Laredo National Bank D/B/A as BBVA Compass Bank v. Myrna Elizabeth De Luna Morales ( 2015 )

ACCEPTED
13-14-00644-CV
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
7/9/2015 11:34:39 PM
CECILE FOY GSANGER
CLERK
No. 13-14-00644-CV
FILED IN
13th COURT OF APPEALS
IN THE COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
FOR THE THIRTEENTH DISTRICT OF TEXAS
7/9/2015 11:34:39 PM
CECILE FOY GSANGER
Clerk
LAREDO NATIONAL BANK D/B/A BBVA COMPASS BANK
Appellant,
v.
MYRNA ELIZABETH DE LUNA MORALES,
Appellee.
--------------------
On Interlocutory Appeal from the issuance of a Temporary Injunction
in Cause No. 2014-DCV-2962-A in the 107th Judicial District Court
of Cameron County, Texas,
the Honorable Benjamin Euresti, Jr., Presiding
-------------------------
APPELLEE’S BRIEF
Hon. Philip Cowen
Law Office of Philip Cowen
500 E. Levee St.
Brownsville, Texas 78520
Tel. 956-541-6031
Fax 956-541-6872
email: ptchb@att.net
Hon. Noe Robles
Law Office of Noe Robles
23331 Tamm Lane
Harlingen, Texas 78552
Tel. (956) 440-8200
Fax (956) 440-8205
email: nrobelslawoffice@aol.com
NOTICE OF PARTIES
Appellee:
MYRNA ELIZABETH DE LUNA MORALES
Appellee’s Counsel:
Hon. Philip Cowen
State Bar No. 24001933
Law Office of Philip Cowen
500 E. Levee St.
Brownsville, Texas 78520
Tel. 956-541-6031
Fax 956-541-6872
email: ptchb@att.net
Hon. Noe Robles
State Bar No. 17118250
Law Office of Noe Robles
23331 Tamm Lane
Harlingen, Texas 78552
Tel. (956) 440-8200
Fax (956) 440-8205
email: nrobelslawoffice@aol.com
ii
Appellants:
Laredo National Bank D/B/A BBVA Compass Bank
Hon. Selim H. Taherzadeh*
Trial and Appellate Counsel for Appellant:
Selim H. Taherzadeh, Trial and Appellate Counsel
Taherzadeh, PLLC
5080 Spectrum Drive, Suite 1000 East
Addison, TX 75001
Tel. (469) 791-0445
Fax (469) 828-2772
st@taherzlaw.com
Michelle Peritore, Appellate Counsel
Taherzadeh, PLLC
5080 Spectrum Drive, Suite 1000 East
Addison, TX 75001
Tel. (469) 791-0445
Fax (469) 828-2772
mp@taherzlaw.com
* Both second amended and prior plaintiff’s pleadings suggest that he is a defendant.
iii
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Texas Rules of Appellate Procedure 39.1, Appellee does not request oral
argument.
iv
TABLE OF CONTENTS
Page
Notice of Parties................................................................................ ii
Table of Contents................................................................... ...... v
Table of Authorities................................................................... ...... v ii
Preliminary Statement....................................................................... 1
Statement of Facts............................................. .............................. 3
ISSUES PRESENTED ...................................................................... 6
Summary of Argument .................................................................. 7
Argument......................................................................................... 9
ISSUE#1: The District Court did not err when it issued a ...... 9
temporary injunction to stop a forcible detainer action from
proceeding in the Justice Court.
Issue #2 Appellant has no Standing to ask this Court to declare ... 28
that Appellee has No Valid Cause of Action against Appellant or
Probable Right to Recovery on Trial on the Merits. Appellant is
effectively asking this court to issue an advisory opinion on the
merits of its defense. Appellant’s brief, in general, is a request for
this court to issue an illegal advisory opinion, and as such should be
dismissed. Any relief sought in the brief should be denied as being
moot as the appeal is simply a request for an advisory opinion.
ISSUE# 3 The fact that this case is now set for trial on.................... 32
August 10, 2015, with announcements and hearings on pending
motions set for August 6, 2015, moots any relief this Court may
provide. Therefore, the case should be dismissed.
Prayer for Relief .................................................................................. 35
Certificate of Service............................................................................ 36
Certificate of Compliance.......................................................................37
v
Appendix
Document Page No.
A. Deed of Trust CR542-565 1
B: Portion of Transcript of Hearing on Temporary Injunction 25
CR602-624
C Defendant Compass Bank's Amended Answer CRSupP86-89 48
D: Texas Business and Commerce Code SUBCHAPTER B. 52
NEGOTIATION, TRANSFER, AND INDORSEMENT
Sec. 3.201 through 3.204.
E: Texas Business and Commerce Code 3.302(2)© 54
F. Note 55
G. Transfer of Lien 56
H. Modification and Extension Agreement 59
vi
TABLE OF AUTHORITIES
Supreme Court Cases
Alabama State Fed'n of Labor v. McAdory, 325 U.S. 450 (1945)..............29
Allen v. Wright, 468 U.S. 737 (1984)........................................................29
Valley Forge Christian College v. Americans United for Separation............29
of Church and State, 454 U.S. 464 (1982)
Warth v. Seldin, 422 U.S. 490 (1975)............................................................29
Texas Cases
Aguilar v. Weber, 72 S.W.3d 729 (Tex.App.-Waco 2002)................13, 14, 27
Bd. of Adjustment of City of San Antonio v. Wende, 92 S.W.3d 424.............34
(Tex. 2002)
Butnaru v. Ford Motor Co., 84 S.W.3d 198 (Tex. 2002)...................................10
Cardinal Health Staffing Network, Inc. v. Bowen, 106 S.W.3d 230 ................11
(Tex. App.—Houston [1st Dist.] 2003)
City of Fort Worth v. Pastusek Indus., Inc., 48 S.W.3d 366 ..............................33
(Tex. App.-Fort Worth 2001
Falcon v. Ensignia, 976 S.W.2d 336 (Tex.App.-Corpus Christi 1998)........14, 24
Firemen's Ins. Co. v. Burch, 442 S.W.2d 331 (Tex.1969)...................................29
Franklin Says. Ass'n v. Reese, 756 S.W.2d 14 (Tex.App.-Austin 1988).............11
Goggins v. Leo, 849 S.W.2d 373(Tex.App.-Houston [14th Dist.] 1993)............13
Haith v. Drake, 596 S.W.2d 194, 197 (Tex.Civ. App.—Houston........................18
[1st Dist.] 1980)
Hayter v. Fern Lake Fishing Club, 318 S.W.2d 912.............................................12
(Tex.Civ.App.-Beaumont 1958)
Hernandez-Perez v. State, No. 01-09- 00801-CR, 2010 WL 2133935...............33
(Tex. App.—Houston [1st Dist.] May 27, 2010
Home Sav. Ass'n v. Ramirez, 600 S.W.2d 911.....................................................13
