Ramona Uvalle Ibarra v. City of Laredo, Webb County, Laredo Independent School District, Laredo Community College, and Rick Flores, Webb County Sheriff

MEMORANDUM OPINION
No. 04-11-00035-CV

Ramona Uvalle IBARRA and Maribel I. Rodriguez,
Appellants

v.

CITY OF LAREDO, as Trustee for Itself and for Laredo Independant School District,
Laredo Community College, and Webb County,
Appellees

From the 49th Judicial District Court, Webb County, Texas
Trial Court No. 2010CVQ002122-D1
Honorable Jose A. Lopez, Judge Presiding

&

No. 04-11-00037-CV

Ramona Uvalle IBARRA,
Appellant

v.

CITY OF LAREDO, Webb County, Laredo Independent School District,
Laredo Community College, and Rick Flores, Webb County Sherrif
Appellees

From the 49th Judicial District Court, Webb County, Texas
Trial Court No. 2006CVQ000883-D1
Honorable Ron Carr, Judge Presiding 1

1
The Honorable Jose A. Lopez is the presiding judge of the 49th Judicial District Court, Webb County, Texas. The
Honorable Ron Carr is a senior appellate justice, sitting by assignment.
 04-11-00035-CV & 04-11-00037-CV

Opinion by: Marialyn Barnard, Justice

Sitting: Sandee Bryan Marion, Justice
Rebecca Simmons, Justice
Marialyn Barnard, Justice

Delivered and Filed: July 25, 2012

AFFIRMED

These consolidated appeals raise issues relating to a tax lien foreclosure on a piece of

residential property. In appeal number 04-11-00035-CV, appellants Ramona Uvalle Ibarra and

Maribel I. Rodriguez challenge the trial court’s order denying their request for a temporary

injunction. In appeal number 04-11-00037-CV, Ibarra brings a restricted appeal challenging the

trial court’s summary judgment order. We dismiss as moot appeal number 04-11-00035-CV and

affirm the judgment in appeal number 04-11-00037-CV.

BACKGROUND

In 1995, the City of Laredo, as Trustee for itself and for Laredo Independant School

District, Laredo Community College, and Webb County (“the City”), obtained a judgment

against Marcos Ibarra and Ramona Uvalle Ibarra for delinquent taxes on a piece of residential

property. In 2003, the City foreclosed on the property and after a public auction, obtained a

sheriff’s deed transferring ownership of the property from the Ibarras to the City. 2 However, the

Ibarras continued to live in the house.

In 2005, Ramona Uvalle Ibarra filed suit against the City and the sheriff, seeking to set

aside the foreclosure sale. Ibarra alleged claims under the Texas Tax Code and sought injunctive

relief. The City filed no evidence and traditional motions for summary judgment. In 2009, the

trial court signed an order granting the summary judgment motions without stating the grounds.

2
In the trial court, the City alleged the foreclosure was delayed for several years because the Ibarras filed multiple
bankruptcy actions.

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Ibarra perfected an appeal from this judgment; however, we dismissed the appeal for

want of jurisdiction. Ibarra v. City of Laredo, No. 04-10-00317-CV, 2010 WL 2601770, at *1

(Tex. App.—San Antonio June 30, 2010, no pet.). Upon review of the record, this court

determined the trial court’s summary judgment did not dispose of all the parties, specifically the

order failed to dispose of Ibarras’s claims against Sheriff Rick Flores. Id. We issued an order

abating and remanding this cause to the trial court for a period of forty-five days for entry of

either a severance order or an order disposing of the claims against Sheriff Flores. Id. We

advised that if no order was filed, the appeal would be dismissed for want of jurisdiction. Id.

Subsequently, we were advised by the trial court clerk that no pleadings were ever filed to

prompt the trial court to enter an order of severance or otherwise dispose of the claims against

Sheriff Flores. Id. Accordingly, we held the order from which Ibarra attempted to appeal was

interlocutory and dismissed the appeal for lack of jurisdiction. Id.

