Adrienne Gallien v. WELLS FARGO HOME MORTGAGE INC., WELLS FARGO BANK, N.A., Cristobal Nino, Individually and as of the Estate of Veronica Castillo Nino and Kathy Orsak

• Court: Court of Appeals of Texas
• Decided: February 26, 2018
• Docket: 01-17-00385-CV
• Status: Published

Opinion

Order issued February 27, 2018

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-17-00385-CV ——————————— ADRIENNE GALLIEN, Appellant V. WELLS FARGO HOME MORTGAGE INC., WELLS FARGO BANK, N.A., CRISTOBAL NIÑO, INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE OF VERONICA CASTILLO NIÑO AND KATHY ORSAK, Appellees

On Appeal from the 157th District Court Harris County, Texas Trial Court Case No. 2015-75452

MEMORANDUM ORDER

Appellant Adrienne Gallien appeals from an order granting a temporary

injunction as well as two subsequent orders. Appellees Wells Fargo Home Mortgage, Inc. and Wells Fargo Bank, N.A. filed a motion to dismiss this appeal

on the ground that it was moot. We dismiss the appeal in part.

This case concerns certain real property on which Wells Fargo had sought to

foreclose. The note and deed of trust on the property belonged to Cristobal Niño

and his wife, Veronica Castillo Niño,1 but the Galliens held a general warranty

deed from the Niños and sought to discharge the amount owed. After attempting to

pay sums to discharge the debt, which Wells Fargo refused to accept, the Galliens

filed the underlying case.

The trial court granted a temporary injunction to halt foreclosure on the

property and ordered the parties to mediation. The parties reached a settlement

agreement in which Gallien agreed to pay a sum of money to Wells Fargo and

upon receipt of those funds, Wells Fargo agreed to release the lien on the property.

Gallien also agreed that she would dismiss her claims. Gallien paid the monies

owed, and Wells Fargo released the lien on the property, but then Gallien did not

dismiss her claims. Instead, she filed a plea to the jurisdiction. Wells Fargo filed a

motion to enforce the settlement agreement and for sanctions. The trial court

signed an order denying the plea to the jurisdiction and a separate order enforcing

1 Cristobal Niño began probate proceedings in which the Galliens also participated. Gallien has filed another appeal from an order in that case and it is docketed as appellate cause number 01-17-00590-CV. 2 the settlement agreement, dismissing Gallien’s claims, and imposing sanctions in

the amount of $5,000.

Gallien appealed the temporary injunction order and the trial court’s

subsequent orders. Wells Fargo filed a motion to dismiss contending that the

appeal should be dismissed as moot because all issues concerning the real property

were settled.

“Appellate courts are prohibited from deciding moot controversies.” Nat’l

Collegiate Athletic Ass’n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999). A case is moot if

there is no longer a “justiciable controversy between the parties.” Heckman v.

Williamson Cty., 369 S.W.3d 137, 162 (Tex. 2012). There is no justiciable

controversy if our action on the merits would not affect the parties’ rights. Id.

The parties settled all issues concerning the real property. The temporary

injunction order became inoperative after the parties settled their claims. See Nat’l

Collegiate, 1 S.W.3d at 86 (“When a temporary injunction becomes inoperative

due to a change in status of the parties or the passage of time, the issue of its

validity is also moot.”). Gallien has paid the amount that she agreed to pay under

the terms of the settlement agreement and Wells Fargo released the lien. All claims

brought by Gallien in the trial court have been dismissed. Thus, all issues on

appeal concerning the real property were settled and released and the appeal of

those issues is moot.

3 Gallien argues in her response that a justiciable controversy continues to

exist concerning the trial court’s orders denying her plea to the jurisdiction and

imposing sanctions. However, the plea to the jurisdiction concerned the trial

court’s jurisdiction to rule on the property issues. Gallien agreed to settle all claims

that she had brought in the district court. Because the issues have been settled and

the settlement agreement has been performed, no issues concerning the property or

the plea to the jurisdiction remain for this court to adjudicate.

The only issue remaining for adjudication on appeal is Gallien’s challenge to

the August 4 order imposing sanctions. Because the sanctions award was separate

from the settlement agreement, Gallien’s appeal of the sanctions order is not moot

and the appeal will remain pending only as to Gallien’s challenge to the sanctions

award.

Accordingly, we grant Wells Fargo’s motion and partially dismiss the appeal

as it concerns (1) the temporary injunction order, (2) the August 4, 2017 order

denying the plea to the jurisdiction, and (3) the portion of the August 4, 2017 order

dismissing Gallien’s claims concerning the real property.

PER CURIAM Panel consists of Chief Justice Radack and Justices Massengale and Brown.