ACCEPTED 03-14-00561-CV 5193710 THIRD COURT OF APPEALS AUSTIN, TEXAS 5/7/2015 1:36:25 PM JEFFREY D. KYLE CLERK No. 03-14-00561-CV ______________________________________________________ FILED IN 3rd COURT OF APPEALS IN THE COURT OF APPEALS OF TEXAS AUSTIN, TEXAS THIRD DISTRICT, AUSTIN 5/7/2015 1:36:25 PM ______________________________________________________ JEFFREY D. KYLE Clerk
DANA DUTSCHMANN and KEVIN BIERWIRTH,
Appellants, vs.
FEDERAL NATIONAL MORTGAGE ASSOCIATION, Appellee.
______________________________________________________
On Appeal from the County Court at Law No. 2 Travis County, Texas Trial Court Cause No. C-1-CV-15-006351 ______________________________________________________
APPELLEE’S BRIEF
Brian P. Casey State Bar No. 00793476 Douglas G. Dent State Bar No. 24078062 6836 Bee Caves, Bldg. 3, Suite 303 Austin, Texas 78746 Tel.: 512-617-6409 Fax: 888-530-9616 bcasey@caseylawtx.com ddent@caseylawtx.com
ATTORNEYS FOR APPELLEE FEDERAL NATIONAL MORTGAGE ASSOCIATION
IDENTITY OF THE PARTIES AND COUNSEL
The parties to the Trial Court’s judgment/order appealed from are as follows:
Defendant / Appellant
Dana Dutschmann, Pro Se c/o 13276 Research Boulevard, Suite 204 Austin, Texas 78750 Tel.: 512-779-6254
Stephen Casey State Bar No. 24065015 Casey Law Office, P.C. 595 Round Rock West Drive, Suite 102 Round Rock, Texas 78681 Tel.: 512-257-1324 **Trial Court Counsel
Interpleader / “Real Party in Interest” / Appellant
Kevin Bierwirth, Pro Se 13276 Research Boulevard, Suite 204 Austin, Texas 78750 Tel.: 512-825-0331
Stephen Casey State Bar No. 24065015 Casey Law Office, P.C. 595 Round Rock West Drive, Suite 102 Round Rock, Texas 78681 Tel.: 512-257-1324 **Trial Court Counsel
Plaintiff / Appellee
Federal National Mortgage Association
Trial Court and Appellate Counsel for Plaintiff / Appellee
Brian P. Casey State Bar No. 00793476 6836 Bee Caves, Bldg. 3, Suite 303 Austin, Texas 78746 Tel.: 512-617-6409
Douglas G. Dent State Bar No. 24078062 6836 Bee Caves, Bldg. 3, Suite 303 Austin, Texas 78746 Tel.: 512-617-6402
Jeffry B. Lewis State Bar No. 12290000 Robertson Anschutz Vetters 10333 Richmond Avenue, Suite 550 Houston, Texas 77042 Tel.: 713-980-9500
TABLE OF CONTENTS
ABBREVIATIONS ................................................................................................. 6
TABLE OF AUTHORITIES ................................................................................. 7
I. STATEMENT OF THE CASE ......................................................................... 9
II. STATEMENT ON ORAL ARUMENT .......................................................... 9
III. STATEMENT OF JURISDICTION ............................................................. 9
IV. CROSS-ISSUE AND RESTATED ISSUES PRESENTED ....................... 10
Cross-Issue No. 1: This appeal is moot because the only issue in a forcible detainer action is possession, and Appellants are no longer in possession of the property and make no argument that they are entitled to immediate possession.
