Laredo National Bank D/B/A as BBVA Compass Bank v. Myrna Elizabeth De Luna Morales

ACCEPTED
13-14-00644-CV
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
7/9/2015 11:34:39 PM
CECILE FOY GSANGER
CLERK

No. 13-14-00644-CV

FILED IN
13th COURT OF APPEALS
IN THE COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
FOR THE THIRTEENTH DISTRICT OF TEXAS
7/9/2015 11:34:39 PM
CECILE FOY GSANGER
Clerk

LAREDO NATIONAL BANK D/B/A BBVA COMPASS BANK
Appellant,
v.
MYRNA ELIZABETH DE LUNA MORALES,
Appellee.
--------------------

On Interlocutory Appeal from the issuance of a Temporary Injunction
in Cause No. 2014-DCV-2962-A in the 107th Judicial District Court
of Cameron County, Texas,
the Honorable Benjamin Euresti, Jr., Presiding

-------------------------

APPELLEE’S BRIEF

Hon. Philip Cowen
Law Office of Philip Cowen
500 E. Levee St.
Brownsville, Texas 78520
Tel. 956-541-6031
Fax 956-541-6872
email: ptchb@att.net

Hon. Noe Robles
Law Office of Noe Robles
23331 Tamm Lane
Harlingen, Texas 78552
Tel. (956) 440-8200
Fax (956) 440-8205
email: nrobelslawoffice@aol.com
 NOTICE OF PARTIES

Appellee:

MYRNA ELIZABETH DE LUNA MORALES

Appellee’s Counsel:

Hon. Philip Cowen
State Bar No. 24001933
Law Office of Philip Cowen
500 E. Levee St.
Brownsville, Texas 78520
Tel. 956-541-6031
Fax 956-541-6872
email: ptchb@att.net

Hon. Noe Robles
State Bar No. 17118250
Law Office of Noe Robles
23331 Tamm Lane
Harlingen, Texas 78552
Tel. (956) 440-8200
Fax (956) 440-8205
email: nrobelslawoffice@aol.com

ii
Appellants:

Laredo National Bank D/B/A BBVA Compass Bank
Hon. Selim H. Taherzadeh*

Trial and Appellate Counsel for Appellant:

Selim H. Taherzadeh, Trial and Appellate Counsel
Taherzadeh, PLLC

5080 Spectrum Drive, Suite 1000 East
Addison, TX 75001
Tel. (469) 791-0445
Fax (469) 828-2772
st@taherzlaw.com

Michelle Peritore, Appellate Counsel
Taherzadeh, PLLC
5080 Spectrum Drive, Suite 1000 East
Addison, TX 75001
Tel. (469) 791-0445
Fax (469) 828-2772
mp@taherzlaw.com

* Both second amended and prior plaintiff’s pleadings suggest that he is a defendant.

iii
 STATEMENT REGARDING ORAL ARGUMENT

Pursuant to Texas Rules of Appellate Procedure 39.1, Appellee does not request oral

argument.

iv
 TABLE OF CONTENTS
Page

Notice of Parties................................................................................ ii
Table of Contents................................................................... ...... v
Table of Authorities................................................................... ...... v ii
Preliminary Statement....................................................................... 1
Statement of Facts............................................. .............................. 3
ISSUES PRESENTED ...................................................................... 6
Summary of Argument .................................................................. 7
Argument......................................................................................... 9

ISSUE#1: The District Court did not err when it issued a ...... 9
temporary injunction to stop a forcible detainer action from
proceeding in the Justice Court.

Issue #2 Appellant has no Standing to ask this Court to declare ... 28
that Appellee has No Valid Cause of Action against Appellant or
Probable Right to Recovery on Trial on the Merits. Appellant is
effectively asking this court to issue an advisory opinion on the
merits of its defense. Appellant’s brief, in general, is a request for
this court to issue an illegal advisory opinion, and as such should be
dismissed. Any relief sought in the brief should be denied as being
moot as the appeal is simply a request for an advisory opinion.

ISSUE# 3 The fact that this case is now set for trial on.................... 32
August 10, 2015, with announcements and hearings on pending
motions set for August 6, 2015, moots any relief this Court may
provide. Therefore, the case should be dismissed.

Prayer for Relief .................................................................................. 35

Certificate of Service............................................................................ 36

Certificate of Compliance.......................................................................37

v
 Appendix

Document Page No.

A. Deed of Trust CR542-565 1

B: Portion of Transcript of Hearing on Temporary Injunction 25
CR602-624

C Defendant Compass Bank's Amended Answer CRSupP86-89 48

D: Texas Business and Commerce Code SUBCHAPTER B. 52
NEGOTIATION, TRANSFER, AND INDORSEMENT
Sec. 3.201 through 3.204.

E: Texas Business and Commerce Code 3.302(2)© 54

F. Note 55

G. Transfer of Lien 56

H. Modification and Extension Agreement 59

vi
 TABLE OF AUTHORITIES

Supreme Court Cases
Alabama State Fed'n of Labor v. McAdory, 325 U.S. 450 (1945)..............29
Allen v. Wright, 468 U.S. 737 (1984)........................................................29
Valley Forge Christian College v. Americans United for Separation............29
of Church and State, 454 U.S. 464 (1982)
Warth v. Seldin, 422 U.S. 490 (1975)............................................................29

