                                                                                    ACCEPTED
                                                                                03-14-00561-CV
                                                                                        5193710
                                                                     THIRD COURT OF APPEALS
                                                                                AUSTIN, TEXAS
                                                                            5/7/2015 1:36:25 PM
                                                                              JEFFREY D. KYLE
                                                                                         CLERK
                         No. 03-14-00561-CV
       ______________________________________________________
                                                          FILED IN
                                                   3rd COURT OF APPEALS
               IN THE COURT OF APPEALS OF TEXAS AUSTIN, TEXAS
                     THIRD DISTRICT, AUSTIN        5/7/2015 1:36:25 PM
       ______________________________________________________
                                                     JEFFREY D. KYLE
                                                           Clerk

           DANA DUTSCHMANN and KEVIN BIERWIRTH,

                                            Appellants,
                                  vs.

         FEDERAL NATIONAL MORTGAGE ASSOCIATION,
                                 Appellee.

       ______________________________________________________

             On Appeal from the County Court at Law No. 2
                         Travis County, Texas
                Trial Court Cause No. C-1-CV-15-006351
       ______________________________________________________

                         APPELLEE’S BRIEF



                                Brian P. Casey
                                State Bar No. 00793476
                                Douglas G. Dent
                                State Bar No. 24078062
                                6836 Bee Caves, Bldg. 3, Suite 303
                                Austin, Texas 78746
                                Tel.: 512-617-6409
                                Fax: 888-530-9616
                                bcasey@caseylawtx.com
                                ddent@caseylawtx.com

                                ATTORNEYS FOR APPELLEE
                                FEDERAL NATIONAL MORTGAGE
                                ASSOCIATION

	                                                                         1	  
               IDENTITY OF THE PARTIES AND COUNSEL

The parties to the Trial Court’s judgment/order appealed from are as follows:

Defendant / Appellant

Dana Dutschmann, Pro Se
c/o 13276 Research Boulevard, Suite 204
Austin, Texas 78750
Tel.: 512-779-6254

Stephen Casey
State Bar No. 24065015
Casey Law Office, P.C.
595 Round Rock West Drive, Suite 102
Round Rock, Texas 78681
Tel.: 512-257-1324
**Trial Court Counsel

Interpleader / “Real Party in Interest” / Appellant

Kevin Bierwirth, Pro Se
13276 Research Boulevard, Suite 204
Austin, Texas 78750
Tel.: 512-825-0331

Stephen Casey
State Bar No. 24065015
Casey Law Office, P.C.
595 Round Rock West Drive, Suite 102
Round Rock, Texas 78681
Tel.: 512-257-1324
**Trial Court Counsel

Plaintiff / Appellee

Federal National Mortgage Association




	                                                                              2	  
Trial Court and Appellate Counsel for Plaintiff / Appellee

Brian P. Casey
State Bar No. 00793476
6836 Bee Caves, Bldg. 3, Suite 303
Austin, Texas 78746
Tel.: 512-617-6409

Douglas G. Dent
State Bar No. 24078062
6836 Bee Caves, Bldg. 3, Suite 303
Austin, Texas 78746
Tel.: 512-617-6402

Jeffry B. Lewis
State Bar No. 12290000
Robertson Anschutz Vetters
10333 Richmond Avenue, Suite 550
Houston, Texas 77042
Tel.: 713-980-9500




	                                                           3	  
                                                        TABLE OF CONTENTS
	  
ABBREVIATIONS ................................................................................................. 6	  

TABLE OF AUTHORITIES ................................................................................. 7	  

I. STATEMENT OF THE CASE ......................................................................... 9	  

II. STATEMENT ON ORAL ARUMENT .......................................................... 9	  

III. STATEMENT OF JURISDICTION ............................................................. 9	  

IV. CROSS-ISSUE AND RESTATED ISSUES PRESENTED ....................... 10	  
  Cross-Issue No. 1: This appeal is moot because the only issue in a forcible
  detainer action is possession, and Appellants are no longer in possession of the
  property and make no argument that they are entitled to immediate possession.
  	  ........................................................................................................................................................	  10	  
  Restated Bierwirth Issue No. 1: The applicable statute of limitations does not
  bar Appellee’s cause of action.	  ............................................................................................	  10	  
  Restated Bierwirth Issue No. 2: The Tex. R. Civ. P. 310 writ of possession is not
  improper and is not relevant to this appeal.	  .....................................................................	  10	  
  Restated Bierwirth Issue No. 3: The failure of the trial court to set a supersedeas
  bond amount is not an error of law.	  ...................................................................................	  10	  
  Restated Bierwirth Issue No. 4: The trial court’s failure to sign the Judgment
  Order does not constitute judicial error.	  ...........................................................................	  10	  
  Restated Bierwirth Issue No. 5: Bierwirth was not denied due process of law.	  ..	  10	  
  Restated Bierwirth Issue No. 6: The trial court did not misapply the law at the
  hearing on Bierwirth’s Emergency Petition for Writ of Reentry.	  ............................	  10	  
  Restated Dutschmann Issue: Dutschmann was not denied due process of law.	  ..	  10	  

