                                                                                              ACCEPTED
                                                                                         03-14-00635-CV
                                                                                                 4484211
                                                                               THIRD COURT OF APPEALS
                                                                                          AUSTIN, TEXAS
                                                                                   3/12/2015 10:21:48 PM
                                                                                        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
                                                              3/12/2015 10:21:48 PM
                                                                  JEFFREY D. KYLE
                                                                       Clerk
Michael Leonard Goebel and all other occupants of 207 Cazador Drive
                            Appellant

                                            v.

                         Sharon Peters Real Estate, Inc.
                                  Appellees


      Appeal from the County Court at Law 2 Hays County, Texas
                      Trial Court No. 14-0385-C


            RESPONSE TO MOTION TO DISMISS AS MOOT
                     BRIEF OF APPELLANT


                                                 David Rogers
                                                 Texas Bar No. 24014089
                                                 Law Office of David Rogers
                                                 1201 Spyglass Suite 100
                                                 Austin, TX 78746
                                                 Matthew Wilson
                                                 Texas Bar No. 24079588
                                                 Telephone: (512) 923-1836
                                                 Fax: (512) 201-4082

                                                 ATTORNEYS FOR APPELLANT


                  ORAL ARGUMENT NOT REQUESTED




Goebel v. Sharon Peters Real Estate, Inc.                                 p.     i
                               No. 03-14-00635-CV


           IN THE THIRD COURT OF APPEALS OF TEXAS


Michael Leonard Goebel and all other occupants of 207 Cazador Drive
                            Appellant

                                            v.

                         Sharon Peters Real Estate, Inc.
                                  Appellees


      Appeal from the County Court at Law 2 Hays County, Texas
                      Trial Court No. 14-0385-C


            RESPONSE TO MOTION TO DISMISS AS MOOT
                     BRIEF OF APPELLANT


                                                 David Rogers
                                                 Texas Bar No. 24014089
                                                 Law Office of David Rogers
                                                 1201 Spyglass Suite 100
                                                 Austin, TX 78746
                                                 Matthew Wilson
                                                 Texas Bar No. 24079588
                                                 Telephone: (512) 923-1836
                                                 Fax: (512) 201-4082

                                                 ATTORNEYS FOR APPELLANT


                  ORAL ARGUMENT NOT REQUESTED




Goebel v. Sharon Peters Real Estate, Inc.                                p.   ii
                 IDENTITY OF PARTIES AND COUNSEL
APPELLANT:

Dr. Michael Goebel

COUNSEL:

David Rogers
SBN 24014089
Law Office of David Rogers
1201 Spyglass Suite 100
Austin, TX 78746
(512) 923-1836
(512) 201-4082 [Facsimile]
DARogers@aol.com

Matthew Wilson
SBN 24079588
1201 Spyglass Suite 100
Austin, TX 78746
(512) 923-1836
(512) 201-4082 [Facsimile]
MWilson@MatthewWilsonLaw.com

APPELLEES:

Sharon Peters Real Estate, Inc.

COUNSEL:

The J. Hyde Law Office, PLLC
Dr. J. Hyde
111 E. 17th Street #12015
Austin, Texas 78711
Phone: (512) 200-4080
Fax: (512) 582-8295
Attorney for the corporation, Sharon Peters Real Estate, Inc.




Goebel v. Sharon Peters Real Estate, Inc.                       p. iii
TABLE OF CONTENTS



Identity of Parties and Counsel……………………………………………..iii

Table of Contents…………………………………………………………...iv

Index of Authorities……………………………………………………........v

Statement of the Motion…………………………………………………….1

Statement on Oral Argument………………………………………………..2

Issues Presented……………………………………………………………..2

Solution………………………….…………………………………………..2

Facts………………………….……………………………………………...3

Argument & Authorities…..………………………………………………....7

Prayer…….…..……………………………………………….....................16

Certificate of Service…….…..…………………………………………….17

Certificate of Compliance…….…..………………………………………..18




Goebel v. Sharon Peters Real Estate, Inc.         p. iv
                          INDEX OF AUTHORITIES

U.S. SUPREME COURT
Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583, 143
L. Ed. 2d 760, 119 S. Ct. 1563 (1999)………………………………….….8

FEDERAL COURTS OF APPEAL
Exelon Wind 1, L.L.C. v. Nelson, 766 F.3d 380 (5th Cir. 2014)……………8
Gandy Nursery, Inc. v. U.S., 318 F.3d 631, 636 (5th Cir. 2003)………..….8
Hospitality House, Inc. v. Gilbert, 298 F.3d 424, 429 (5th Cir. 2002)……..8

