Michael Leonard Goebel & All Other Occupants of 207 Cazador Drive v. Sharon Peters Real Est., Inc., No. 03-14-00635-CV (Tex. App.—Austin Feb. 23, 2015). · Go Syfert
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Michael Leonard Goebel & All Other Occupants of 207 Cazador Drive v. Sharon Peters Real Est., Inc., No. 03-14-00635-CV (Tex. App.—Austin Feb. 23, 2015). Book View Copy Cite
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Michael Leonard Goebel and All Other Occupants of 207 Cazador Drive
v.
Sharon Peters Real Estate, Inc.
03-14-00635-CV.
Court of Appeals of Texas.
Feb 23, 2015.
A filing, not an opinionThis record is a party filing (petition, motion, brief, letter or docket sheet), not a court opinion; CourtListener's copy is the same document, so the court's own opinion is not in this record. It is left out of search and the AI tools; the page stays here so links keep working.
Docket 03-14-00635-CV · Court of Appeals of Texas
Published
Pinpoint authority: bottom 36%

ACCEPTED 03-14-00635-CV

4254313 THIRD COURT OF APPEALS

AUSTIN, TEXAS 2/23/2015 9:08:18 PM

JEFFREY D. KYLE

CLERK No. 03-14-00635-CV

FILED IN 3rd COURT OF APPEALS IN THE THIRD COURT OF APPEALS OF TEXASAUSTIN, TEXAS

2/23/2015 9:08:18 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

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

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] [email protected]

Matthew Wilson SBN 24079588 1201 Spyglass Suite 100 Austin, TX 78746 (512) 923-1836 (512) 201-4082 [Facsimile] [email protected]

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 Case……………………………………………………….1 Statement on Oral Argument………………………………………………..1 Issues Presented……………………………………………………………..2

Argument & Authorities…..………………………………………………....2

Prayer…….…..……………………………………………….......................6

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

INDEX OF AUTHORITIES FEDERAL CASES See Gandy Nursery, Inc. v. U.S., 318 F.3d 631, 636 (5th Cir. 2003)………6 Hospitality House, Inc. v. Gilbert, 298 F.3d 424, 429 (5th Cir. 2002)…….6 Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583, 143 L. Ed. 2d 760, 119 S. Ct. 1563 (1999)………………………………….….6 Exelon Wind 1, L.L.C. v. Nelson, 766 F.3d 380 (5th Cir. 2014)……………7

TEXAS COURTS OF APPEAL Myrad Props. v. LaSalle Bank Nat'l Ass'n, 252 S.W.3d 605, 607, (Tex. App.—Austin 2008)…………………………………………………3 Green Oaks, Ltd. v. Cannan, 749 S.W.2d 128, 130, 1987 Tex. App. LEXIS 9289, 5 (Tex. App. San Antonio 1987)………...3, 11, 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)…….3, 12 Dormady v. Dinero Land & Cattle Co., 61 S.W.3d 555, 557 (Tex. App.--San Antonio 2001, pet. dism'd)…………………………....4, 9 Rice v Pinney, 51 S.W.3d 705, at 708-709 (Tex. App.--Dallas 2001)…….4 State v. Jones, 220 S.W.3d 604, 607 (Tex. App.—Texarkana 2007, no pet.)……………………………………………………………………..8, 15 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)…………………………………..8, 15 Volume Millwork, Inc. v. W. Houston Airport Corp., 2006 Tex. App. LEXIS 6907, 17 (Tex. App.--Houston [1st] Aug. [3], 2006……………...8, 16 Wetsel v. Ft. Worth Brake, Clutch & Equipment, Inc., 780 S.W.2d 952, 954 (Tex. App.--Fort Worth 1989)…………………..9, 16 Adams v. Ross, 2013 Tex. App. LEXIS 2974, 6-7, 2013 WL 1183297 (Tex. App.--Houston [1st] Mar. 21, 2013)……………………………....9, 16 Stegall v. Cameron, 601 S.W.2d 771, 773, 1980 Tex. App. LEXIS 3536, 3-6 (Tex. Civ. App.--Dallas 1980)……………………….9, 16 Scott v. Hewitt, 127 Tex. 31, 90 S.W.2d 816, 818-819 (1936)……………10 Mitchell v. Armstrong Capital Corp., 911 S.W.2d 169, 171 (Tex. App.—Houston[1st Dist.] 1995……………………………………..10 Rice v. Pinney, 51 S.W.3d 705, 709 (Tex. App.—Dallas 2001, no pet.)…10 O'Brian v. First State Bank, 1996 Tex. App. LEXIS 4099 (Tex.App. – Austin 1996)…………………………………………………11 Missouri City v. Senior, 583 S.W.2d 444, 446 (Tex.App. – Houston [1st Dist] 1979)……………………………………..11