(Tex.Civ.App.-Corpus Christi 1980)
In re H&R Block Fin. Advisors, Inc., 262 S.W.3d 896(Tex. App.-Houston...33,34
[14th Dist.] 2008
Johnson v. Fellowship Baptist Church, 1. 627 S.W.2d 203..................................17
(Tex.App.—Corpus Christi 1981)
McGlothlin v. Kliebert, 672 S.W.2d 231 (Tex.1984)...........................................18
Mitchell v. Armstrong Capital Corp., 911 S.W.2d 169 ....................13, 21, 24, 26
(Tex.App.-Houston [1st Dist.] 1995)
Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641 (Tex.1933)..............................29
vii
Pinnacle Premier Props., Inc. v. Breton, 447 S.W.3d 558......................................19
(Tex. App.-Houston [14th Dist.] 2014
Positive Feed, Inc. v. Wendt, Nos. 01-96-00614-CV & 01-96-01250-CV...........12
1998 WL 43321, *10 30 (Tex.App.-Houston [1st Dist.] Feb. 5, 1998)
Rus-Ann Dev., Inc. v. ECC, Inc., 222 S.W.3d 921 (Tex.App.-Tyler 2007).........11
Slay v. Fugitt, 302 S.W.2d 698 (Tex.Civ.App.-Dallas 1957)................................13
Sparkman v. State, 968 S.W.2d 373 (Tex. App.-Tyler 1997)..........................21, 25
Tex. Ass'n of Business v. Air Control Bd., 852 S.W.2d 440 (Texas 1993) ..........29
Texas Employment Comm'n v. International Union of Elec., Radio................30
TMC Med., Ltd. v. Lasaters French Quarter P'ship, 880 S.W.2d 789.......17. 18
(Tex. App.--Tyler 1993)
and Mach. Workers, Local Union No. 782,352 S.W.2d 252 (1961)
Trulock v. City of Duncanville, 277 S.W.3d 920 (Tex. App.—Dallas 2009)....33
Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821 (Tex. 2000)...................34
Williams v. Lara, 52 S.W.3d 171 (Tex. 2001)................................................33,34
Yarto v. Gilliland, 287 S.W.3d 83 (Tex. App.-Corpus Christi 2009).......10, 22,24
Constitutions
Tex.Const. art. II, § 1 ..........................................................................................29
Rules and Statues
Texas Business and Commerce Code Sec. 3.202(2)(c).......................................24
Texas Business and Commerce Code Sec. 3.203 ................................................23
Texas Business and Commerce Code Sec. 3.204 ................................................23
Tex. Pro. C. Sec. 22.002........................................................................................18
Tex. R. Civ. P. Rule 746 ........................................................................................17
viii
No. 13-14-00644-CV
IN THE COURT OF APPEALS
FOR THE THIRTEENTH DISTRICT OF TEXAS
LAREDO NATIONAL BANK D/B/A BBVA COMPASS BANK
Appellant,
v.
MYRNA ELIZABETH DE LUNA MORALES,
Appellee.
--------------------
On Interlocutory Appeal from the issuance of a Temporary Injunction
in Cause No. 2014-DCV-2962-A in the 107th Judicial District Court
of Cameron County, Texas,
the Honorable Benjamin Euresti, Jr., Presiding
-------------------------
TO THE HONORABLE JUSTICES OF THIS COURT:
Comes now, MYRNA ELIZABETH DE LUNA MORALES, hereinafter
referred to as Appellee, who submits this brief, pursuant to the provisions of the
Texas Rules of Appellate Procedure, in support of her request for this court to
sustain and affirm the 107th District Court’s Temporary Injunction, and other
remedies, in cause number 2014-DCV-2962-A.
PRELIMINARY STATEMENT
This is an Appeal of Order Denying Appellant Compass Bank’s Motion to
1
Dissolve an Order Granting a Temporary Injunction in cause no. 2014-DCV-2962-A.
On April 1, 2014, for various reasons alleged in Appellee’s pleadings, an illegal and
invalid foreclosure sale took place whereby Compass Bank through Trustees, who are also trial
and appellant’s counsel, attempted to sell property belonging to Appellee. There are a good many
factual points which do not appear to be disputed. . On May 12, 2014, Appellee filed its Original
Petition. CR 7. On June 4, 2014, Appellant Compass Bank filed its Motion to Dismiss
and Motion for Sanctions. CR 59. On June 16, 2014, Appellant filed a Motion to Deny the
Temporary Injunction. CR 241. On June 26, 2014, the Court entered an Order granting the
Appellee’s Request for a Temporary Injunction. CR 372. On August 1, 2014, Appellant filed a
Motion for Summary Judgment. CR 522. On September 23, 2014, the Appellant filed a Motion
to Dissolve Temporary Injunction Order or in the Alternative to Modify the Order. CR 667. On
October 31, 2014, the Court entered an Order Denying the Appellant’s Motion to Dismiss,
Motion for Summary Judgment and Motion to Dissolve the Temporary Injunction. CR 684-86.
While the subject matter of this appeal appears to be the Denying Appellant’s Motion to
Dissolve Temporary Injunction Order or In the Alternative to Modify the Ordered Entered and
also the Order Denying Appellant’s Motion to Dismiss and Order Denying Appellant’s Motion
for Summary Judgment Entered, all that can be appealed is the Order denying appellant’s trial
Motion to Dissolve Temporary Injunction. CR 684-86.
Although that may be the case, on March 16, 2015 Appellants, and Appellants’ Counsel
have filed a second motion to dissolve the temporary inunction, entitled Compass Bank’s Second
Motion to Dissolve Temporary Injunction Order. See Supplemental Clerk’s Record, p. 4,
hereinafter CRSupP4.. Appellant amended its answer Seven days ago on July 2, 2015.
2
CRSup86.Plaintiff amended her pleadings July 7, 2015. CRSupP91.
STATEMENT OF THE FACTS
On April 1, 2014, Appellant Compass Bank, believing it had the right to exercise a
power of sale noted in paragraph 22 of a January 24, 2006 Deed of Trust, but in fact not having
the right to exercise the power of sale nor to appoint a substitute trustee, illegally sold the
property at issue to itself as sole bidder at a foreclosure sale.1 The record shows that Appellant
Compass Bank had never had the Note and Deed of trust negotiated to it by Laredo Bank,
although there is a claimed merger of the institution which is not explained anywhere within
Appellant’s brief, but is briefly noted. CR670–by merger claim.
Prior to the sale, Appellee had arranged more than once for the property to be sold but
due to intransigence by Appellant Compass Bank, and Appellant’s counsel, and perhaps
misconduct, Appellee was not able to cure an alleged deficiency, nor to effect a sale of her
property. Appellee relied to her detriment on assurances made to her. That reliance also led to
the situation she now fights. CR614.