V. STATEMENT OF FACTS ............................................................................. 10	  

VI. SUMMARY OF THE ARGUMENT ........................................................... 14	  

VII. ARGUMENT AND AUTHORITIES ......................................................... 14	  
 A. This appeal is moot because Appellants are no longer in actual possession of
 the subject property.	  ................................................................................................................	  14	  
 B. Appellee’s forcible detainer action is not barred by the statute of limitations.
 	  ........................................................................................................................................................	  17	  


	                                                                                                                                                                  4	  
       C. Bierwirth’s challenge of the prior Summary Judgment Order, Home Equity
       Foreclosure, and Tex. R. Civ. P. 310 writs of possession constitute an
       impermissible collateral attack.	  ...........................................................................................	  18	  
       D. The lack of a supersedeas bond is not reversible error.	  ........................................	  20	  
       E. The Hon. Judge Eric M. Shepperd’s signing of the Judgment Order does not
       constitute judicial error.	  .........................................................................................................	  20	  
       F. Appellant Bierwirth was not denied due process of law.	  .....................................	  22	  
       G. The trial court did not misapply the law at the hearing on Appellant’s
       Emergency Petition for Writ of Reentry.	  .........................................................................	  23	  
       H. Appellant Dutschmann’s due process rights were not violated.	  ........................	  24	  

VIII. PRAYER ...................................................................................................... 26	  




	                                                                                                                                                   5	  
        ABBREVIATIONS
	  
        CR = Clerk’s Record

       RR = Reporter’s Record




	  
	  
	  



	                              6	  
                                        TABLE OF AUTHORITIES
	  
Cases
Adler v. Beverly Hills Hosp., 594 S.W.2d 153 (Tex.App. – Dallas 1980, no writ) 16

Bass v. Champion Int’l Corp., 787 S.W.2d 208 (Tex.App. – Beaumont 1990, no
 writ) ...................................................................................................................... 18

Bello v. Tarrant County, 2010 Tex.App. LEXIS 9763 (Tex.App. – Fort Worth
  2010, pet. denied). ................................................................................................ 21

Coinmach Corp. v. Aspenwood Apartment Corp., 417 S.W.3d 909 (Tex. 2013) ... 16

First General Realty Corp. v. Maryland Cas. Co., 981 S.W.2d 495 (Tex.App. –
  Austin 1998, pet denied) ...................................................................................... 16

Flores v. United Freedom Associates, Inc., 314 S.W.3d 113 (Tex. App.—El Paso
  2010, no pet.) ....................................................................................................... 20

Green v. Kaposta, 152 S.W.3d 839 (Tex. App. —Dallas 2005, no pet.) ................ 20

Housing Auth. v. Massey, 878 S.W.2d 624 (Tex.App. – Corpus Christi 1994, no
 pet.) ...................................................................................................................... 18

Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826 (Tex. 1990) ........................ 16

Peck v. Fed. Home Loan Mortg. Corp., 2913 Tex.App. LEXIS 15154 (Tex.App. –
  Austin 2013, no pet.)................................................................................ 14, 15, 19

Resendez v. FV REO I, LLC, 2014 Tex.App. LEXIS 1096 (Tex.App. – Austin
  2014, no pet.) ....................................................................................................... 14

Tectonic Realty Inv. Co. v. CAN Lloyd’s of Texas Ins. Co., 812 S.W.2d 647
  (Tex.App. – Dallas 1991, writ denied) ................................................................ 16

Two Pesos, Inc. v. Gulf Ins. Co., 901 S.W.2d 495 (Tex.App. – Houston [14th Dist.]
 1995, no writ) ....................................................................................................... 16

Wilhelm v. Fed. Nat’l Mortg. Ass’n, 349 S.W.3 766 (Tex.App. – Houston [14th
 Dist.] 2011, no pet.) ............................................................................................. 14

	                                                                                                                            7	  
Williams v. Bank of New York Mellon, 315 S.W.3d 926 (Tex.App. – Dallas 2010,
 no pet.) ................................................................................................................. 14


Statutes
Tex. Prop. Code § 24.007 ........................................................................................ 23