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

Yarbrough v. Household Fin. Corp. III, 2015 Tex. App. LEXIS 212 (Tex. App.—Houston [14th])………………………………….13 Chinyere v. Wells Fargo Bank, N.A., 2012 Tex. App. LEXIS 5678, (Tex.App. Houston [1st Dist.]………………………………………...14, 16 Yarto & DTRJ Invs., L.P. v. Gilliland, 287 S.W.3d 83, 89 (Tex. App.-Corpus Christi 2009, no pet.)…………………………….….16

CODES TEX. PROP. CODE § 92.009……………………………………………..…9

RULES TEX. R. APP. P. 39.1……………………………………………………….1

TEX. R. CIV. P. 746…………………………………………………..4, 10

TEX. R. APP. PROC 25.1(a)-(b)…………………………………………….5

Texas Rule of Civil Procedure 506.1(b)……………………………....7, 15

Texas Rule of Civil Procedure 510.9 (a)………………………………….8

TEXAS R. CIV. PRO. 510.8(d)(3)…………………………………………...9

Texas R. Civ. Pro. 510.9 (c) (5)………………………………………..9, 15

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 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 Case

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

1.02. Appellee is Sharon Peters Real Estate, Inc. (hereinafter “SPRE” or “Appellee”).

1.03. This is an appeal of a Judgment entered August 11, 2014 by the Hays

County Court at Law Number 2.

1.04. The case was resolved at trial before the County Court at Law, Honorable Linda A. Rodriguez presiding.

1.05. Appellees filed suit against Appellant seeking possession of the home at 207 Cazador Drive, San Marcos, Texas.

Statement Regarding Oral Argument

2.01. Appellant believes that this brief and record adequately presents 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.

Goebel v. Sharon Peters Real Estate, Inc. 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. Did the Hays County Court have jurisdiction over the cause when no appeal bond was timely filed with the Hays County Justice of the Peace

Court?

Facts

4.01. Dr. Goebel purchased the property from the previous owner in January of 2005, 1 with a loan from Lehman Bros. Bank, FSB.2

4.02. The actual owner of the Note at all relevant times was either Lehman

Bros. Bank, FSB or Structured Adjustable Rate Mortgage Loan Trust

Mortgage Pass-Through Certificates, Series 2005-6XS, whose trustee was variously LaSalle National Bank, Bank of America, or U.S. Bank. At no time was Aurora Loan Services, LLC (“Aurora”) or Nationstar the owner of the Note, nor was Nationstar the “mortgage servicer” authorized the foreclose on the property under Texas Property Code Chapter 51. This is 10. No supersedeas bond was requested by the plaintiff or ordered by the court.

RESPECTFULLY SUBMITTED

LAW OFFICE OF DAVID ROGERS

WILSON LAW OFFICE, PLLC

__/s/ David Rogers_________ David Rogers Texas Bar No. 24014089 1201 Spyglass Drive, Suite 100 Austin, TX 78746 [email protected]

__/s/ Matthew Wilson_________ Matthew L. Wilson Texas Bar No. 24079588 1201 Spyglass Drive, Suite 100 Austin, TX 78746 [email protected] (512) 923-1836 [Phone] (512) 201-4082 [Fax]

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing document has been served upon all counsel of record in accordance with the Texas Rules of Civil Procedure on September 29, 2014:

Dr. J. Hyde THE J. HYDE LAW OFFICE, PLLC 111 E. 17th Street #12015 Austin. Texas 78711 Phone: (512) 200-4080 Fax: (512) 582-8295 E-mail: [email protected]