TEXAS SUPREME COURT
Fin. Comm'n of Tex. v. Norwood, 418 S.W.3d 566 (Tex. 2013) …………14

TEXAS COURTS OF APPEAL
Adams v. Ross, 2013 Tex. App. LEXIS 2974, 6-7, 2013 WL 1183297
(Tex. App.--Houston [1st] Mar. 21, 2013)……………………….………...10
Dormady v. Dinero Land & Cattle Co., 61 S.W.3d 555, 557
(Tex. App.--San Antonio 2001, pet. dism'd)…………….……………....5, 11
Green Oaks, Ltd. v. Cannan, 749 S.W.2d 128, 130, 1987 Tex. App. LEXIS
9289, 5 (Tex. App.—San Antonio 1987)………......................................4, 13
Kennedy v. Andover Place Apartments, 203 S.W.3d 495 (Tex. App.--
Houston [14th Dist.] 2006, no pet.)………………………....………………7
Missouri City v. Senior, 583 S.W.2d 444 (Tex.App.–Houston [1st Dist]
1979) ………………………………………………..……………………..13
Mitchell v. Armstrong Capital Corp., 911 S.W.2d 169, 171
(Tex. App.—Houston[1st Dist.] 1995…………………………………...…12
Myrad Props. v. LaSalle Bank Nat'l Ass'n, 252 S.W.3d 605, 607,
(Tex. App.—Austin 2008)…………………………………………..………3
O'Brian v. First State Bank, 1996 Tex. App. LEXIS 4099
(Tex.App. – Austin 1996)………………………………………………….12
Parham Family L.P. v. Morgan, 434 S.W.3d 774, 791, 2014
Tex. App. LEXIS 5930, 42 (Tex. App. Houston 14th Dist. 2014)……...4, 13
Rice v Pinney, 51 S.W.3d 705 (Tex. App.--Dallas 2001)………………..….5
State v. Jones, 220 S.W.3d 604 (Tex. App.—Texarkana 2007, no pet.)…..10
Stegall v. Cameron, 601 S.W.2d 771, 773, 1980 Tex. App.
LEXIS 3536, 3-6 (Tex. Civ. App.--Dallas 1980)………………….……….10
Volume Millwork, Inc. v. W. Houston Airport Corp., 2006 Tex. App.
LEXIS 6907, 17 (Tex. App.--Houston [1st] Aug. 3, 2006……….………...10
Wetsel v. Ft. Worth Brake, Clutch & Equipment, Inc., 780 S.W.2d 952, 954

Goebel v. Sharon Peters Real Estate, Inc.                                    p.   v
(Tex. App.--Fort Worth 1989)…………………………………….………..10
Winrock Houston Assocs. Ltd. Partnership v. Bergstrom, 879 S.W.2d 144,
(Tex. App. Houston [14th] 1994)……………………………………..….....10
Wilson v. Petty, 2008 Tex. App. LEXIS 3561, 7-8, 2008 WL 2068063 (Tex.
App. Dallas May 16, 2008) …………………………..…………..…………7
Yarbrough v. Household Fin. Corp. III, 2015 Tex. App. LEXIS 212 (Tex.
App.—Houston [14th])……………………………………………….……13


CODES
TEX. PROP. CODE § 92.009……………………………………………..11

RULES
TEX. R. APP. P. 39.1………………………………………………………..2
TEX. R. CIV. P. 746…………………………………………………………5
TEX. R. APP. PROC 25.1(a)-(b)…………………………………………6, 9
Texas Rule of Civil Procedure 506.1(b)…………………………….............9
Texas Rule of Civil Procedure 510.9 (a)………………………………..9, 10
TEXAS R. CIV. PRO. 510.8(D)(3)…………………………………………11
TEXAS R. CIV. PRO. 510.9 (c) (5)…………………………………………...11




Goebel v. Sharon Peters Real Estate, Inc.                        p. vi
TO THE HONORABLE THIRD DISTRICT COURT OF APPEALS:

        Appellant, Dr. Michael Goebel, hereby pleads that the honorable

Court of Appeals deny Appellee’s motion to dismiss this appeal as moot,

proceed with briefs on the merits, and reverse the judgment of the Hays

County Court at Law #1 and remand for further proceedings, and in support

of this motion he shows the Court:

                             Statement of the Motion


1.01. Appellant, Dr. Michael Goebel (hereinafter “Goebel” or “Appellant”)

was evicted from his homestead at 207 Cazador Drive, San Marcos, Texas

by Appellee Sharon Peters Real Estate, Inc. (hereinafter “SPRE” or

“Appellee”). This appeal is of a Judgment entered August 11, 2014 by the

Hays County Court at Law Number 2, Honorable Linda A. Rodriguez

presiding, overturning the judgment of dismissal by Justice of Peace Court

Precinct 1, Place 2, Honorable Margie H. Hernandez presiding.1

1.02. Appellee suggests that “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.”



1
    Clerk’s Record (hereinafter “CR” at 7.)

Goebel v. Sharon Peters Real Estate, Inc.                                 p.    1
                     Statement Regarding Oral Argument


2.01. Appellant believes that this brief and record adequately present the

facts and legal arguments involved in this appeal and that oral argument

would not aid the decisional process significantly. See TEX. R. APP. P. 39.1.

Should the Court conclude that oral argument would be helpful, however,

Appellant stands ready and requests the opportunity to participate.

                                  Issues Presented

3.01. Is the appeal moot merely because Goebel is no longer in possession

of the Property?

3.02. Does Goebel potentially have meritorious right to current, actual

possession of the Property because the Hays County Court did not

jurisdiction over the cause when no appeal bond was timely filed with the

Hays County Justice of the Peace Court?

                                       Solution

3.03. The appeal is not moot merely because Goebel is no longer in

possession of the Property.

3.04. Goebel does potentially have meritorious right to current, actual

possession of the Property because the Hays County Court did not

jurisdiction over the cause when no appeal bond was timely filed with the

Hays County Justice of the Peace Court. Additionally, the underlying sale


Goebel v. Sharon Peters Real Estate, Inc.                                  p.   2
was void under the theory of nemo dat quod habet2 because the alleged title

of the transferor relied on a foreclosure which was void because it was

conducted in violation of a temporary restraining order of a District Court

with jurisdiction over the matter. As the County Court did not have the right

to dispossess Goebel, he is entitled to current, actual possession.

                                            Facts

4.01. Dr. Goebel purchased the property from the previous owner in

January of 2005, 3 with a loan from Lehman Bros. Bank, FSB.4

4.02. At no time was Aurora Loan Services, LLC (“Aurora”) or Nationstar

the owner of the Note, nor was Nationstar the “mortgage servicer”

authorized to foreclose on the property under Texas Property Code Chapter

51. This is important, because, as the Third Court of Appeals recently

stated,   “noncompliance         with       these   requirements   can   render    a

foreclosure sale void.” Myrad Props. v. LaSalle Bank Nat'l Ass'n, 252

2
  Literally, “no one gives what he does not have.” The nemo dat rule states
that the purchase of a possession from someone who has no ownership right
to it also denies the purchaser any ownership title. See Gordon v. West
Houston Trees, Ltd., 352 S.W.3d 32, 46 (Tex. App.—Houston [1st] 2011 (“[i]t
is well established under Texas law that a party cannot convey to another a
greater interest in a property than it possesses.”)
3
  See Deed, CR at 299-300.
4
  Lehman Bros. Bank, FSB was one of the first lenders to go under in the
Great Recession. Lehman Bros. Bank, FSB ceased business operations in
the fall of 2008, in the largest bankruptcy in American history. Its
constituent parts were acquired by a variety of entities in fall of 2009 as one
of the first dominoes in the great bank collapse of that year.

Goebel v. Sharon Peters Real Estate, Inc.                                     p.   3
S.W.3d 605, 607, (Tex. App.—Austin 2008).

4.03. Nationstar initiated foreclosure proceedings in 2013. The Foreclosure

sale occurred September 3, 2013, approximately two and a half hours after

the Honorable Judge Bill Henry had signed a temporary restraining order,5

and approximately two hours after Mr. Goebel paid the required bond to the

District Clerk.

4.04. Subsequent to the Nationstar foreclosure, Nationstar purportedly sold

the property, through the Auction.com website, to Sharon Peters Real Estate,

Inc., and on April 11, 2014, Sharon Peters Real Estate, Inc., filed suit

seeking possession of Goebel’s home.