........................................................................................................................................................ 10
Restated Bierwirth Issue No. 1: The applicable statute of limitations does not bar Appellee’s cause of action. ............................................................................................ 10
Restated Bierwirth Issue No. 2: The Tex. R. Civ. P. 310 writ of possession is not improper and is not relevant to this appeal. ..................................................................... 10
Restated Bierwirth Issue No. 3: The failure of the trial court to set a supersedeas bond amount is not an error of law. ................................................................................... 10
Restated Bierwirth Issue No. 4: The trial court’s failure to sign the Judgment Order does not constitute judicial error. ........................................................................... 10
Restated Bierwirth Issue No. 5: Bierwirth was not denied due process of law. .. 10
Restated Bierwirth Issue No. 6: The trial court did not misapply the law at the hearing on Bierwirth’s Emergency Petition for Writ of Reentry. ............................ 10
Restated Dutschmann Issue: Dutschmann was not denied due process of law. .. 10
V. STATEMENT OF FACTS ............................................................................. 10
VI. SUMMARY OF THE ARGUMENT ........................................................... 14
VII. ARGUMENT AND AUTHORITIES ......................................................... 14
A. This appeal is moot because Appellants are no longer in actual possession of the subject property. ................................................................................................................ 14
B. Appellee’s forcible detainer action is not barred by the statute of limitations.
........................................................................................................................................................ 17
C. Bierwirth’s challenge of the prior Summary Judgment Order, Home Equity Foreclosure, and Tex. R. Civ. P. 310 writs of possession constitute an impermissible collateral attack. ........................................................................................... 18
D. The lack of a supersedeas bond is not reversible error. ........................................ 20
E. The Hon. Judge Eric M. Shepperd’s signing of the Judgment Order does not constitute judicial error. ......................................................................................................... 20
F. Appellant Bierwirth was not denied due process of law. ..................................... 22
G. The trial court did not misapply the law at the hearing on Appellant’s Emergency Petition for Writ of Reentry. ......................................................................... 23
H. Appellant Dutschmann’s due process rights were not violated. ........................ 24
VIII. PRAYER ...................................................................................................... 26
ABBREVIATIONS
CR = Clerk’s Record
RR = Reporter’s Record
TABLE OF AUTHORITIES
Cases Adler v. Beverly Hills Hosp., 594 S.W.2d 153 (Tex.App. – Dallas 1980, no writ) 16
Bass v. Champion Int’l Corp., 787 S.W.2d 208 (Tex.App. – Beaumont 1990, no writ) ...................................................................................................................... 18
Bello v. Tarrant County, 2010 Tex.App. LEXIS 9763 (Tex.App. – Fort Worth 2010, pet. denied). ................................................................................................ 21
Coinmach Corp. v. Aspenwood Apartment Corp., 417 S.W.3d 909 (Tex. 2013) ... 16
First General Realty Corp. v. Maryland Cas. Co., 981 S.W.2d 495 (Tex.App. – Austin 1998, pet denied) ...................................................................................... 16
Flores v. United Freedom Associates, Inc., 314 S.W.3d 113 (Tex. App.—El Paso 2010, no pet.) ....................................................................................................... 20
Green v. Kaposta, 152 S.W.3d 839 (Tex. App. —Dallas 2005, no pet.) ................ 20
Housing Auth. v. Massey, 878 S.W.2d 624 (Tex.App. – Corpus Christi 1994, no pet.) ...................................................................................................................... 18
Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826 (Tex. 1990) ........................ 16
Peck v. Fed. Home Loan Mortg. Corp., 2913 Tex.App. LEXIS 15154 (Tex.App. – Austin 2013, no pet.)................................................................................ 14, 15, 19
Resendez v. FV REO I, LLC, 2014 Tex.App. LEXIS 1096 (Tex.App. – Austin 2014, no pet.) ....................................................................................................... 14
Tectonic Realty Inv. Co. v. CAN Lloyd’s of Texas Ins. Co., 812 S.W.2d 647 (Tex.App. – Dallas 1991, writ denied) ................................................................ 16
Two Pesos, Inc. v. Gulf Ins. Co., 901 S.W.2d 495 (Tex.App. – Houston [14th Dist.] 1995, no writ) ....................................................................................................... 16
Wilhelm v. Fed. Nat’l Mortg. Ass’n, 349 S.W.3 766 (Tex.App. – Houston [14th Dist.] 2011, no pet.) ............................................................................................. 14
Williams v. Bank of New York Mellon, 315 S.W.3d 926 (Tex.App. – Dallas 2010, no pet.) ................................................................................................................. 14
Statutes Tex. Prop. Code § 24.007 ........................................................................................ 23
Rules Tex. R. Civ. P. 510 ...................................................................................... 15, 23, 24
Tex. R. App. P. 38 ................................................................................................... 21
I. STATEMENT OF THE CASE
Appellee brought a suit for forcible detainer against Appellant Dutschmann.1
Appellant Bierwirth intervened and Appellants asserted objections based upon
Appellee’s capacity to sue, the Trial Court’s jurisdiction, the statute of limitations,
and alleged failure to properly plead.2 The Trial Court entered judgment for
Appellee and granted Appellee possession of the subject property on August 8,
2014.3 Appellant Bierwirth subsequently requested a Writ of Reentry.4 The Trial
Court denied Appellant Bierwirth’s request for a Writ of Reentry on October 14,
2014.5
II. STATEMENT ON ORAL ARUMENT
Appellee does not request oral argument and does not believe that oral
argument is necessary to address the issues raised by this appeal.
