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
2
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).
3
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
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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).
5
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.3
14. 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 787.
2
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 92.0081, 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.
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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. 24027083
THE J. HYDE LAW OFFICE, PLLC
111 E. 17th Street #12015
Austin, Texas 78711
Phone: (512) 200-4080
Fax: (512) 582-8295
E-mail: 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
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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 78746
/s/ J. Hyde
______________________________
Dr. J. Hyde
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EXHIBIT 1
Special Warranty Deed
219
220
221
EXHIBIT 2
Substitute Trustee’s Deed
215
216
217
EXHIBIT 3
Final Judgment of Possession
408
EXHIBIT 4
Executed Writ of Possession
462
EXHIBIT 5
Deed of Trust–Relevant Excerpts
180
181
182
192
194
195
Michael Leonard Goebel and All Other Occupants of 207 Cazador Drive v. Sharon Peters Real Estate, Inc.
Combined Opinion