Appellee never received notice of the sale as Appellant, with full knowledge of where
Appellee was, sent notice through regular mails to the County of Mexico. CR627 –Appellee’s
statement attributed to Compass Bank that “It’s not my problem that the postal service in
Mexico is not a good one.”, also showing no notice of date of sale nor amount due. Appellant
never provided any amount for Appellant to pay to cure any deficiency. Id. Appellant never
provided a payoff amount to pay the amount in full.CR614. Appellant’s pleadings admit the
1
The Deed of trust is not negotiated to Compass by Laredo National Bank. See, CR541-
564, which contains no endorsement. As such, any Substitute’s trustee’s deed is invalid. CR260.
3
substance of these complaints, as well as the substance of a newly filed new claim of detrimental
reliance and tortious interference with contract. CRSupP83 and 111. .
There is no argument that there s a Deed of Trust involving Appellee and Laredo National
Bank. However, while the note is alleged to be in Compass Banks hands, for Compass Bank to
be able to exercise the rights noted in Paragraph 22, the note needed to be negotiated to Compass
and apparently has not been so negotiated. As such, there is actually no Parties Agreement
between Compass and Appellee. There is no argument however, that on January 24, 2006,
Myrna Elizabeth de Luna Morales (“Appellee”) signed a 30-year loan agreement (the “Note”
or “Loan”) in which she agreed to repay $291,200.00 to Laredo National Bank in monthly
installments of $1,937.37 beginning March of 2006. Appellee obtained the loan so that she could
purchase a home located at 6503 Fountain Way, South Padre Island, TX 78597 (“Premises” or
“Property”). CR 264.
No title passed at the sale as the trustees violated the terms of paragraph 22, and as the
trustees were without authority, and as the trustees had orally granted approval for Appellee to
sell the property to another. The foreclosure sale occurred on April 1, 2014 as noticed, and
Appellant purchased the home for $308,000.00. CR 238. When the property was finally sold, it
was sold at over $242000,00 below market value. RR27-31.
The Appellee’s Original Petition was filed on May 12, 2014. CR 7. Appellant Compass
Bank filed its Original Answer on May 23, 2014. CR 51. A temporary injunction hearing was
held on May 27, 2014. As a result of a Rule 11 Agreement, the hearing was reset for June 5,
2014. CR 54. The temporary injunction hearing was held on June 5, 2014, and the temporary
restraining order was extended to June 18, 2014. Appellant Compass Bank filed a Motion to
4
Dismiss and Motion for Sanctions on June 4, 2014. CR 59. On June 11, 2014, the Appellee filed
its First Amended Petition. CR 194. On June 16, 2014, Appellant filed a Motion to Deny
Temporary Injunction. CR 241. On June 26, 2014, Appellant filed a Second Motion to Deny
Temporary Injunction. CR 376. The Trial Court entered an order granting a Temporary
Injunction on June 26, 2014. CR 372. On July 28, 2014, Appellant filed its Second Motion to
Dismiss. CR 508. On August 1, 2014, Appellant filed a Motion for Summary Judgment. CR
522. On September 9, 2014, Appellant filed a Motion to Dissolve Temporary Injunction Order or
in the Alternative to Modify the Order. On October 31, 2014, the Trial Court entered an Order
denying the Motion to Dissolve the Temporary Injunction. CR 684. On October 31, 2014, the
Court also entered an Order denying Appellant’s Motion to Dismiss and an Order Denying
Appellant’s Motion for Summary Judgment. CR 684-86. As a result, this Appeal ensued.
A good indication of the District Court’s opinion about the strength of Compass Bank’s
position is reflected in the granting of a one time bond of $1000.00, rather than a monthly bond
as proposed by Appellant’s trial counsel. CR6659-660.
5
ISSUES PRESENTED
ISSUE#1: The District Court did not err when it issued a temporary
injunction to stop a forcible detainer action from proceeding in the Justice Court.
Issue #2 Appellant has no Standing to ask this Court to declare that
Appellee has No Valid Cause of Action against Appellant or Probable Right to
Recovery on Trial on the Merits. Appellant is effectively asking this court to issue
an advisory opinion on the merits of its defense. Appellant’s brief, in general, is a
request for this court to issue an illegal advisory opinion, and as such should be
dismissed. Any relief sought in the brief should be denied as being moot as the
appeal is simply a request for an advisory opinion.
ISSUE# 3 The fact that this case is now set for trial on August 10, 2015,
with announcements and hearings on pending motions set for August 6, 2015,
moots any relief this Court may provide. Therefore, the case should be dismissed.
6
SUMMARY OF THE ARGUMENT
The District Court did not err when it issued a temporary injunction to stop the
forcible detainer (or perhaps forcible entry and detainer) action from proceeding
in the Justice Court. Appellee establishes all three bases for issuance of a
temporary injunction. Appellant’s action in Justice Court should have been
interrupted by the Appellee’s claim in District Court. Forcible entry and detainer
or forcible detainer action, as Appellant uses these interchangeably, would have
removed Appellee from the place she calls her home. Case law shows that the loss
of one’s home is an irreparable injury, one for which there is no remedy at law. As
such, there is good cause for the district court to issue the temporary injunction.
Not only does the Appellee have a cause of action against the Appellant
with a more than probable right to recovery at a trial on the merits, Appellee
cannot show a probable, imminent, and irreparable injury simply because the
property in question is the property she considers to be her home.
Appellant seeks to have this court issue an advisory opinion declaring that
its theory of tenancy at sufferance is superior to any other claim made by
Appellee. Appellee has theories of its own which show that Appellant had no
authority to exercise the power of sale, nor to appoint substitute trustees, but,
again, just because these are good theories and may be dispositive on the merits
7
has no bearing on the matter at hand. All appellant has to do is to maintain a claim
which has probable relief if evidence is adduced at trial to support the claims.
The facts and the law show that the Trial Court’s order should be affirmed and
that the injunction should remain in plain so long as the District Court finds that
the situation requires it. It is up to Appellant to push this case forward, to trial, if
need be. That is the quickest solution to the issues at hand and, if successful, will
provide Appellant the shortest route to the relief Appellant seeks.
Finally, just because so much time has elapsed, and because trial is now set
for August 10, 2015, this appeal is moot, and should be dismissed as asking this
court to issue an advisory opinion.
8
ISSUE#1: The District Court did not err when it issued a temporary
injunction to stop a forcible detainer action from proceeding in the Justice
Court.
The Trial Court did not err in denying Appellant’s Motion to Dissolve a
Temporary Injunction because Appellant has no right to the immediate possession
of the Premises and because Appellee’s issues in her pleadings raise genuine title
issues preventing a justice court from taking the case. The true issue here is not
whether Appellee defaulted on her loan, but whether Appellant foreclosed on the
Property in accordance with the Note and Deed of Trust, whether Appellant had
the power of sale as a holder of the note, and whether Appellant prevented cure of
a deficiency thus invalidating the sale. RR 29, CR 276. Part of the subject matter
of the suit is the unlawful attempt to sale the property at a foreclosure sale when
Appellant had no legal right to sell the property. Part of the suits has to do with
how Appellee relied on promises and assurance by Appellant and then Appellant
betrayed those promises. Part of the suits concerns the fact that such statements
make Appellant effectively a fiduciary for Appellee. After the abortive foreclosure
sale, Appellee had every legal right to remain in possession of the Property. And,
on that same theory, Appellant had not right to to file a forcible detainer or
forcible entry and detainer action in Justice Court in order to obtain possession of
the Property. The June 26, 2014, District Court Temporary Injunction enjoining
9
proceeding on the forcible detainer action in Justice Court reflects the reality of an
abortive foreclosure. CR 372.