III. STATEMENT OF JURISDICTION
This Court has jurisdiction of this appeal pursuant to Texas Civil Practice &
Remedies Code § 51.012.
1 CR at pp. 55-62. 2 CR at pp. 23-25 and pp. 118-119. 3 CR at pp. 124-125. 4 CR at pp. 132-133. 5 CR at p. 200.
IV. CROSS-ISSUE AND RESTATED ISSUES PRESENTED
Cross-Issue No. 1: This appeal is moot because the only issue in a forcible detainer action is possession, and Appellants are no longer in possession of the property and make no argument that they are entitled to immediate possession.
Restated Bierwirth Issue No. 1: The applicable statute of limitations does not bar Appellee’s cause of action.
Restated Bierwirth Issue No. 2: The Tex. R. Civ. P. 310 writ of possession is not improper and is not relevant to this appeal.
Restated Bierwirth Issue No. 3: The failure of the trial court to set a supersedeas bond amount is not an error of law.
Restated Bierwirth Issue No. 4: The trial court’s failure to sign the Judgment Order does not constitute judicial error.
Restated Bierwirth Issue No. 5: Bierwirth was not denied due process of law.
Restated Bierwirth Issue No. 6: The trial court did not misapply the law at the hearing on Bierwirth’s Emergency Petition for Writ of Reentry.
Restated Dutschmann Issue: Dutschmann was not denied due process of law.
V. STATEMENT OF FACTS
On or about June 24, 2005, Appellant Kevin Bierwirth (“Bierwirth”)
executed a Deed of Trust in connection with the real property located at 3305
Spaniel Drive, Austin, Texas 78759 (the “Property”). 6 Following Bierwirth’s
6 CR pp. 63-78.
default on the related promissory note, a non-judicial foreclosure sale of the
Property was conducted.7 The foreclosure sale was conducted pursuant to a Final
Summary Judgment and Order Allowing Home Equity Foreclosure issued by 200th
Judicial District Court, Travis County, Texas.8
Following the foreclosure sale of the Property, Bierwirth unsuccessfully
challenged the sale by filing a writ of prohibition with this Court, which the Court
denied. 9 Bierwirth then unsuccessfully challenged FNMA’s predecessor-in-
interest’s right to possession by seeking an injunction prohibiting the issuance of a
writ of possession pursuant to the summary judgment order. Once again,
Bierwirth’s challenge was unsuccessful.10
The Property was subsequently conveyed to Federal National Mortgage
Association (“FNMA”) by Special Warranty Deed recorded in the Official Public
Records of Travis County on October 26, 2012.11
On May 30, 2013, Bierwirth used his status as a realtor to access the
Property with a special key provided by FNMA only to realtors.12 Appellant Dana
Dutschmann (“Dutschmann”) then leased the Property from Bierwirth in June
7 CR pp. 80-93. 8 RR, Vol. 3, Ex. 2-A. 9 RR, Vol. 2, pp. 32-3; see, Bierwirth v. TIB – The Independent Bankers Bank, Case No. 03-11-
00336-CV, Third Court of Appeals. 10 See, Bierwirth v. TIB – The Independent Bankers Bank, Cause No. D-1-GN-13-003128, In the
250th Judicial District Court, Travis County, Texas. 11 CR pp. 95-8. 12 RR, Vol. 2, pp. 22-4 and 30; RR, Vol. 3, Ex. 3-A.