Texas Cases
Aguilar v. Weber, 72 S.W.3d 729 (Tex.App.-Waco 2002)................13, 14, 27
Bd. of Adjustment of City of San Antonio v. Wende, 92 S.W.3d 424.............34
(Tex. 2002)
Butnaru v. Ford Motor Co., 84 S.W.3d 198 (Tex. 2002)...................................10
Cardinal Health Staffing Network, Inc. v. Bowen, 106 S.W.3d 230 ................11
(Tex. App.—Houston [1st Dist.] 2003)
City of Fort Worth v. Pastusek Indus., Inc., 48 S.W.3d 366 ..............................33
(Tex. App.-Fort Worth 2001
Falcon v. Ensignia, 976 S.W.2d 336 (Tex.App.-Corpus Christi 1998)........14, 24
Firemen's Ins. Co. v. Burch, 442 S.W.2d 331 (Tex.1969)...................................29
Franklin Says. Ass'n v. Reese, 756 S.W.2d 14 (Tex.App.-Austin 1988).............11
Goggins v. Leo, 849 S.W.2d 373(Tex.App.-Houston [14th Dist.] 1993)............13
Haith v. Drake, 596 S.W.2d 194, 197 (Tex.Civ. App.—Houston........................18
[1st Dist.] 1980)
Hayter v. Fern Lake Fishing Club, 318 S.W.2d 912.............................................12
(Tex.Civ.App.-Beaumont 1958)
Hernandez-Perez v. State, No. 01-09- 00801-CR, 2010 WL 2133935...............33
(Tex. App.—Houston [1st Dist.] May 27, 2010
Home Sav. Ass'n v. Ramirez, 600 S.W.2d 911.....................................................13
(Tex.Civ.App.-Corpus Christi 1980)
In re H&R Block Fin. Advisors, Inc., 262 S.W.3d 896(Tex. App.-Houston...33,34
[14th Dist.] 2008
Johnson v. Fellowship Baptist Church, 1. 627 S.W.2d 203..................................17
(Tex.App.—Corpus Christi 1981)
McGlothlin v. Kliebert, 672 S.W.2d 231 (Tex.1984)...........................................18
Mitchell v. Armstrong Capital Corp., 911 S.W.2d 169 ....................13, 21, 24, 26
(Tex.App.-Houston [1st Dist.] 1995)
Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641 (Tex.1933)..............................29
vii
Pinnacle Premier Props., Inc. v. Breton, 447 S.W.3d 558......................................19
(Tex. App.-Houston [14th Dist.] 2014
Positive Feed, Inc. v. Wendt, Nos. 01-96-00614-CV & 01-96-01250-CV...........12
1998 WL 43321, *10 30 (Tex.App.-Houston [1st Dist.] Feb. 5, 1998)
Rus-Ann Dev., Inc. v. ECC, Inc., 222 S.W.3d 921 (Tex.App.-Tyler 2007).........11
Slay v. Fugitt, 302 S.W.2d 698 (Tex.Civ.App.-Dallas 1957)................................13
Sparkman v. State, 968 S.W.2d 373 (Tex. App.-Tyler 1997)..........................21, 25
Tex. Ass'n of Business v. Air Control Bd., 852 SW 2d 440 (Texas 1993) ..........29
Texas Employment Comm'n v. International Union of Elec., Radio................30
TMC Med., Ltd. v. Lasaters French Quarter P'ship, 880 S.W.2d 789.......17. 18
(Tex. App.--Tyler 1993)
and Mach. Workers, Local Union No. 782,352 S.W.2d 252 (1961)
Trulock v. City of Duncanville, 277 S.W.3d 920 (Tex. App.—Dallas 2009)....33
Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821 (Tex. 2000)...................34
Williams v. Lara, 52 S.W.3d 171 (Tex. 2001)................................................33,34
Yarto v. Gilliland, 287 S.W.3d 83 (Tex. App.-Corpus Christi 2009).......10, 22,24

Constitutions

Tex.Const. art. II, § 1 ..........................................................................................29

Rules and Statues

Texas Business and Commerce Code Sec. 3.202(2)(c).......................................24
Texas Business and Commerce Code Sec. 3.203 ................................................23
Texas Business and Commerce Code Sec. 3.204 ................................................23
Tex. Pro. C. Sec. 22.002........................................................................................18
Tex. R. Civ. P. Rule 746 ........................................................................................17

viii
 No. 13-14-00644-CV

IN THE COURT OF APPEALS
FOR THE THIRTEENTH DISTRICT OF TEXAS

LAREDO NATIONAL BANK D/B/A BBVA COMPASS BANK
Appellant,
v.
MYRNA ELIZABETH DE LUNA MORALES,
Appellee.
--------------------

On Interlocutory Appeal from the issuance of a Temporary Injunction
in Cause No. 2014-DCV-2962-A in the 107th Judicial District Court
of Cameron County, Texas,
the Honorable Benjamin Euresti, Jr., Presiding

-------------------------

TO THE HONORABLE JUSTICES OF THIS COURT:

Comes now, MYRNA ELIZABETH DE LUNA MORALES, hereinafter

referred to as Appellee, who submits this brief, pursuant to the provisions of the

Texas Rules of Appellate Procedure, in support of her request for this court to

sustain and affirm the 107th District Court’s Temporary Injunction, and other

remedies, in cause number 2014-DCV-2962-A.

PRELIMINARY STATEMENT

This is an Appeal of Order Denying Appellant Compass Bank’s Motion to

1
Dissolve an Order Granting a Temporary Injunction in cause no. 2014-DCV-2962-A.

On April 1, 2014, for various reasons alleged in Appellee’s pleadings, an illegal and

invalid foreclosure sale took place whereby Compass Bank through Trustees, who are also trial

and appellant’s counsel, attempted to sell property belonging to Appellee. There are a good many

factual points which do not appear to be disputed. . On May 12, 2014, Appellee filed its Original

Petition. CR 7. On June 4, 2014, Appellant Compass Bank filed its Motion to Dismiss

and Motion for Sanctions. CR 59. On June 16, 2014, Appellant filed a Motion to Deny the

Temporary Injunction. CR 241. On June 26, 2014, the Court entered an Order granting the

Appellee’s Request for a Temporary Injunction. CR 372. On August 1, 2014, Appellant filed a

Motion for Summary Judgment. CR 522. On September 23, 2014, the Appellant filed a Motion

to Dissolve Temporary Injunction Order or in the Alternative to Modify the Order. CR 667. On

October 31, 2014, the Court entered an Order Denying the Appellant’s Motion to Dismiss,

Motion for Summary Judgment and Motion to Dissolve the Temporary Injunction. CR 684-86.

While the subject matter of this appeal appears to be the Denying Appellant’s Motion to

Dissolve Temporary Injunction Order or In the Alternative to Modify the Ordered Entered and

also the Order Denying Appellant’s Motion to Dismiss and Order Denying Appellant’s Motion

for Summary Judgment Entered, all that can be appealed is the Order denying appellant’s trial

Motion to Dissolve Temporary Injunction. CR 684-86.

Although that may be the case, on March 16, 2015 Appellants, and Appellants’ Counsel

have filed a second motion to dissolve the temporary inunction, entitled Compass Bank’s Second

Motion to Dissolve Temporary Injunction Order. See Supplemental Clerk’s Record, p. 4,

hereinafter CRSupP4.. Appellant amended its answer Seven days ago on July 2, 2015.

2
CRSup86.Plaintiff amended her pleadings July 7, 2015. CRSupP91.

STATEMENT OF THE FACTS

On April 1, 2014, Appellant Compass Bank, believing it had the right to exercise a

power of sale noted in paragraph 22 of a January 24, 2006 Deed of Trust, but in fact not having

the right to exercise the power of sale nor to appoint a substitute trustee, illegally sold the

property at issue to itself as sole bidder at a foreclosure sale.1 The record shows that Appellant

Compass Bank had never had the Note and Deed of trust negotiated to it by Laredo Bank,

although there is a claimed merger of the institution which is not explained anywhere within

Appellant’s brief, but is briefly noted. CR670–by merger claim.

Prior to the sale, Appellee had arranged more than once for the property to be sold but

due to intransigence by Appellant Compass Bank, and Appellant’s counsel, and perhaps

misconduct, Appellee was not able to cure an alleged deficiency, nor to effect a sale of her

property. Appellee relied to her detriment on assurances made to her. That reliance also led to

the situation she now fights. CR614.

