacate, Kensington filed the present forcible detainer action in
justice court. The justice court held a bench trial, at which Hutchison failed to
appear, and then issued a default judgment.

Hutchison appealed the justice court judgment to the county court at law de
novo. In the county court, Hutchison filed an amended answer, which included
verified denials alleging that Hutchison was current in paying a senior lien on the
property, Kensington was “not a bona fide third person entitled to possession and
only took title subject to the rights of the senior lien holder,” and Kensington was
not “entitled to possession on the basis of purchasing a junior lien at a contested
foreclosure sale.”

The county court held a bench trial, during which only Kensington offered
any evidence. Kensington offered three exhibits that were admitted into evidence:
(1) the deed of trust executed by Hutchison, which included a tenants-at-sufferance
provision; (2) the foreclosure sale deed showing Kensington as the purchaser; and
(3) the notice to vacate addressed to Hutchison and other occupants. The sole
member and owner of Kensington also testified regarding the foreclosure sale
purchase and confirmation of delivery of the notice to vacate. On cross-
examination by Hutchison’s counsel, she acknowledged that she had performed a
title search and that there was a first mortgage or lien on the property and
Kensington had “purchased the second mortgage.” During closing argument,
Hutchison’s counsel asserted that Hutchison was current in paying on the senior

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lien. After trial, the county court issued a final judgment and order of possession in
Kensington’s favor. Neither party requested, and the trial court did not enter,
findings of fact or conclusions of law.

In his brief, Hutchison also notes that after judgment issued in this case, he
filed a lawsuit regarding title to the property in district court, and he quotes over
two pages of material from his petition in that case. In the quoted material,
Hutchison alleges that a senior lien on the property had previously been foreclosed
upon, thus extinguishing the junior lien, but the foreclosure was subsequently
rescinded in a court proceeding. Hutchison alleges, however, that while he then
continued to pay on the primary mortgage, he did not receive any reinstatement
documents from the secondary mortgage holder, which ultimately foreclosed on
the property, leading to the purchase by Kensington. Hutchison attached a
purported copy of this pleading as an appendix to his brief. Kensington has moved
to strike this appendix and any references to it in Hutchison’s brief.

In two issues, Hutchison contends that (1) the foreclosure sale at which
Kensington bought the property was a nullity and void, and, therefore, (2) title
never passed to Kensington. As mentioned above, Hutchison’s contention under
these issues is that the junior lien that was foreclosed upon had been extinguished
by a prior foreclosure sale on a senior lien. We will begin our analysis by setting
forth the standards governing our review as well as the law governing forcible
detainer actions. We will then turn to the issues presented in this appeal.

Governing Law

Standards of review. When, as here, the trial court does not file findings of
fact and conclusions of law following a bench trial, we infer all findings necessary
to support the judgment and will affirm on any legal ground supported by the
record. See BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex.
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2002). When the appellate record includes both the reporter’s and clerk’s records,
the implied findings are not conclusive and may be challenged for legal and factual
sufficiency. See id. We review the trial court’s findings for legal sufficiency of the
evidence using the same standards applied in reviewing the evidence supporting a
jury’s findings. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). We review
the evidence in the light most favorable to the challenged finding and indulge
every reasonable inference that would support it, crediting favorable evidence if a
reasonable fact finder could do so and disregarding contrary evidence unless a
reasonable fact finder could not. City of Keller v. Wilson, 168 S.W.3d 802, 822,
827 (Tex. 2005).

Forcible detainer actions. A forcible detainer action is a procedure used to
determine the right to immediate possession of real property if there is no unlawful
entry. Fed. Home Loan Mortg. Corp. v. Pham, 449 S.W.3d 230, 233 (Tex. App.—
Houston [14th Dist.] 2014, no pet.). It is designed to be a speedy, simple, and
inexpensive means to obtain immediate possession. Id. at 235. The only issue in an
action for forcible detainer is the right to actual possession; the merits of title are
not adjudicated. Id. at 233. Thus, 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 property. Id. at 235. Indeed, justice courts do not have jurisdiction to
adjudicate title to land and neither does a county court exercising appellate
jurisdiction in a forcible detainer action. Salaymeh v. Plaza Centro, LLC, 264
S.W.3d 431, 435 (Tex. App.—Houston [14th Dist.] 2008, no pet.).

When there are issues concerning both title and possession, the issues may
be litigated in separate proceedings in different courts with appropriate jurisdiction.
Id. at 436. However, when a forcible detainer action presents a genuine issue of

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title so intertwined with the issue of possession that a trial court would be required
to determine title before awarding possession, then a justice court lacks jurisdiction
to resolve the matter. See Pinnacle Premier Props., Inc. v. Breton, 447 S.W.3d
558, 564 (Tex. App.—Houston [14th Dist.] 2014, no pet.). “Accordingly, a justice
court is not deprived of jurisdiction merely by the existence of a title dispute; it is
deprived of jurisdiction only if resolution of a title dispute is a prerequisite to
determination of the right to immediate possession.” Salaymeh, 264 S.W.3d at 435.

