Cherie Allen v. Lender's Commercial Finance, LLC

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-18-00016-CV

CHERIE ALLEN APPELLANT

V.

LENDER’S COMMERCIAL APPELLEE FINANCE, LLC

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FROM THE 342ND DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 342-291007-17

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MEMORANDUM OPINION1

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Appellant Cherie Allen attempts to appeal from the district court’s order

granting appellee Lender’s Commercial Finance, LLC (LCF) a writ of mandamus

compelling a constable to execute a writ of possession. We dismiss the appeal

for want of jurisdiction.

1 See Tex. R. App. P. 47.4. On March 15, 2017, in the 342nd District Court of Tarrant County, LCF

filed a suit to quiet title for property located at 6020 Lucas Court in Fort Worth.

LCF alleged that Allen “has engaged in a plethora of filings to cloud title, confuse

the public[,] and the Court to maintain her no cost and extremely profitable

enterprise.”2 The district court cleared the title in LCF’s favor, but the case

remains pending in the trial court apparently based on Allen’s counterclaim.

On August 11, 2017, LCF filed a petition in a justice-of-the-peace court (JP

court) seeking to evict all occupants of 6020 Lucas Court. See Tex. R. Civ. P.

510.3. On October 20, 2017, the JP court ordered that LCF was entitled to

possession of the premises against any competing claims asserted by any

occupant, including Allen. See Tex. R. Civ. P. 510.8(b). No party appealed the

judgment. See Tex. R. Civ. P. 510.9. The JP court issued a writ of possession

on December 5, 2017, directing the constable to execute it. See Tex. R. Civ. P.

510.8(d).

Although Allen did not appeal the JP court’s judgment, she began filing

petitions requesting ex parte temporary restraining orders in several Tarrant

County trial courts. County Court at Law Number 3 dismissed the petition after

granting LCF’s plea to the jurisdiction.3 The 67th District Court and County Court

2 It appears that after the property at issue was foreclosed upon and sold to LCF, Allen became a squatter and rented the house to others for profit. 3 Allen appealed the dismissal to this court, and we denied her request to stay execution of the writ of possession on December 8, 2017. Allen v. Bank of Am., N.A., No. 02-17-00414-CV. The appeal remains pending.

2 at Law Number 1 denied her requests for a temporary restraining order. And the

United States District Court for the Northern District of Texas, Fort Worth division,

remanded Allen’s attempted removal complaint to the JP court.

Meanwhile, LCF encountered difficulties with ensuring that the constable

executed the JP court’s writ of possession. Fearing that the writ of possession

would not be executed before it expired, LCF filed a motion in the 342nd District

Court in the same number governing its suit to quiet title, seeking a writ of

mandamus against the constable. See Tex. R. Civ. P. 510.8(d)(2). At the trial

court’s January 10, 2018 hearing, the constable agreed to post and execute the

writ of possession by January 11, 2018. The district court granted a writ of

mandamus and ordered the constable to execute the writ of possession no later

than January 11. See Tex. Gov’t Code Ann. § 24.011 (West 2004). Allen filed a

notice of appeal from the district court’s order granting LCF a writ of mandamus.

We have jurisdiction to consider appeals only from final judgments or from

interlocutory orders made immediately appealable by statute. See Lehmann v.

Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). “An original proceeding for a

writ of mandamus initiated in the trial court is a civil action subject to trial and

appeal on substantive law issues and the rules of procedure as any other civil

suit.” Anderson v. City of Seven Points, 806 S.W.2d 791, 792 n.1 (Tex. 1991);

see also Raesz v. Mitchell, 415 S.W.3d 352, 353 (Tex. App.—Fort Worth 2013,

pet. denied). The trial court’s order granting LCF mandamus relief was not the

result of an original proceeding—LCF requested the order in its suit to quiet title.

3 LCF’s suit to quiet title remains pending in the trial court based on Allen’s

unadjudicated counterclaim. We find no authorizing statute allowing an appeal to

this court from a trial court’s mandamus order when issues and parties remain

pending in the underlying suit.

Additionally, there is no indication in the record that the constable failed to

serve the writ of possession on all occupants of 6020 Lucas Court no later than

January 11 as he agreed to do and as ordered by the trial court. Thus, any

appeal allowed from the trial court’s order would have been rendered moot by the

constable’s service of the writ, depriving this court of subject-matter jurisdiction.

See, e.g., Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001); In re Lopez, No. 12-

18-00016-CV, 2018 WL 720344, at *2 (Tex. App.—Tyler Feb. 6, 2018, orig.

proceeding); Kessling v. Friendswood ISD, 302 S.W.3d 373, 384 (Tex. App.—

Houston [14th Dist.] 2009, pet. denied).

We notified Allen of our jurisdictional concerns. See Tex. R. App. P. 42.3,

44.3. Allen responded but failed to establish our jurisdiction. Accordingly, we

dismiss her attempted appeal for want of jurisdiction. See Tex. R. App. P.

42.3(a), 43.2(f).

/s/ Lee Gabriel

LEE GABRIEL JUSTICE

PANEL: GABRIEL, KERR, and PITTMAN, JJ.

DELIVERED: March 15, 2018