Appellee never received notice of the sale as Appellant, with full knowledge of where

Appellee was, sent notice through regular mails to the County of Mexico. CR627 –Appellee’s

statement attributed to Compass Bank that “It’s not my problem that the postal service in

Mexico is not a good one.”, also showing no notice of date of sale nor amount due. Appellant

never provided any amount for Appellant to pay to cure any deficiency. Id. Appellant never

provided a payoff amount to pay the amount in full.CR614. Appellant’s pleadings admit the

1
The Deed of trust is not negotiated to Compass by Laredo National Bank. See, CR541-
564, which contains no endorsement. As such, any Substitute’s trustee’s deed is invalid. CR260.

3
substance of these complaints, as well as the substance of a newly filed new claim of detrimental

reliance and tortious interference with contract. CRSupP83 and 111. .

There is no argument that there s a Deed of Trust involving Appellee and Laredo National

Bank. However, while the note is alleged to be in Compass Banks hands, for Compass Bank to

be able to exercise the rights noted in Paragraph 22, the note needed to be negotiated to Compass

and apparently has not been so negotiated. As such, there is actually no Parties Agreement

between Compass and Appellee. There is no argument however, that on January 24, 2006,

Myrna Elizabeth de Luna Morales (“Appellee”) signed a 30-year loan agreement (the “Note”

or “Loan”) in which she agreed to repay $291,200.00 to Laredo National Bank in monthly

installments of $1,937.37 beginning March of 2006. Appellee obtained the loan so that she could

purchase a home located at 6503 Fountain Way, South Padre Island, TX 78597 (“Premises” or

“Property”). CR 264.

No title passed at the sale as the trustees violated the terms of paragraph 22, and as the

trustees were without authority, and as the trustees had orally granted approval for Appellee to

sell the property to another. The foreclosure sale occurred on April 1, 2014 as noticed, and

Appellant purchased the home for $308,000.00. CR 238. When the property was finally sold, it

was sold at over $242000,00 below market value. RR27-31.

The Appellee’s Original Petition was filed on May 12, 2014. CR 7. Appellant Compass

Bank filed its Original Answer on May 23, 2014. CR 51. A temporary injunction hearing was

held on May 27, 2014. As a result of a Rule 11 Agreement, the hearing was reset for June 5,

2014. CR 54. The temporary injunction hearing was held on June 5, 2014, and the temporary

restraining order was extended to June 18, 2014. Appellant Compass Bank filed a Motion to

4
Dismiss and Motion for Sanctions on June 4, 2014. CR 59. On June 11, 2014, the Appellee filed

its First Amended Petition. CR 194. On June 16, 2014, Appellant filed a Motion to Deny

Temporary Injunction. CR 241. On June 26, 2014, Appellant filed a Second Motion to Deny

Temporary Injunction. CR 376. The Trial Court entered an order granting a Temporary

Injunction on June 26, 2014. CR 372. On July 28, 2014, Appellant filed its Second Motion to

Dismiss. CR 508. On August 1, 2014, Appellant filed a Motion for Summary Judgment. CR

522. On September 9, 2014, Appellant filed a Motion to Dissolve Temporary Injunction Order or

in the Alternative to Modify the Order. On October 31, 2014, the Trial Court entered an Order

denying the Motion to Dissolve the Temporary Injunction. CR 684. On October 31, 2014, the

Court also entered an Order denying Appellant’s Motion to Dismiss and an Order Denying

Appellant’s Motion for Summary Judgment. CR 684-86. As a result, this Appeal ensued.

A good indication of the District Court’s opinion about the strength of Compass Bank’s

position is reflected in the granting of a one time bond of $1000.00, rather than a monthly bond

as proposed by Appellant’s trial counsel. CR6659-660.

5
 ISSUES PRESENTED

ISSUE#1: The District Court did not err when it issued a temporary

injunction to stop a forcible detainer action from proceeding in the Justice Court.

Issue #2 Appellant has no Standing to ask this Court to declare that

Appellee has No Valid Cause of Action against Appellant or Probable Right to

Recovery on Trial on the Merits. Appellant is effectively asking this court to issue

an advisory opinion on the merits of its defense. Appellant’s brief, in general, is a

request for this court to issue an illegal advisory opinion, and as such should be

dismissed. Any relief sought in the brief should be denied as being moot as the

appeal is simply a request for an advisory opinion.

ISSUE# 3 The fact that this case is now set for trial on August 10, 2015,

with announcements and hearings on pending motions set for August 6, 2015,

moots any relief this Court may provide. Therefore, the case should be dismissed.

6
 SUMMARY OF THE ARGUMENT

The District Court did not err when it issued a temporary injunction to stop the

forcible detainer (or perhaps forcible entry and detainer) action from proceeding

in the Justice Court. Appellee establishes all three bases for issuance of a

temporary injunction. Appellant’s action in Justice Court should have been

interrupted by the Appellee’s claim in District Court. Forcible entry and detainer

or forcible detainer action, as Appellant uses these interchangeably, would have

removed Appellee from the place she calls her home. Case law shows that the loss

of one’s home is an irreparable injury, one for which there is no remedy at law. As

such, there is good cause for the district court to issue the temporary injunction.

Not only does the Appellee have a cause of action against the Appellant

with a more than probable right to recovery at a trial on the merits, Appellee

cannot show a probable, imminent, and irreparable injury simply because the

property in question is the property she considers to be her home.

Appellant seeks to have this court issue an advisory opinion declaring that

its theory of tenancy at sufferance is superior to any other claim made by

Appellee. Appellee has theories of its own which show that Appellant had no

authority to exercise the power of sale, nor to appoint substitute trustees, but,

again, just because these are good theories and may be dispositive on the merits

7
has no bearing on the matter at hand. All appellant has to do is to maintain a claim

which has probable relief if evidence is adduced at trial to support the claims.

The facts and the law show that the Trial Court’s order should be affirmed and

that the injunction should remain in plain so long as the District Court finds that

the situation requires it. It is up to Appellant to push this case forward, to trial, if

need be. That is the quickest solution to the issues at hand and, if successful, will

provide Appellant the shortest route to the relief Appellant seeks.

Finally, just because so much time has elapsed, and because trial is now set

for August 10, 2015, this appeal is moot, and should be dismissed as asking this

court to issue an advisory opinion.

8
 ISSUE#1: The District Court did not err when it issued a temporary
injunction to stop a forcible detainer action from proceeding in the Justice
Court.
The Trial Court did not err in denying Appellant’s Motion to Dissolve a

Temporary Injunction because Appellant has no right to the immediate possession

of the Premises and because Appellee’s issues in her pleadings raise genuine title

issues preventing a justice court from taking the case. The true issue here is not

whether Appellee defaulted on her loan, but whether Appellant foreclosed on the

Property in accordance with the Note and Deed of Trust, whether Appellant had

the power of sale as a holder of the note, and whether Appellant prevented cure of

a deficiency thus invalidating the sale. RR 29, CR 276. Part of the subject matter

of the suit is the unlawful attempt to sale the property at a foreclosure sale when

Appellant had no legal right to sell the property. Part of the suits has to do with

how Appellee relied on promises and assurance by Appellant and then Appellant

betrayed those promises. Part of the suits concerns the fact that such statements

make Appellant effectively a fiduciary for Appellee. After the abortive foreclosure

sale, Appellee had every legal right to remain in possession of the Property. And,

on that same theory, Appellant had not right to to file a forcible detainer or

forcible entry and detainer action in Justice Court in order to obtain possession of

the Property. The June 26, 2014, District Court Temporary Injunction enjoining

9
proceeding on the forcible detainer action in Justice Court reflects the reality of an

abortive foreclosure. CR 372.