Rules
Tex. R. Civ. P. 510 ...................................................................................... 15, 23, 24

Tex. R. App. P. 38 ................................................................................................... 21
	  



	  
	  
	  
	  
	  
	  
	  
	  
	  
	  
	  
	  
	  
	  
	  
	  
	  
	  
	  
	  
	  
	  
	  
	  
	  
	  
	  
	  
	  


	                                                                                                                          8	  
                                                                                                                                                                                  I. STATEMENT OF THE CASE

                                               Appellee brought a suit for forcible detainer against Appellant Dutschmann.1

Appellant Bierwirth intervened and Appellants asserted objections based upon

Appellee’s capacity to sue, the Trial Court’s jurisdiction, the statute of limitations,

and alleged failure to properly plead.2 The Trial Court entered judgment for

Appellee and granted Appellee possession of the subject property on August 8,

2014.3 Appellant Bierwirth subsequently requested a Writ of Reentry.4 The Trial

Court denied Appellant Bierwirth’s request for a Writ of Reentry on October 14,

2014.5

                                                                                                                                              II. STATEMENT ON ORAL ARUMENT

                                               Appellee does not request oral argument and does not believe that oral

argument is necessary to address the issues raised by this appeal.

                                                                                                                                                     III. STATEMENT OF JURISDICTION

                                               This Court has jurisdiction of this appeal pursuant to Texas Civil Practice &

Remedies Code § 51.012.




	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
1	  CR at pp. 55-62.
2	  CR at pp. 23-25 and pp. 118-119.
3	  CR at pp. 124-125.
4	  CR at pp. 132-133.
5	  CR at p. 200.



	                                                                                                                                                                                                                                 9	  
                                                                          IV. CROSS-ISSUE AND RESTATED ISSUES PRESENTED


Cross-Issue No. 1: This appeal is moot because the only issue in a forcible
detainer action is possession, and Appellants are no longer in possession of the
property and make no argument that they are entitled to immediate possession.


Restated Bierwirth Issue No. 1: The applicable statute of limitations does not bar
Appellee’s cause of action.


Restated Bierwirth Issue No. 2: The Tex. R. Civ. P. 310 writ of possession is not
improper and is not relevant to this appeal.


Restated Bierwirth Issue No. 3: The failure of the trial court to set a supersedeas
bond amount is not an error of law.


Restated Bierwirth Issue No. 4: The trial court’s failure to sign the Judgment
Order does not constitute judicial error.


Restated Bierwirth Issue No. 5: Bierwirth was not denied due process of law.


Restated Bierwirth Issue No. 6: The trial court did not misapply the law at the
hearing on Bierwirth’s Emergency Petition for Writ of Reentry.


Restated Dutschmann Issue: Dutschmann was not denied due process of law.

                                                                                                                                                                                                                           V. STATEMENT OF FACTS

                                                      On or about June 24, 2005, Appellant Kevin Bierwirth (“Bierwirth”)

executed a Deed of Trust in connection with the real property located at 3305

Spaniel Drive, Austin, Texas 78759 (the “Property”). 6 Following Bierwirth’s

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
6	  CR pp. 63-78.



	                                                                                                                                                                                                                                                 10	  
default on the related promissory note, a non-judicial foreclosure sale of the

Property was conducted.7 The foreclosure sale was conducted pursuant to a Final

Summary Judgment and Order Allowing Home Equity Foreclosure issued by 200th

Judicial District Court, Travis County, Texas.8

                 Following the foreclosure sale of the Property, Bierwirth unsuccessfully

challenged the sale by filing a writ of prohibition with this Court, which the Court

denied. 9                     Bierwirth then unsuccessfully challenged FNMA’s predecessor-in-

interest’s right to possession by seeking an injunction prohibiting the issuance of a

writ of possession pursuant to the summary judgment order.                                                                                                                                     Once again,

Bierwirth’s challenge was unsuccessful.10

                 The Property was subsequently conveyed to Federal National Mortgage

Association (“FNMA”) by Special Warranty Deed recorded in the Official Public

Records of Travis County on October 26, 2012.11

                 On May 30, 2013, Bierwirth used his status as a realtor to access the

Property with a special key provided by FNMA only to realtors.12 Appellant Dana

Dutschmann (“Dutschmann”) then leased the Property from Bierwirth in June

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
7	  CR pp. 80-93.
8	  RR, Vol. 3, Ex. 2-A.
9	  RR, Vol. 2, pp. 32-3; see, Bierwirth v. TIB – The Independent Bankers Bank, Case No. 03-11-

00336-CV, Third Court of Appeals.
10	  See, Bierwirth v. TIB – The Independent Bankers Bank, Cause No. D-1-GN-13-003128, In the

250th Judicial District Court, Travis County, Texas.
11	  CR pp. 95-8.
12	  RR, Vol. 2, pp. 22-4 and 30; RR, Vol. 3, Ex. 3-A.