__/s/ David Rogers_________ David Rogers Attachment 1

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

APPENDIX ITEM 3

Item 3 General Warranty Deed CR at 299 to 300

~%5R Bk Vol

05000660 OPR 2611 GENERAL WARRANTY DEED WITH VENDOR'S LIEN

(WITH SUBORDINATE VENDOR'S LIEN)

NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OF THE FOLLOWING INFORMATION FROM THIS INSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS· YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER THESTATEOFTEXAS KNOW ALLMENBYTHESEPRESENTS· COUNTYOFHAYS

1HAT KB HOME LONE STAR LP hereinafter called "GRANTOR" (whether one or more}, for and m constderatlon of the sum of TEN AND N0/100 DOLLARS ($10 00) cash and other good and valuable consulem!lon to GRANTOR m hand patd by, MICHAEL L GOEBEL, A SINGLE PERSON whose matlmg address IS , SAN MARCOS, TX 786G6 heremafter ca11ed "GRANI'EE" (whether one or more), the receipt and suffictency of whtch are hereby aclmowledged, and for the further constderatlon of the sum patd to GRANTOR by LEHMAN BROTHERS BANK. FSB, A FEDERAL SAVINGS BANK , heremafter called FIRST·LIEN BENEFICIARY, at the speCial mstance and request of GRANTEE, the recetpt and suffictency of wluch sum, bemg m the amount of $127,696 00 , IS hereby acknowledged and confessed, and as eVIdence of such advancement, GRANTEE has executed GRANTEE'S note of even date hereWith for such amount payable to the order of FIRST-LIEN BENEFICIARY, sa1d note payable as proVIded therem; and the payment ofsa1d note 1s secured by a vendor's hen reserved herem and ts addtbonally secured by a deed of trust of even date With sa1d note, executed by GRANTEE to Thomas E Black, Jr , TRUSTEE, reference to whtch deed of trust IS hereby made for all purposes, and m constderatton of the payment by FIRST-LIEN BENEFICIARY of the sum specified m satd deed of trust, GRANTOR hereby transfers, sets over, assigns, and conveys unto FIRST-LIEN BENEFICIARY and tts asstgns a vendor' s hen and supenor title retamed and reserved herem agamst the property and prem1ses conveyed herem m the same manner and to the same extent as tf satd note had been executed m GRANTOR'S favor and asstgned by GRANTOR to FIRST-LIEN BENEFICIARY wtthout recourse, and GRANTOR has GRANTED, SOLD, and CONVEYED, and by these presents does GRANT, SELL, and CONVEY unto said GRANTEE, the fullowtng descnbed property, to-wtt LOT 4, BLOCK F, EL CAMINO REAL PHASE 1, SECTION ONE, AN SUBDIVISION IN HAYS URN TO COUNTY, TEXAS, ACCORDING TO THE MAP OR PLAT THEREOF RECORDED IN VOLUME 10, PAGBMO TilLE COMPAN) 371, OF THE PLAT RECORDS OF HAYS COUNTY, TEXAS • >NEBRIDGE PLAZA II llO NORTH MO PAC EXPI<h>SWAY 11TE 125 \ISTIN. TEXAS 787S9-~ •·w Ja 39!205 ~:as~- ~ _ TO HAVE AND TO HOLD the above-descnbed premtses, together wtth, all and smgular, the nghts and appurtenances thereunto tn anywtse belongmg unto S81d GRANTEE and GRANTEE'S hetrs and assigns forever GRANTOR does hereby btnd GRANTOR and GRANTOR'S hellS, executors, and admtrusttators to warrant and forever defend, all and smgular, the said premises unto the satd GRANTEE and GRAN1EE'S heirs and ass1gns agamst every person whomsoever ]awfully claimmg or to claun the same or any part thereof.

Taxes of every natw"e for the current year have been prorated and are assumed by GRANTEE This conveyance ts made subject to, all and smgular, the restncbons, mmera1 reservabons, royalbes, easements, and covenants, tf any, apphcable to and enforceable agamst the above-descnbed property as reflected by the records of the County Clerk of the aforesaid County.