Standard of Review:

The standard of review for a court of appeals to review the appropriateness

of a district court’s issuance of a temporary induction is for abuse of discretion.2

See Yarto v. Gilliland, 287 S.W.3d 83, 88 (Tex. App.-Corpus Christi 2009, no

pet.)

Texas law is clear that the burden of proof for a temporary injunction is on the

party seeking the injunction. To obtain a temporary injunction, a party must plead

and prove three specific elements

(1) a cause of action against the defendant;

(2) a probable right to recovery following a trial on the merits; and

(3) a probable, imminent, and irreparable injury in the interim See Yarto, at 88.

See also, Appellant’s reference to Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204

(Tex. 2002), which refers to questions about temporary injunctions, but actually

involves a dispute about whether the Texas Motor Vehicle Board has exclusive

jurisdiction over a prospective car dealership transferees' claims that raise an issue

2
Appellant appeals the denial of the motion to dissolve the temprary injunction, not the
issuance of the injunction itself. As such, this court may not have standing. See Brief, at 1, first
sentence.

10
about how to construe the Texas Motor Vehicle Commission Code. Id., at 201.

A temporary injunction is an extraordinary remedy that does not issue as a

matter of right. Butnaru, 84 S.W.3d at 204. An injury is “irreparable” if the

injured party cannot be adequately compensated in damages, Cardinal Health

Staffing Network, Inc. v. Bowen, 106 S.W.3d 230, 236- 37 (Tex. App.—Houston

[1st Dist.] 2003, no pet.) (en banc).

Appellee claims that she has meet all these burdens, and while Appellant

did not claim that the trial court abused his discretion, claims that had Appellant so

charged, the trial court in fact did not abuses its discretion in denying the motion

to dissolve the temporary injunction.

Loss of home is an irreparable injury.

Much of Appellant’s brief argues that Appellee can not prove any

irreparable injury, almost ignoring the reference by Appellee in her pleadings that

the property is her home. The loss of a home is an irreparable injury, for which

Appellee cannot be adequately compensated in damages. Rus-Ann Dev., Inc. v.

ECC, Inc., 222 S.W.3d 921, 927 (Tex.App.-Tyler 2007, no pet.); see Franklin

Says. Ass'n v. Reese, 756 S.W.2d 14, 15-16 (Tex.App.-Austin 1988, no writ) (op.

on reh'g) ("Since it is obvious that appellee would probably be injured if the

property were foreclosed and sold, the only question here is whether the trial court

11
erred in determining there was a probable right of recovery."); Hayter v. Fern Lake

Fishing Club, 318 S.W.2d 912, 914 (Tex.Civ.App.-Beaumont 1958, no writ)

(finding that actions affecting one's use and enjoyment of his home is an

irreparable injury); see also Positive Feed, Inc. v. Wendt, Nos. 01-96-00614-CV &

01-96-01250-CV, 1998 WL 43321, *10, 1998 Tex. App. LEXIS 774, *30

(Tex.App.-Houston [1st Dist.] Feb. 5, 1998, pet. denied) (mem. op.) ("We hold

that loss of enjoyment or the reasonable use of one's home can be an irreparable

injury for purposes of injunctive relief."). The property in question is Appellant’s

South Padre Island home.

Pleadings provide Specific Evidence of Title Dispute

There is a probable right to recovery based on numerous claims in

Appellee’s petition, originally, and as amended. While Injunctive relief brought

through a District Court to stop an eviction through a forcible detainer action

might be appropriate in some instances, where it is clear as her that title issues are

in play which need to be determined prior to any forcible entry and detainer or

forcible detainer action, the Justice Court has no jurisdiction. Very simply,

because there are specific titles issues at play in in this suit in District Court, and

where the Justice Court has notice of these issues, the justice court cannot act. The

pleadings in this case are specific evidence of a title dispute.

12
 In Aguilar v. Weber, 72 S.W.3d 729, 734-35 (Tex.App.-Waco 2002, no

pet.), the Aguilar court, found "specific evidence" of a title dispute based on the

party's assertions in the pleadings, rather than on evidence to support those

assertions. Mitchell v. Armstrong Capital Corp., 911 S.W.2d 169, 171

(Tex.App.-Houston [1st Dist.] 1995, writ denied). This court, in Yarto, above,

noted Aguilar with approval. See, Yarto, fn. 43.

The Aguilar court also noted specifically that jurisdiction of forcible

detainer actions is expressly given to the justice court of the precinct where the

property is located and, on appeal, to county courts for a trial de novo. See Tex.

Prop.Code Ann. § 24.004 (Vernon 2000); Goggins v. Leo, 849 S.W.2d 373, 375

(Tex.App.-Houston [14th Dist.] 1993, no writ); Home Sav. Ass'n v. Ramirez, 600

S.W.2d 911, 913 (Tex.Civ.App.-Corpus Christi 1980, writ ref'd n.r.e.). The

Aguilar court also noted that a justice court is expressly denied jurisdiction to

determine or adjudicate title to land. Tex. Gov't Code Ann. § 27.031(b) (Vernon

Supp.2001); Slay v. Fugitt, 302 S.W.2d 698, 701 (Tex.Civ.App.-Dallas 1957, writ

ref'd n.r.e.). Thus, a justice court, has no jurisdiction to determine the issue of title

to real property in a forcible detainer suit. Tex.R. Civ. P. 746; See Mitchell , 911

S.W.2d at 17.

13
In the instant case, the pleadings themselves are evidence that a title dispute is

at issue.

In the case at hand, Appellees pleadings provide the specific evidence of a

title dispute. As such, the Justice Court has no jurisdiction. Id. In this case, any

justice court will lack jurisdiction because Appellee’s pleadings are themselves

specific evidence of a title dispute, as was the case in Mitchell, 911 S.W.2d at

169; see also Falcon v. Ensignia, 976 S.W.2d 336, 338 (Tex.App.-Corpus Christi

1998, no pet.). Appellee’s Petition and Amended Petitions have always disputed

the alleged default and challenged the right to possession under the contract under

various theories, alleging lack of authority under the Deed to exercise the power of

sale, and alleged lack of authority because Appellee was never provided the

opportunity to cure any alleged deficiency. Determining the right of possession

necessarily involves a title inquiry into the contractual provisions of Section 19

and 22 of the deed, as well as the problems with the failure to allow Appellee to

cure on the various bases she claims in her pleadings and claimed at the

temporary injunction hearing. See, Aguilar, at 735. See also Aguilar at 733-734

relating to the fact that a forcible detainer3 case in inappropriate unless there is a

3
A various points in the brief, Appellant seems to use these terms interchangeably. They
are not interchangeable. Brief at 1, Forcible detainer; brief at 6, 10, 11, forcible entry and
detainer. It is not clear from the record exactly what Appellant tried to file in the justice court, as

14
landlord-tenant relationship.