5
  Though Sharon Peters Real Estate, Inc. complains bitterly about the
mistaken language in the TRO suggesting the TRO is valid for 60 days, in
violation of the statutory 14 day limit on a TRO, that defect does not vitiate
the TRO. “Judgments which are rendered without observance of statutory
requirements which are purely procedural are not void, however irregular or
erroneous they may be.” Ex parte Coffee, 328 S.W.2d 283, 291 (Tex. 1959).
(internal citations omitted.) Peters Real Estate may also complain of other
procedural defects, but “[w]hen a Texas court issues an order, the order must
be obeyed, even if it was issued in a flagrantly erroneous manner. The
violation of a restraining order will be excused only if the order was
‘absolutely void.’ An order is absolutely void if the court that issued it
lacked the jurisdiction needed to do so. This Court already decided that the
court that issued the TRO had jurisdiction. The order was not, therefore,
absolutely void and those persons bound by it had no choice but to obey.”
Green Oaks, Ltd. v. Cannan, 749 S.W.2d 128, 130, 1987 Tex. App. LEXIS
9289, 5 (Tex. App. San Antonio 1987) (internal citations omitted.) Any sale
in violation of a TRO is void. See Parham Family L.P. v. Morgan, 434
S.W.3d 774, 791, 2014 Tex. App. LEXIS 5930, 42 (Tex. App. Houston 14th
Dist. 2014) (“The trial court had already held the attempted correction deed
of September 22, 2011, void as a violation of the court's injunction.”)

Goebel v. Sharon Peters Real Estate, Inc.                                p.   4
4.05. On May 7, 2014, Dr. Goebel filed a suit contesting title, docketed in

the 274th District Court as 14-0878. That suit remains pending.

4.06. On May 8, 2014, the Honorable Judge Hernandez dismissed the

forcible detainer suit, finding that the title questions raised in the District

Court suit were so intertwined as to deprive the justice court of lack of

jurisdiction.6 Also on May 8, 2014, Sharon Peters Real Estate, Inc. filed a

notice of appeal, wherein it stated: “The Court set a bond amount of zero

dollars ($0). Accordingly, Plaintiff has not filed a bond or made a cash

deposit.” The Court in its May 8, 2014 order did not specifically set a bond

amount at zero. The Justice Court in its initial order did not set a bond

amount at all.7




6
  Dormady v. Dinero Land & Cattle Co., 61 S.W.3d 555, 557 (Tex. App.--
San Antonio 2001, pet. dism'd). (“If the question of title is so intertwined
with the issue of possession, then possession may not be adjudicated without
first determining title.”) See also Rice v Pinney, 51 S.W.3d 705, at 708-
709 (Tex. App.--Dallas 2001) (“Moreover, in an action for forcible detainer,
‘the merits of the title shall not be adjudicated.’ TEX. R. CIV. P. 746.
Accordingly, notwithstanding its grant of general jurisdiction, a statutory
county court has no jurisdiction to adjudicate title to real estate in a de novo
trial following an appeal of a forcible detainer suit from justice court.”)
7
  CR at 7. In the absence of a court order to the contrary, the standing rule
of civil procedure controls. TEX. R. CIV. PROC. 2 (“These rules shall govern
the procedure in the justice, county, and district courts of the State of Texas
in all actions of a civil nature, with such exceptions as may be hereinafter
stated.”)
On May 19, 2014, the justice court set the bond at $3,000.00.

Goebel v. Sharon Peters Real Estate, Inc.                                     p.   5
4.07. Sharon Peters Real Estate, Inc. appealed its loss in the case to the

County Court at Law. It did not file an appeal bond until May 19, 2014, 11

days after the order of possession had been signed.

4.08. On September 18, 2014, the Honorable County Court Judge signed an

order granting Sharon Peter’s Real Estate’s Traditional Motion for Summary

Judgment.

4.09. On September 29, 2014, Dr. Goebel filed notice of Appeal to this

Court with the County Court.

4.010. On October 6, 2014, the 3rd Court of Appeals sent notice to counsel

for both sides that the court had assigned a cause number for the appeal –

Court of Appeals Number: 03-14-00635-CV. On October 9, 2014, the

Defendant paid the filing fee to the 3rd Court of Appeals.

4.011. After Dr. Goebel’s appeal had been perfected by filing,8 Defendant

received a “Writ of Possession” on his door on October 20, 2014, setting the

date of execution for October 22, 2014.

4.012. On October 24, 2014, Dr. Goebel lost possession, following a

hearing at the County Court at Law #2 seeking to recall the writ.