	                                                                                                                                                                                                                         11	  
2013, and resided at the Property from that time through the time of trial in this

matter.13 During such time, Bierwirth did not reside at the Property.14

                                                      FNMA filed its Original Petition for Forcible Detainer and accompanying

exhibits with the Justice of the Peace, Precinct 2, Travis County, Texas, on May

22, 2014, against Dutschmann and/or the then-current residents of the Property.15

Default judgment in favor of FNMA and against Dutschmann was entered on June

17, 2104.16 Bierwirth, represented by counsel Stephen Casey and David Rogers,

also appeared before the justice court as a “real party in interest” at that time.17

The justice court refused to consider Bierwirth’s objections to FNMA’s original

petition because he was not a party to the suit. 18 The On June 23, 2014,

Dutschmann and Bierwirth filed a notice of appeal with the justice court. 19

Dutschmann and Bierwirth filed their notice of appeal in the County Court at Law

#2, Travis County, Texas, on July 8, 2014.20

                                                      On August 5, 2014, Bierwirth, acting through counsel Stephen Casey, filed a

combined Motion to Intervene and Motion to Abate.21 A trial on FNMA’s petition

for forcible detainer was held before the county court, the Hon. Judge Joe Carroll
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
13	  RR, Vol. 2, p. 11.
14	  RR, Vol. 2, p. 22.	  
15	  CR pp. 55-117.
16	  CR p. 19.
17	  Id.
18	  Id.
19	  Id.
20	  CR pp. 108-9.
21	  CR pp. 118-120.



	                                                                                                                                                                                                                                 12	  
presiding, on August 5, 2014.22 At the conclusion of the trial, Judge Carroll

ordered judgment in favor of FNMA.23 The court did make an explicit ruling on

Bierwirth’s request to intervene.24 On August 7, 2014, the Hon. Judge Eric M.

Shepperd of the County Court at Law #2, Travis County, Texas, signed the

Judgment Order granting judgment and possession of the Property to FNMA.25

The Judgment Order signed by Judge Shepperd does not contain a supersedeas

bond amount.26 The Judgment Order stated that the Writ of Possession ordering

FNMA possession of the Property “shall not issue until the expiration of five days

from the date this judgment is signed.”27

                                                      On August 8, 2014, Dutschmann and Bierwirth, acting through counsel

Stephen Casey, filed a Motion for Supersedeas Bond in the county court.28 On

August 13, 2014, a Writ of Possession issued pursuant to the county court’s

judgment of August 7.29 The Writ of Possession was posted on August 14, 2014,

and executed on August 19, 2014.30




	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
22	  RR, Vol. 2, generally.
23	  RR, Vol. 2, pp. 58-9.
24	  RR, Vol. 2, generally.
25	  CR pp. 124-5.
26	  Id.
27	  Id.	  
28	  CR pp. 123.
29	  CR pp. 129-131.
30	  CR p. 131.



	                                                                                                                                                                                                                                 13	  
                                                      On August 28, 2014, Bierwirth, acting pro se, filed an Emergency Petition

for Writ of Reentry in the county court.31 A hearing on Bierwirth’s Emergency

Petition was conducted before the County Court at Law #2, the Hon. Judge Eric M.

Shepperd presiding, on September 29, 2014. 32 The court denied Bierwirth’s

request for a Writ of Reentry on October 13, 2014.33 This appeal followed.

                                                                                                                                                                           VI. SUMMARY OF THE ARGUMENT

                                                      First, this appeal should be denied as moot because Appellants do not

currently maintain possession of the Property and have presented no meritorious

reason that they are entitled to actual possession.                                                                                                                                                                                Second, FNMA’s forcible

detainer action is not barred by the statute of limitations. In addition, Bierwirth’s

challenge to the previous writs of possession constitutes an impermissible

collateral attack on a judgment that has been fully adjudicated. Finally, the trial

court’s failure to set a supersedeas bond amount does not deprive Appellants of

their right to due process, or their ability to perfect this appeal.

                                                                                                                                                                     VII. ARGUMENT AND AUTHORITIES

                                                      A. This appeal is moot because Appellants are no longer in actual
                                                      possession of the subject property.




	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
31	  CR132-3.
32	  Supp. RR, generally.
33	  CR p. 200.



