Introduction Forcible entry is “the unlawful taking of possession of real property by force or threats of force or unlawful entry into or onto another’s property, especially when accompanied by force”. The term is also sometimes used for entry by military, police, or emergency personnel, also called breaching. For the fire service, forcible entry is defined by the International Fire Service…

by Robert Clore

Clore Appeals & Litigation Support  [email protected]

1. Jurisdiction over Forcible Entry and Detainer When Title is in Dispute.

Harris v. Bank of America, No. 04-15-00371-CV (Tex. App.—San Antonio, Nov. 10, 2015, no pet. h.). Author:                         Marion, C.J. Panel:                          Marion, C.J., Barnard, J., Alvarez, J. Originating Court:        County Court at Law No. 5, Bexar County, Texas. Trial Judge:                  Rodriguez, J.

In this forcible detainer action, a home owner challenged jurisdiction where defects in the foreclosure process raised an issue regarding title.

The property at issue was sold in foreclosure. The home owner refused to vacate the premises, and the bank filed a forcible detainer lawsuit. The county court entered judgment of possession in favor of the bank.

On appeal, the home owner challenged the jurisdiction over the forcible detainer action in light of alleged title defects from the foreclosure sale. Title disputes such as the validity of a foreclosure sale may not be determined in a forcible detainer action, and must be brought in a separate suit. Shutter v. Wells Fargo Bank, N.A., 318 S.W.3d 467, 471 (Tex. App.—Dallas 2010, pet. dism’d w.o.j.).

The 4th Court of Appeals overruled the home owner’s jurisdictional challenge because, regardless of issues with the foreclosure sale, the deed of trust established a landlord and tenant-at-sufferance relationship between the parties. Schlichting v. Lehman Bros. Bank FSB, 346 S.W.3d 196, 199 (Tex. App.—Dallas 2011, pet. dism’d); Villalon v. Bank One, 176 S.W.3d 66, 71 (Tex. App.—Houston [1st Dist.] 2004, pet. denied). This provided an independent basis to determine the issue of immediate possession without addressing the propriety of foreclosure. Schlichting, 346 S.W.3d at 199; Villalon, 176 S.W.3d at 71.

The home owner also asserted that federal law preempted Texas forcible detainer law. The court of appeals found that because the home owner failed to plead preemption as an affirmative defense, he waived the preemption argument. Kelly v. Brown, 260 S.W.3d 212, 217 (Tex. App.—Dallas 2008, pet. denied); In re Marriage of Smith, 115 S.W.3d 126, 130-31 (Tex. App.—Texarkana 2003, pet. denied).

Accordingly, the judgment of possession in favor of the bank was affirmed.

OPINION  APPELLANT’S BRIEF  APPELLEE’S BRIEF

2. Proving Lack of Service of a Motion for Summary Judgment.

Giddings v. Curtis, No. 04-15-00102-CV (Tex. App.—San Antonio, Nov. 10, 2015, no pet. h.). Author:                         Alvarez, J. Panel:                          Martinez, J., Alvarez, J., Chapa, J. Originating Court:        73rd District Court, Bexar County, Texas. Trial Judge:                 Gabriel, Jr., J.

This opinion delivered by the 4th Court of Appeals discusses the evidentiary requirements for challenging summary judgment when the respondent claims lack of service of the motion.

The trial court granted a no-evidence motion for summary judgment disposing of a health care liability claim. Prior to the entry of summary judgment, Plaintiff’s counsel withdrew from the case. After Plaintiff failed to file a response or appear at the summary judgment hearing, the trial court granted summary judgment.

On appeal, Plaintiff asserted she did not receive notice of the hearing on the motion for summary judgment. As the court of appeals observed, a summary judgment respondent is entitled to notice of hearing, and lack of notice violates due process. Lewis v. Blake, 876 S.W.2d 314, 315 (Tex. 1994); Etheredge v. Hidden Valley Airpark Ass’n, Inc., 169 S.W.3d 378, 381 (Tex. App.—Fort Worth 2005, pet. denied).

Here, the defendant completed a certificate of service indicating the motion was mailed to the plaintiff. This constituted prima facie evidence of service. “In the absence of evidence to the contrary, the presumption has the force of a rule of law.” Cliff v. Huggins, 724 S.W.2d 778, 780 (Tex. 1987). The opposing party is then required to rebut the presumption with evidence showing a lack of notice.

Plaintiff failed to respond with evidence that she lacked notice, and thus failed to overcome the presumption of service. Without any evidence countering this presumption, the 4th Court of Appeals was required to affirm summary judgment.