8
 “[A]n appeal is perfected when a written notice is filed with the trial court
… [t]he filing of a notice of appeal invokes the appellate court’s jurisdiction
over all parties to the trial court’s judgment or order appealed from….” TEX.
R. APP. PROC 25.1(a)-(b).

Goebel v. Sharon Peters Real Estate, Inc.                                    p.   6
                       ARGUMENT & AUTHORITIES


Possession of the property does not effect mootness, and because Sharon

  Peters Real Estate, Inc., failed to timely file an appeal bond from the

Justice Court and failed to vest jurisdiction in the County Court at Law,

           Goebel has a meritorious claim to current possession.


5.01. The appeal is not moot merely because Goebel is no longer in

possession of the Property.

       In short, "[w]hen possession changes hands and there is no
       basis for a claim of right to possession, the issue of possession
       becomes moot." De La Garza, 2007 Tex. App. LEXIS 8799 at
       *2, 2007 WL 3270769, at *1. But if the evicted party has some
       potentially meritorious claim to current possession of the
       premises, his or her appeal does not become moot by reason of
       the eviction. See Kennedy[v. Andover Place Apartments, 203 S.W.3d
       495 (Tex. App.--Houston [14th Dist.] 2006, no pet.).], 203 S.W.3d at
       497.
Wilson v. Petty, 2008 Tex. App. LEXIS 3561, 7-8, 2008 WL 2068063 (Tex.
App. Dallas May 16, 2008)

5.02. Goebel does have a meritorious right to current, actual possession of

the Property because the Hays County Court did not have jurisdiction over

the cause when no appeal bond was timely filed with the Hays County

Justice of the Peace Court. Additionally, as the underlying sale was void for

violation of a valid court order, title was never transferred away from

Goebel, so Appellee never possessed right to possession.



Goebel v. Sharon Peters Real Estate, Inc.                                     p.   7
5.03. Courts review subject matter jurisdiction de novo as a question of law.

See Gandy Nursery, Inc. v. U.S., 318 F.3d 631, 636 (5th Cir. 2003) (citing In

re Canion, 196 F.3d 579, 584 (5th Cir.2002)). Examination of subject-

matter jurisdiction is each federal court’s first obligation. In Hospitality

House, Inc. v. Gilbert, 298 F.3d 424, 429 (5th Cir. 2002), the United States

Fifth Circuit Court held:

        . . . as the Supreme Court has stated: "On every writ of error or
       appeal, the first and fundamental question is that of jurisdiction,
       first, of this court, and then of the court from which the record
       comes. This question the court is bound to ask and answer for
       itself, even when not otherwise suggested." (Emphasis added)
5.04. Hospitality House cited Steel Co. v. Citizens for a Better Env't, 523

U.S. 83, 94, 140 L. Ed. 2d 210, 118 S. Ct. 1003 (1998) (internal quotations

and citation omitted) for the proposition, and Ruhrgas AG v. Marathon Oil

Co., 526 U.S. 574, 583, 143 L. Ed. 2d 760, 119 S. Ct. 1563 (1999)

("Subject-matter delineations must be policed by the courts on their own

initiative even at the highest level.").      Thus, "the Supreme Court has

repeatedly affirmed that federal courts have an independent obligation to

determine their own subject-matter jurisdiction." Exelon Wind 1, L.L.C. v.

Nelson, 766 F.3d 380 (5th Cir. 2014) (citing Henderson ex rel. Henderson v.

Shinseki, 131 S. Ct. 1197, 1202, 179 L. Ed. 2d 159 (2011); Arbaugh, id.;

Steel Co., id.



Goebel v. Sharon Peters Real Estate, Inc.                                      p.   8
5.05. “[A]n appeal is perfected when a written notice is filed with the trial

court … [t]he filing of a notice of appeal invokes the appellate court’s

jurisdiction over all parties to the trial court’s judgment or order appealed

from….” TEX. R. APP. PROC 25.1(a)-(b). The written notice of appeal was

filed with the trial court on September 29, 2014.9

5.06. The County Court at Law lacked jurisdiction because no bond was

timely paid from the justice court. Texas Rule of Civil Procedure 506.1(b)

requires a losing plaintiff post a $500 appeal bond.