Standard of Review:
The standard of review for a court of appeals to review the appropriateness
of a district court’s issuance of a temporary induction is for abuse of discretion.2
See Yarto v. Gilliland, 287 S.W.3d 83, 88 (Tex. App.-Corpus Christi 2009, no
pet.)
Texas law is clear that the burden of proof for a temporary injunction is on the
party seeking the injunction. To obtain a temporary injunction, a party must plead
and prove three specific elements
(1) a cause of action against the defendant;
(2) a probable right to recovery following a trial on the merits; and
(3) a probable, imminent, and irreparable injury in the interim See Yarto, at 88.
See also, Appellant’s reference to Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204
(Tex. 2002), which refers to questions about temporary injunctions, but actually
involves a dispute about whether the Texas Motor Vehicle Board has exclusive
jurisdiction over a prospective car dealership transferees' claims that raise an issue
2
Appellant appeals the denial of the motion to dissolve the temprary injunction, not the
issuance of the injunction itself. As such, this court may not have standing. See Brief, at 1, first
sentence.
10
about how to construe the Texas Motor Vehicle Commission Code. Id., at 201.
A temporary injunction is an extraordinary remedy that does not issue as a
matter of right. Butnaru, 84 S.W.3d at 204. An injury is “irreparable” if the
injured party cannot be adequately compensated in damages, Cardinal Health
Staffing Network, Inc. v. Bowen, 106 S.W.3d 230, 236- 37 (Tex. App.—Houston
[1st Dist.] 2003, no pet.) (en banc).
Appellee claims that she has meet all these burdens, and while Appellant
did not claim that the trial court abused his discretion, claims that had Appellant so
charged, the trial court in fact did not abuses its discretion in denying the motion
to dissolve the temporary injunction.
Loss of home is an irreparable injury.
Much of Appellant’s brief argues that Appellee can not prove any
irreparable injury, almost ignoring the reference by Appellee in her pleadings that
the property is her home. The loss of a home is an irreparable injury, for which
Appellee cannot be adequately compensated in damages. Rus-Ann Dev., Inc. v.
ECC, Inc., 222 S.W.3d 921, 927 (Tex.App.-Tyler 2007, no pet.); see Franklin
Says. Ass'n v. Reese, 756 S.W.2d 14, 15-16 (Tex.App.-Austin 1988, no writ) (op.
on reh'g) ("Since it is obvious that appellee would probably be injured if the
property were foreclosed and sold, the only question here is whether the trial court
11
erred in determining there was a probable right of recovery."); Hayter v. Fern Lake
Fishing Club, 318 S.W.2d 912, 914 (Tex.Civ.App.-Beaumont 1958, no writ)
(finding that actions affecting one's use and enjoyment of his home is an
irreparable injury); see also Positive Feed, Inc. v. Wendt, Nos. 01-96-00614-CV &
01-96-01250-CV, 1998 WL 43321, *10, 1998 Tex. App. LEXIS 774, *30
(Tex.App.-Houston [1st Dist.] Feb. 5, 1998, pet. denied) (mem. op.) ("We hold
that loss of enjoyment or the reasonable use of one's home can be an irreparable
injury for purposes of injunctive relief."). The property in question is Appellant’s
South Padre Island home.
Pleadings provide Specific Evidence of Title Dispute
There is a probable right to recovery based on numerous claims in
Appellee’s petition, originally, and as amended. While Injunctive relief brought
through a District Court to stop an eviction through a forcible detainer action
might be appropriate in some instances, where it is clear as her that title issues are
in play which need to be determined prior to any forcible entry and detainer or
forcible detainer action, the Justice Court has no jurisdiction. Very simply,
because there are specific titles issues at play in in this suit in District Court, and
where the Justice Court has notice of these issues, the justice court cannot act. The
pleadings in this case are specific evidence of a title dispute.
12
In Aguilar v. Weber, 72 S.W.3d 729, 734-35 (Tex.App.-Waco 2002, no
pet.), the Aguilar court, found "specific evidence" of a title dispute based on the
party's assertions in the pleadings, rather than on evidence to support those
assertions. Mitchell v. Armstrong Capital Corp., 911 S.W.2d 169, 171
(Tex.App.-Houston [1st Dist.] 1995, writ denied). This court, in Yarto, above,
noted Aguilar with approval. See, Yarto, fn. 43.
The Aguilar court also noted specifically that jurisdiction of forcible
detainer actions is expressly given to the justice court of the precinct where the
property is located and, on appeal, to county courts for a trial de novo. See Tex.
Prop.Code Ann. § 24.004 (Vernon 2000); Goggins v. Leo, 849 S.W.2d 373, 375
(Tex.App.-Houston [14th Dist.] 1993, no writ); Home Sav. Ass'n v. Ramirez, 600
S.W.2d 911, 913 (Tex.Civ.App.-Corpus Christi 1980, writ ref'd n.r.e.). The
Aguilar court also noted that a justice court is expressly denied jurisdiction to
determine or adjudicate title to land. Tex. Gov't Code Ann. § 27.031(b) (Vernon
Supp.2001); Slay v. Fugitt, 302 S.W.2d 698, 701 (Tex.Civ.App.-Dallas 1957, writ
ref'd n.r.e.). Thus, a justice court, has no jurisdiction to determine the issue of title
to real property in a forcible detainer suit. Tex.R. Civ. P. 746; See Mitchell , 911
S.W.2d at 17.
13
In the instant case, the pleadings themselves are evidence that a title dispute is
at issue.
In the case at hand, Appellees pleadings provide the specific evidence of a
title dispute. As such, the Justice Court has no jurisdiction. Id. In this case, any
justice court will lack jurisdiction because Appellee’s pleadings are themselves
specific evidence of a title dispute, as was the case in Mitchell, 911 S.W.2d at
169; see also Falcon v. Ensignia, 976 S.W.2d 336, 338 (Tex.App.-Corpus Christi
1998, no pet.). Appellee’s Petition and Amended Petitions have always disputed
the alleged default and challenged the right to possession under the contract under
various theories, alleging lack of authority under the Deed to exercise the power of
sale, and alleged lack of authority because Appellee was never provided the
opportunity to cure any alleged deficiency. Determining the right of possession
necessarily involves a title inquiry into the contractual provisions of Section 19
and 22 of the deed, as well as the problems with the failure to allow Appellee to
cure on the various bases she claims in her pleadings and claimed at the
temporary injunction hearing. See, Aguilar, at 735. See also Aguilar at 733-734
relating to the fact that a forcible detainer3 case in inappropriate unless there is a
3
A various points in the brief, Appellant seems to use these terms interchangeably. They
are not interchangeable. Brief at 1, Forcible detainer; brief at 6, 10, 11, forcible entry and
detainer. It is not clear from the record exactly what Appellant tried to file in the justice court, as
14
landlord-tenant relationship.