Under the Texas Property Code, a person who refuses to surrender
possession of real property on demand commits a forcible detainer if the person is
a tenant by sufferance. Tex. Prop. Code § 24.002(a)(2). Section 24.002 also
provides that a landlord must make a written demand for possession and comply
with section 24.005’s requirements for a notice to vacate. Id. § 24.002(b); see also
§ 24.005(h) (providing that a notice to vacate is considered a demand for
possession for purposes of section 24.002(b)).

Analysis

As set forth above, Kensington presented evidence at trial that it had
purchased the property in question at a foreclosure sale involving a deed of trust
signed by Hutchison that contained a tenants-at-sufferance clause and Kensington
subsequently provided Hutchison with notice to vacate, which he declined to do. In
his appeal, Hutchison really does not dispute this evidence; instead, he asserts that
the foreclosure sale was a nullity because the junior lien had been extinguished by
a prior foreclosure on a senior lien. See generally I-10 Colony, Inc. v. Lee, 393
S.W.3d 467, 472 (Tex. App.—Houston [14th Dist.] 2012, pet. denied) (explaining
that foreclosure on a senior lien extinguishes a junior lien if there are insufficient
excess proceeds from the sale to satisfy the junior lien, but under most
circumstances, foreclosure on a junior lien does not extinguish a senior lien and the

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purchaser at the foreclosure sale takes subject to the senior lien). Although
Hutchison does not frame his argument as jurisdictional in nature, it has potential
implications both in regard to jurisdiction (because it could mean that there was a
title dispute intertwined with the question of possession) and as to the question of
possession. See generally Pinnacle Premier, 447 S.W.3d at 564; Salaymeh, 264
S.W.3d at 435.

In support of his assertions regarding a prior foreclosure sale, however,
Hutchison cites only to statements contained in a petition that he allegedly filed in
district court after the conclusion of the present case in county court. Statements in
a pleading, of course, are not evidence; see, e.g., Laidlaw Waste Sys. (Dall.), Inc. v.
City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995), Turman v. POS Partners, LLC,
541 S.W.3d 895, 903 (Tex. App.—Houston [14th Dist.] 2018, no pet.); but the fact
that another case was filed disputing title arguably could have jurisdictional
implications for the present case—if Hutchison demonstrated such a case actually
exists. See Pinnacle Premier, 447 S.W.3d at 564; Salaymeh, 264 S.W.3d at 435.
Hutchison attached a copy of the purported petition to his brief but does not
request that we take judicial notice of it.

We cannot consider evidence attached to briefs that is not contained in the
appellate record. See, e.g., Tex. Windstorm Ins. Ass’n v. Jones, 512 S.W.3d 545,
552 (Tex. App.—Houston [1st Dist.] 2016, no pet.); Nexion Health at Beechnut,
Inc. v. Paul, 335 S.W.3d 716, 719 (Tex. App.—Houston [14th Dist.] 2011, no
pet.); see also Tex. R. App. P. 34.1 (listing components of appellate record). To the
extent Hutchison’s briefing can be interpreted as a request that we take judicial
notice of the pleading, we cannot do so in this case. While courts may take judicial
notice of certain matters at any time, even on appeal, as a general rule, appellate
courts do so only when required to determine their appellate jurisdiction in a case

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or to resolve matters ancillary to decisions which are mandated by law, such as the
calculation of prejudgment interest when the court renders judgment. Niti Props.
LLC v. Arthur, No. 14-20-00770-CV, 2022 WL 220209, at *4 (Tex. App.—
Houston [14th Dist.] Jan. 25, 2022, no pet.) (mem. op.); Soto v. Pantalion, No. 01-
20-00321-CV, 2021 WL 2931363, at *2, n.2 (Tex. App.—Houston [1st Dist.] July
13, 2021, no pet.) (mem. op.). The present case does not present proper
circumstances for taking judicial notice of pleadings in another case. See Niti
Props., 2022 WL 220209, at *4 (declining to take judicial notice in a forcible
detainer action of a settlement agreement and agreed judgment in another case);
Soto, 2021 WL 2931363, at *2 (declining to take judicial notice in a forcible
detainer action of several pleadings from other cases).

Hutchison’s brief also contains citations to his counsel’s statements at trial
and to the testimony of Kensington’s owner concerning the existence of a senior
lien, but neither the statements nor the testimony suggests that there was a prior
foreclosure on the senior lien. Indeed, nothing in the appellate record before us
suggests that the trial court lacked jurisdiction to consider this matter or indicates
that Kensington did not legally acquire title to the property at the foreclosure sale.
Accordingly, we overrule Hutchison’s issues. Because we cannot and do not
consider the pleading attached to Hutchison’s brief for any purpose in this appeal,
we also deny Kensington’s motion to strike as moot. See, e.g., Repsol Oil & Gas
USA, LLC v. Matrix Petroleum, LLC, No. 04-18-00411-CV, 2023 WL 8897012, at
*6, n.7 (Tex. App.—San Antonio Dec. 27, 2023, no pet.).

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We affirm the trial court’s judgment.

/s/ Frances Bourliot
Justice

Panel consists of Justices Jewell, Bourliot, and Poissant.

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