Any justice court would have to determine whether Appellant legally was

empowered to exercise the power of sale, and whether there was, in effect, an

opportunity to cure, under Section 19 of the deed of trust, and if not whether that

failure removed the authority by anyone under the deed of trust to sale the

property under Section 22. Justice courts are not meant to decide such issues.

District courts are. They certainly do not try trespass to try title cases. Thus, it was

proper for the District Court to enjoin any action of removal under any authority

claimed by Appellant that a justice court had to evict Appellee. Thus, the District

Court was correct in enjoining Appellant from trying to use a justice court to

removed Appellee.

Appellee has numerous causes of actions and all her claims are justicible and

there are sufficient allegations to support taking the case to trial.

Under Texas law, a District Court can enjoin parties from proceeding on a

forcible detainer or forcible entry and detainer action pending in Justice Court,

and in support Appellant states. Now, months after the hearing on setting aside

Appellant has not provided this court with a copy if its pleadings submitted to a justice of the
peace court. As Aguilar show, no forcible detainer proceeding could be effected. Under the same
case, the specific evidence of the pleadings themselves, with the claims made, which are
cognizable under Texas Law, are themselves evidence of a title dispute.

15
the temporary injunction, Appellant amended its answers. These were just recently

entered into the record. CRSupP86-89. The amended answer, other than the

general denial, does not assert any affirmative defenses or any defenses to the

issue of wrongful foreclosure, reliance issues within the DTPA which may survive

the DPTA claim on their own, and the trespass to try title claim. By the very act of

amending its answer, Appellant has conceded that those claims were justiciable at

the time the petition and amended petition was filed.

Since the inception of this appeal, on July 7, 2015, Appellee/Plaintiff has

added Substituted Trustee, present trial and appellate counsel, Selim H.

Taherzadeh, a party to the lawsuit. CRSupP91. It appears that both appellant and

Selim H. Taherzadeh are being sued now for damages based on detrimental

reliance based on Selim H. Taherzadeh and other’s actions. CRSupP91. Both are

also being sued for tortious interference with contract. CRSupP103. Selim H.

Taherzadeh is now also being sued for breach of fiduciary duty. Selim H.

Taherzadeh is also being sued for negligence. CRSupP101. Whether acting in his

own capacity or for Compass, it appears that the pleadings essentially now include

Selim H. Taherzadeh as a defendant. As such, he is technically and Appellant to

this suit. Thus, as to breach of fiduciary duty, Appellant’s counsel has what he

wanted, a claim that now includes the trustee as violating a fiduciary duty, as well

16
as a claim that Compass Bank was also defacto a fiduciary.

Appellees claims are proper claims with remedies provided in law

There is no question that there is a cause of action pending concerning the

property at issue. In its brief, Appellant argues incorrectly that the Justice Court

alone has the jurisdiction to determine the immediate possessory rights of the

parties. Brief at 1, referring to TMC Med., Ltd. v. Lasaters French Quarter

P'ship, 880 S.W.2d 789, 791 (Tex. App.--Tyler 1993). Nothing in this case

suggests that title disputes in District Court can proceed The problem with

Appellant's arguments and cases is that they deal with Landlord Tenant

relationships, and not with issues involving whether a person has legally and

effectively lost title. French Quarter P'ship shows explicitly in its holding that

questions of title are not appropriate issues for a justice of the peace courts to

determine. Id, 880 S.W.2d 791, referring to Tex. R. Civ. P. Rule 746 and Johnson

v. Fellowship Baptist Church, 1. 627 S.W.2d 203, 204 (Tex.App.—Corpus Christi

1981, no writ). In French Quarter P'ship the court noted that in that case "the

tenant's right to possess leasehold property does not present any question of title,

disputes regarding such possession are subject to the jurisdiction of the

appropriate justice court, whose jurisdiction in these types of action is exclusive.

Id., referring to Haith v. Drake, 596 S.W.2d 194, 197 (Tex.Civ. App.—Houston

17
[1st Dist.] 1980, writ ref'd n.r.e.). McGlothlin v. Kliebert, 672 S.W.2d 231, 232

(Tex.1984). This case is more than a landlord/tenant case. Any wrongful

foreclosure suit is essentially a title dispute, the main arguments being whether the

forecloser had both the right to foreclosure but also whether the forecloser did it

right, and, additionally, whether the person attempted to be foreclosed on has any

defenses against the foreclosure, including whether the one foreclosed upon acted

in reliance on the actions and promises made by the one foreclosing or his or her

agents. Because the justice court does not have the skills to handle title cases, nor

has the jurisdiction to do so, the district court was right in enjoining the exercise of

the justice court's jurisdiction. Id., 880 S.W.2d 791. Here, in the very pleadings

asserted by Appellee/ Plaintiff, and wronged party, there is a clear showing that

the justice court is without jurisdiction to proceed in the cause because the suit is a

title dispute. Certainly, a trespass to try title case is a title suit. Under the Texas

Property Code, Sec. 22.002, any evidence of title is sufficient to support the cause

of action, and a final judgment against the other party establishes title or right to

possession of real property and that judgment is conclusive against the party from

whom the property is recovered and against a person claiming the property

through that party by a title that arises after the action is initiated. Tex. Pro. C. Sec.

22.002. Plaintiff /Appellee’s pleadings are sufficient evidence in themselves to

18
destroy the jurisdiction of the justice of the peace court. This is not

landlord-tenant dispute over possession of the leased premises, which is the

subject matter of Appellant's cases.

Section 22 of the Deed of Trust references to the Borrower becoming a

Tenant at sufferance after foreclosure is a boilerplate statement which very likely

has been incorporated into a Texas Deed of Trust to avoid litigation. However,

nothing in Section 22 relates to whether the sale by a trustee or substitute trustee is

presumptively correct in form, nor does its provide any guidance to a District

Court or to this court when there are title issues present in a District Court case.

Plaintiff’s Pleadings themselves are specific evidence of a title dispute. The

District Court was correct in not allowing Appellant to try to evict Appellee, as it

is clear that a less learned judge, dealing only with petty issues, would not have

the ability to sort out title issues, nor should he or she be allowed to. See

Pinnacle Premier Props., Inc. v. Breton, 447 S.W.3d 558, 564 (Tex. App.-Houston

[14th Dist.] 2014, no pet.) (op. on reh'g) (holding that no intertwined title issue

existed when the defendants' title dispute was based entirely on contentions that

the foreclosure sale was conducted improperly and that the lender had assigned the

note to another bank). Here, there is more than a claim about a foreclosure sale

that was conducted improperly; there is also a claim that it was conducted

19
illegally. Id. There is also a trespass to try title claim, a claim that Appellant

would not allow Appellee to cure, and other similar claims which go directly to the

issue of title. Appellee argues in her pleadings that if Appellant had permitted her

to cure, and had given her the figures she needed, there would have been no

default.