Any justice court would have to determine whether Appellant legally was
empowered to exercise the power of sale, and whether there was, in effect, an
opportunity to cure, under Section 19 of the deed of trust, and if not whether that
failure removed the authority by anyone under the deed of trust to sale the
property under Section 22. Justice courts are not meant to decide such issues.
District courts are. They certainly do not try trespass to try title cases. Thus, it was
proper for the District Court to enjoin any action of removal under any authority
claimed by Appellant that a justice court had to evict Appellee. Thus, the District
Court was correct in enjoining Appellant from trying to use a justice court to
removed Appellee.
Appellee has numerous causes of actions and all her claims are justicible and
there are sufficient allegations to support taking the case to trial.
Under Texas law, a District Court can enjoin parties from proceeding on a
forcible detainer or forcible entry and detainer action pending in Justice Court,
and in support Appellant states. Now, months after the hearing on setting aside
Appellant has not provided this court with a copy if its pleadings submitted to a justice of the
peace court. As Aguilar show, no forcible detainer proceeding could be effected. Under the same
case, the specific evidence of the pleadings themselves, with the claims made, which are
cognizable under Texas Law, are themselves evidence of a title dispute.
15
the temporary injunction, Appellant amended its answers. These were just recently
entered into the record. CRSupP86-89. The amended answer, other than the
general denial, does not assert any affirmative defenses or any defenses to the
issue of wrongful foreclosure, reliance issues within the DTPA which may survive
the DPTA claim on their own, and the trespass to try title claim. By the very act of
amending its answer, Appellant has conceded that those claims were justiciable at
the time the petition and amended petition was filed.
Since the inception of this appeal, on July 7, 2015, Appellee/Plaintiff has
added Substituted Trustee, present trial and appellate counsel, Selim H.
Taherzadeh, a party to the lawsuit. CRSupP91. It appears that both appellant and
Selim H. Taherzadeh are being sued now for damages based on detrimental
reliance based on Selim H. Taherzadeh and other’s actions. CRSupP91. Both are
also being sued for tortious interference with contract. CRSupP103. Selim H.
Taherzadeh is now also being sued for breach of fiduciary duty. Selim H.
Taherzadeh is also being sued for negligence. CRSupP101. Whether acting in his
own capacity or for Compass, it appears that the pleadings essentially now include
Selim H. Taherzadeh as a defendant. As such, he is technically and Appellant to
this suit. Thus, as to breach of fiduciary duty, Appellant’s counsel has what he
wanted, a claim that now includes the trustee as violating a fiduciary duty, as well
16
as a claim that Compass Bank was also defacto a fiduciary.
Appellees claims are proper claims with remedies provided in law
There is no question that there is a cause of action pending concerning the
property at issue. In its brief, Appellant argues incorrectly that the Justice Court
alone has the jurisdiction to determine the immediate possessory rights of the
parties. Brief at 1, referring to TMC Med., Ltd. v. Lasaters French Quarter
P'ship, 880 S.W.2d 789, 791 (Tex. App.--Tyler 1993). Nothing in this case
suggests that title disputes in District Court can proceed The problem with
Appellant's arguments and cases is that they deal with Landlord Tenant
relationships, and not with issues involving whether a person has legally and
effectively lost title. French Quarter P'ship shows explicitly in its holding that
questions of title are not appropriate issues for a justice of the peace courts to
determine. Id, 880 S.W.2d 791, referring to Tex. R. Civ. P. Rule 746 and Johnson
v. Fellowship Baptist Church, 1. 627 S.W.2d 203, 204 (Tex.App.—Corpus Christi
1981, no writ). In French Quarter P'ship the court noted that in that case "the
tenant's right to possess leasehold property does not present any question of title,
disputes regarding such possession are subject to the jurisdiction of the
appropriate justice court, whose jurisdiction in these types of action is exclusive.
Id., referring to Haith v. Drake, 596 S.W.2d 194, 197 (Tex.Civ. App.—Houston
17
[1st Dist.] 1980, writ ref'd n.r.e.). McGlothlin v. Kliebert, 672 S.W.2d 231, 232
(Tex.1984). This case is more than a landlord/tenant case. Any wrongful
foreclosure suit is essentially a title dispute, the main arguments being whether the
forecloser had both the right to foreclosure but also whether the forecloser did it
right, and, additionally, whether the person attempted to be foreclosed on has any
defenses against the foreclosure, including whether the one foreclosed upon acted
in reliance on the actions and promises made by the one foreclosing or his or her
agents. Because the justice court does not have the skills to handle title cases, nor
has the jurisdiction to do so, the district court was right in enjoining the exercise of
the justice court's jurisdiction. Id., 880 S.W.2d 791. Here, in the very pleadings
asserted by Appellee/ Plaintiff, and wronged party, there is a clear showing that
the justice court is without jurisdiction to proceed in the cause because the suit is a
title dispute. Certainly, a trespass to try title case is a title suit. Under the Texas
Property Code, Sec. 22.002, any evidence of title is sufficient to support the cause
of action, and a final judgment against the other party establishes title or right to
possession of real property and that judgment is conclusive against the party from
whom the property is recovered and against a person claiming the property
through that party by a title that arises after the action is initiated. Tex. Pro. C. Sec.
22.002. Plaintiff /Appellee’s pleadings are sufficient evidence in themselves to
18
destroy the jurisdiction of the justice of the peace court. This is not
landlord-tenant dispute over possession of the leased premises, which is the
subject matter of Appellant's cases.
Section 22 of the Deed of Trust references to the Borrower becoming a
Tenant at sufferance after foreclosure is a boilerplate statement which very likely
has been incorporated into a Texas Deed of Trust to avoid litigation. However,
nothing in Section 22 relates to whether the sale by a trustee or substitute trustee is
presumptively correct in form, nor does its provide any guidance to a District
Court or to this court when there are title issues present in a District Court case.
Plaintiff’s Pleadings themselves are specific evidence of a title dispute. The
District Court was correct in not allowing Appellant to try to evict Appellee, as it
is clear that a less learned judge, dealing only with petty issues, would not have
the ability to sort out title issues, nor should he or she be allowed to. See
Pinnacle Premier Props., Inc. v. Breton, 447 S.W.3d 558, 564 (Tex. App.-Houston
[14th Dist.] 2014, no pet.) (op. on reh'g) (holding that no intertwined title issue
existed when the defendants' title dispute was based entirely on contentions that
the foreclosure sale was conducted improperly and that the lender had assigned the
note to another bank). Here, there is more than a claim about a foreclosure sale
that was conducted improperly; there is also a claim that it was conducted
19
illegally. Id. There is also a trespass to try title claim, a claim that Appellant
would not allow Appellee to cure, and other similar claims which go directly to the
issue of title. Appellee argues in her pleadings that if Appellant had permitted her
to cure, and had given her the figures she needed, there would have been no
default.
