Michael Leonard Goebel and All Other Occupants of 207 Cazador Drive v. Sharon Peters Real Estate, Inc.
Opinion
ACCEPTED
03-14-00635-CV
4323752
THIRD COURT OF APPEALS
AUSTIN, TEXAS
3/2/2015 1:33:41 AM
JEFFREY D. KYLE
CLERK
No. 03-14-00635-CV
FILED IN
3rd COURT OF APPEALS
IN THE THIRD COURT OF APPEALS OF TEXAS AUSTIN, TEXAS
3/2/2015 1:33:41 AM
JEFFREY D. KYLE
MICHAEL LEONARD GOEBEL AND ALL OTHER OCCUPANTS OF Clerk 207 CAZADOR DRIVE, SAN MARCOS, TEXAS 78666,
Appellants,
v.
SHARON PETERS REAL ESTATE, INC.,
Appellee.
ON APPEAL FROM THE COUNTY COURT AT LAW, HAYS COUNTY, TEXAS TRIAL COURT CAUSE NO. 14-0385-C
APPELLEE’S OPPOSED MOTION TO DISMISS APPEAL AS MOOT
Dr. J. Hyde
Texas Bar No. 24027083
THE J. HYDE LAW OFFICE, PLLC 111 E. 17th Street #12015 Austin, TX 78711
Telephone: (512) 200-4080 Fax: (512) 582-8295
E-mail: jhyde@jhydelaw.com
Counsel for Appellee
No. 03-14-00635-CV
IN THE THIRD COURT OF APPEALS OF TEXAS
MICHAEL LEONARD GOEBEL AND ALL OTHER OCCUPANTS OF 207 CAZADOR DRIVE, SAN MARCOS, TEXAS 78666,
Appellants,
v.
SHARON PETERS REAL ESTATE, INC.,
Appellee.
ON APPEAL FROM THE COUNTY COURT AT LAW, HAYS COUNTY, TEXAS TRIAL COURT CAUSE NO. 14-0385-C
APPELLEE’S OPPOSED MOTION TO DISMISS APPEAL AS MOOT
TO THE HONORABLE THIRD COURT OF APPEALS:
Appellee Sharon Peters Real Estate, Inc., (“Peters”) by and through undersigned counsel, respectfully moves to dismiss this appeal as moot, and in support thereof states as follows:
1. This case involves the appeal of a final judgment in a forcible detainer action granting Peters immediate possession of the real property located at 207 Cazador Drive, San Marcos, Texas 78666 (Property). Appellant Michael Goebel failed to supersede the judgment, and a writ of possession has been issued and executed. Because Goebel is not currently in possession of the property and has no claim of right to current
possession, no live controversy remains and Goebel’s appeal should be dismissed as moot.
FACTUAL BACKGROUND
2. Appellee Peters purchased the Property from Nationstar Mortgage, LLC which in turn had purchased the Property at a foreclosure auction. (Clerk’s Record (CR) 219–21, 215–17; attached as Exhibits 1 and 2). Appellant Goebel owned the Property prior to the foreclosure sale.
3. The Hays County Court at Law rendered a final judgment granting Peters immediate possession of the Property on 18 September 2014. (CR 408, attached as Exhibit 3).
4. Goebel timely filed a Notice of Appeal from that judgment, but failed to supersede the judgment.
5. The county clerk issued a writ of possession in accordance with the judgment, and the writ was executed on 24 October 2014. (CR 462, attached as Exhibit 4). Peters took possession of the Property on that date.
ARGUMENT
6. The Court may dismiss an appeal for lack of jurisdiction. TEX. R. APP. P.
42.3. The Court lacks jurisdiction when no controversy exists between the parties, which is the case when the issues on appeal are no longer live. Camarena v. Tex. Empl’t Comm’n, 754 S.W.2d 149, 151 (Tex. 1988).