       TRCP 506 Appeal
       506.1 Appeal. …
       (b) Amount of Bond; Sureties; Terms. A plaintiff must file a
       $500 bond. A defendant must pay a bond in an amount equal to
       twice the amount of the judgment. The bond must be supported
       by a surety or sureties approved by the judge. The bond must
       be payable to the appellee and must be conditioned on the
       appellant’s prosecution of its appeal to effect and payment of
       any judgment and all costs rendered against it on appeal.
5.07. No bond was posted by Sharon Peters Real Estate within the 5 day

period set for file an appeal bond in eviction cases by Texas Rule of Civil

Procedure 510.9 (a).10

5.08. TRCP 510. Eviction Cases

9
  CR at 412-415
10
  The order from the Justice Court was filed May 8, 2013, and the notice of
appeal was also filed on May 8, 2013. The Notice contained an admission
that no bond was paid with the filing of the notice. Bond in the amount of
$3,00 was paid on or about May 19, 2014.

Goebel v. Sharon Peters Real Estate, Inc.                                  p.   9
        510.9 Appeal.
        (a) How Taken; Time. 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.
5.09.    These facts are uncontested. As a result, the County Court lacked

jurisdiction to issue the order granting possession.       “Failure to file [an

eviction] appeal bond in a timely manner is jurisdictional; absent such a

timely filing, the county court is without jurisdiction to hear the case.” State

v. Jones, 220 S.W.3d 604, 607 (Tex. App.—Texarkana 2007, no pet.), citing

RCJ Liquidating Co. v. Village, Ltd., 670 S.W.2d 643, 644 (Tex. 1984).

Accord, Winrock Houston Assocs. Ltd. Partnership v. Bergstrom, 879

S.W.2d 144, 150, 1994 Tex. App. LEXIS 1034, 15 (Tex. App. Houston 14th

Dist. 1994), Volume Millwork, Inc. v. W. Houston Airport Corp., 2006 Tex.

App. LEXIS 6907, 17 (Tex. App.--Houston [1st] Aug. 3, 2006; Wetsel v. Ft.

Worth Brake, Clutch & Equipment, Inc., 780 S.W.2d 952, 954 (Tex. App.--

Fort Worth 1989); Adams v. Ross, 2013 Tex. App. LEXIS 2974, 6-7, 2013

WL 1183297 (Tex. App.--Houston [1st] Mar. 21, 2013), Stegall v. Cameron,

601 S.W.2d 771, 773, 1980 Tex. App. LEXIS 3536, 3-6 (Tex. Civ. App.--

Dallas 1980).




Goebel v. Sharon Peters Real Estate, Inc.                                    p. 10
5.010. Goebel perfected his appeal to this court on Monday, September 29,

2014, by filing Defendant’s Notice of Appeal.11

5.011. Thereafter, a writ of possession could not lawfully be issued. TEX.

R. CIV. PRO. 510.8(d)(3): “A writ of possession must not issue is an appeal is

perfected and, if applicable, rent is paid into the registry, as required by

these rules.” As there is no rental contract, there is no rent required by the

rules. Payment of rent is only required in non-payment of rent appeals.

TEX. R. CIV. PRO. 510.9 (c) (5).

5.012. A writ was nonetheless issued thereafter, and was executed on

October 24, 2014. SHARON PETERS REAL ESTATE, INC. took

possession of 207 CAZADOR DRIVE SAN MARCOS, TX 78666 at that

time.

5.013. As the writ issued in defiance of TEXAS R. CIV. PRO. 510.8(d)(3), the

writ was unlawfully issued, and Michael Goebel is therefore entitled to a

writ of re-entry under TEX. PROP. CODE § 92.009.

5.014. A forcible detainer is a procedure to determine the right to

immediate possession of real property. Dormady v. Dinero Land & Cattle

Co., 61 S.W.3d 555, 557 (Tex. App. –San Antonio 2001, pet. dism’d w.o.j.).

The justice courts and the county courts at law are deprived of jurisdiction to


11
     CR at 412-415.

Goebel v. Sharon Peters Real Estate, Inc.                                      p. 11
adjudicate a forcible detainer action if the question of title is so intertwined

with the issue of possession that possession may not be adjudicated without

first determining title. Mitchell v. Armstrong Capital Corp., 911 S.W.2d

169, 171 (Tex. App.—Houston[1st Dist.] 1995, writ denied).

5.015. Plaintiff’s contention that Sharon Peters owns the property is

factually and demonstrably incorrect. The District Court for Hays County

Texas, the Hon. Bill Henry presiding, issued an order enjoining the sale of

the disputed property nearly two hours prior to Nationstar purporting to

conduct the enjoined foreclosure.12 The sale was void ab initio.