Appellee’s First Amended Pleadings, pps. 4 and 6, alleged violations of
Paragraph 19 “the right to cure” “prior to foreclosure”, “Plaintiff was willing and
able to pay-off the entire note. See CR194-209, but after this the page numbers of
the actual Petition are used. Defendant ignored her pleas and instead foreclosed on
the home” –all these concern questions of title, and not just the formalities of the
foreclosure. Page 7 of the First Amended pleadings reflects a genuine contract
dispute, both based on course of dealings, and on the contract, assuming it has
been negotiated to Compass Bank. Appellee also claimed that she as “Plaintiff
sought to exercise her rights and notified Bank and its agents that she was willing
and able to cure the default and/or pay-off the total mortgage debt. The Bank
acting through its agent declined and denied Plaintiff her rights as a Borrower
thereby breaching the contract with Plaintiff.” Id. When these claims are stacked
up against the strength of the alleged tenant at sufferance claim, Appellant’s
tenant at sufferance argument is simply irrelevant.
20
Evidence of a title dispute is also raised in Appellee’s pleadings in the
issues revolving around the DTPA claim, specifically the reliance and recision
issues contained therein. See, page 4 of Amended Pleading, “The Bank agreed to
give Plaintiff (Appellee) quiet enjoyment of her home and that it would exercise
due diligence and good faith in the performance of their fiduciary duties to
plaintiff under the terms of the contracts and Deed of Trust.” See also, the reliance
issue, “Plaintiff relief on Defendants to treat her fairly and accordingly.” See also
the Breach of Conduct Claim, p. 6. wherein it notes that the Trustee failed to
specify the date and the deadline on which buyer in default had to comply and cure
the default.” See also, “The Bank acting through its agents declined and denied
Plaintiff her rights as a Borrow thereby breaching the contract with Plaintiff.” P.
7, 1sst Amended Pleadings. Here, explicitly, thus, there is an issue concerning title
as it relates to the contract between the alleged parties. Such title disputes take
away a justice court's jurisdiction. See Sparkman v. State, 968 S.W.2d 373, 377-78
(Tex. App.-Tyler 1997, no pet.) (citing Mitchell, 911 S.W.2d at 170 (holding
appellant raised title as an issue in the justice court and county court at law by
asserting that substitute trustee's deed held by appellee was void, and by
specifically giving notice that litigation was pending in the district court to set
aside the non-judicial foreclosure sale). Because, in this case a genuine title
21
dispute has been raised in the district court in Appellee’s pleadings, the justice
court cannot take jurisdiction. The District Court was correct in enjoining such
action for that reason. Furthermore, Appellant cannot just walk into the Justice
Court and pretend there is no suit pending in District Court. A justice court might
accept the suit anyway, and evict Appellant applying bad law. That is why District
Court’s enjoin these types of actions in these types of cases. The very fact of
filing the pleadings or the very fact of the counterclaims by appellant raises title
issues. Further, Appellants are on notice that litigation is pending in a district
court to set aside the non-judicial foreclosure sale and part of the basis of that set
aside is a dispute concerning title. See Yarto v. Gilliland, 287 S.W.3d 83, 87 (Tex.
App.-Corpus Christi 2009, no pet.), referring to Mitchell, 911 S.W.2d at 170.
It appears that Appellee will win as Appellant had no right to exercise power
of sale
Furthermore, on the face the Deed of Trust which Appellant brings to this
court does not reflect that Appellant has the right to exercise the power of sale.
Appellant claims to be the holder of the note, but please note that Appellant has
not provided this court nor the District Court anything in discovery which
evidences that the note for which Laredo National Bank was a holder was ever
negotiated to them. See, Appendix p. 55, the Note, Appendix p. 56 a sample of a
22
prior transfer of the note to Laredo National Bank by a prior holder. In the
Modification noted in Appendix 59, while Compass Bank claims it now owns the
note, it does not stated that the Laredo National Bank has negotiated the note to
them by endorsing it, as the Transfer does on Appendix 55. No transfer or
negotiation of the note is evidenced here in this case. Neither the note, nor the
deed of trust, has been negotiated to Defendant/Appellant Compass Bank. The
Note lists The Laredo National Bank as the lender. See, Note, Appendix, page 56.4
The Note recognized that the Deed of Trust and the Note are a “Security
Instrument.” The Deed of Trust notes that Jose C. Gonzalez is the trustee.
Compass Bank and someone other than Jose Gonzalez are involved in the
foreclosure, not the Laredo National Bank. Compass Bank claims to be a
successor by Merger to Laredo National Bank. The documentation presented to
both this court and the District court does not reflect compliance with Texas
Business and Commerce Code Sec. 3.203, and 3.204 (indorsement is a signature
which is made for the purposes of negotiating the instrument. See also, Sec.
3.302(2)© HOLDER IN DUE COURSE, referring in (2) to “the holder took the
instrument:”© Except to the extent a transferor or predecessor in interest has
4
Counsel would love to provide this court a copy of the entire Note. However, Appellee
does not have her copy. And, Appellant has not provided, through Discovery, any copy showing
or evidencing an endorsement negotiated the note to Companss by Laredo National Bank.
23
rights as a holder in due course, a person does not acquire rights of a holder in due
course of an instrument taken: (1) by legal process or by purchase in an execution,
bankruptcy, or creditor's sale or similar proceeding;(2) by purchase as part of a
bulk transaction not in ordinary course of business of the transferor; or (3) as the
successor in interest to an estate or other organization. Formalities are
important.
Appellant claims that none of the theories under which Appellant claims to
argue that the District Court erred has any merit. See Yarto v. Gilliland, 287
S.W.3d 83, 87 (Tex. App.-Corpus Christi 2009, no pet.); Mitchell, 911 S.W.2d at
170. Under Sec. 3.202(2)© Compass bank is simply not the holder who may
exercise the power of sale.
Yarto and this Case are similar
This case is a miniature version of Yarto. The case in Yarto is very
instructive and should provide this court with the rationale for rejecting any claims
that the trial court erred in granting the injury. In Yarto, Robert Yarto, referring
to Falcon v. Ensignia, 976 S.W.2d 336 (Tex. App.-Corpus Christi 1998, no pet.)
maintained that the Gillilands failed to bring the justice court's jurisdiction into
question because they presented no specific evidence of a title dispute. Id., 287
S.W.3d at 87. In Falcon, Appellee Ensignia purchased a motel from Hernandez
24
and subsequently brought a forcible entry and detainer action against the Falcons
in a justice court. Falcon, 976 S.W.2d at 336. The Falcons, who had been
managing and residing in the motel for some time, refused to vacate upon
Ensignia's request.. Id., 976 S.W.2d at 337.The Falcons filed a written answer in
the justice court, wherein they alleged that they had entered into an oral contract
for the purchase of the property from an Hernandez prior to Ensignia's purchase of
the property. Id., 976 S.W.2d 337-38,The Falcons never produced any writing
evidencing this conveyance. Id. Ensignia, on the other hand, filed a copy of the
warranty deed and vendor's lien evidencing his purchase and ownership of the
property. Id. The justice court rendered judgment in favor of Ensignia, and the
Falcons appealed to a county court for a trial de novo. Id. After Ensignia moved
for summary judgment, and the Falcons failed to file a response, the county court
granted summary judgment in favor of Ensignia. Id. The Falcons then appealed to
this Court, arguing that the lower courts were without jurisdiction to determine
title. Id. This Court in Falcon rejected the argument, stating:
We do not believe a genuine title dispute was ever raised in either court. Falcon referred
to an oral agreement between him and Gonzalez [sic], but such agreement is
unenforceable as a matter of law. Specific evidence of title dispute is required to raise an
issue of a justice court's jurisdiction. Without the Falcons having presented specific
evidence to raise a genuine title dispute, the jurisdiction of the court was never at issue.