GRANTOR and GRANTEE also aclmowledge the retenbon of a second, subordmate and separate vendor's hen, and GRANTOR hereby transfers the same to LERMAN BROTHERS BANK, FSB. A FEDERAL SAVINGS BANK hereafter called "SECOND-LIEN BENEFICIARY", whtch hen secW"es GRANTEE'S certam other note of even date to SECOND-LIEN BENEFICIARY m the amount of 531,914.00 , betng futher co1181derat10n pa1d to GRANTOR, as more parttcularly descnbed m deed of trust of even date herewith to THOMAS E. BLACK, JR. , TRUSTEE But tt IS expressly agreed and sbpulated that the vendor's hen and supenor title are retamed m favor of the FIRST-LIEN BENEFICIARY and SECOND- LIEN BENEFICIARY, respectively, agamst the above descnbed property, premises and unprovements, unb] each of the above respective notes 1s fully patd accordmg to tts tenns, when thts deed shall become absolute

When thts deed ts executed by more than one person, or when the GRANfOR or GRANfEE IS more than one person, the mstrument shall read as though pertment verbs and pronouns were changed to correspond, and when executed by or to a corporation, the words "hetrs, executors, and admtmsttators" or "hetrS and ass1gns 11 shall be construed to mean "successors and ass1gns" age o DATED tlus 4th day of January, 2005 Bk Vol Ps o;ooo66o DPR 2611 57; KB HOME LONE STAR LP

TilE STATE OF TEXAS (Acknowledgment) COUNTYOF 'U,

TilE STATE OF TEXAS (Acknowledgment) COUNTY OF Tius mstrument was acknowledged before me on the _____ day of _ _ _ _ _ _ _ _ _ _ _ _ _ __ by

My commtsston exptres Nolary Pubhc, State of Pnnted Name:

TilE STATE OF TEXAS (Acknowledgment) COUNTY OF Thts mstnnnent was acknowledged before me on the _____ day of__________ _ _ _ __ by

My commtssmn exptres Notary Pubhc, State of PnntedName

THESTATEOFTEXAS ) (Acknowledgment) COUNTY OF )

Tlus mstrument was acknowledged before me on the _ _ _ _ day of _ _ _ _ _ _ _ _ _ _ _ _ _ __ by

My conumssmn exprres Notary Pubhc, State of PnntedName

TilE STATE OF TEXAS (Corporate/Entity Acknowledgment) COUNTY OF Tlus mstrument was acknowledged before me on the _ _ _ _ day of _ _ _ _ _ _ _ _ _ _ _ _ _ __ by of •------------~onbchalfofSllld _ _ _ _ _ _ _ _ _ _ _ _ _ __

Ftled for Record tn= Hculs Count!l On: Jan 10r200; a.t 12:02f"

S e.. My commtsston exptres lfft'!b~thte of 05000660

• ' 16.00 iMnlli!r - 116412

Lee Carl1sler County Clerk AFTER RECORDING RETIJRN TO: HaYs Countv MICHAEL L GOEBEL 207 CAZADOR DRIVE SAN MARCOS, TX 78666

Re. 207 CAZADOR DRIVE, SAN MARCOS, TX 78666 age o 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

APPENDIX ITEM 4

Item 4 Temporary Restraining Order CR at 344 to 348

SENDER: Michael Leonard Goebel

Drive San Marcos, TX 78666-6864

RECIPIENT: McCarthy, Holthus, and Ackermann, LLP In care of Melissa McKinney

Date: 9/5/2013

FAX contains 3 pages following:

1) Recorded, signed TRO 2) Recorded Affidavit 3) Recorded Cash Bond 4) Certificate of Service (of posting these in the mail on Tuesday afternoon)

Please direct any questions regarding this FAX by means of telephone: 210-834-0918 Sincerely, Michael Leonard Goebel 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

APPENDIX ITEM 5

Item 5 Justice Court Judgment CR at 7 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

