# Guilherme Casalicchio and Iula Casalicchio v. Federal Home Loan Mortgage Corporation

> Texas Court of Appeals, 1st District (Houston) · March 11, 2021

URL: https://www.frixlaw.com/law-library/cases/4667499

## Case

- **Court:** Texas Court of Appeals, 1st District (Houston)
- **Decided:** March 11, 2021
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

Opinion issued March 11, 2021.

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-19-00392-CV
———————————
GUILHERME CASALICCHIO AND IULA CASALICCHIO, Appellants
V.
FEDERAL HOME LOAN MORTGAGE CORPORATION, Appellee

On Appeal from the County Civil Court at Law No. 2
Harris County, Texas
Trial Court Case No. 1106194

MEMORANDUM OPINION

This is an appeal from a forcible entry and detainer suit. Appellee, Federal

Home Loan Mortgage Corporation (“FHLMC”), purchased the residential property

previously owned by appellants, Guilherme and Iula Casalicchio, at a non-judicial
foreclosure sale. After the Casalicchios failed to vacate the premises, FHLMC

brought a forcible entry and detainer action in justice court. The justice court denied

the Casalicchios’ request for a jury trial but nonetheless entered a judgment in their

favor. FHLMC then filed an appeal de novo to the county court. The county court

granted FHLMC’s motion for summary judgment and awarded a judgment of

possession in FHLMC’s favor. In three issues on appeal, the Casalicchios contend

that (1) neither the justice court nor the county court had jurisdiction because the

justice court denied the Casalicchios’ request for a jury trial, (2) the justice court

lacked jurisdiction because “the ownership of the property was so intertwined with

possession that no court had jurisdiction to decide possession,” thus the county court

had no appellate jurisdiction, and (3) the county court erred in granting FHLMC’s

motion for summary judgment. We affirm.

BACKGROUND

In June 2015, Guilherme and Iula Casalicchio executed a Deed of Trust to

secure payment of a note on the real property located at 13419 Preston Cliff Court,

Houston, Texas. The Deed of Trust provided that in the event of a default, the lender

could accelerate the note and require immediate payment of all sums. It also

provided that the property could be sold at a foreclosure sale, and that, if the property

were foreclosed on, the person in possession of the property, i.e., the Casalicchios,

would become tenants at sufferance and could be removed by a writ of possession.

2
The Casalicchios defaulted on the note and the property was sold to FHLMC

at a non-judicial foreclosure sale. FHLMC, though its counsel, sent the Casalicchios

a written notice to vacate the property and a demand for possession on December 5,

2017. On December 27, 2017, after the Casalicchios failed to vacate the property,

FHLMC filed a suit for forcible detainer in the justice court in Harris County. On

Monday, January 8, 2018, Guilherme Casalicchio attempted to request a jury trial

and to pay the jury fee in the justice court, but he was informed that no jury trials

were being held because of damage to the courthouse caused by Hurricane Harvey.

However, even without a jury trial, the justice court ruled in the Casalicchios’ favor,

and FHLMC filed an appeal de novo in County Court at Law No. 2.

FHLMC filed a Motion for Summary Judgment on March 1, 2018, which

Judge Chang, the presiding judge of the county court at the time, denied. Instead,

on October 9, 2018, Judge Chang abated the case for six months “until the issue of

ownership is decided in the Federal case.”1 However, when Judge Chang left office

in December 2018, she reinstated the case on the docket.

1
The justice court case involved only the issue of possession. A parallel case
concerning the propriety of the foreclosure and FHLMC’s title to the property was
pending in federal district court at the time.

3
On April 18, 2019, FHLMC filed an Amended Motion for Final Summary

Judgment on its forcible detainer claim, which the newly elected Judge Kovach

granted. The Casalicchios then brought this appeal.

While the case was pending in this Court on appeal, the federal case involving

the validity of FHLMC’s title was resolved in FHMLC’s favor. See Casalicchio v.

BOKF, NA, 951 F.3d 672, 678 (5th Cir. 2020) (holding that bank’s failure to provide

contractually required 30 days’ notice to cure “was but a ‘minor defect,’

insufficiently prejudicial to justify setting aside an otherwise valid foreclosure

sale”).

DENIAL OF JURY TRIAL

In their first issue on appeal, the Casalicchios contend that “[t]he justice court

did not have jurisdiction to hear the eviction case because the judge made a

conscious decision to violate his oath of office and deny the Casalicchios their

inviolate right to a jury trial in direct violation of [Article I, section 15 of the Texas

Constitution].” The Casalicchios further argue that, because the justice court had no

jurisdiction, the county court had no appellate jurisdiction over the justice court’s

“void” judgment and should have dismissed the appeal.2

2
Jurisdiction of forcible detainer actions is expressly given to the justice court of the
precinct where the property is located and, on appeal, to county courts for a trial de
novo. See TEX. GOV’T CODE § 27.031(a)(2); TEX. PROP. CODE § 24.004; TEX. R.
CIV. P. 509.8.

