ACCEPTED
05-17-01113-CV
FIFTH COURT OF APPEALS
DALLAS, TEXAS
5/21/2018 2:35 PM
LISA MATZ
CLERK
CAUSE NO. 05-L7-01113-CV
FILED IN
5th COURT OF APPEALS
DALLAS, TEXAS
In the 5/21/2018 2:35:30 PM
COURT OF APPEALS LISA MATZ
Clerk
F'IFTH DISTRICT OF TEXAS
DALLAS, TEXAS
DEANINE REED,
Appellant,
V.
JEREMY SIMMONS AND CECILIA SIMMONS'
Appellees.
Appealed from Cause No. CC-17'03554'ß
In the County Court at Law No. 2 of Dallas County, Texas.
Honorable Judge Melissa Belan, Presiding
APPELLEES'MOTION TO DISMISS PURSUAI\T TO TEXAS RULE OF
APPELLATE PROCEDURE 42.3(a)
Comes now, Appellees JEREMY SIMMONS and CECILIA SIMMONS and,
pursuant to Rule 42.3(a) of the Tsxes Rulss oF APPELLATE PROCEDURE and move
the Court to dismiss this appeal for lack of jurisdiction. In support of the same
Appellees would respectfully show the Court as follows:
1
Tanr.p or Co¡lrnNrs
TABLE OF CONTENTS ',,,...,,2
3
INDEX OF AUTHORITIES .....
I. THE COURT'S SOLE JURISDICTION IN THIS
CASE IS THE ISSUE OF POSSESSION 4
II. APPELLANT'S POINTS OF ERRORS DO NOT
ADDRESS THE ISSUE OF POSSESSION 5
II. PRAYER..... 8
CERTIFICATE OF SERVICE 9
2
T.ls op Auuro
Sr¿.rn C¿,sns
AAA Free Move Ministorage, LLC v. Ois Invs., Inc',419
S.W.3d 522,526 (Tex.App. - San Antonio 2013, pet'
4
denied)
AIS Servs,, LLC v. Mendez, No. 05-07-01224-CV,2009 Tex'
1
App. LEXIS 67 94 (App.-Dallas Aug . 27, 2009) " " " " " "'
Bd Of Adjustment of City of San Antonio v, Wende,92 S'W'3d
424,427 (Tex.2002) 5
Douglas v, Delp,987 S.W.zd879,882 (Tex. 1999).... 4
F.D.tC. v. Nueces Co.,886 S'V/.zd766,767 (Tex, 1994) .5
Heckman v. williamson co.,369 S.W.3 d I3l , 162 (Tex.}}IZ)...... .5
In re Fort Worth Star Telegram, 441S.W.3d 847, (Tex.App.-
Fort Worth 20 14, orig. proceeding)... 5
Otley v. HVM, LLC,449 S.W.3d 572,577 fn.6 (Tex.App. -
Houston ¡14th Dist .l 2014,pet. denied) 4
Tehutí v. Trans-Atlas Fin.,.Ir¿c., No. 05- 14-00126-CV , 2015
Tex. App. LEXIS 2407 at *3, 7 (Tex.App.- Dallas Mar
12,2015, pet. dism'd w.oi)....... 4,6
Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.V/.2d
440,443 (Tex.1993) 4
Wílliam; v. Lara,52 S.W.3 d 17I,184 (Tex.2001).............. """'5
Srnrs Sr¡.rurns
Tsx. R. App. P. 42.3(a) 1
TBx. R. Cw. P. 510.1 1 ,4
TBx. R. Ctv. P. 510.3(e) 4
3
I. THE COURT'S OLE DICTIO IN THIS IS THE
ISSUE OF POSSESSION
Appellant's appeal in this case is the appeal of a Judgment for Possession
entered by the County Court in an appeal of a forcible detainer action. Accordingly,
the sole issue before the Court is the issue of the right to possession of the property
known as 6020 Overlook Drive, Dallas, Texas 75227 (the "Property"). ,S¿e I. C.R.
g4-85. In an action for forcible detainer, the only issue before the Court is that of
possession, not title. See Trx. R. Crv. P. 510.3(e); 510.11. Specifically, all other
claims, including questions of title, validity of a foreclosure, counterclaims, and suits
against third parties are not permitted . Tehutí v. Trans-Aïlas Fin.,1nc., No. 05-I4-
00126-CV,2015 Tex. App. LEXIS 2401 at*3,7 (Tex.App.- Dallas Mar. 12,2015,
pet, dism'd w.oj). Such restrictions also apply to appeals of the forcible detainer
action pending in county courts. Id.; see also Olley v. HVM, LLC,449 S.V/.3d 572,
577 fn. 6 (Tex.App. - Houston [14th Dist.] 2014, pet. denied); AAA Free Move
Minístorage, LLC v. Ois Invs., Inc., 419 S.V/,3d 522, 526 (Tex.App. - San Antonio
2013, pet. denied).