Id. at 338 (emphasis added) (citing Sparkman v. State, 968
25
S.W.2d 373, 378 (Tex.App.-Tyler 1997, pet. ref'd)) (citing
Mitchell v. Armstrong Capital Corp., 911 S.W.2d 169, 171
(Tex.App.-Houston [1st Dist.] 1995, writ denied)).
That lack of a genuine title dispute was not present in Yarto, as it is not
present here. Here there is a genuine title dispute based on the pleadings. The
Yarto’s Court's demand for specific evidence of a title dispute, referred to in
Falcon, above, rested on Sparkman v. State, wherein the Tyler Court of
Appeals—citing the Houston First Court of Appeals' opinion in Mitchell v.
Armstrong Capital Corporation as its example —observed that "courts have
required specific evidence of a title dispute before determining that a title dispute
deprived a justice court of jurisdiction in an action for forcible entry and detainer."
Sparkman, 968 S.W.2d at 378 (citing Mitchell v. Armstrong Capital Corp., 911
S.W.2d 169, 171 (Tex.App.-Houston [1st Dist.] 1995, writ denied)). The Yarto
court posed this question: “what specific evidence did the Mitchell court really
require? 287 S.W.3d 83, 87 Id., Yarto, at 87. It answered that question by noting
that in Mitchell, Armstrong Capital first prevailed on a forcible detainer action
against Mitchell in a justice court, and then later in a county court. Id., 911 S.W.
2d at 171. Mitchell appealed, arguing that the county court did not have
subject-matter jurisdiction over the case. Id. In addressing the argument, the court
26
of appeals stated that "[i]f it becomes apparent that a genuine issue regarding title
exists in a forcible detainer suit, the [justice or county] court does not have
jurisdiction over the matter."Id. The court then ruled in Mitchell's favor, stating:
Appellant Mitchell raised title as an issue in the justice court and county court at law by
asserting that the Substitute Trustee's Deed held by Armstrong Capital was void, and by
specifically giving notice that litigation was pending in the 268th District Court to set
aside the non-judicial foreclosure sale. Because a "title issue" was involved in the courts
below, they had no subject matter jurisdiction over the case. 911 S W. 2d at 171.
Id., Yarto, at 88.
The Yarto Court noted that the Mitchell opinion does not reference any
evidence Mitchell presented to support her claim that Armstrong Capital's deed
was void; rather, the opinion merely establishes that Mitchell was able to raise a
title dispute through her assertions and notice of pending litigation. The court then
held that it interpreted "specific evidence" as consisting of nothing more than the
various assertions that comprise a party's title claim, and concluded that "specific
evidence" of a title dispute exists when through those assertions, a party has
asserted a basis for title ownership that is not patently ineffective under the law
and is intertwined with the issue of immediate possession. The Yarto court noted
that The Waco Court of Appeals in Aguilar v. Weber, 72 S.W.3d 729, 734-35
(Tex.App.-Waco 2002, no pet.). Accordingly, the Aguilar court, like the Mitchell
court, found "specific evidence" of a title dispute based on the party's assertions,
rather than on evidence to support those assertions
27
Conclusion.
There is nothing patently ineffective under the law concerning Appellee’s
pleadings. Id., Yarto, generally. All factors to support maintaining the temporary
injunction are present.
There is a cause of action here; in fact, many, as evidenced in Appellee’s
pleadings. The pleadings themselves are evidence of a title dispute. Finally,
appellees loss of her South Padre Island home is something which courts have
found to be irreparable
Although Appellant does not once claim that the trial court abused his
discretion in granting the temporary injunction, it is clear that the trial court did
not abuse its discretion at all, but, after careful consideration of the evidence after
a fifty page hearing, ruled against Appellant. The temporary injunction should
remain in place, until the conclusion of the trial not set for August 10, 2015.
Issue #2 Appellant has no Standing to ask this Court to declare that
Appellee has No Valid Cause of Action against Appellant or Probable Right
to Recovery on Trial on the Merits. Appellant is effectively asking this court
to issue an advisory opinion on the merits of its defense. Appellant’s brief, in
general, is a request for this court to issue an illegal advisory opinion, and as
such should be dismissed. Any relief sought in the brief should be denied as
being moot as the appeal is simply a request for an advisory opinion.
Standard of Review
Standing is never presumed and cannot be waived. Tex. Ass'n of Business v.
28
Air Control Bd., 852 S.W.2d 440 - Tex: Supreme Court 1993. One limit on
courts' jurisdiction under both the state and federal constitutions is the separation
of powers doctrine. See Tex.Const. art. II, § 1; Valley Forge Christian College v.
Americans United for Separation of Church and State, 454 U.S. 464, 471-74
(1982); Warth v. Seldin, 422 U.S. 490, 498 (1975). Under this doctrine,
governmental authority vested in one department of government cannot be
exercised by another department unless expressly permitted by the constitution.
Thus the Texas Supreme Court and other Texas courts have construed the Texas
separation of powers article to prohibit courts from issuing advisory opinions
because such is the function of the executive rather than the judicial department.
Tex. Ass'n of Business v. Air Control Bd., 852 S.W.2d 440 - Tex: Supreme Court
1993), referring to Firemen's Ins. Co. v. Burch, 442 S.W.2d 331, 333 (Tex.1969);
Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641, 644 (Tex.1933).
The distinctive feature of an advisory opinion is that it decides an abstract
question of law without binding the parties. Alabama State Fed'n of Labor v.
McAdory, 325 U.S. 450, 461 (1945); Firemen's Ins. Co., 442 S.W.2d at 333. An
opinion issued in a case brought by a party without standing is advisory because
rather than remedying an actual or imminent harm, the judgment addresses only a
hypothetical injury. See Allen v. Wright, 468 U.S. 737, 751 (1984). Texas courts,
29
like federal courts, have no jurisdiction to render such opinions.
Subject matter jurisdiction is an issue that may be raised for the first time on
appeal; it may not be waived by the parties. Texas Employment Comm'n v.