2013, and resided at the Property from that time through the time of trial in this
matter.13 During such time, Bierwirth did not reside at the Property.14
FNMA filed its Original Petition for Forcible Detainer and accompanying
exhibits with the Justice of the Peace, Precinct 2, Travis County, Texas, on May
22, 2014, against Dutschmann and/or the then-current residents of the Property.15
Default judgment in favor of FNMA and against Dutschmann was entered on June
17, 2104.16 Bierwirth, represented by counsel Stephen Casey and David Rogers,
also appeared before the justice court as a “real party in interest” at that time.17
The justice court refused to consider Bierwirth’s objections to FNMA’s original
petition because he was not a party to the suit. 18 The On June 23, 2014,
Dutschmann and Bierwirth filed a notice of appeal with the justice court. 19
Dutschmann and Bierwirth filed their notice of appeal in the County Court at Law
#2, Travis County, Texas, on July 8, 2014.20
On August 5, 2014, Bierwirth, acting through counsel Stephen Casey, filed a
combined Motion to Intervene and Motion to Abate.21 A trial on FNMA’s petition
for forcible detainer was held before the county court, the Hon. Judge Joe Carroll
13 RR, Vol. 2, p. 11. 14 RR, Vol. 2, p. 22.
15 CR pp. 55-117. 16 CR p. 19. 17 Id. 18 Id. 19 Id. 20 CR pp. 108-9. 21 CR pp. 118-120.
presiding, on August 5, 2014.22 At the conclusion of the trial, Judge Carroll
ordered judgment in favor of FNMA.23 The court did make an explicit ruling on
Bierwirth’s request to intervene.24 On August 7, 2014, the Hon. Judge Eric M.
Shepperd of the County Court at Law #2, Travis County, Texas, signed the
Judgment Order granting judgment and possession of the Property to FNMA.25
The Judgment Order signed by Judge Shepperd does not contain a supersedeas
bond amount.26 The Judgment Order stated that the Writ of Possession ordering
FNMA possession of the Property “shall not issue until the expiration of five days
from the date this judgment is signed.”27
On August 8, 2014, Dutschmann and Bierwirth, acting through counsel
Stephen Casey, filed a Motion for Supersedeas Bond in the county court.28 On
August 13, 2014, a Writ of Possession issued pursuant to the county court’s
judgment of August 7.29 The Writ of Possession was posted on August 14, 2014,
and executed on August 19, 2014.30
22 RR, Vol. 2, generally. 23 RR, Vol. 2, pp. 58-9. 24 RR, Vol. 2, generally. 25 CR pp. 124-5. 26 Id. 27 Id.
28 CR pp. 123. 29 CR pp. 129-131. 30 CR p. 131.
On August 28, 2014, Bierwirth, acting pro se, filed an Emergency Petition
for Writ of Reentry in the county court.31 A hearing on Bierwirth’s Emergency
Petition was conducted before the County Court at Law #2, the Hon. Judge Eric M.
Shepperd presiding, on September 29, 2014. 32 The court denied Bierwirth’s
request for a Writ of Reentry on October 13, 2014.33 This appeal followed.
VI. SUMMARY OF THE ARGUMENT
First, this appeal should be denied as moot because Appellants do not
currently maintain possession of the Property and have presented no meritorious
reason that they are entitled to actual possession. Second, FNMA’s forcible
detainer action is not barred by the statute of limitations. In addition, Bierwirth’s
challenge to the previous writs of possession constitutes an impermissible
collateral attack on a judgment that has been fully adjudicated. Finally, the trial
court’s failure to set a supersedeas bond amount does not deprive Appellants of
their right to due process, or their ability to perfect this appeal.
