                                                                                   ACCEPTED
                                                                              03-14-00635-CV
                                                                                      4323752
                                                                     THIRD COURT OF APPEALS
                                                                               AUSTIN, TEXAS
                                                                          3/2/2015 1:33:41 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
   __________________________________________________________________
                                                       3/2/2015 1:33:41 AM
                                                         JEFFREY D. KYLE
          MICHAEL LEONARD GOEBEL AND ALL OTHER OCCUPANTS OF    Clerk
               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 OPPOSED 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 OPPOSED MOTION TO DISMISS APPEAL AS MOOT
__________________________________________________________________

TO THE HONORABLE THIRD COURT OF APPEALS:

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

counsel, respectfully moves to dismiss this appeal as moot, and in support thereof states

as follows:

      1.       This case involves the appeal of a final judgment in a forcible detainer

action granting Peters immediate possession of the real property located at 207 Cazador

Drive, San Marcos, Texas 78666 (Property).           Appellant Michael Goebel failed to

supersede the judgment, and a writ of possession has been issued and executed. Because

Goebel is not currently in possession of the property and has no claim of right to current


                                            2
possession, no live controversy remains and Goebel’s appeal should be dismissed as

moot.

                                 FACTUAL BACKGROUND

        2.    Appellee Peters purchased the Property from Nationstar Mortgage, LLC

which in turn had purchased the Property at a foreclosure auction. (Clerk’s Record (CR)

219–21, 215–17; attached as Exhibits 1 and 2). Appellant Goebel owned the Property

prior to the foreclosure sale.

        3.     The Hays County Court at Law rendered a final judgment granting Peters

immediate possession of the Property on 18 September 2014. (CR 408, attached as

Exhibit 3).

        4.    Goebel timely filed a Notice of Appeal from that judgment, but failed to

supersede the judgment.

        5.    The county clerk issued a writ of possession in accordance with the

judgment, and the writ was executed on 24 October 2014. (CR 462, attached as Exhibit

4). Peters took possession of the Property on that date.

                                      ARGUMENT

        6.    The Court may dismiss an appeal for lack of jurisdiction. TEX. R. APP. P.

42.3. The Court lacks jurisdiction when no controversy exists between the parties, which

is the case when the issues on appeal are no longer live. Camarena v. Tex. Empl’t

Comm’n, 754 S.W.2d 149, 151 (Tex. 1988).




                                             3
       7.     A judgment of possession in a forcible detainer action resolves only who is

entitled to immediate possession of the subject property. Rice v. Pinney, 51 S.W.3d 705,

709 (Tex. App.—Dallas 2001, no pet.). It does not resolve issues of title. TEX. R. CIV. P.

510.3(e) (the “only issue” before the justice court in eviction cases is the “right to actual

possession and not title”). An appellant need not supersede the judgment to preserve his

right to appeal, but an eviction judgment that has not been superseded “may be enforced,

including issuance of a writ of possession evicting the tenant from the premises.”

Marshall v. Housing Auth. of City of San Antonio, 198 S.W.3d 782, 786 (Tex. 2006).

       8.     “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.” 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.) (quoting Marshall, 198 S.W.3d at 787).

Appellant Goebel is no longer in possession of the Property and holds no meritorious

claim to current, actual possession of the Property.

       9.     There is no lease between the parties. Goebel is the prior owner of the

Property and, under the deed of trust securing the purchase note, became a tenant at

sufferance upon the Property’s sale at foreclosure to Peters’ predecessor-in-interest. (CR

192; relevant portions of Deed of Trust attached as Exhibit 5).

       10.    Goebel’s only substantive argument in the county court was that the

foreclosure sale was invalid, depriving the justice and county courts of jurisdiction over



                                             4
the eviction. (CR 232–40). This is the same argument that this Court has rejected

multiple times in the past few years. See 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”); see also Killebrew v. BKE Investments,

Inc., No. 03-13-00149-CV, 2014 WL 3055984 (Tex. App.—Austin June 30, 2014, no

pet.); Jaimes v. Fed. Nat. Mortgage Ass’n, No. 03-13-00290-CV, 2013 WL 7809741

(Tex. App.—Austin Dec. 4, 2013, no pet.) (mem. op.) (same); Reardean v. Fed. Home

Loan Mortg. Corp., No. 03-12-00562-CV, 2013 WL 4487523 (Tex. App.—Austin Aug.

14, 2013, no pet.).

       11.     The proper avenue for Goebel to pursue his challenge to the foreclosure

sale is not this case, but a title suit in the district court. 1 See, e.g., Rodriguez v.

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

Jan. 6, 2011, no pet.) (mem. op.) (“[T]he trial court cannot determine in a forcible

detainer action whether the sale of property under a deed of trust is invalid; instead, the

displaced property occupant is entitled to bring a separate suit in district court to resolve



1
  To that end, Goebel also argued in the county court that he was entitled to conduct discovery
before the Court ruled on Peters’ motion for summary judgment. However, the discovery
requests proposed by Goebel were related entirely to the issues raised in the title suit and had no
bearing on the issue of immediate possession at the center of this forcible detainer action. (See
CR 322–43).

                                                5
any title issues.”). Indeed, Goebel has filed such a suit, which is currently pending in the

Hays County District Court. (CR 243).

          12.   However the title suit is eventually resolved, the issues Goebel raises in that

suit have no bearing on his entitlement to “current, actual possession of the Property.”

          13.   Goebel’s only other argument in this Court is that the county court lacked

jurisdiction over Peters’ appeal due to Peters’ alleged failure to file an appeal bond. That

contention is false,2 but more importantly, it does not affect the mootness of the appeal.

Whether the county court had jurisdiction over this action or not—and it most certainly

did—the fact remains that the writ of possession has been executed and Goebel no longer

has possession of the Property. Nor does the county court’s purported lack of jurisdiction

give Goebel any right to current possession.3

          14.   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.




2
  Peters addressed this argument in its response to Goebel’s “Motion for Emergency Stay of Writ,
or, in the Alternative, Writ of Re-entry.” If necessary, Peters will address the argument further in
its Brief on the Merits.
3
 To the extent Goebel asserts that he is entitled to a writ of reentry under Texas Property Code
section 92.0081, such an assertion is frivolous and was rejected by this Court when it denied
Goebel’s “Motion for Emergency Stay of Writ, or, in the Alternative, Writ of Re-entry.” Peters
explained why Goebel’s request lacked merit in its response to that motion.

                                                 6
      15.    To the extent Goebel contends that the county court’s award of costs to

Peters prevents mootness on appeal, Peters has no intention of attempting to collect such

costs and hereby waives, surrenders, and abandons any right it has to such costs.



      WHEREFORE, Peters respectfully requests that the Court GRANT this motion

and dismiss this appeal as moot.


                                                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 CONFERENCE

      I hereby certify that I have conferred with opposing counsel David Rogers
regarding this motion and that Mr. Rogers stated he is OPPOSED to the relief
requested herein.

                                                /s/ J. Hyde
                                                ______________________________
                                                Dr. J. Hyde




                                            7
                           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 Motion to Dismiss Appeal as Moot was served on this
2nd 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




                                           8
  EXHIBIT 1
Special Warranty Deed
219
220
221
    EXHIBIT 2
Substitute Trustee’s Deed
215
216
217
     EXHIBIT 3
Final Judgment of Possession
408
     EXHIBIT 4
Executed Writ of Possession
462
       EXHIBIT 5
Deed of Trust–Relevant Excerpts
180
181
182
192
194
195