APPENDIX ITEM 6

Item 6 Justice Court Notice of Appeal CR at 8 to 9

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

APPENDIX ITEM 7

Item 7 Justice Court’s Notice of Bond Set CR at 10 to 12

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

APPENDIX ITEM 8

Item 8 Writ of Possession CR at 462

1 See General Warranty Deed, CR at 299 to 300. 2 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. 2 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 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,3 and approximately two hours after Mr. Goebel paid the required bond to the District Clerk.
3 CR at 344 to 348 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. 3 4.04. Subsequent to the Nationstar foreclosure, Nationstar purportedly sold the property, through the Auction.com website, to Sharon Peters Real Estate, Inc. 4.05. On April 11, 2014, Sharon Peters Real Estate, Inc., filed suit seeking possession of Goebel’s home on Cazador Dr. in San Marcos. 4.06. On May 7, 2014, Dr. Goebel filed a suit contesting title, docketed in the 274th District Court as 14-0878. 4.07. 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.4 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
4 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, "’he 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.”) Goebel v. Sharon Peters Real Estate, Inc. 4 amount at zero. The Justice Court in its initial order did not set a bond amount at all.5 4.08. Sharon Peters Real Estate, Inc. appealed its loss in the case to the County Court at Law. It did not file a bond until May 19, 2014, 11 days after the order of possession had been signed. 4.09. On September 18, 2014, the Honorable County Court Judge signed an order granting Sharon Peter’s Real Estate’s Traditional Motion for Summary Judgment. 4.010. On September 29, 2014, Dr. Goebel filed notice of Appeal with the County Court. 4.011. 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. 4.012. After Dr. Goebel’s appeal had been perfected by filing,6 Defendant received a “Writ of Possession” on his door on October 20, 2014, setting the date of execution for October 22, 20147.
5 On May 19, 2014, the justice court set the bond at $3,000.00. CR at 7 to 12 6 “[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 Goebel v. Sharon Peters Real Estate, Inc. 5 4.013. On October 24, 2014, Dr. Goebel lost possession, following a hearing at the County Court at Law #2 seeking to recall the writ. 4.014. ARGUMENT & AUTHORITIES Sharon Peters Real Estate, Inc., failed to timely file an appeal bond from the Justice Court, and having failed to perfect its appeal, failed to vest jurisdiction in the County Court at Law. 5.01. 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) 5.02. 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 over all parties to the trial court’s judgment or order appealed from….” TEX. R. APP. PROC 25.1(a)-(b). 7 CR at 462 Goebel v. Sharon Peters Real Estate, Inc. 6 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. 5.03. “[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. See Attached Exhibit D, Notice of Appeal. 5.04. 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 Goebel v. Sharon Peters Real Estate, Inc. 7 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. 5.05. 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).8 5.06. TRCP 510. Eviction Cases 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. 5.07. These facts are uncontested. As a result, the County Court lacked jurisdiction to issue the attached 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
8 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 $3,000 was paid on or about May 19, 2014. CR at 7 to 12 Goebel v. Sharon Peters Real Estate, Inc. 8 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). 5.08. Thereafter, a writ of possession could not lawfully be issued. TEXAS 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. Texas R. Civ. Pro. 510.9 (c) (5). 5.09. 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. 5.010. 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. 5.011. A forcible detainer is a procedure to determine the right to immediate possession of real property. Dormady v. Dinero Land & Cattle Co., 61 Goebel v. Sharon Peters Real Estate, Inc. 9 S.W.3d 555, 557 (Tex. App. –San Antonio 2001, pet. dism’d w.o.j.). The forcible detainer cause of action was created to provide a speedy, simply, and inexpensive means to obtain possession without the necessity of a more expensive suit on the title. Scott v. Hewitt, 127 Tex. 31, 90 S.W.2d 816, 818- 819 (1936). The only issue in a forcible detainer action is which party has the right to immediate possession of the property; the merits of the title shall not be adjudicated See Tex. R. Civ. P. 746; Mitchell v. Armstrong Capital Corp., 911 S.W.2d 169, 171 (Tex. App.