4
The Casalicchios’ assertion rests on the false premise that a judgment

rendered by a trial court after wrongfully denying a party a jury trial3 is void, i.e., an

action taken by a court without jurisdiction, rather than voidable, i.e., an error

committed by a court with jurisdiction. A judgment is void, rather than voidable,

when it is apparent that the court rendering judgment had no jurisdiction over the

parties or property, no jurisdiction over the subject matter, no jurisdiction to enter

the particular judgment, or no capacity to act. In re D.S., 602 S.W.3d 504, 512 (Tex.

2020) (citing Browning v. Placke, 698 S.W.2d 362, 363 (Tex. 1985) (orig.

proceeding)). If the court entering a judgment has jurisdiction of the parties and the

subject matter and does not act outside its capacity as a court, the judgment is not

void. Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex. 2003) (citing Mapco, Inc. v. Forrest,

795 S.W.2d 700, 703 (Tex. 1990)); see also PNS Stores, Inc. v. Rivera, 379 S.W.3d

3
We note that in eviction cases in justice court, “[a]ny pary may file a written demand
for a trial by jury by making a request to the court at least 3 days before the trial
date.” TEX. R. CIV. P. 510.7(b). “The demand must be accompanied by payment of
a jury fee or by filing a Statement of Inability to Afford Payment of Court Costs.”
Id. If a jury is demanded by either party, the jury will be impaneled and sworn as in
other cases; and after hearing the evidence it will return its verdict in favor of the
plaintiff or the defendant.” Id. “If no jury is timely demanded by either party, the
judge will try the case.” Id.

The Casalicchios argue that they attempted to file a request and pay a jury fee but
were prohibited from doing so because the justice court had suspended jury trials
because of damage to its courthouse caused by Hurricane Harvey. For purposes of
this opinion, we will assume without deciding that the justice court erred by denying
the Cassalicchios a jury trial in the justice court. We do note, however, that the
justice court ruled in the Cassalichios’ favor even without a jury trial.
5
267, 273 (Tex. 2012) (stating, “The record affirmatively demonstrates a

jurisdictional defect sufficient to void a judgment when it either: (1) establishes that

the trial court lacked subject matter jurisdiction over the suit; or (2) exposes such

personal jurisdictional deficiencies as to violate due process.”). Errors other than

lack of jurisdiction, such as “a court’s action contrary to a statute or statutory

equivalent,” merely render the judgment voidable so that it may be “corrected

through the ordinary appellant process or other proper proceedings.” Reis, 118

S.W.3d at 443 (citing El Paso Pipe & Supply Co. v. Mountain States Leasing, Inc.,

617 S.W.2d 189 (Tex. 1981) and Middleton v. Murff, 689 S.W.2d 212, 213 (Tex.

1985)). In other words, a trial court has jurisdiction to err, but it cannot act without

personal or subject-matter jurisdiction in doing so.

The Casalicchios cite no authority to support their claim that the erroneous

denial of a properly requested jury trial is an issue of personal or subject-matter

jurisdiction. Similarly, appellants cite no cases vacating a judgment as void after the

erroneous denial of a jury trial. To the contrary, cases addressing the erroneous

denial of a jury trial do not vacate the subsequent judgment as void; instead, they

reverse the trial court’s judgment and remand for further proceedings. See In re

J.M., No. 12-19-00353-CV, 2020 WL 1528054, at *10–11 (Tex. App.—Tyler March

31, 2020, no pet.) (holding denial of jury trial constituted error, but was harmless);

Brubaker v. Brubaker, 03-18-00273-CV, 2019 WL 6205518, at *4 (Tex. App.—

6
Austin Nov. 21, 2019, no pet.) (holding appellant was denied right to jury trial and

reversing and remanding for new trial); In re Raynes, 2016 WL 4208111, *5 (Tex.

App.—San Antonio Aug. 10, 2016, no pet.) (same); Manderscheid v. Laz Parking

of Tex., LLC, 506 S.W.3d 521, 528–29 (Tex. App.—Houston [1st Dist.] 2016, pet.

denied) (same); Davidson v. State, 225 S.W.3d 807, 811–12 (Tex. App.—Fort Worth

2007, no pet.) (holding appellant denied constitutional right to jury trial and

reversing and remanding for trial).