5.016. “A foreclosure sale made in violation of an injunction is void and

transfers no title. The remedy for violation of an injunction preventing the

sale of land is to set aside the sale.” O'Brian v. First State Bank, 1996 Tex.

App. LEXIS 4099 (Tex.App. – Austin 1996) (citing Ford v. Emerich, 343

S.W.2d 527, 531 (Tex. Civ. App.--Houston 1961, writ ref'd n.r.e.) (where

trustee's deed is absolutely void, suit at law in trespass to try title may be

maintained to recover land without setting deed aside). Nationstar’s

foreclosure sale of Dr. Goebel’s homestead was made in violation of this

injunction. No title was transferred.

5.017. Plaintiff’s right to possession is tied to a dispute over the title to the


12
     CR at 311-313.

Goebel v. Sharon Peters Real Estate, Inc.                                    p. 12
property. From the moment Dr. Goebel’s Cash Bond was filed with the

Clerk, Nationstar’s foreclosure was void ab initio and any action dependent

thereon, e.g., Plaintiff’s forcible detainer action on the disputed property is

also void ab initio. See Green Oaks, Ltd. v. Cannan, 749 S.W.2d 128, 130

(Tex.App. – San Antonio 1987) “When a Texas court issues an order, the

order must be obeyed, even if it was issued in a flagrantly erroneous

manner.”; Missouri City v. Senior, 583 S.W.2d 444, 446 (Tex.App. –

Houston [1st Dist] 1979).

5.018. Further, since rightful title is a condition precedent, there is no

tenancy at sufferance. The tenancy at sufferance language is conditioned

upon a valid (not void) foreclosure, and is conditional language in the deed

of trust.13 The condition precedent must be proved and cannot be proved

except by trying title. A trustee’s sale in violation of an injunction is void,

as though it never happened.14 Sharon Peters Real Estate, Inc. ignores the

fact that the landlord-tenant relation is only created by a valid foreclosure.

13
   Yarbrough v. Household Fin. Corp. III, 2015 Tex. App. LEXIS 212 (Tex.
App.—Houston [14th]) (Allegation and evidence of void Deed of Trust with
language creating landlord-tenant relationship conditional on foreclosure
deprives justice court of jurisdiction over forcible detainer action for the
property described in the Deed of Trust.)
14
   Any sale in violation of a TRO is void. See Parham Family L.P. v.
Morgan, 434 S.W.3d 774, 791, 2014 Tex. App. LEXIS 5930, 42 (Tex. App.
Houston 14th Dist. 2014). See also Green Oaks, Ltd. v. Cannan, 749
S.W.2d 128, 130, 1987 Tex. App. LEXIS 9289, 5 (Tex. App. San Antonio
1987)

Goebel v. Sharon Peters Real Estate, Inc.                                    p. 13
5.019. The justice court in this case properly ordered dismissal for want of

jurisdiction in this forcible detainer action because title was intertwined with

the issue of possession.        Because subject-matter jurisdiction cannot be

waived by the parties, any judgment granting possession by the County

Court, without jurisdiction, would constitute an advisory opinion prohibited

under the Texas Constitution.15

5.020. The      County      Court     made   two   fundamental     jurisdictional

errors. Because the appeal bond was not paid timely, the County Court

lacked jurisdiction to make any ruling in the case other than to dismiss for

lack of jurisdiction. Because the facts show unequivocally that the District

Court granted the temporary restraining order prior to the purported transfer




15
   The Constitution does not afford courts jurisdiction to issue advisory
opinions; those are a function of the executive department. Tex. Const. art.
IV, §§ 1, 22 (specifying that the attorney general is part of the executive
department and empowering the attorney general to issue advisory opinions
to the governor and other officials); e.g., Valley Baptist Med. Ctr. v.
Gonzalez, 33 S.W.3d 821, 822 (Tex. 2000) (per curiam) ("Under article II,
section 1 of the Texas Constitution, courts have no jurisdiction to issue
advisory opinions."); see also Patterson, 971 S.W.2d at 442 ("The
constitutional roots of justiciability doctrines such as ripeness, as well as
standing . . . , lie in the prohibition on advisory opinions, which in turn stems
from the separation of powers doctrine.").
Fin. Comm'n of Tex. v. Norwood, 418 S.W.3d 566, 591, 2013 Tex. LEXIS
491, 67, 56 Tex. Sup. J. 696, 2013 WL 3119481 (Tex. 2013) (Johnson, J.,
dissenting.)