VII. ARGUMENT AND AUTHORITIES
A. This appeal is moot because Appellants are no longer in actual possession of the subject property.
31 CR132-3. 32 Supp. RR, generally. 33 CR p. 200.
The only issue in a forcible detainer action is the right to actual possession
of the subject property and the merits of title shall not be adjudicated.34 Forcible
detainer is intended to be a speedy, simple, and inexpensive procedure for
obtaining possession without resorting to a suit on the title.35 An appeal of a
judgment in a forcible detainer action becomes moot when the appellant ceases to
have actual possession of the property, unless the appellant has a potentially
meritorious claim of right to current, actual possession of the property.36 This
holds even when there is a failure to supersede a forcible-detainer judgment.37
The Peck case is instructive because its facts closely track the facts in the
instant case. In the Peck case, following trial of an eviction action, the trial court
entered judgment for possession in favor of the plaintiff, but did not set an amount
for supersedeas bond; additionally, the defendant-appellant did not file a
supersedeas bond.38 A writ of possession issued before the 10-day deadline for
filing a supersedeas bond.39 Although the defendant filed motions requesting that
34 Tex. R. Civ. P. 510.3(e); see also, Wilhelm v. Fed. Nat’l Mortg. Ass’n, 349 S.W.3 766, 768
(Tex.App. – Houston [14th Dist.] 2011, no pet.)(internal citations omitted). 35 Williams v. Bank of New York Mellon, 315 S.W.3d 926, 926 (Tex.App. – Dallas 2010, no
pet.). 36 Resendez v. FV REO I, LLC, 2014 Tex.App. LEXIS 1096 (Tex.App. – Austin 2014, no pet.) 37 Peck v. Fed. Home Loan Mortg. Corp., 2913 Tex.App. LEXIS 15154, at 2 (Tex.App. – Austin
2013, no pet.). 38 Id. at 3. 39 Id.
the trial court set a hearing on the amount of the supersedeas bond, a hearing was
not held.40
On appeal, the Peck defendant conceded that she was no longer in
possession of the subject property.41 The Court of Appeals ruled that an appeal
limited only to the issue that a trial court failed to set an amount for a supersedeas
bond does not “provide a potential basis for a claim” that the defendant “is entitled
to current, actual possession.”42 Accordingly, the court dismissed the appeal as
moot.
In this case, Appellants are no longer in possession of the Property.
Furthermore, none of the issues raised in this appeal by either Appellant addresses
a right to current, actual possession of the Property. The points of error set forth
by Appellants address the applicable statute of limitations and procedural events in
the county court following the trial and judgment. Apart from the issue raised by
Bierwirth regarding the applicable statute of limitations, the remaining issues
raised by Appellants all stem from the trial court’s failure to set a supersedeas bond
amount. As further elaborated below, these issues do not mandate Appellants are
entitled to actual possession of the Property. Because Appellants no longer have
40 Id. 41 Id. at 5. 42 Id.
actual possession of the Property, and do not have a potentially meritorious claim
for actual possession of the Property, this appeal is moot, and should be dismissed.
B. Appellee’s forcible detainer action is not barred by the statute of limitations.
Appellee’s forcible detainer action is not barred by the two-year statute of
limitations proscribed by Texas Civil Practice & Remedies Code § 16.003. For a
suit to be timely under a two-year statute of limitations, the suit must be filed
within two years from the date on which the cause of action accrues. Generally, a
cause of action accrues when a wrongful act causes some legal injury.43 However,
an exception to this rule exists for continuing torts.44 A continuing tort involves
wrongful conduct inflicted over a period of time that is repeated until desisted, and
each day creates a separate cause of action.45 A cause of action for a continuing
tort does not accrue until the defendant’s tortious act ceases.46
Dutschmann’s possession of the Property was a continuing tort.47 Each day
that Dutschmann remained in possession of the Property created a separate cause
of action. On each day that Dutschmann remained in possession of the Property,
43 Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 828 (Tex. 1990). 44 Adler v. Beverly Hills Hosp., 594 S.W.2d 153, 154 (Tex.App. – Dallas 1980, no writ). 45 Two Pesos, Inc. v. Gulf Ins. Co., 901 S.W.2d 495, 500 (Tex.App. – Houston [14th Dist.] 1995,
no writ)(internal citations omitted). 46 Tectonic Realty Inv. Co. v. CAN Lloyd’s of Texas Ins. Co., 812 S.W.2d 647, 654 (Tex.App. –
Dallas 1991, writ denied); First General Realty Corp. v. Maryland Cas. Co., 981 S.W.2d 495, 501 (Tex.App. – Austin 1998, pet denied). 47 See, Coinmach Corp. v. Aspenwood Apartment Corp., 417 S.W.3d 909 (Tex. 2013).