After this court’s dismissal, the trial court placed the case on the dismissal docket for a

July 16, 2010 hearing. Although notified, neither the Ibarras nor their counsel appeared at the

dismissal hearing. Accordingly, the trial court entered an order of dismissal, stating the case was

being “DISMISSED FOR LACK OF PROSECUTION.” The case was dismissed without

prejudice; however, Ibarra never attempted to have the matter reinstated nor did she perfect an

appeal from the order of dismissal. Rather, she now seeks to challenge the dismissal order by

way of a restricted appeal in appeal number 04-11-00037-CV.

In December 2010, the City obtained a writ of possession to gain control over the

property. In response, Ibarra and Rodriguez 3 filed suit against the City asking for temporary and

permanent injunctive relief. Ibarra and Rodriguez sought to prevent the city from executing on

3
Rodriguez is Ibarra’s daughter. According to documents filed in the trial court, Rodriguez, her husband, and her
minor children live with Ibarra at the residential property that is the subject of these appeals.

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the writ of possession. This was a new lawsuit with a new trial court cause number. After a

hearing, the trial court entered an order denying the relief sought by Ibarra and Rodriguez. The

order was signed January 7, 2011, and stated that it disposed of all issues and parties and was a

final, appealable order. Ibarra and Rodriguez perfected an appeal from that order. That appeal

was assigned appeal number 04-11-00035-CV.

After the appeals were filed, the parties filed an agreed joint motion to consolidate the

appeals because the appeals involve the same property, essentially the same parties, the same

attorneys, and many of the same documents. After reviewing the matter, we agreed and ordered

the appeals consolidated. We advised that the appeals would be considered together and

disposed of in the same judgment, opinion, and mandate.

ANALYSIS

In appeal number 04-11-00035-CV, Ibarra and Rodriguez raise a single issue in which

they contend the trial court erred in denying their request for a temporary injunction to stop

execution of the writ of possession. In appeal number 04-11-00037-CV, Ibarra raises three

issues, challenging the trial court’s order granting the no evidence and traditional motions for

summary judgment filed by the City. We will discuss each matter separately.

No. 04-11-00035-CV: Denial of Temporary Injunction

The only complaint raised by Ibarra and Rodriguez relative to this appeal number is that

“[t]he trial court abused its discretion by denying the temporary injunction.” Moreover, the

entirety of the argument in the brief filed by Ibarra and Rodriguez is based on the denial of

temporary injunctive relief. The City responds, arguing we should dismiss this matter because it

is moot given the denial of the request for permanent injunctive relief and entry of a final

judgment. We agree.

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Whether a matter is moot implicates a court’s subject matter jurisdiction, which is a legal

question that must be reviewed de novo. Trulock v. City of Duncanville, 277 S.W.3d 920, 923

(Tex. App.—Dallas 2009, no pet.). An appellate court is prohibited from deciding a moot

controversy. Nat’l Collegiate Athletic Ass’n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999). This

prohibition stems from the separation of powers doctrines in the state and federal constitutions

that prohibit courts from rendering advisory opinions. Id.; see TEX. CONST. art. II, § 1. A matter

is moot if at any stage of the proceeding there ceases to be an actual controversy between the

parties. Jones, 1 S.W.3d at 86. With regard to appeals, an appeal is moot if there are no live

controversies between the parties and any decision rendered would be advisory. Trulock, 277

S.W.3d at 924. In other words, an appellate issue is moot if either party is seeking judgment on a

controversy that does not really exist or a party seeks a judgment, which, when rendered for any

reason, cannot have any practical legal effect. Cf. VE Corp. v. Ernst & Young, 860 S.W.2d 83,

84 (Tex. 1993). If an appeal is moot, we must dismiss the case. City of Dallas v. Woodfield, 305

S.W.3d 412, 416 (Tex. App.—Dallas 2010, no pet.).

