No CV IN THE THIRD COURT OF APPEALS OF TEXAS AUSTIN, TEXAS. Appellants, Appellee. APPELLEE S OPPOSED MOTION TO DISMISS APPEAL AS MOOT

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1 No CV IN THE THIRD COURT OF APPEALS OF TEXAS AUSTIN, TEXAS 3/2/2015 1:33:41 AM 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 C APPELLEE S OPPOSED MOTION TO DISMISS APPEAL AS MOOT Dr. J. Hyde Texas Bar No THE J. HYDE LAW OFFICE, PLLC 111 E. 17th Street #12015 Austin, TX Telephone: (512) Fax: (512) jhyde@jhydelaw.com Counsel for Appellee FILED IN 3rd COURT OF APPEALS JEFFREY D. KYLE Clerk ACCEPTED CV THIRD COURT OF APPEALS AUSTIN, TEXAS 3/2/2015 1:33:41 AM JEFFREY D. KYLE CLERK

2 No 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 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 (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 2

3 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) , ; 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 (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 (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 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). 3

4 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 (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 CV, 2014 WL , 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 4

5 the eviction. (CR ). 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 CV, 2014 WL (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 CV, 2014 WL (Tex. App. Austin June 30, 2014, no pet.); Jaimes v. Fed. Nat. Mortgage Ass n, No CV, 2013 WL (Tex. App. Austin Dec. 4, 2013, no pet.) (mem. op.) (same); Reardean v. Fed. Home Loan Mortg. Corp., No CV, 2013 WL (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 CV, 2011 WL , 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 ). 5

6 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. 13. Goebel s only other argument in this Court is that the county court lacked jurisdiction over Peters appeal due to Peters alleged failure to file an appeal bond. That contention is false, 2 but more importantly, it does not affect the mootness of the appeal. Whether the county court had jurisdiction over this action or not and it most certainly did the fact remains that the writ of possession has been executed and Goebel no longer has possession of the Property. Nor does the county court s purported lack of jurisdiction give Goebel any right to current possession In sum, because Goebel is no longer in possession of the Property, and because he has no potentially meritorious right to current, actual possession of the Property, Goebel s appeal of the judgment of possession is moot. Marshall, 198 S.W.3d at Peters addressed this argument in its response to Goebel s Motion for Emergency Stay of Writ, or, in the Alternative, Writ of Re-entry. If necessary, Peters will address the argument further in its Brief on the Merits. 3 To the extent Goebel asserts that he is entitled to a writ of reentry under Texas Property Code section , such an assertion is frivolous and was rejected by this Court when it denied Goebel s Motion for Emergency Stay of Writ, or, in the Alternative, Writ of Re-entry. Peters explained why Goebel s request lacked merit in its response to that motion. 6

7 15. To the extent Goebel contends that the county court s award of costs to Peters prevents mootness on appeal, Peters has no intention of attempting to collect such costs and hereby waives, surrenders, and abandons any right it has to such costs. WHEREFORE, Peters respectfully requests that the Court GRANT this motion and dismiss this appeal as moot. Respectfully Submitted, /s/ J. Hyde Dr. J. Hyde State Bar No THE J. HYDE LAW OFFICE, PLLC 111 E. 17th Street #12015 Austin, Texas Phone: (512) Fax: (512) jhyde@jhydelaw.com Attorney for Appellee CERTIFICATE OF CONFERENCE I hereby certify that I have conferred with opposing counsel David Rogers regarding this motion and that Mr. Rogers stated he is OPPOSED to the relief requested herein. /s/ J. Hyde Dr. J. Hyde 7

8 CERTIFICATE OF SERVICE I hereby certify that, pursuant to Texas Rule of Appellate Procedure 9.5 and Local Rule 4(d), a copy of Appellee s Motion to Dismiss Appeal as Moot was served on this 2nd day of March, 2015, via e-service, upon the following: David Rogers 1201 Spyglass, Suite 100 Austin, TX /s/ J. Hyde Dr. J. Hyde 8

9 EXHIBIT 1 Special Warranty Deed

10 219

11 220

12 221

13 EXHIBIT 2 Substitute Trustee s Deed

14 215

15 216

16 217

17 EXHIBIT 3 Final Judgment of Possession

18 408

19 EXHIBIT 4 Executed Writ of Possession

20 462

21 EXHIBIT 5 Deed of Trust Relevant Excerpts

22 180

23 181

24 182

25 192

26 194

27 195