FNMA sustained injury because of Dutschmann’s interference with FNMA’s right
to possession. Because FNMA filed the eviction action that is the subject of this
appeal during the period of time that Dutschmann occupied the Property, FNMA’s
claim was filed within the applicable limitation period, and the action is not barred.
Even if this Court does not characterize Dutschmann’s possession of the
Property as a continuing tort, FNMA’s instant cause of action accrued at the
earliest on May 30, 2013, when Bierwirth gain access to the Property in violation
of the writs of possession that had been issued pursuant to the summary judgment
order in the previous foreclosure proceeding. On May 30, 2013, Bierwirth’s
entering into the Property gave rise to a new cause of action for FNMA.
Furthermore, the earliest a cause of action could have accrued against Dutschmann
was when she leased the Property from Bierwirth in June 2013. Using either of
these dates as the purported accrual date, FNMA’s instant eviction action was filed
well within the two-year limitation period when it was originally filed on May 22,
2014.
C. Bierwirth’s challenge of the prior Summary Judgment Order, Home Equity Foreclosure, and Tex. R. Civ. P. 310 writs of possession constitute an impermissible collateral attack.
Appellant Bierwirth’s challenge of the summary judgment and foreclosure
sale and prior writs of possession as part of this appeal constitutes an
impermissible collateral attack. A collateral attack on a judgment is an attempt to
avoid its binding force in a proceeding not instituted for purposes of amending,
correcting, reforming, vacating, or enjoining such judgment.48 An earlier judgment
in one court serves as estoppel from re-litigation of the same issues in a separate
later proceeding.49
Issues associated with the summary judgment order and subsequent writs of
possession pursuant to Tex. R. Civ. P. 310 have already been presented to and
adjudicated by a separate trial court and this Court in previous proceedings.
Appellant Bierwirth admits as much in his brief, stating that the “order was
appealed and subsequently, Appellant was ruled against.”50 Bierwirth should not
be allowed to re-litigate the propriety of the summary judgment order or ensuing
writs of possession in this eviction appeal. As previously stated, the only issue in
an eviction proceeding is the right to possession. Any challenge to previous
proceedings constitutes an impermissible collateral attack on this Court’s previous
rulings, and should not be considered as part of this appeal. Accordingly,
Bierwirth’s point of error regarding whether a writ of possession issued pursuant to
the previous summary judgment order is improper must be overruled.
48 Housing Auth. v. Massey, 878 S.W.2d 624, 626 (Tex.App. – Corpus Christi 1994, no pet.) 49 Id.; see also, Bass v. Champion Int’l Corp., 787 S.W.2d 208, 212 (Tex.App. – Beaumont
1990, no writ). 50 Appellant’s Brief, p. 24.
D. The lack of a supersedeas bond is not reversible error.
The county court’s failure to state an amount for a supersedeas bond in its
Judgment Order entered on August 7, 2014, does not constitute reversible error.
This Court made it explicitly clear in the Peck case that the failure of the trial court
to set a supersedeas bond amount does not deprive an eviction defendant of his
right to appeal, even when the defendant is no longer in possession of the subject
property.51 Even though the trial court in this case failed to set a supersedeas bond
amount and did not conduct a hearing on Appellants’ request for a bond amount,
Appellants have not been deprived of their opportunity to perfect and present this
appeal.
E. The Hon. Judge Eric M. Shepperd’s signing of the Judgment Order does not constitute judicial error.
Appellant Bierwirth next contends that judicial error occurred because the
Judgment Order was not signed by the presiding trial judge, but rather by a
different judge. Though Appellant does not state it explicitly, it is implied from
Appellant’s brief that Appellant asserts that such an order, if accompanied by
judicial error or malfeasance, would be invalid.
