                                                                                ACCEPTED
                                                                           03-14-00635-CV
                                                                                   4505486
                                                                 THIRD COURT OF APPEALS
                                                                            AUSTIN, TEXAS
                                                                     3/16/2015 10:07:10 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
                                                  3/16/2015 10:07:10 AM
__________________________________________________________________
                                                      JEFFREY D. KYLE
                                                           Clerk
       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 REPLY IN SUPPORT OF
             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 REPLY IN SUPPORT OF
              MOTION TO DISMISS APPEAL AS MOOT
__________________________________________________________________

TO THE HONORABLE THIRD COURT OF APPEALS:

      Appellee/Plaintiff Sharon Peters Real Estate, Inc., (“Peters”) by and through

undersigned counsel, respectfully files this reply in support of its motion to dismiss

this appeal as moot, and in support thereof states as follows:

      1.     As explained in Peters’ underlying motion to dismiss, Appellant

Goebel’s appeal of the county court’s judgment granting Peters immediate

possession of the real property at issue is moot because the writ of possession has


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been issued and executed, Goebel is no longer in possession of the property, and

Goebel has no claim of right to current possession. 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.) (“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.” (quoting Marshall v. Housing Auth. of City of San

Antonio, 198 S.W.3d 782, 787 (Tex. 2006))).

      2.     In his response to the motion to dismiss, Goebel argues that his points

of error on appeal—both of which implicate the county court’s alleged lack of

jurisdiction to render the judgment of possession—amount to a claim of right to

current possession. They do not.

      3.     First, Goebel asserts that Peters, who was not the prevailing party in

the justice court, failed to timely perfect an appeal to the county court that rendered

the judgment currently on appeal. TEX. R. CIV. P. 510.9 (“A party may appeal a

judgment in an eviction case by filing a bond, making a cash deposit, or filing a

sworn statement of inability to pay with the justice court within 5 days after the

judgment is signed.”). As noted in Peters’ motion to dismiss, this assertion lacks

merit for the reasons stated in Peters’ response to Goebel’s “Motion for Emergency




                                          3
Stay of Writ, or, in the Alternative, Writ of Re-entry,” which this Court denied.1

But even assuming (erroneously) that Peters did not properly perfect an appeal and

that the county court thus lacked jurisdiction to render the judgment of possession,

the fact remains that the judgment was executed and Goebel is no longer in

possession of the property. And the county court’s purported lack of jurisdiction to

award possession to Peters has nothing whatsoever to do with whether Goebel has

a right to “current, actual possession” of the property.

       4.     Goebel appears to confuse Peters’ right to obtain a judgment of

possession (which he claims was rendered in error) and Goebel’s own right to

possess the property. Following the foreclosure sale of the property to Peters and

at all times relevant to this eviction, Goebel’s occupancy status was that of a tenant

at sufferance. (CR 192; Exhibit 5 to Motion to Dismiss). Such status gives him no

right to current possession.

       5.     Goebel also asserts that he is entitled to possession as the prior owner

of the property because the foreclosure sale was allegedly invalid. But Goebel’s

challenge to Peters’ title, which he is currently pursuing in an independent suit in


1
  Goebel now appears to argue that Peters was required to pay a $500 bond under Rule 506. TEX.
R. CIV. P. 506.1(b) (“A plaintiff must file a $500 bond.”). Rule 506, however, is the general rule
governing appeals from the justice court, and the provision regarding the amount of the bond
conflicts with the more specific rule governing appeals in evictions. TEX. R. CIV. P. 510.9(b)
(“The justice court judge will set the amount of the bond or cash deposit to include the items
enumerated in Rule 510.11.”). Rules 510.9 and 510.11, not Rule 506.1, apply to the amount of
the bond required to appeal an eviction to the county court.

                                                4
district court, has no place in this case and again gives him no potential right to

current possession.

      6.     As argued in the motion to dismiss, this Court’s case law is

abundantly clear that alleged defects in a foreclosure sale do not deprive the justice

and county courts of jurisdiction over an eviction brought by the purchaser against

the occupant/prior owner where the deed of trust provides for a landlord/tenant-at-

sufferance relationship. See, e.g., 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”).

Instead, a “displaced property occupant” like Goebel “is entitled to bring a separate

suit in district court to resolve any title issues.” Rodriguez v. CitiMortgage, Inc.,

No. 03-10-00093-CV, 2011 WL 182122, at *2 (Tex. App.—Austin Jan. 6, 2011,

no pet.) (mem. op.); Villalon v. Bank One, 176 S.W.3d 66, 70 (Tex. App.—

Houston [1st Dist.] 2004, pet. denied).

      7.     Goebel’s “separate suit” challenging the foreclosure sale is currently

pending in the Hays County District Court at Cause No. 14-0878. (CR 243). In the

event final judgment is eventually rendered in his favor on his title claim in that


                                          5
case, he may be entitled to obtain possession of the property at that time. 2 But the

claims asserted in that case have no bearing on his entitlement to “current, actual

possession of the Property,” which is the relevant inquiry in an eviction. To put it

another way, if Goebel were to file a forcible-detainer action today seeking

immediate possession of the property, he would have no grounds to support it.

Accordingly, any error by the trial court in rendering the judgment of possession—

jurisdictional or otherwise—simply does not amount to a live issue in this appeal.3

       8.      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.



       WHEREFORE, Peters respectfully requests that the Court GRANT its

motion to dismiss and dismiss this appeal as moot.




2
  Although that case was initially filed back in June 2014, Goebel has done little to pursue his
claims on their merits. Instead, the majority of his filings in that case have involved attempts to
restrain the underlying eviction. Indeed, Goebel did not even add the foreclosing beneficiary as
a party defendant until November 2014 after Peters filed a motion to compel the joinder of the
beneficiary under Tex. R. Civ. P. 39.
3
  As noted in the motion to dismiss, Peters has waived and abandoned any right it may have to
collect on the county court’s award of costs in the judgment. Thus, that award does not preserve
a live issue for this appeal.

                                                6
                                            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 SERVICE

       I hereby certify that, pursuant to Texas Rule of Appellate Procedure 9.5 and
Local Rule 4(d), a copy of Appellee’s Reply in Support of Motion to Dismiss
Appeal as Moot was served on this 16th 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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