Appellee’s First Amended Pleadings, pps. 4 and 6, alleged violations of

Paragraph 19 “the right to cure” “prior to foreclosure”, “Plaintiff was willing and

able to pay-off the entire note. See CR194-209, but after this the page numbers of

the actual Petition are used. Defendant ignored her pleas and instead foreclosed on

the home” –all these concern questions of title, and not just the formalities of the

foreclosure. Page 7 of the First Amended pleadings reflects a genuine contract

dispute, both based on course of dealings, and on the contract, assuming it has

been negotiated to Compass Bank. Appellee also claimed that she as “Plaintiff

sought to exercise her rights and notified Bank and its agents that she was willing

and able to cure the default and/or pay-off the total mortgage debt. The Bank

acting through its agent declined and denied Plaintiff her rights as a Borrower

thereby breaching the contract with Plaintiff.” Id. When these claims are stacked

up against the strength of the alleged tenant at sufferance claim, Appellant’s

tenant at sufferance argument is simply irrelevant.

20
 Evidence of a title dispute is also raised in Appellee’s pleadings in the

issues revolving around the DTPA claim, specifically the reliance and recision

issues contained therein. See, page 4 of Amended Pleading, “The Bank agreed to

give Plaintiff (Appellee) quiet enjoyment of her home and that it would exercise

due diligence and good faith in the performance of their fiduciary duties to

plaintiff under the terms of the contracts and Deed of Trust.” See also, the reliance

issue, “Plaintiff relief on Defendants to treat her fairly and accordingly.” See also

the Breach of Conduct Claim, p. 6. wherein it notes that the Trustee failed to

specify the date and the deadline on which buyer in default had to comply and cure

the default.” See also, “The Bank acting through its agents declined and denied

Plaintiff her rights as a Borrow thereby breaching the contract with Plaintiff.” P.

7, 1sst Amended Pleadings. Here, explicitly, thus, there is an issue concerning title

as it relates to the contract between the alleged parties. Such title disputes take

away a justice court's jurisdiction. See Sparkman v. State, 968 S.W.2d 373, 377-78

(Tex. App.-Tyler 1997, no pet.) (citing Mitchell, 911 S.W.2d at 170 (holding

appellant raised title as an issue in the justice court and county court at law by

asserting that substitute trustee's deed held by appellee was void, and by

specifically giving notice that litigation was pending in the district court to set

aside the non-judicial foreclosure sale). Because, in this case a genuine title

21
dispute has been raised in the district court in Appellee’s pleadings, the justice

court cannot take jurisdiction. The District Court was correct in enjoining such

action for that reason. Furthermore, Appellant cannot just walk into the Justice

Court and pretend there is no suit pending in District Court. A justice court might

accept the suit anyway, and evict Appellant applying bad law. That is why District

Court’s enjoin these types of actions in these types of cases. The very fact of

filing the pleadings or the very fact of the counterclaims by appellant raises title

issues. Further, Appellants are on notice that litigation is pending in a district

court to set aside the non-judicial foreclosure sale and part of the basis of that set

aside is a dispute concerning title. See Yarto v. Gilliland, 287 S.W.3d 83, 87 (Tex.

App.-Corpus Christi 2009, no pet.), referring to Mitchell, 911 S.W.2d at 170.

It appears that Appellee will win as Appellant had no right to exercise power

of sale

Furthermore, on the face the Deed of Trust which Appellant brings to this

court does not reflect that Appellant has the right to exercise the power of sale.

Appellant claims to be the holder of the note, but please note that Appellant has

not provided this court nor the District Court anything in discovery which

evidences that the note for which Laredo National Bank was a holder was ever

negotiated to them. See, Appendix p. 55, the Note, Appendix p. 56 a sample of a

22
prior transfer of the note to Laredo National Bank by a prior holder. In the

Modification noted in Appendix 59, while Compass Bank claims it now owns the

note, it does not stated that the Laredo National Bank has negotiated the note to

them by endorsing it, as the Transfer does on Appendix 55. No transfer or

negotiation of the note is evidenced here in this case. Neither the note, nor the

deed of trust, has been negotiated to Defendant/Appellant Compass Bank. The

Note lists The Laredo National Bank as the lender. See, Note, Appendix, page 56.4

The Note recognized that the Deed of Trust and the Note are a “Security

Instrument.” The Deed of Trust notes that Jose C. Gonzalez is the trustee.

Compass Bank and someone other than Jose Gonzalez are involved in the

foreclosure, not the Laredo National Bank. Compass Bank claims to be a

successor by Merger to Laredo National Bank. The documentation presented to

both this court and the District court does not reflect compliance with Texas

Business and Commerce Code Sec. 3.203, and 3.204 (indorsement is a signature

which is made for the purposes of negotiating the instrument. See also, Sec.

3.302(2)© HOLDER IN DUE COURSE, referring in (2) to “the holder took the

instrument:”© Except to the extent a transferor or predecessor in interest has

4
Counsel would love to provide this court a copy of the entire Note. However, Appellee
does not have her copy. And, Appellant has not provided, through Discovery, any copy showing
or evidencing an endorsement negotiated the note to Companss by Laredo National Bank.

23
rights as a holder in due course, a person does not acquire rights of a holder in due

course of an instrument taken: (1) by legal process or by purchase in an execution,

bankruptcy, or creditor's sale or similar proceeding;(2) by purchase as part of a

bulk transaction not in ordinary course of business of the transferor; or (3) as the

successor in interest to an estate or other organization. Formalities are

important.

Appellant claims that none of the theories under which Appellant claims to

argue that the District Court erred has any merit. See Yarto v. Gilliland, 287

S.W.3d 83, 87 (Tex. App.-Corpus Christi 2009, no pet.); Mitchell, 911 S.W.2d at

170. Under Sec. 3.202(2)© Compass bank is simply not the holder who may

exercise the power of sale.

Yarto and this Case are similar

This case is a miniature version of Yarto. The case in Yarto is very

instructive and should provide this court with the rationale for rejecting any claims

that the trial court erred in granting the injury. In Yarto, Robert Yarto, referring

to Falcon v. Ensignia, 976 S.W.2d 336 (Tex. App.-Corpus Christi 1998, no pet.)

maintained that the Gillilands failed to bring the justice court's jurisdiction into

question because they presented no specific evidence of a title dispute. Id., 287

S.W.3d at 87. In Falcon, Appellee Ensignia purchased a motel from Hernandez

24
and subsequently brought a forcible entry and detainer action against the Falcons

in a justice court. Falcon, 976 S.W.2d at 336. The Falcons, who had been

managing and residing in the motel for some time, refused to vacate upon

Ensignia's request.. Id., 976 S.W.2d at 337.The Falcons filed a written answer in

the justice court, wherein they alleged that they had entered into an oral contract

for the purchase of the property from an Hernandez prior to Ensignia's purchase of

the property. Id., 976 S.W.2d 337-38,The Falcons never produced any writing

evidencing this conveyance. Id. Ensignia, on the other hand, filed a copy of the

warranty deed and vendor's lien evidencing his purchase and ownership of the

property. Id. The justice court rendered judgment in favor of Ensignia, and the

Falcons appealed to a county court for a trial de novo. Id. After Ensignia moved

for summary judgment, and the Falcons failed to file a response, the county court

granted summary judgment in favor of Ensignia. Id. The Falcons then appealed to

this Court, arguing that the lower courts were without jurisdiction to determine

title. Id. This Court in Falcon rejected the argument, stating:

We do not believe a genuine title dispute was ever raised in either court. Falcon referred
to an oral agreement between him and Gonzalez [sic], but such agreement is
unenforceable as a matter of law. Specific evidence of title dispute is required to raise an
issue of a justice court's jurisdiction. Without the Falcons having presented specific
evidence to raise a genuine title dispute, the jurisdiction of the court was never at issue.