International Union of Elec., Radio and Mach. Workers, Local Union No. 782,
163 Tex. 135, 352 S.W.2d 252, 253 (1961)--- standing is a component of subject
matter jurisdiction, and it cannot be waived and may be raised for the first time on
appeal.
Argument
It appears that the entire brief is actually a request for an advisory opinion.
The strength of the brief, according to its author is the absolute superior rights
Appellant has when compared to Appellee. Appellant’s issue is basically one that
requires the issuance of an advisory opinion. The specific language is Appellee
has no Cause of Action Against Appellant or Probable Recovery on Trial on the
Merits. See Brief, at 13. From Pages 13 through 32, Appellant tells this court that
Appellee has no chance to win and finishes with a request to overturn the
injunction because it cases is so strong as compared to Appellee’s. Brief, at 13-32.
This certainly is a request for an advisory opinion. It is tantamount to
Appellant arguing, “Listen Court, these guys have no chance to win at all in the
end, so order the District Court to stop the injunction and let us go after the
30
property.”
Similarly, pages 8 through 13 set up a predicate which tells this court that
because Appellant’s case has no merit and for that reason the injunction should not
stand.
Very simply, this court has no jurisdiction to hear this case as briefed. It
should be dismissed with prejudice with all costs charged to Appellant. alternative
relief sought in the brief should be denied as being a request for an advisory
opinion.
Recall that no one has been to the Justice Court. We have no order of
possession. We have a reluctant Defendant who seeks to win through legal
maneuvering rather than on the merits. Were Appellant’s claims of any merit,
certainly they would have prevail on the merits in the various dispositive motions
which Appellants have filed which the district court has consistently denied.
Asking this court to rule that Appellant’s case is better than Appellee’s case is
merely a ruse to get this court to issue an illegal advisory opinion. For that reason,
the case should be dismissed.
31
ISSUE# 3 The fact that this case is now set for trial on August 10, 2015, with
announcements and hearings on pending motions set for August 6, 2015,
moots any relief this Court may provide. Therefore, the case should be
dismissed.
This case is almost over. It has gone on for about a year and a half. The
District Court has set the matter for trial next month. There is no relief this court
can grant Appellee, in the short run, which would mean anything.
As a practical matter, for whatever reasons, the temporary injunction has
been in place and has lasted for over a year. Appellant did not file a brief on the
issue until December 30, 2014. The record does not explain what happened
between then and May 5, 2015 when Appellee asked for an extension of time to
file her brief.
Any relief granted this court may only complicate the litigation as there is
every likelihood that Appellee will prevail at trial on various issues, and may even
be able to obtain partial summary judgment, prior to trial, on several issues, such
as whether Appellant had the power of sale, and whether appellant’s pleadings are
an admission of tortious interference with contract, breach of contract, and
violation of a breach of fiduciary duty. Appellee will certainly be working on such
32
potential partial relief before trial.
Standard of Review
An issue may become moot when a party seeks a ruling on some matter that,
when rendered, would not have any practical legal effect on a then-existing
controversy. See In re H&R Block Fin. Advisors, Inc., 262 S.W.3d 896, 900 (Tex.
App.-Houston [14th Dist.] 2008, orig. proceeding); City of Farmers Branch v.
Ramos, 235 S.W.3d 462, 469 (Tex. App.-Dallas 2007, no pet.). When an appeal is
moot, we must set aside the judgment and dismiss the cause. City of Fort Worth
v. Pastusek Indus., Inc., 48 S.W.3d 366, 371 (Tex. App.-Fort Worth 2001, no pet.).
The mootness doctrine also implicates subject-matter jurisdiction. Hernandez-
Perez v. State, No. 01-09- 00801-CR, 2010 WL 2133935, at *1 (Tex.
App.—Houston [1st Dist.] May 27, 2010, no pet.) (mem. op.) (citing Trulock v.
City of Duncanville, 277 S.W.3d 920, 923 (Tex. App.—Dallas 2009, no pet.)). A
case is moot if a controversy ceases to exist or the parties lack a legally
cognizable interest in the outcome. Allstate Ins. Co. v. Hallman, 159 S.W.3d 640,
642 (Tex. 2005). When a case becomes moot, the parties lose standing to maintain
their claims. Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001).
33
Argument
At the moment, the issue of whether the temporary injunction was proper is
mooted by the sheer passage of time. Some of this may be Appellee’s fault, but a
good part of it also falls on Appellant’s shoulders, for various reasons. With trial
set just around the corner, there is no justiciable issue left concerning the
continuation of the temporary injunction The case has become mooted through
passage of time. The mootness doctrine prevents courts from rendering advisory
opinions, and under article II, section 1 of the Texas Constitution, courts have no
jurisdiction to issue advisory opinions. See Valley Baptist Med. Ctr. v. Gonzalez,
33 S.W.3d 821, 822 (Tex. 2000) (per curiam). "[A] controversy must exist
between the parties at every stage of the legal proceedings, including the appeal."
Bd. of Adjustment of City of San Antonio v. Wende, 92 S.W.3d 424, 427 (Tex.
2002) (quoting Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001)). An issue may
become moot when a party seeks a ruling on some matter which, when rendered,
would not have any practical legal effect on a then-existing controversy. In re
H&R Block Fin. Advisors, Inc., 262 S.W.3d at 900.
As a practical matter, the case is moot now. The court should therefore
dismiss the appeal.
34
PRAYER FOR RELIEF
WHEREFORE, for these reasons, Appellee respectfully requests the court to affirm the trial
court’s issues of a temporary injunction and to deny appellant any and all relief requested, and in
the alternative, dismiss the appeal as moot or as one requesting an illegal advisory opinion.
Respectfully submitted,
Philip T. Cowen
Law Office of Philip Cowen
500 E. Levee St.
Brownsville, Texas 78520
Tel. 956-541-1691
Fax 956-541-6872
By:/s/Philip T. Cowen
Philip T. Cowen
State Bar No. 24001933
Attorney for Appellant
35
CERTIFICATE OF SERVICE
This is to certify that on July 9, 2015 a true and correct copy of the above and foregoing
brief was served Appellant’s Counsel via Idocs service of process to email st@taherzlaw.com.
/s/Philip T. Cowen
Philip T. Cowen
36
CERTIFICATE OF COMPLIANCE
Pursuant to Tex. R. App. P. 9.4, I hereby certify that this brief contains
7,913 words. This document was created using Word Perfect X4, using 14-point typeface for all
text, except for footnotes and long passages cited from cases, which are in 12- point typeface. In
making this certificate of compliance, The word count was determined using Word Perfect X4
software which has the capability to calculate a word count.
/s/Philip T. Cowen
Philip T. Cowen
37
Appendix
Document Page No.
A. Deed of Trust CR542-565 1
B: Portion of Transcript of Hearing on Temporary Injunction 25
CR602-624
C Defendant Compass Bank's Amended Answer CRSupP86-89 48
D: Texas Business and Commerce Code SUBCHAPTER B. 52
NEGOTIATION, TRANSFER, AND INDORSEMENT
Sec. 3.201 through 3.204.
E: Texas B