	                                                                                                                                                                                                                                                      14	  
                 The only issue in a forcible detainer action is the right to actual possession

of the subject property and the merits of title shall not be adjudicated.34 Forcible

detainer is intended to be a speedy, simple, and inexpensive procedure for

obtaining possession without resorting to a suit on the title.35 An appeal of a

judgment in a forcible detainer action becomes moot when the appellant ceases to

have actual possession of the property, unless the appellant has a potentially

meritorious claim of right to current, actual possession of the property.36 This

holds even when there is a failure to supersede a forcible-detainer judgment.37

                 The Peck case is instructive because its facts closely track the facts in the

instant case. In the Peck case, following trial of an eviction action, the trial court

entered judgment for possession in favor of the plaintiff, but did not set an amount

for supersedeas bond; additionally, the defendant-appellant did not file a

supersedeas bond.38 A writ of possession issued before the 10-day deadline for

filing a supersedeas bond.39 Although the defendant filed motions requesting that




	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
34	  Tex. R. Civ. P. 510.3(e); see also, Wilhelm v. Fed. Nat’l Mortg. Ass’n, 349 S.W.3 766, 768

(Tex.App. – Houston [14th Dist.] 2011, no pet.)(internal citations omitted).
35	  Williams v. Bank of New York Mellon, 315 S.W.3d 926, 926 (Tex.App. – Dallas 2010, no

pet.).
36	  Resendez v. FV REO I, LLC, 2014 Tex.App. LEXIS 1096 (Tex.App. – Austin 2014, no pet.)
37	  Peck v. Fed. Home Loan Mortg. Corp., 2913 Tex.App. LEXIS 15154, at 2 (Tex.App. – Austin

2013, no pet.).
38	  Id. at 3.
39	  Id.



	                                                                                                                                                                                                                         15	  
the trial court set a hearing on the amount of the supersedeas bond, a hearing was

not held.40

                                                      On appeal, the Peck defendant conceded that she was no longer in

possession of the subject property.41 The Court of Appeals ruled that an appeal

limited only to the issue that a trial court failed to set an amount for a supersedeas

bond does not “provide a potential basis for a claim” that the defendant “is entitled

to current, actual possession.”42 Accordingly, the court dismissed the appeal as

moot.

                                                      In this case, Appellants are no longer in possession of the Property.

Furthermore, none of the issues raised in this appeal by either Appellant addresses

a right to current, actual possession of the Property. The points of error set forth

by Appellants address the applicable statute of limitations and procedural events in

the county court following the trial and judgment. Apart from the issue raised by

Bierwirth regarding the applicable statute of limitations, the remaining issues

raised by Appellants all stem from the trial court’s failure to set a supersedeas bond

amount. As further elaborated below, these issues do not mandate Appellants are

entitled to actual possession of the Property. Because Appellants no longer have




	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
40	  Id.
41	  Id. at 5.
42	  Id.



	                                                                                                                                                                                                                                 16	  
actual possession of the Property, and do not have a potentially meritorious claim

for actual possession of the Property, this appeal is moot, and should be dismissed.


                 B. Appellee’s forcible detainer action is not barred by the statute
                 of limitations.

                 Appellee’s forcible detainer action is not barred by the two-year statute of

limitations proscribed by Texas Civil Practice & Remedies Code § 16.003. For a

suit to be timely under a two-year statute of limitations, the suit must be filed

within two years from the date on which the cause of action accrues. Generally, a

cause of action accrues when a wrongful act causes some legal injury.43 However,

an exception to this rule exists for continuing torts.44 A continuing tort involves

wrongful conduct inflicted over a period of time that is repeated until desisted, and

each day creates a separate cause of action.45 A cause of action for a continuing

tort does not accrue until the defendant’s tortious act ceases.46

                 Dutschmann’s possession of the Property was a continuing tort.47 Each day

that Dutschmann remained in possession of the Property created a separate cause

of action. On each day that Dutschmann remained in possession of the Property,


	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
43	  Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 828 (Tex. 1990).
44	  Adler v. Beverly Hills Hosp., 594 S.W.2d 153, 154 (Tex.App. – Dallas 1980, no writ).
45	  Two Pesos, Inc. v. Gulf Ins. Co., 901 S.W.2d 495, 500 (Tex.App. – Houston [14th Dist.] 1995,

no writ)(internal citations omitted).
46	  Tectonic Realty Inv. Co. v. CAN Lloyd’s of Texas Ins. Co., 812 S.W.2d 647, 654 (Tex.App. –

Dallas 1991, writ denied); First General Realty Corp. v. Maryland Cas. Co., 981 S.W.2d 495,
501 (Tex.App. – Austin 1998, pet denied).
47	  See, Coinmach Corp. v. Aspenwood Apartment Corp., 417 S.W.3d 909 (Tex. 2013).