Id. at 338 (emphasis added) (citing Sparkman v. State, 968

25
 S.W.2d 373, 378 (Tex.App.-Tyler 1997, pet. ref'd)) (citing
Mitchell v. Armstrong Capital Corp., 911 S.W.2d 169, 171
(Tex.App.-Houston [1st Dist.] 1995, writ denied)).

That lack of a genuine title dispute was not present in Yarto, as it is not

present here. Here there is a genuine title dispute based on the pleadings. The

Yarto’s Court's demand for specific evidence of a title dispute, referred to in

Falcon, above, rested on Sparkman v. State, wherein the Tyler Court of

Appeals—citing the Houston First Court of Appeals' opinion in Mitchell v.

Armstrong Capital Corporation as its example —observed that "courts have

required specific evidence of a title dispute before determining that a title dispute

deprived a justice court of jurisdiction in an action for forcible entry and detainer."

Sparkman, 968 S.W.2d at 378 (citing Mitchell v. Armstrong Capital Corp., 911

S.W.2d 169, 171 (Tex.App.-Houston [1st Dist.] 1995, writ denied)). The Yarto

court posed this question: “what specific evidence did the Mitchell court really

require? 287 S.W.3d 83, 87 Id., Yarto, at 87. It answered that question by noting

that in Mitchell, Armstrong Capital first prevailed on a forcible detainer action

against Mitchell in a justice court, and then later in a county court. Id., 911 S.W.

2d at 171. Mitchell appealed, arguing that the county court did not have

subject-matter jurisdiction over the case. Id. In addressing the argument, the court

26
of appeals stated that "[i]f it becomes apparent that a genuine issue regarding title

exists in a forcible detainer suit, the [justice or county] court does not have

jurisdiction over the matter."Id. The court then ruled in Mitchell's favor, stating:

Appellant Mitchell raised title as an issue in the justice court and county court at law by
asserting that the Substitute Trustee's Deed held by Armstrong Capital was void, and by
specifically giving notice that litigation was pending in the 268th District Court to set
aside the non-judicial foreclosure sale. Because a "title issue" was involved in the courts
below, they had no subject matter jurisdiction over the case. 911 S W. 2d at 171.
Id., Yarto, at 88.

The Yarto Court noted that the Mitchell opinion does not reference any

evidence Mitchell presented to support her claim that Armstrong Capital's deed

was void; rather, the opinion merely establishes that Mitchell was able to raise a

title dispute through her assertions and notice of pending litigation. The court then

held that it interpreted "specific evidence" as consisting of nothing more than the

various assertions that comprise a party's title claim, and concluded that "specific

evidence" of a title dispute exists when through those assertions, a party has

asserted a basis for title ownership that is not patently ineffective under the law

and is intertwined with the issue of immediate possession. The Yarto court noted

that The Waco Court of Appeals in Aguilar v. Weber, 72 S.W.3d 729, 734-35

(Tex.App.-Waco 2002, no pet.). Accordingly, the Aguilar court, like the Mitchell

court, found "specific evidence" of a title dispute based on the party's assertions,

rather than on evidence to support those assertions

27
Conclusion.

There is nothing patently ineffective under the law concerning Appellee’s

pleadings. Id., Yarto, generally. All factors to support maintaining the temporary

injunction are present.

There is a cause of action here; in fact, many, as evidenced in Appellee’s

pleadings. The pleadings themselves are evidence of a title dispute. Finally,

appellees loss of her South Padre Island home is something which courts have

found to be irreparable

Although Appellant does not once claim that the trial court abused his

discretion in granting the temporary injunction, it is clear that the trial court did

not abuse its discretion at all, but, after careful consideration of the evidence after

a fifty page hearing, ruled against Appellant. The temporary injunction should

remain in place, until the conclusion of the trial not set for August 10, 2015.

Issue #2 Appellant has no Standing to ask this Court to declare that
Appellee has No Valid Cause of Action against Appellant or Probable Right
to Recovery on Trial on the Merits. Appellant is effectively asking this court
to issue an advisory opinion on the merits of its defense. Appellant’s brief, in
general, is a request for this court to issue an illegal advisory opinion, and as
such should be dismissed. Any relief sought in the brief should be denied as
being moot as the appeal is simply a request for an advisory opinion.

Standard of Review

Standing is never presumed and cannot be waived. Tex. Ass'n of Business v.

28
Air Control Bd., 852 SW 2d 440 - Tex: Supreme Court 1993. One limit on

courts' jurisdiction under both the state and federal constitutions is the separation

of powers doctrine. See Tex.Const. art. II, § 1; Valley Forge Christian College v.

Americans United for Separation of Church and State, 454 U.S. 464, 471-74

(1982); Warth v. Seldin, 422 U.S. 490, 498 (1975). Under this doctrine,

governmental authority vested in one department of government cannot be

exercised by another department unless expressly permitted by the constitution.

Thus the Texas Supreme Court and other Texas courts have construed the Texas

separation of powers article to prohibit courts from issuing advisory opinions

because such is the function of the executive rather than the judicial department.

Tex. Ass'n of Business v. Air Control Bd., 852 SW 2d 440 - Tex: Supreme Court

1993), referring to Firemen's Ins. Co. v. Burch, 442 S.W.2d 331, 333 (Tex.1969);

Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641, 644 (Tex.1933).

The distinctive feature of an advisory opinion is that it decides an abstract

question of law without binding the parties. Alabama State Fed'n of Labor v.

McAdory, 325 U.S. 450, 461 (1945); Firemen's Ins. Co., 442 S.W.2d at 333. An

opinion issued in a case brought by a party without standing is advisory because

rather than remedying an actual or imminent harm, the judgment addresses only a

hypothetical injury. See Allen v. Wright, 468 U.S. 737, 751 (1984). Texas courts,

29
like federal courts, have no jurisdiction to render such opinions.

Subject matter jurisdiction is an issue that may be raised for the first time on

appeal; it may not be waived by the parties. Texas Employment Comm'n v.

