                                                                                            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.



                                               7
                                    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




                                          8
                        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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