Appellant offers no legal authority to support this contention. An issue on
appeal unsupported by proper argument or citation to correct legal authority
presents nothing for the court to review. An issue on appeal unsupported by proper
51 Peck at 2.
argument or citation to correct legal authority presents nothing for the court to
review.52 The Rules of Appellate Procedure require Appellant’s brief to contain “a
clear and concise argument for the contentions made, with appropriate citations to
authorities and to the record.”53 It is the Appellant's burden to discuss the assertions
of error. An appellate court has no duty—or even right—to perform an
independent review of the record and applicable law to determine whether there
was error. Were it to do so, even on behalf of a pro se appellant, it would be
abandoning its role as neutral adjudicators and become an advocate for that party.54
The Hon. Joe Carroll presided over the trial on August 5, 2014.55 At that
time, Judge Carroll entered judgment in favor of Appellee.56 On August 7, 2014,
the Hon. Eric M. Shepperd signed the Judgment Order.57 There is no allegation,
and more importantly, no evidence that the Judgment Order signed by Judge
Shepperd granted any relief not already granted by Judge Carroll’s ruling at trial.58
It is not reversible error for one judge to preside over a hearing or trial and enter
52 Green v. Kaposta, 152 S.W.3d 839, 841 (Tex. App. —Dallas 2005, no pet.) 53 Tex.R.App. P. 38.1(i) 54 Flores v. United Freedom Associates, Inc., 314 S.W.3d 113, 115-16 (Tex. App.—El Paso 2010, no pet.)
55 RR Vol. 2, p. 1. 56 RR Vol. 2, pp. 58-9. 57 CR pp. 124-25. 58 Compare RR Vol. 2, pp. 58-9 and CR pp. 124-25.
judgment, and a different judge to sign the corresponding judgment.59 For this
reason, Appellant Bierwirth’s point of error should be overruled.
F. Appellant Bierwirth was not denied due process of law.
Bierwirth next characterizes the issuance of the Writ of Possession as
“premature” and argues that the timing of such issuance deprived Bierwirth of due
process of law. This point of error is without merit and should be overruled
accordingly.
First, the notion that the Writ of Possession was issued prematurely and not
in compliance with the applicable procedural requirements is disingenuous.
Pursuant to Tex. R. Civ. P. 510.8(d)(1), following judgment for an eviction
plaintiff, a writ of possession may not issue before the 6th day after the date a
judgment Here, the trial court’s judgment ordering issuance of the Writ of
Possession was signed on August 7, 2014. Accordingly, under Rule 510.8(d)(1),
the earliest date on which the Writ of Possession could issue is August 13, 2014—
the sixth day after the judgment order was signed. In fact, the Writ of Possession
was issued on August 13, 2014. Therefore, the writ was issued in a timely manner
and was not “premature.”
In addition, Bierwirth waived any objection to the contents of the Judgment
Order signed by the trial court. Bierwirth’s counsel, Stephen Casey, approved the
59 Bello v. Tarrant County, 2010 Tex.App. LEXIS 9763, at 17 (Tex.App. – Fort Worth 2010, pet.
denied).
form of Judgment Order.60 Moreover, neither Bierwirth, nor his counsel, raised
any objection regarding the court’s failure to set a bond amount during the August
5 trial.61 Bierwirth knowingly relinquished any right to claim that the trial court
erred by failing to set a supersedeas bond.
G. The trial court did not misapply the law at the hearing on Appellant’s Emergency Petition for Writ of Reentry.
Bierwirth’s final issue on appeal contends that the trial court misapplied the
law at the hearing on his petition for a writ of reentry. Appellant’s argument in
support of this issue is grounded upon a misinterpretation of the applicable statute.
The relevant portion of Tex. Prop. Code § 24.007 states:
(a) A judgment of a county court in an eviction suit may not under any circumstances be stayed pending appeal unless, within 10 days of the signing of the judgment, the appellant files a supersedeas bond in an amount set by the county court.62
Tex. R. Civ. P. 510.13 also addresses this issue, stating:
The judgment of the county court may not be stayed unless within 10 days from the judgment the appellant files a supersedeas bond in an amount set by the county court pursuant to Section 24.007 of the Texas Property Code.63
Appellant argues that these provisions require a county court to wait 10 days
before issuing a writ of possession. However, such an interpretation is mistaken.