	                                                                                                                                                                                                                          17	  
FNMA sustained injury because of Dutschmann’s interference with FNMA’s right

to possession. Because FNMA filed the eviction action that is the subject of this

appeal during the period of time that Dutschmann occupied the Property, FNMA’s

claim was filed within the applicable limitation period, and the action is not barred.

        Even if this Court does not characterize Dutschmann’s possession of the

Property as a continuing tort, FNMA’s instant cause of action accrued at the

earliest on May 30, 2013, when Bierwirth gain access to the Property in violation

of the writs of possession that had been issued pursuant to the summary judgment

order in the previous foreclosure proceeding.       On May 30, 2013, Bierwirth’s

entering into the Property gave rise to a new cause of action for FNMA.

Furthermore, the earliest a cause of action could have accrued against Dutschmann

was when she leased the Property from Bierwirth in June 2013. Using either of

these dates as the purported accrual date, FNMA’s instant eviction action was filed

well within the two-year limitation period when it was originally filed on May 22,

2014.


        C. Bierwirth’s challenge of the prior Summary Judgment Order,
        Home Equity Foreclosure, and Tex. R. Civ. P. 310 writs of
        possession constitute an impermissible collateral attack.

        Appellant Bierwirth’s challenge of the summary judgment and foreclosure

sale and prior writs of possession as part of this appeal constitutes an

impermissible collateral attack. A collateral attack on a judgment is an attempt to


	                                                                                 18	  
avoid its binding force in a proceeding not instituted for purposes of amending,

correcting, reforming, vacating, or enjoining such judgment.48 An earlier judgment

in one court serves as estoppel from re-litigation of the same issues in a separate

later proceeding.49

                  Issues associated with the summary judgment order and subsequent writs of

possession pursuant to Tex. R. Civ. P. 310 have already been presented to and

adjudicated by a separate trial court and this Court in previous proceedings.

Appellant Bierwirth admits as much in his brief, stating that the “order was

appealed and subsequently, Appellant was ruled against.”50 Bierwirth should not

be allowed to re-litigate the propriety of the summary judgment order or ensuing

writs of possession in this eviction appeal. As previously stated, the only issue in

an eviction proceeding is the right to possession. Any challenge to previous

proceedings constitutes an impermissible collateral attack on this Court’s previous

rulings, and should not be considered as part of this appeal.                                                                                                                                          Accordingly,

Bierwirth’s point of error regarding whether a writ of possession issued pursuant to

the previous summary judgment order is improper must be overruled.




	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
48	  Housing Auth. v. Massey, 878 S.W.2d 624, 626 (Tex.App. – Corpus Christi 1994, no pet.)
49	  Id.; see also, Bass v. Champion Int’l Corp., 787 S.W.2d 208, 212 (Tex.App. – Beaumont

1990, no writ).
50	  Appellant’s Brief, p. 24.



	                                                                                                                                                                                                                                 19	  
                                                      D. The lack of a supersedeas bond is not reversible error.

                                                      The county court’s failure to state an amount for a supersedeas bond in its

Judgment Order entered on August 7, 2014, does not constitute reversible error.

This Court made it explicitly clear in the Peck case that the failure of the trial court

to set a supersedeas bond amount does not deprive an eviction defendant of his

right to appeal, even when the defendant is no longer in possession of the subject

property.51 Even though the trial court in this case failed to set a supersedeas bond

amount and did not conduct a hearing on Appellants’ request for a bond amount,

Appellants have not been deprived of their opportunity to perfect and present this

appeal.

                                                      E. The Hon. Judge Eric M. Shepperd’s signing of the Judgment
                                                      Order does not constitute judicial error.

                                                      Appellant Bierwirth next contends that judicial error occurred because the

Judgment Order was not signed by the presiding trial judge, but rather by a

different judge. Though Appellant does not state it explicitly, it is implied from

Appellant’s brief that Appellant asserts that such an order, if accompanied by

judicial error or malfeasance, would be invalid.

                                                      Appellant offers no legal authority to support this contention. An issue on

appeal unsupported by proper argument or citation to correct legal authority

presents nothing for the court to review. An issue on appeal unsupported by proper
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
51	  Peck at 2.