If a trial court renders a final judgment, an appeal complaining about the grant or denial

of temporary injunctive relief is moot. Isuani v. Manske-Sheffield Radiology Group, P.A., 802

S.W.2d 235, 236 (Tex. 1991); Lowe v. Farm Credit Bank of Tex., 2 S.W.3d 293, 300 (Tex.

App.—San Antonio 1999, pet. denied). In this case, the trial court entered an order denying not

only the request for a temporary injunction, but the request for permanent injunctive relief, and

specifically stated the order was final and appealable. Yet, on appeal, Ibarra and Rodriguez

complain only about the trial court’s denial of temporary relief. In fact, in their brief they state

“[t]he temporary injunction should remain in effect until a trial on the merits be had on Ibarras’s

request for permanent injunction.”

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Ibarra and Rodriguez do not recognize the breadth of the trial court’s order. It denied not

only their request for temporary relief, but their request for permanent injunctive relief, which

they do not challenge. Although the trial court denied the request for temporary relief in the

same document in which it rendered final judgment, we hold this does not create a “live

controversy” relative to the denial of temporary injunctive relief. If we were to find the trial

court erred in denying the request for a temporary injunction, it would not have any legal effect

given the contemporaneous denial of permanent injunctive relief and entry of a final judgment.

See VE Corp., 860 S.W.2d at 84. Accordingly, we dismiss appeal number 04-11-00035-CV as

moot. 4 See Woodfield, 305 S.W.3d at 416.

No. 04-11-00037-CV: Summary Judgment

With regard to appeal number 04-11-0037-CV, Ibarra raises three issues in which she in

essence challenges the trial court’s order granting summary judgment. However, as we detail in

the “Background” section above, the summary judgment was interlocutory and the suit filed by

Ibarra was ultimately dismissed for want of prosecution. The dismissal order is the only final

judgment in this matter that is subject to appeal, yet Ibarra raises no issues challenging the

propriety of the dismissal order.

A judgment or order is final for purposes of appeal if it actually disposes of all pending

parties and claims before the court. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.

2001). As noted by this court when we dismissed Ibarra’s initial appeal from the summary

judgment order, the summary judgment was not final, i.e., was a partial summary judgment,

4
The supreme court has recognized two exceptions to the mootness doctrine: (1) the capability of repetition yet
evading review exception; and (2) the collateral consequences exception. Gen. Land Office of State of Tex. v. OXY
U.S.A., Inc., 789 S.W.2d 569, 571 (Tex. 1990). The “capable of repetition yet evading review” exception applies
where the challenged act is of such short duration that the appellant cannot obtain review before the issue becomes
moot. Id. The “collateral consequences” exception applies when Texas courts recognize that prejudicial events
have occurred and the effects of those events continue to stigmatize helpless or hated individuals long after the
unconstitutional judgment ceases to operate. Id. Neither of those exceptions is applicable here.

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because it did not dispose of all of Ibarra’s claims against all parties. Ibarra, 2010 WL 2601770,

at *1. The trial court’s order dismissing the case for want of prosecution dismissed the entire

cause, not just the remaining claims. Thus, the final appealable order in this case is the order of

dismissal for want of prosecution, not the summary judgment order. We hold the trial court’s

order dismissing the matter for want of prosecution set aside the partial summary judgment; it

did not make the summary judgment final. See Aguilar v. Maverick Eng’g Co., 752 S.W.2d 727,

728 (Tex. App.—Corpus Christi 1998, no writ). As the City points out, the Aguilar decision is

directly on point.

In Aguilar, one of the defendants obtained summary judgment in its favor. Id. at 728.

When the plaintiff appealed, the appellate court dismissed the appeal for want of jurisdiction,

holding the appeal was not final because it did not dispose of all claims and issues. Id.

Sometime after the appeal was dismissed, the trial court entered an order dismissing the case for

want of prosecution. Id. The plaintiff made no attempt to reinstate the case, but appealed,

arguing on appeal that the trial court erred in granting summary judgment. Id. The court of

appeals held that in the absence of a complaint about the order of dismissal, or any argument

relating to the dismissal order, there was no reversible error. Id. The court overruled all of the

plaintiff’s points of error and affirmed the judgment of dismissal. Id.