In this case, there is no question that the justice court had subject-matter

jurisdiction over the forcible-entry-and-detainer action. See TEX. PROP. CODE

§ 24.004; TEX. GOV’T CODE § 27.031(a)(2). And, there is no issue of personal

jurisdiction, much less one rising to the level of a due-process violation. Thus, even

if we were to assume that the justice court erred in denying the Casalicchios’ request

for a jury trial, such error would not mean that the justice court lacked jurisdiction

to enter the judgment. Put another way, the justice court’s judgment, even if

erroneous, was not void. Because the justice court had jurisdiction, its judgment was

not void and the county court had appellate jurisdiction over that judgment. See TEX.

R. CIV. P. 509.8.

Accordingly, we overrule issue one and deny the Casalicchios’ request to

vacate and dismiss the appeal.

7
JURISDICTION OF JUSTICE COURT OVER POSSESSION ISSUE

In issue two, the Casalicchios argue that “even if the justice court had

permitted the right to a jury it still lacked jurisdiction because the ownership of the

property was so intertwined with possession that no court had jurisdiction to decide

possession.” The Casalicchios further contend that “[u]ntil title is finally determined

there is no court that has jurisdiction to decide the right of possession and the

decision below should be vacated.”

“[N]either a justice court, nor a county court on appeal, has jurisdiction to

determine the issue of title to real property in a forcible detainer suit.” Dormady v.

Dinero Land & Cattle Co., L.C., 61 S.W.3d 555, 557 (Tex. App.—San Antonio

2001, pet. dism’d w.o.j.). To prevail in a forcible detainer action, the plaintiff must

present sufficient evidence of ownership to demonstrate a superior right to

immediate possession; the plaintiff does not need to prove title. Id. “However, if the

question of title is so intertwined with the issue of possession, then possession may

not be adjudicated without first determining title.” Id. at 557. “A forcible detainer

action is cumulative, not exclusive, of other remedies that a party may have, thus the

parties may pursue both a forcible detainer action in justice court and a suit to quiet

title in district court.” Id. at 558 (citing Scott v. Hewitt, 90 S.W.2d 816, 818–19 (Tex.

1936)). “[N]ot only can the right to immediate possession be determined separately

from the right to title in most cases, but the Texas Legislature purposely established

8
just such a system.” Dormady, 61 S.W.3d at 558 (quoting Rice v. Pinney, 51 S.W.3d

705, 710 (Tex. App.—Dallas 2001, no pet.)).

The Casalicchios contend that the foreclosure was flawed because they were

only given 23 days to cure their default, rather than the 30 days they were

contractually allowed by the Deed of Trust. They further argue that FHLMC was

aware of the deficient notice at the time it purchased the property. Thus, the

Casalicchios argue that FHLMC is not entitled to possession because it does not

have proper title to the property.

However, when “a landlord-tenant relationship is established in the original

deed of trust[,] [t]he landlord-tenant relationship provides a basis for determining

the right to immediate possession without resolving the ultimate issue of title to the

property.” Dormady, 61 S.W.3d at 559. Even when the validity of a deed is

challenged, courts have held that the issue of possession may be determined without

addressing title when a landlord-tenant relationship is established through a deed of

trust. See Chevalier v. Roberson, No. 01-15-00225-CV, 2016 WL 1590993, at *3

n.2 (Tex. App.—Houston [1st Dist.] Apr. 19, 2016, no pet.) (mem. op.) (“[Appellant]

has the right to sue in district court to determine whose deed is valid.”); Villalon v.

Bank One, 176 S.W.3d 66, 71 (Tex. App.—Houston [1st Dist.] 2004, pet. denied)

(holding appellant had right to sue in district court to determine whether appellee’s

deed should be cancelled because of wrongful foreclosure, but that determination is

9
independent of entitlement to immediate possession in forcible detainer action);

Dormady, 61 S.W.3d at 558 (citing Hewitt, 90 S.W.2d at 818–19) (“[I]f the forcible

detainer defendants desired to attack the validity of the sale made under the deed of

trust, they could proceed with a suit in the district court.”).

Here, the deed of trust provided:

If the Property is sold pursuant to this Section 22, Borrower [the
Casalicchios] or any person holding possession of the Property through
Borrower shall immediately surrender possession of the Property to the
purchaser [FHLMC] at that sale. If possession is not surrendered,
Borrower or such person shall be a tenant at sufferance and may be
removed by writ of possession or other court proceeding.

Because there was a basis for determining possession without resolving the

ultimate issue of title, we hold the trial court had subject-matter jurisdiction to hear

the forcible detainer action. See Dormady, 61 S.W.3d at 557–59.

We overrule issue two.4

PROPRIETY OF SUMMARY JUDGMENT

In issue three, the Casalicchios contend that “[e]ven if the county court could

consider the merits, the plaintiff’s motion for summary judgment failed to meet the

requirements in TEX. R. CIV. P. 166a.” Specifically, the Casalicchios claim that

4
We also note that, to the extent the Casalicchios are claiming that the title dispute
must be determined before the issue of possession, the title dispute that was pending
in federal court has been resolved against the Casalicchios. See Casalicchio v.
BOKF, NA, 951 F.3d 672, 678 (5th Cir. 2020).
10
FHLMC’s summary judgment evidence was both incompetent and conflicting and

raised fact issues that cannot be resolved by summary judgment.