Goebel v. Sharon Peters Real Estate, Inc.                                  p. 14
of title, the title is void, and the County Court lacks jurisdiction.16

5.021. Additionally, because the undisputed evidence unequivocally shows

that the sale was void because for violation of an order of a court with

jurisdiction, Sharon Peters Real Estate could not establish under any

circumstances a condition precedent to filing suit: that demand for

possession was made by a person entitled to possession.17

5.022. The District Court’s temporary restraining order prohibiting

Nationstar Mortgage from selling the disputed property (and Defendant’s

bond) was issued a little less than two hours before the alleged sale Plaintiff

relies on to seek possession of the property before this Court.18

5.023. That TRO makes the Substitute Trustee's Deed a void document,

issued in violation of a lawful order by a Hays County District Court, and

issued by the Hays County District Clerk, pursuant to a cash bond paid by

Dr. Goebel.

16
   Yarbrough v. Household Fin. Corp. III, 2015 Tex. App. LEXIS 212 (Tex.
App.—Houston [14th]), delivered Jan. 15, 2015. (“Because the Yarbroughs
contend the deed of trust and resulting substitute trustee's deed are void due to
forgery, they have raised a genuine issue of title so intertwined with the issue of
possession as to preclude jurisdiction in the justice court. A prerequisite to
determining the immediate right to possession will be resolution of the
Yarbroughs' title dispute concerning forgery of the deed of trust. Accordingly,
the justice and county courts lacked jurisdiction.”)
17
   Tex. Prop. Code 24.002 (b) The demand for possession must be made in
writing by a person entitled to possession of the property and must comply
with the requirements for notice to vacate under Section 24.005.
18
   CR at 311-313.

Goebel v. Sharon Peters Real Estate, Inc.                                    p. 15
5.024. The basis for the forcible-detainer action is the alleged transfer of

title in violation of a valid court order. Therefore “neither the justice court,

nor the county court on appeal, has jurisdiction.” Since jurisdiction can be

raised at any time, and proof of the County Court’s lack of jurisdiction is in

the record, and the Court is constitutionally required to determine its

jurisdiction in order to prevent rendering a constitutionally prohibited

advisory opinion, Defendant respectfully requests this honorable Court order

the court below to dismiss for want of jurisdiction under de novo review.


                                      PRAYER

       Appellant Goebel respectfully requests that, as the County Court at
Law lacked jurisdiction, this Court reverse the judgment of the County Court
at Law in all things and remand for further action consistent with its opinion.



                                            RESPECTFULLY SUBMITTED,



                                            __/s/ David Rogers_____________
                                            DAVID ROGERS
                                            Law Office of David Rogers
                                            State Bar No. 24014089
                                            1201 Spyglass Drive, Suite 100
                                            Austin, TX 78746
                                            (512) 923-1836
                                            (512) 201-4082 (fax)
                                            Firm@DARogersLaw.com



Goebel v. Sharon Peters Real Estate, Inc.                                  p. 16
                         CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Appellant’s
Brief was served upon counsel of record for Appellees on this 12th day of
March via this Court’s online filing system.

The J. Hyde Law Office, PLLC
Dr. J. Hyde
111 E. 17th Street #12015
Austin, Texas 78711
Phone: (512) 200-4080
Fax: (512) 582-8295
Attorney for the corporation, Sharon Peters Real Estate, Inc.



                                            __/s/__David Rogers___________
                                            David Rogers
                                            SBN 24014089
                                            Law Office of David Rogers
                                            1201 Spyglass Suite 100
                                            Austin, TX 78746
                                            (512) 923-1836
                                            (512) 201-4082 [Facsimile]
                                            Firm@DARogersLaw.com




Goebel v. Sharon Peters Real Estate, Inc.                                p. 17
                     CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.4(i), I hereby certify that
this document contains 3,913 words.


                                            __/s/__David Rogers___________
                                            David Rogers
                                            SBN 24014089
                                            Law Office of David Rogers
                                            1201 Spyglass Suite 100
                                            Austin, TX 78746
                                            (512) 923-1836
                                            (512) 201-4082 [Facsimile]
                                            Firm@DARogersLaw.com




Goebel v. Sharon Peters Real Estate, Inc.                                p. 18