	                                                                                                                                                                                                                                 20	  
argument or citation to correct legal authority presents nothing for the court to

review.52 The Rules of Appellate Procedure require Appellant’s brief to contain “a

clear and concise argument for the contentions made, with appropriate citations to

authorities and to the record.”53 It is the Appellant's burden to discuss the assertions

of error. An appellate court has no duty—or even right—to perform an

independent review of the record and applicable law to determine whether there

was error. Were it to do so, even on behalf of a pro se appellant, it would be

abandoning its role as neutral adjudicators and become an advocate for that party.54

                  The Hon. Joe Carroll presided over the trial on August 5, 2014.55 At that

time, Judge Carroll entered judgment in favor of Appellee.56 On August 7, 2014,

the Hon. Eric M. Shepperd signed the Judgment Order.57 There is no allegation,

and more importantly, no evidence that the Judgment Order signed by Judge

Shepperd granted any relief not already granted by Judge Carroll’s ruling at trial.58

It is not reversible error for one judge to preside over a hearing or trial and enter




	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
52	  Green v. Kaposta, 152 S.W.3d 839, 841 (Tex. App. —Dallas 2005, no pet.)
53
                 Tex.R.App. P. 38.1(i)
54
                 Flores v. United Freedom Associates, Inc., 314 S.W.3d 113, 115-16 (Tex. App.—El Paso
2010, no pet.)	  
55	  RR Vol. 2, p. 1.
56	  RR Vol. 2, pp. 58-9.
57	  CR pp. 124-25.
58	  Compare RR Vol. 2, pp. 58-9 and CR pp. 124-25.



	                                                                                                                                                                                                                                 21	  
judgment, and a different judge to sign the corresponding judgment.59 For this

reason, Appellant Bierwirth’s point of error should be overruled.

                 F. Appellant Bierwirth was not denied due process of law.

                 Bierwirth next characterizes the issuance of the Writ of Possession as

“premature” and argues that the timing of such issuance deprived Bierwirth of due

process of law. This point of error is without merit and should be overruled

accordingly.

                 First, the notion that the Writ of Possession was issued prematurely and not

in compliance with the applicable procedural requirements is disingenuous.

Pursuant to Tex. R. Civ. P. 510.8(d)(1), following judgment for an eviction

plaintiff, a writ of possession may not issue before the 6th day after the date a

judgment                           Here, the trial court’s judgment ordering issuance of the Writ of

Possession was signed on August 7, 2014. Accordingly, under Rule 510.8(d)(1),

the earliest date on which the Writ of Possession could issue is August 13, 2014—

the sixth day after the judgment order was signed. In fact, the Writ of Possession

was issued on August 13, 2014. Therefore, the writ was issued in a timely manner

and was not “premature.”

                 In addition, Bierwirth waived any objection to the contents of the Judgment

Order signed by the trial court. Bierwirth’s counsel, Stephen Casey, approved the
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
59	  Bello v. Tarrant County, 2010 Tex.App. LEXIS 9763, at 17 (Tex.App. – Fort Worth 2010, pet.

denied).

	                                                                                                                                                                                                                        22	  
form of Judgment Order.60 Moreover, neither Bierwirth, nor his counsel, raised

any objection regarding the court’s failure to set a bond amount during the August

5 trial.61 Bierwirth knowingly relinquished any right to claim that the trial court

erred by failing to set a supersedeas bond.

                                                     G. The trial court did not misapply the law at the hearing on
                                                     Appellant’s Emergency Petition for Writ of Reentry.

                                                     Bierwirth’s final issue on appeal contends that the trial court misapplied the

law at the hearing on his petition for a writ of reentry. Appellant’s argument in

support of this issue is grounded upon a misinterpretation of the applicable statute.

The relevant portion of Tex. Prop. Code § 24.007 states:

                                                                                                          (a) A judgment of a county court in an eviction suit may not
                                                                                                          under any circumstances be stayed pending appeal unless,
                                                                                                          within 10 days of the signing of the judgment, the appellant
                                                                                                          files a supersedeas bond in an amount set by the county court.62

Tex. R. Civ. P. 510.13 also addresses this issue, stating:

                                                                                                          The judgment of the county court may not be stayed unless
                                                                                                          within 10 days from the judgment the appellant files a
                                                                                                          supersedeas bond in an amount set by the county court pursuant
                                                                                                          to Section 24.007 of the Texas Property Code.63

Appellant argues that these provisions require a county court to wait 10 days

before issuing a writ of possession. However, such an interpretation is mistaken.


	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
60	  CR pp. 124-5.
61	  RR, Vol. 2, generally.
62	  Tex. Prop. Code § 24.007(a).
63	  Tex. R. Civ. P. 510.13.