International Union of Elec., Radio and Mach. Workers, Local Union No. 782,

163 Tex. 135, 352 S.W.2d 252, 253 (1961)--- standing is a component of subject

matter jurisdiction, and it cannot be waived and may be raised for the first time on

appeal.

Argument

It appears that the entire brief is actually a request for an advisory opinion.

The strength of the brief, according to its author is the absolute superior rights

Appellant has when compared to Appellee. Appellant’s issue is basically one that

requires the issuance of an advisory opinion. The specific language is Appellee

has no Cause of Action Against Appellant or Probable Recovery on Trial on the

Merits. See Brief, at 13. From Pages 13 through 32, Appellant tells this court that

Appellee has no chance to win and finishes with a request to overturn the

injunction because it cases is so strong as compared to Appellee’s. Brief, at 13-32.

This certainly is a request for an advisory opinion. It is tantamount to

Appellant arguing, “Listen Court, these guys have no chance to win at all in the

end, so order the District Court to stop the injunction and let us go after the

30
property.”

Similarly, pages 8 through 13 set up a predicate which tells this court that

because Appellant’s case has no merit and for that reason the injunction should not

stand.

Very simply, this court has no jurisdiction to hear this case as briefed. It

should be dismissed with prejudice with all costs charged to Appellant. alternative

relief sought in the brief should be denied as being a request for an advisory

opinion.

Recall that no one has been to the Justice Court. We have no order of

possession. We have a reluctant Defendant who seeks to win through legal

maneuvering rather than on the merits. Were Appellant’s claims of any merit,

certainly they would have prevail on the merits in the various dispositive motions

which Appellants have filed which the district court has consistently denied.

Asking this court to rule that Appellant’s case is better than Appellee’s case is

merely a ruse to get this court to issue an illegal advisory opinion. For that reason,

the case should be dismissed.

31
ISSUE# 3 The fact that this case is now set for trial on August 10, 2015, with
announcements and hearings on pending motions set for August 6, 2015,
moots any relief this Court may provide. Therefore, the case should be
dismissed.

This case is almost over. It has gone on for about a year and a half. The

District Court has set the matter for trial next month. There is no relief this court

can grant Appellee, in the short run, which would mean anything.

As a practical matter, for whatever reasons, the temporary injunction has

been in place and has lasted for over a year. Appellant did not file a brief on the

issue until December 30, 2014. The record does not explain what happened

between then and May 5, 2015 when Appellee asked for an extension of time to

file her brief.

Any relief granted this court may only complicate the litigation as there is

every likelihood that Appellee will prevail at trial on various issues, and may even

be able to obtain partial summary judgment, prior to trial, on several issues, such

as whether Appellant had the power of sale, and whether appellant’s pleadings are

an admission of tortious interference with contract, breach of contract, and

violation of a breach of fiduciary duty. Appellee will certainly be working on such

32
potential partial relief before trial.

Standard of Review

An issue may become moot when a party seeks a ruling on some matter that,

when rendered, would not have any practical legal effect on a then-existing

controversy. See In re H&R Block Fin. Advisors, Inc., 262 S.W.3d 896, 900 (Tex.

App.-Houston [14th Dist.] 2008, orig. proceeding); City of Farmers Branch v.

Ramos, 235 S.W.3d 462, 469 (Tex. App.-Dallas 2007, no pet.). When an appeal is

moot, we must set aside the judgment and dismiss the cause. City of Fort Worth

v. Pastusek Indus., Inc., 48 S.W.3d 366, 371 (Tex. App.-Fort Worth 2001, no pet.).

The mootness doctrine also implicates subject-matter jurisdiction. Hernandez-

Perez v. State, No. 01-09- 00801-CR, 2010 WL 2133935, at *1 (Tex.

App.—Houston [1st Dist.] May 27, 2010, no pet.) (mem. op.) (citing Trulock v.

City of Duncanville, 277 S.W.3d 920, 923 (Tex. App.—Dallas 2009, no pet.)). A

case is moot if a controversy ceases to exist or the parties lack a legally

cognizable interest in the outcome. Allstate Ins. Co. v. Hallman, 159 S.W.3d 640,

642 (Tex. 2005). When a case becomes moot, the parties lose standing to maintain

their claims. Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001).

33
Argument

At the moment, the issue of whether the temporary injunction was proper is

mooted by the sheer passage of time. Some of this may be Appellee’s fault, but a

good part of it also falls on Appellant’s shoulders, for various reasons. With trial

set just around the corner, there is no justiciable issue left concerning the

continuation of the temporary injunction The case has become mooted through

passage of time. The mootness doctrine prevents courts from rendering advisory

opinions, and under article II, section 1 of the Texas Constitution, courts have no

jurisdiction to issue advisory opinions. See Valley Baptist Med. Ctr. v. Gonzalez,

33 S.W.3d 821, 822 (Tex. 2000) (per curiam). "[A] controversy must exist

between the parties at every stage of the legal proceedings, including the appeal."

Bd. of Adjustment of City of San Antonio v. Wende, 92 S.W.3d 424, 427 (Tex.

2002) (quoting Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001)). An issue may

become moot when a party seeks a ruling on some matter which, when rendered,

would not have any practical legal effect on a then-existing controversy. In re

H&R Block Fin. Advisors, Inc., 262 S.W.3d at 900.

As a practical matter, the case is moot now. The court should therefore

dismiss the appeal.

34
 PRAYER FOR RELIEF

WHEREFORE, for these reasons, Appellee respectfully requests the court to affirm the trial

court’s issues of a temporary injunction and to deny appellant any and all relief requested, and in

the alternative, dismiss the appeal as moot or as one requesting an illegal advisory opinion.

Respectfully submitted,

Philip T. Cowen
Law Office of Philip Cowen
500 E. Levee St.
Brownsville, Texas 78520
Tel. 956-541-1691
Fax 956-541-6872

By:/s/Philip T. Cowen
Philip T. Cowen
State Bar No. 24001933
Attorney for Appellant

35
 CERTIFICATE OF SERVICE

This is to certify that on July 9, 2015 a true and correct copy of the above and foregoing

brief was served Appellant’s Counsel via Idocs service of process to email st@taherzlaw.com.

/s/Philip T. Cowen
Philip T. Cowen

36
 CERTIFICATE OF COMPLIANCE

Pursuant to Tex. R. App. P. 9.4, I hereby certify that this brief contains

7,913 words. This document was created using Word Perfect X4, using 14-point typeface for all

text, except for footnotes and long passages cited from cases, which are in 12- point typeface. In

making this certificate of compliance, The word count was determined using Word Perfect X4

software which has the capability to calculate a word count.

/s/Philip T. Cowen
Philip T. Cowen

37
 Appendix

Document Page No.

A. Deed of Trust CR542-565 1

B: Portion of Transcript of Hearing on Temporary Injunction 25
CR602-624

C Defendant Compass Bank's Amended Answer CRSupP86-89 48

D: Texas Business and Commerce Code SUBCHAPTER B. 52
NEGOTIATION, TRANSFER, AND INDORSEMENT
Sec. 3.201 through 3.204.

E: Texas B