Forcible detainer occurs when a person refuses to surrender possession of real

property upon a statutorily sufficient demand for possession if that person is: (1) a

tenant or subtenant willfully and without force holding over after termination the

tenant’s right of possession, (2) a tenant at will or by sufferance, including an

occupant at the time of foreclosure of a lien superior to the tenant’s lease; or (3) a

tenant of someone who acquired possession by forcible entry. See TEX. PROP. CODE

ANN. § 24.002. And, an occupant of the property holding over after execution of a

deed is considered a permissive tenant whose right to possession is inferior to that

of the party holding title. See Tex–Wis Co. v. Johnson, 534 S.W.2d 895, 899 (Tex.

1976).

Therefore, to establish forcible detainer and prevail on its motion for summary

judgment, FHLMC had to establish the following as a matter of law: (1) FHLMC

was the owner, (2) the Casalicchios were occupants at the time of foreclosure,

(3) the foreclosure was of a lien superior to the Casalicchios’ right to possession,

(4) FHLMC made a statutorily sufficient written demand for possession, and (5) the

Casalicchios refused to leave. See TEX. PROP. CODE § 24.002; Goggins v. Leo, 849

S.W.2d 373, 377 (Tex. App.—Houston [14th Dist.] 1993, no writ).

11
To establish its forcible detainer cause of action, FHLMC introduced a July

5, 2017 Substitute Trustee’s Deed memorializing its purchase of the property at a

non-judicial foreclosure sale. FHLMC also introduced the June 24, 2015 Deed of

Trust, which created a tenancy at sufferance between FHLMC and the Casalicchios.

FHLMC also introduced an affidavit from FHLMC’s eviction counsel, in which

counsel averred that “[o]n 12.15.2017 a Notice to Vacate and Demand for Possession

was sent by certified mail . . . to Defendant(s) Guilherme Casalicchio, Iula

Casalicchio, and/or all occupants of 13419 Preston Cliff Court, Houston, Texas,

77077, demanding that Defendant(s) vacate the Subject Property or forcible detainer

proceedings would be commenced against them and all other occupants.” And, the

Casalicchios, by continuing to challenge FHLMC’s right to possession, have

admitted that they remain in possession of the property. See Rodriguez v.

Citimortgage, Inc., No. 03-10-00093-CV, 2011 WL 182122 (Tex. App.—Austin

Jan. 6, 2011, no pet.) (mem. op.) (noting that by continuing to prosecute appeals

tenant “tacitly conceded” continued possession of disputed property because

competing claims to possession would be moot otherwise).

With this evidence, FHLMC established the elements of its forcible detainer

cause of action by showing: (1) it bought the property at a foreclosure sale, (2) the

Casalicchios occupied the property at the time of foreclosure, (3) the foreclosure was

of a lien superior to the Casalicchios’ right to possession, (4) FHLMC made a

12
statutorily proper demand for possession with its notice to vacate, and (5) the

Casalicchios refused to surrender possession. The evidence sufficiently established

FHLMC had an immediate right to possession. See TEX. PROP. CODE § 24.002;

Goggins, 849 S.W.2d at 377. Thus, the trial court did not err in granting summary

judgment in favor of FHLMC.

Nevertheless, the Casalicchios contend that the evidence introduced by

FHLMC raises fact issues about when and where the foreclosure took place and

whether the foreclosure was proper. The Casalicchios also argue that no tenancy at

sufferance was created and the foreclosure was invalid because they did not receive

30 days’ notice before the foreclosure. However, these issues go to the validity of

the foreclosure, i.e., the validity of FHLMC’s title, not to the issue of the right of

possession. FHLMC is not required to prove that its title is valid. To prevail in its

forcible detainer action, FHLMC need only show sufficient evidence of ownership

to demonstrate a superior right to immediate possession. See Goggins, 849 S.W.2d

at 377. The Casalicchios’ allegations concerning the propriety of the foreclosure or

challenges to FHLMC’s deed or title to the property cannot be considered in this

action. See TEX. R. CIV. P. 510.3(e) (“The court must adjudicate the right to actual

possession and not title”); Goggins, 849 S.W.2d at 377.

We overrule the Casalicchios’ third issue.

13
CONCLUSION

We affirm the trial court’s judgment.

Sherry Radack
Chief Justice

Panel consists of Chief Justice Radack and Justices Kelly and Rivas-Malloy.

14

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4667499. Public record. Not legal advice.