—Houston[1st Dist.] 1995, writ denied). To prevail in such an action, a plaintiff is not required to prove title, but is only required to show sufficient evidence of ownership to demonstrate a superior right to immediate possession. Rice v. Pinney, 51 S.W.3d 705, 709 (Tex. App.—Dallas 2001, no pet.). The justice courts and the county courts at law are only deprived of jurisdiction to 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, 911 S.W.2d at 171. 5.012. 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 issued an order enjoining the sale of the disputed property nearly two hours prior to Nationstar purporting to conduct the enjoined Goebel v. Sharon Peters Real Estate, Inc. 10 foreclosure. The sale was void ab initio. 5.013. Judge Henry’s temporary restraining order was attached as Exhibit B9 to Defendant’s Response to Plaintiff’s Motion for Summary Judgment. “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 and was therefore void. No title was transferred. 5.014. Plaintiff’s right to possession is tied to a dispute over the title to the property. From the moment the Defendant’s Cash Bond was filed, Nationstar’s foreclosure was void ab initio and any action subsequent thereto, i.e., 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
9 CR at 261 to 263 Goebel v. Sharon Peters Real Estate, Inc. 11 manner.”; Missouri City v. Senior, 583 S.W.2d 444, 446 (Tex.App. – Houston [1st Dist] 1979). 5.015. 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. 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.10 Sharon Peters Real Estate, Inc. ignores the fact that the landlord-tenant relation is only created by a valid foreclosure. 5.016. The Houston Court of Appeals, in Chinyere v. Wells Fargo Bank, N.A., discusses this issue at length, stating: Whether an existing title dispute in another court deprives the justice and county courts of jurisdiction to adjudicate possession in forcible-detainer actions generally turns on whether there is a basis--independent of the claimed right to title--for the plaintiff's claim of superior possession rights in the property. *** Courts have consistently followed or distinguished Mitchell on the same basis. Yarto, 287 S.W.3d at 89-90
10 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. 12 (concluding justice court lacked subject-matter jurisdiction in forcible-detainer action because determining who had a superior right of possession required immediate resolution of title dispute) and Hopes v. Buckeye Ret. Co., LLC, No. 13-07- 00058-CV, 2009 Tex. App. LEXIS 2244, 2009 WL 866794, at *5 (Tex. App.--Corpus Christi, Apr. 2, 2009, no pet.) ("Without a landlord-tenant relationship or other basis independent of the Community Improvements contract, the justice court could not determine the issue of immediate possession without determining ownership of the property.") "We have examined both the Deed of Trust and the Substitute Trustee's [*13] Deed in the underlying dispute and neither one contains language creating a landlord-tenant relationship. Moreover, Wells Fargo has not argued that there is any basis for its claimed possession rights other than the title rights it gained through the disputed foreclosure. Thus, in this case--unlike the Morris, Bruce, Elwell, Rice and Dormady cases cited above--there is no independent basis aside from Wells Fargo's claim that it has superior title rights. Rather, like in Mitchell, Yarto, and Hopes, Wells Fargo's claim to possession in the underlying proceedings rests solely on its claim to title. Accordingly, the lower courts "had no subject matter jurisdiction over the case." Mitchell, 911 S.W.2d at 171. We sustain appellant's first issue. 5.017. As in Chinyere, the justice court in this case properly ordered dismissal for want of jurisdiction in this forcible detainer action because title was inexorably intertwined with the issue of possession. Because subject- matter jurisdiction cannot be waived by the parties, any judgment on possession by this Court, without jurisdiction, would constitute an advisory opinion which is prohibited under the Texas Constitution. 5.018. The County Court made a fundamental jurisdictional error. Because the allegation is that the purported transfer of title is void, title is at issue in Goebel v. Sharon Peters Real Estate, Inc. 13 this case, and the County Court lacks jurisdiction.11 In responding to Plaintiff’s motion for summary judgment, Defendant included proof of the basis of the title dispute: the District Court’s temporary restraining order prohibiting Nationstar Mortgage from selling the disputed property (and Defendant’s bond) issued a little less than two hours before the alleged sale Plaintiff relies on to seek possession of the property before this Court. 5.019. That TRO makes it abundantly clear that the Substitute Trustee's Deed is 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. [A] question of title may be so intertwined with the issue of possession so as to preclude adjudication of the right to possession without first determining title. In such cases, neither the justice court nor the county court on appeal, has jurisdiction. ... Whether an existing title dispute in another court deprives the justice and county courts of jurisdiction to adjudicate possession in forcible-detainer actions generally turns on