	                                                                                                                                                                                                                                 23	  
These provisions relate only to whether a trial court’s judgment can be stayed, not

whether a writ of possession may issue. Under Tex. R. Civ. P. 510.13, following a

trial before the county court, “the writ of possession…will be issued by the clerk of

the county court according to the judgment rendered…as in other cases.”64

                                                      As previously explained in this brief, the timeframe for the issuance of a writ

of possession is addressed in Tex. R. Civ. P. 510.8(d)(1), which states that a writ of

possession may not issue before the 6th day after the date a judgment for possession

is signed.65 Also, as previously explained, the writ of possession in this case was

issued on the sixth day after the date the trial court signed the judgment order. The

lack of a supersedeas bond amount does not invalidate a writ of possession that

was issued and executed upon within the time limits set forth by Rule 510.

Accordingly, the county court did not misapply the law at the hearing on

Bierwirth’s request for a writ of reentry. This point of error should be overruled.


                                                      H. Appellant Dutschmann’s due process rights were not violated.

                                                      Appellant Dutschmann raises four issues on appeal. Appellee will address

the issues together, however, as the four stated issues can generally be summarized

with one question: Were Appellant Dutschmann’s due process rights violated

because the county court did not set a supersedeas bond amount? In short, this

question must be answered in the negative.
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
64	  Id.	  
65	  Tex. R. Civ. P. 510.8(d)(1).



	                                                                                                                                                                                                                                 24	  
                                                      Appellant Dutschmann makes separate arguments that she was denied equal

rights, not treated with equality, denied an open court, and denied due process.

Dutschmann’s issues all arise from procedural events that occurred after the trial

court’s entry of judgment in favor of FNMA. Dutschmann appeared through

counsel at trial of the action and was afforded the opportunity to present her case to

the trial court. Following the trial, Dutschmann perfected this appeal. The lack of

a supersedeas bond amount did not deprive Dutschmann of her ability to perfect

this appeal. It should be noted that even if a supersedeas bond amount had been set

by the trial court, it is unlikely that Dutschmann would have posted such a bond, as

both she and Bierwirth filed an Affidavit of Inability to Pay Costs on September 4,

2014.66

                                                      The only issue before the trial court was the right to actual possession of the

Property. The trial court found that Dutschmann was not entitled to such actual

possession. Now, on appeal, Dutschmann makes no argument and provides no

authority regarding any potential reason the trial court erred by granting judgment

and possession of the Property to FNMA.

                                                      A simple hypothetical makes it clear that Dutschmann’s appeal is without

merit. If the trial court had set a supersedeas bond amount and Dutschmann had

posted the bond before the execution of the writ of possession, the judgment

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
66	  CR pp. 138-41.



	                                                                                                                                                                                                                                 25	  
presumably would be stayed and Dutschmann would have retained possession of

the Property pending this appeal. But on appeal, Dutschmann would still be

required to provide a cogent argument in support of her retaining possession of the

Property. Yet, throughout her entire brief, Dutschmann provides no grounds for

why she is entitled to possession of the Property. All of Dutschmann’s appellate

issues relate to the events that occurred after the trial of the eviction action and the

court’s judgment. Because Dutschmann provides no argument regarding why she

is entitled to actual possession of the Property, Dutschmann’s points of error must

be overruled.

                                   VIII. PRAYER

           Appellee Federal National Mortgage Association respectfully prays that

this Court affirm the judgment of the trial court, or in the alternative, dismiss this

appeal as moot, and grant all other relief to which Appellee is entitled.


                                        Respectfully submitted,

                                        By: /s/ Douglas G. Dent
                                              Brian P. Casey
                                              State Bar No. 00793476
                                              Douglas G. Dent
                                              State Bar No. 24078062
                                              6836 Bee Caves, Bldg. 3, Suite 303
                                              Austin, Texas 78746
                                              Tel.: 512-617-6409
                                              Fax: 888-530-9616
                                              bcasey@caseylawtx.com
                                              ddent@caseylawtx.com

	                                                                                   26	  
                             Certificate of Service

      Pursuant to Tex. R. App. P. 9.5, I hereby certify that on May 7, 2015, I
served the foregoing document via regular mail on the following persons:

       Kevin Bierwirth
       13276 Research Blvd., #204
       Austin, Texas 78750

       Dana Dutschmann
       c/o 13276 Research Blvd., #204
       Austin, Texas 78750


                                        /s/ Douglas G. Dent
                                        Douglas G. Dent




                           Certificate of Compliance

      Pursuant to Tex. R. App. P. 9.4(i)(3), I certify that this document contains
5,041 words.

                                        /s/ Douglas G. Dent
                                        Douglas G. Dent




	                                                                             27	  