7. A judgment of possession in a forcible detainer action resolves only who is entitled to immediate possession of the subject property. Rice v. Pinney, 51 S.W.3d 705, 709 (Tex. App.—Dallas 2001, no pet.). It does not resolve issues of title. TEX. R. CIV. P. 510.3(e) (the “only issue” before the justice court in eviction cases is the “right to actual possession and not title”). An appellant need not supersede the judgment to preserve his right to appeal, but an eviction judgment that has not been superseded “may be enforced, including issuance of a writ of possession evicting the tenant from the premises.” Marshall v. Housing Auth. of City of San Antonio, 198 S.W.3d 782, 786 (Tex. 2006).
8. “An appeal from a forcible-detainer action becomes moot if appellant is no longer in possession of the property, unless the appellant holds and asserts ‘a potentially meritorious claim of right to current, actual possession’ of the property.” McDonald v. Fed. Nat’l Mortg. Ass’n, No. 03-13-00770-CV, 2014 WL 1433061, at *1 (Tex. App.— Austin Apr. 10, 2014, order) (mem. op.) (quoting Marshall, 198 S.W.3d at 787). Appellant Goebel is no longer in possession of the Property and holds no meritorious claim to current, actual possession of the Property.
9. There is no lease between the parties. Goebel is the prior owner of the Property and, under the deed of trust securing the purchase note, became a tenant at sufferance upon the Property’s sale at foreclosure to Peters’ predecessor-in-interest. (CR 192; relevant portions of Deed of Trust attached as Exhibit 5).
10. Goebel’s only substantive argument in the county court was that the foreclosure sale was invalid, depriving the justice and county courts of jurisdiction over
the eviction. (CR 232–40). This is the same argument that this Court has rejected multiple times in the past few years. See Wilder v. Citicorp Trust Bank, F.S.B., No. 03- 13-00324-CV, 2014 WL 1207979 (Tex. App.—Austin Mar. 18, 2014, pet. dism’d w.o.j.) (mem. op.) (noting that this Court “has consistently held that defects in the foreclosure process cannot be used either to negate a landlord-tenant relationship provision in a deed of trust or to raise a question of title depriving the justice or county courts of jurisdiction to resolve the question of immediate possession”); see also Killebrew v. BKE Investments, Inc., No. 03-13-00149-CV, 2014 WL 3055984 (Tex. App.—Austin June 30, 2014, no pet.); Jaimes v. Fed. Nat. Mortgage Ass’n, No. 03-13-00290-CV, 2013 WL 7809741 (Tex. App.—Austin Dec. 4, 2013, no pet.) (mem. op.) (same); Reardean v. Fed. Home Loan Mortg. Corp., No. 03-12-00562-CV, 2013 WL 4487523 (Tex. App.—Austin Aug. 14, 2013, no pet.).
11. The proper avenue for Goebel to pursue his challenge to the foreclosure sale is not this case, but a title suit in the district court. 1 See, e.g., Rodriguez v. CitiMortgage, Inc., No. 03-10-00093-CV, 2011 WL 182122, at *2 (Tex. App.—Austin Jan. 6, 2011, no pet.) (mem. op.) (“[T]he trial court cannot determine in a forcible detainer action whether the sale of property under a deed of trust is invalid; instead, the displaced property occupant is entitled to bring a separate suit in district court to resolve
1 To that end, Goebel also argued in the county court that he was entitled to conduct discovery before the Court ruled on Peters’ motion for summary judgment. However, the discovery requests proposed by Goebel were related entirely to the issues raised in the title suit and had no bearing on the issue of immediate possession at the center of this forcible detainer action. (See CR 322–43).
any title issues.”). Indeed, Goebel has filed such a suit, which is currently pending in the Hays County District Court. (CR 243).
12. However the title suit is eventually resolved, the issues Goebel raises in that suit have no bearing on his entitlement to “current, actual possession of the Property.”
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Michael Leonard Goebel and All Other Occupants of 207 Cazador Drive v. Sharon Peters Real Estate, Inc. (Michael Leonard Goebel and All Other Occupants of 207 Cazador Drive v. Sharon Peters Real Estate, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.