Because the trial court’s order of dismissal set aside the partial summary judgment and

Ibarra failed to challenge the order of dismissal in any respect, instead challenging only the

propriety of the summary judgment order that was set aside, we overrule her issues. See id.

Moreover, even if the dismissal order had not set aside the summary judgment order,

Ibarra would not be entitled to appellate relief. Ibarra brings this as a restricted appeal. To be

entitled to bring a restricted appeal, Ibarra must show: (1) she filed a notice of restricted appeal

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within six months after the judgment was signed; (2) she was a party to the underlying suit; (3)

she did not participate in the hearing that resulted in the judgment complained of, and did not

timely file any postjudgment motions or a request for findings of fact and conclusions of law;

and (4) error is apparent on the face of the record. See Ins. Co. of State of Penn. v. Lejeune, 297

S.W.3d 254, 255 (Tex. 2009) (citing Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex.

2004)); In re B.H.B., 336 S.W.3d 303, 305 (Tex. App.—San Antonio 2010, pet. denied); see also

TEX. R. APP. P. 26.1(c) (stating that in restricted appeal, notice of appeal must be filed within six

months of date judgment or order is signed); TEX. R. APP. P. 30 (stating that party who did not

participate in hearing that resulted in judgment complained of and who did not timely file

postjudgment motions, request for findings of fact and conclusions of law, or notice of appeal,

may file restricted appeal). Each element of a restricted appeal is mandatory and jurisdictional.

Serna v. Webster, 908 S.W.2d 487, 491 (Tex. App.—San Antonio 1995, no writ).

At a minimum, Ibarra cannot establish that she did not participate in the hearing “that

resulted in the judgment complained of.” TEX. R. APP. P. 30. Ibarra’s only complaint is about

the trial court’s summary judgment order, thus it is this hearing Ibarra must show she failed to

participate in. The record shows Ibarra filed a response to the motions for summary judgment

and demonstrates her counsel attended the summary judgment hearing and presented argument

as to why the motions should be denied. Thus, as a matter of law, Ibarra has failed to establish a

lack of participation. See Lake v. McCoy, 188 S.W.3d 376, 378 (Tex. App.—Dallas 2006, no

pet.) (holding appellant participated for purposes of restricted appeal by filing response to motion

for summary judgment).

Ibarra asserts, in support of the non-participation element, that neither she nor her counsel

participated or even appeared at the July 16, 2010 hearing on the dismissal for want of

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prosecution. This is accurate. However, Ibarra, as we noted above, is not complaining about the

dismissal order in this appeal. Rather, she complains only about the summary judgment order,

and she fully participated in the summary judgment hearing. For a restricted appeal, the

complaining party must not have participated in the hearing that resulted in the judgment of

which the party complains. See Lejeune, 297 S.W.3d at 255; In re B.H.B., 336 S.W.3d at 305;

see also TEX. R. APP. P. 30.

Because the non-participation requirement is mandatory and jurisdictional, if an appellant

seeking relief by way of restricted appeal fails to establish she did not participate in the hearing

that resulted in the judgment complained of, she is not entitled to relief, and the appeal should be

dismissed. Starks v. Tex. Dep’t of Criminal Justice, 153 S.W.3d 621, 626 (Tex. App.—Amarillo

2004, no pet.). Accordingly, were we to reach the merits of this issue, we would hold the appeal

should be dismissed for want of jurisdiction. Id. (citing Dillard v. Patel, 809 S.W.2d 509, 512

(Tex. App.—San Antonio 1991, writ denied)).

CONCLUSION

Based on our foregoing analysis, we dismiss appeal number 04-11-00035-CV as moot.

We further overrule the issues raised in appeal number 04-11-00037-CV and affirm the trial

court’s judgment in that matter.

Marialyn Barnard, Justice

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