11 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.”) Goebel v. Sharon Peters Real Estate, Inc. 14 whether there is a basis--independent of the claimed right to title--for the plaintiff's claim of superior possession rights in the property. Chinyere v. Wells Fargo Bank, N.A., 2012 Tex. App. LEXIS 5678, (Tex.App. Houston [1st Dist.] July 12, 2012). 5.020. The basis for the forcible-detainer action is the alleged transfer of title. 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 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 to reverse the ruling of the county court. 5.021. The County Court at Law lacks 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. 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). These facts are uncontested. As a result, the County Court lacked jurisdiction to issue the attached 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 Goebel v. Sharon Peters Real Estate, Inc. 15 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). 5.022. “In most situations, the parties in a forcible detainer suit are in a landlord-tenant relationship.” Yarto & DTRJ Invs., L.P. v. Gilliland, 287 S.W.3d 83, 89 (Tex. App.-Corpus Christi 2009, no pet.). When that landlord-tenant relationship is lacking, and no evidence is presented of such a relationship, the case should be dismissed. See Chinyere v. Wells Fargo Bank, N.A., No. 10-11-00304-CV, 2012 Tex. App. LEXIS 5678, at *12-13 (Tex. App.-Houston[1st Dist.] 2012, no pet.) (affirming dismissal on appeal when examination of the substitute trustee’s deed, post-foreclosure, and the deed of trust did not evidence a landlord-tenant relationship). Here, no evidence has been presented of such a relationship. Goebel v. Sharon Peters Real Estate, Inc. 16 PRAYER Appellant Goebel respectfully request 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) [email protected] 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 23rd day of February 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___________ Goebel v. Sharon Peters Real Estate, Inc. 17 David Rogers SBN 24014089 Law Office of David Rogers 1201 Spyglass Suite 100 Austin, TX 78746 (512) 923-1836 (512) 201-4082 [Facsimile] Goebel v. Sharon Peters Real Estate, Inc. 18 CERTIFICATE OF COMPLIANCE Pursuant to Texas Rule of Appellate Procedure 9.4(i), I hereby certify that this document contains 2,486 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] Goebel v. Sharon Peters Real Estate, Inc. 19 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 APPENDIX OF APPELLANT Item 1 Trial Court Judgment CR at 408 Item 2 Notice of Appeal CR at 412 to 415 Item 3 General Warranty Deed CR at 299 to 300 Item 4 Temporary Restraining Order CR at 344 to 348 Item 5 Justice Court Judgment CR at 7 Item 6 Justice Court Notice of Appeal CR at 8 to 9 Item 7 Justice Court’s Notice of Bond Set CR at 10 to 12 Item 8 Writ of Possession CR at 462 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 APPENDIX ITEM 1 Item 1 Trial Court Judgment CR at 408 408 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 APPENDIX ITEM 2 Item 2 Notice of Appeal CR at 412 to 415 FILED 9/29/2014 12:09:43 PM Liz Q. Gonzalez County Clerk Hays, TX CAUSE NO. 14-0385-C SHARON PETERS REAL ESTATE, INC., § COUNTY COURT AT LAW Plaintiffs. § § v. § § NUMBER 1 MICHAEL LEONARD GOEBEL; and § ALL OTHER OCCUPANTS, § Defendants. § HAYS COUNTY, TEXAS § DEFENDANT’S NOTICE OF APPEAL Defendant MICHAEL LEONARD GOEBEL notices the Court that Defendant will appeal the Court’s Order, signed and entered September 18, 2014. A. Introduction 1. Defendants are Michael Leonard Goebel and all other occupants of 207 Cazador Drive San Marcos, TX 78666. 2. Plaintiff is Sharon Peters Real Estate Inc. 3. This an appeal from the Justice of the Peace Court Precinct 1. 4. A de novo trial was held on the matter August 11, 2014. 5. This Court signed its Order on September 18, 2014. “Attachment 1” B. Facts 6. The Honorable Judge Rodriguez signed the judgment awarding possession of the property to Plaintiff on September 18, 2014. 7. Defendant desires to appeal and files this notice. 8. The appeal is taken to the Third Court of Appeals. 9. The appeal is filed within 30 days of the date the judgment was signed.