60 CR pp. 124-5. 61 RR, Vol. 2, generally. 62 Tex. Prop. Code § 24.007(a). 63 Tex. R. Civ. P. 510.13.
These provisions relate only to whether a trial court’s judgment can be stayed, not
whether a writ of possession may issue. Under Tex. R. Civ. P. 510.13, following a
trial before the county court, “the writ of possession…will be issued by the clerk of
the county court according to the judgment rendered…as in other cases.”64
As previously explained in this brief, the timeframe for the issuance of a writ
of possession is addressed in Tex. R. Civ. P. 510.8(d)(1), which states that a writ of
possession may not issue before the 6th day after the date a judgment for possession
is signed.65 Also, as previously explained, the writ of possession in this case was
issued on the sixth day after the date the trial court signed the judgment order. The
lack of a supersedeas bond amount does not invalidate a writ of possession that
was issued and executed upon within the time limits set forth by Rule 510.
Accordingly, the county court did not misapply the law at the hearing on
Bierwirth’s request for a writ of reentry. This point of error should be overruled.
H. Appellant Dutschmann’s due process rights were not violated.
Appellant Dutschmann raises four issues on appeal. Appellee will address
the issues together, however, as the four stated issues can generally be summarized
with one question: Were Appellant Dutschmann’s due process rights violated
because the county court did not set a supersedeas bond amount? In short, this
question must be answered in the negative.
64 Id.
65 Tex. R. Civ. P. 510.8(d)(1).
Appellant Dutschmann makes separate arguments that she was denied equal
rights, not treated with equality, denied an open court, and denied due process.
Dutschmann’s issues all arise from procedural events that occurred after the trial
court’s entry of judgment in favor of FNMA. Dutschmann appeared through
counsel at trial of the action and was afforded the opportunity to present her case to
the trial court. Following the trial, Dutschmann perfected this appeal. The lack of
a supersedeas bond amount did not deprive Dutschmann of her ability to perfect
this appeal. It should be noted that even if a supersedeas bond amount had been set
by the trial court, it is unlikely that Dutschmann would have posted such a bond, as
both she and Bierwirth filed an Affidavit of Inability to Pay Costs on September 4,
2014.66
The only issue before the trial court was the right to actual possession of the
Property. The trial court found that Dutschmann was not entitled to such actual
possession. Now, on appeal, Dutschmann makes no argument and provides no
authority regarding any potential reason the trial court erred by granting judgment
and possession of the Property to FNMA.
A simple hypothetical makes it clear that Dutschmann’s appeal is without
merit. If the trial court had set a supersedeas bond amount and Dutschmann had
posted the bond before the execution of the writ of possession, the judgment
66 CR pp. 138-41.
presumably would be stayed and Dutschmann would have retained possession of
the Property pending this appeal. But on appeal, Dutschmann would still be
required to provide a cogent argument in support of her retaining possession of the
Property. Yet, throughout her entire brief, Dutschmann provides no grounds for
why she is entitled to possession of the Property. All of Dutschmann’s appellate
issues relate to the events that occurred after the trial of the eviction action and the
court’s judgment. Because Dutschmann provides no argument regarding why she
is entitled to actual possession of the Property, Dutschmann’s points of error must
be overruled.
VIII. PRAYER
Appellee Federal National Mortgage Association respectfully prays that
this Court affirm the judgment of the trial court, or in the alternative, dismiss this
appeal as moot, and grant all other relief to which Appellee is entitled.
Respectfully submitted,
By: /s/ Douglas G. Dent Brian P. Casey State Bar No. 00793476 Douglas G. Dent State Bar No. 24078062 6836 Bee Caves, Bldg. 3, Suite 303 Austin, Texas 78746 Tel.: 512-617-6409 Fax: 888-530-9616 bcasey@caseylawtx.com ddent@caseylawtx.com
Certificate of Service
Pursuant to Tex. R. App. P. 9.5, I hereby certify that on May 7, 2015, I served the foregoing document via regular mail on the following persons:
Kevin Bierwirth 13276 Research Blvd., #204 Austin, Texas 78750
Dana Dutschmann c/o 13276 Research Blvd., #204 Austin, Texas 78750
/s/ Douglas G. Dent Douglas G. Dent
Certificate of Compliance
Pursuant to Tex. R. App. P. 9.4(i)(3), I certify that this document contains 5,041 words.
/s/ Douglas G. Dent Douglas G. Dent