" Standing is a component of subject matter jurisdiction. " Doug las v. De lp, 9ST
S.V/.2d 879,882 (Tex. 1999); Texas Ass'n of Bus. v. Texas Air Control Bd., 852
S.W.2d 440,443 (Tex. 1993). "Without subject matter jurisdiction, courts may not
address the merits of a case." ld, The mootness doctrine is another requirement of
subject matter jurisdiction which requires that courts only decide cases where an
4
actual controversy exists. F.D.t c. v. Nueces co.,886 S.V/.2d766,767 (Tex. I99Ð;
In re Fo rt Worth Star Tele gram, 44l S.W.3d 847, 85 1 (Tex'App'- Fort Worth 2014'
orig. proceeding). "A case becomes moot if, since the time of filing, there has
ceased
to exist a justiciable controversy between the parties - that is, if the issues
presented
are no longer'live,'or if the parties lack a legally cognizable interest in the outcome"
of the case. Heckman v. Williamson Co., 369 S.V/.3d 137, 162 (Tex.20l2)'
Consequently, "a case becomes moot when the court's action on the merits cannot
affect the parties' rights or interests." ld. "If a case is or becomes moot, the court
must vacate any order or judgment previously issued and dismiss the case for want
of jurisdiction." /d. Thus, "a controversy must exist between the parties at every
stage of the controversy, including the appeal." Bd Of Adiustment of City of San
Antonio v. Wende, 92 S.V/.3d 424, 427 (Tex,2002) (citing Williams v' Lara, 52
S.W.3d 17 L, 184 (Tex.2001)).
Because the Appellant's points of error do not address the sole area over
which this Court has subject matter jurisdiction, the issue of possessiono the Court
should dismiss this appeal for lack of jurisdiction.
II. THE APPELLANT POINTS OF ERROR DO OT ADD THE
ISSUE OF ESSTON
None ofAppellant's fourpoints of error are directed to the issue of possession:
ellant' f Error 1 Appellant alleges that the Court erred
by failing to declare that Appellant held legal title to the Property. This point of error
5
has nothing to do with possession. Issues of Title cannot be raised in a forcible
detainer appeal. Tehuti,2015 Tex. App. LEXIS 2407 at*1 '
Appellant's Point of Error Number 2: Appellant alleges that the Court erred
by not transfeling this eviction case to the Probate Court. Appellant failed to
preserve this point of enor for appeal. The record conclusively establishes that
Appellant never obtained a ruling from the County Court regarding Appellant's
motion to transfer to the Probate Court. Appellant set the matter for hearing on
August 3,2017 and made argument regarding Appellant's Motion to Transfer to the
probate Court. See general/y, Volume II of the Reporter's Record which transcribes
the hearing. At that hearing, the County Court, upon learning that Probate Court
Number 3 would be hearing the same request for relief on August 29tt',2017,
deferred any ruling and continued the hearing to be taken up on August 31,2077,
afrer the Probate Court had the opportunity to ruIe. See II. R.R. 17:10-18:5. The
Court explicitly deferred its ruling, it díd not explicitly or implicitly deny the relief
sought by Appettanr. Id. On August 31 , 2017, Appellant did not raise the issue of
transferring the matter to the Probate Court before trial. See generally, Volume III
of the Reporter's Record which transcribes the trial.
Generally, to preserve error on appeal the record must show that (l) the
complaint was made to the trial court (in this case, by Appellant's Motion; I. C.R.
65-70); and (2) that the Trial Court ruled on the motion either expressly or implicitly,
6
or refused to rule. Tnx. R. App. P. 33.1(a). Accordingly, any complaints regarding
waived.
the County Court's failure to transfers the case to the Probate Court were
when an Appellant does not object to the lack of rulings on her motions, any errof
related to the pretrial motions are not preserved for review. See AIS Servs',
LLC v'
Mend.ez,No. 05-07 -01224-CV, 2009 Tex. App. LEXIS 6794 (App.-Dallas Aug.
21, Z00g) (released for publication on September 24,2009: holding that a Court's
failure to rule on a Motion for Default Judgment without an explicit or implicit ruling
and no objection from the movant constitutes waiver). Moreover, the transfer of the
case is addressed to title or ownership, which is not proper in this appeal'
Accordingly, the Court should dismiss Appellant's appeal.
Appellant's Point of Error Number 3: Appellant alleges that Appellant is the
common law spouse of decedent Linda Jean Whetstone and has legal rights to the
Property. Appellant does not explain how the County Court erred in this regard but
regardless, the allegation has nothing to do with the issue of possession, but instead
would presumably become a question of title. As set forth above, the Court does not
have jurisdiction in this appeal to resolve questions of title.
's Po Number : Appellant alleges that the Trial Court
erred by not declaring the Substitute Trustee's Deed conveying Title to the Property
to Appellees as "void." Again, the County Court did not have jurisdiction to void
and this Court does not have jurisdiction over issues of title to the property.
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PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellees pray that the court
dismiss this appeal for lack of subject matter jurisdiction and award all such
other
justly entitled'
and further relief to which Appellees may show themselves to be
Respectfully Submitted :
D¿,nnBI-L W'. Coor & Assocrerss
A PNOTSSSIONAL CONPONETION
lslD ll v/.
DARRELL W. COOK
State Bar No. 00787219
dwcook@ attorneYcook. com
STEPHEN W. DAVIS
State Bar No. 24066792
stephen@attorneYcook. com
6688 North Central Expressway, Suite 1000
Dallas, TX 75206
(2r4) 368-4686
(214) 593 -57 13 Facsimile
Atto rney s fo r App ellee s
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CERTIFICATE OF SERVICE
I hereby certify that a true and corect copy of the above and foregoing
instrument was served on the following counsel for Appellant on this the 18ü day
of
May,2018.
Charles J. Paternostro
1485 Elmridge Road
Denison, Texas 75020
/s/S w.
STEPHEN V/. DAVIS
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