Speedy Car Wash, Incorporated and Carlos A. Guerra, Guarantor v. Gerald Sher, Susan Sher, Specialty Cuisine, Inc. D/B/A Isle Wash and Andrew Sher, Trustee ( 2023 )

NUMBERS 13-20-00492-CV, 13-21-00085-CV AND
13-21-00425-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
SPEEDY CAR WASH, INC. AND
CARLOS A. GUERRA, GUARANTOR, Appellants,
v.
GERALD SHER, SUSAN SHER,
SPECIALTY CUISINE, INC. D/B/A
ISLE WASH, AND ANDREW SHER,
TRUSTEE, Appellees.
On appeal from the 103rd District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Silva and Peña
Memorandum Opinion by Justice Peña
Appellees Gerald Sher, Susan Sher, Specialty Cuisine, Inc. d/b/a Isle Wash, and
Andrew Sher, trustee (the Sellers) sold three tracts of real property, one containing a car
wash business (the property), to appellants Speedy Car Wash, Inc. and Carlos A. Guerra,
Guarantor (the Purchasers). The Sellers, who financed the transaction, later sued the
Purchasers, seeking declaratory relief and alleging breach of contract and fraud claims.
During the pendency of the litigation, the Sellers conducted a non-judicial foreclosure on
the property pursuant to a Rule 11 agreement, and they later pleaded a claim for
deficiency. The trial court granted partial summary judgment in favor of the Sellers on
their deficiency claim and severed the judgment into a separate cause of action. Later,
the trial court granted summary judgment in favor of the Sellers on their claims concerning
the Purchasers’ post-foreclosure failure to vacate the property. The Purchasers appeal
the two summary judgments, as well as a post-judgment order authorizing a court-
appointed receiver to sell real property in satisfaction of the judgment. 1 We affirm the trial
court’s judgments in appellate cause numbers 13-20-00492-CV and 13-21-00085-CV.
We dismiss as moot appellate cause number 13-21-00425-CV.
I. BACKGROUND
A. The Sale
The subject property is located in South Padre Island, Cameron County, Texas.
The Purchasers bought the property for $977,000, making a down payment of $100,000,
with the remainder being seller-financed. The Purchasers held a special warranty deed
1 In appellate cause number 13-20-00492-CV, the Purchasers appeal the partial summary
judgment on the Sellers’ deficiency claim. Appellate cause number 13-21-00085-CV concerns the
Purchasers’ appeal from the final summary judgment in the original trial court cause. In appellate cause
number 13-21-00425-CV, the Purchasers appeal the trial court’s post-judgment order authorizing the
receiver sale. We address the appeals together in this consolidated memorandum opinion for the sake of
judicial efficiency.
2
with a vendor’s lien subject to a deed of trust and a real estate lien note. The note, in the
amount of $877,000, required monthly payments of $5,785.90 to the Sellers. The note
provided that in the event of default, the Sellers could opt to accelerate the note, causing
the unpaid principal balance and accrued interest to become immediately due and
payable. The Sellers disclaimed making “any warranties or representations . . . of any
kind or character, . . . including operating history or projections [and] valuation[.]”
Relatedly, the Purchasers disclaimed relying on any such representations, asserting that
they conducted their own independent investigation.
Approximately five months later, the Purchasers informed the Sellers that they
were unable to meet their payment obligations due to less-than-expected revenue from
the car wash business and that they wished to sell two of the three tracts. The Purchasers
requested a partial release of the Sellers’ deed of trust and lien covering those tracts to
facilitate the sale. The Sellers declined, and the Purchasers threatened litigation.
B. Partial Summary Judgment Proceedings
The Sellers preempted the Purchasers’ threat by filing suit seeking declaratory
relief that the note and deed of trust did not require them to grant a partial release of the
secured collateral. The Sellers also sought a declaration that the Purchasers waived any
claim that they relied on representations by the Sellers pursuant to the disclaimers
contained in the parties’ agreement. The Sellers alleged breach of contract and
anticipatory breach of contract claims based on the Purchasers’ threat of litigation and
their intention not to continue making timely monthly payments. Finally, the Sellers
alleged that the Purchasers committed fraud and fraudulent inducement.
3
Fifteen days after filing suit, the Sellers notified the Purchasers that they were
accelerating the unpaid principal balance and accrued interest on the note due to the
Purchasers’ default. The Sellers subsequently notified the Purchasers of a scheduled
non-judicial foreclosure sale.
Before the scheduled foreclosure, the Purchasers filed a “Counterclaim, Verified
Petition and Affirmative Defenses,” asserting various claims and defenses. 2 The Sellers
filed a Rule 91a motion to dismiss the Purchasers’ counterclaims, alleging that the claims
had no basis in law. See TEX. R. CIV. P. 91a. Subsequently, the trial court granted the
Sellers’ Rule 91a motion to dismiss in its entirety. 3
The parties then filed a Rule 11 agreement, see TEX. R. CIV. P. 11, containing the
following pertinent terms:
2. [The Sellers] shall agree to postpone the foreclosure sale currently set
for February 4, 2020[,] provided the [Purchasers] strictly comply with all
of the following:
a. [The Purchasers] shall make all loan payments current and due, that
is, December 2019 and January 2020, in the amount of $5,785.30
for each month totaling $11,570.60 on or before 5:00 PM CST
Monday, February 3, 2020.
b. The loan payments under 2(a) hereinabove shall be made by wire
transfer or direct deposit, certified check, bank draft, or other
verifiable manner and shall be made payable directly to the [Sellers].
c. [The Purchasers’] failure to timely make the loan payments as
required by 2(a) and 2(b) hereinabove shall authorize [the Sellers] to
proceed with the foreclosure sale scheduled for Tuesday, February
4, 2020 at 10:00 AM CST . . . without delay or interference by or on
behalf of [the Purchasers].
2 The Purchasers previously filed a special appearance and general denial as well as an application
for a temporary restraining order. Those pleadings are not relevant to this appeal.
3The trial court severed the Purchasers’ counterclaims into a separate cause of action. The
Purchasers did not appeal the dismissal of those claims.
4
d. [The Purchasers] shall refinance and pay [the Sellers] the
accelerated debt in its entirety pursuant to all conditions and terms
as set out in the Loan Documents including but not limited to all
principal, interest, penalties, fees, costs and expenses, including
reasonable attorney fees on or before March 1, 2020 at 5:00 PM
CST. . . .
e. [The Purchasers’] failure to refinance and timely pay as required by
2(d) hereinabove shall authorize [the Sellers] to proceed with
foreclosure on Tuesday, March 3, 2020 at 10:00 AM CST on the
steps of the Cameron County Courthouse in Brownsville, Cameron
County, Texas without any further required notice, other than notice
of the foreclosure sale for March 3, 2020, required under the Texas
Property Code, or judicial review and without delay or interference
by or on behalf of [the Purchasers].
The Purchasers were unable to refinance the loan by the agreed deadline, and the
March 3, 2020 non-judicial foreclosure proceeded. At the sale, the Sellers reacquired the
property for $800,000. They then filed a supplemental petition seeking a deficiency
judgment. The Sellers also sought attorney’s fees associated with conducting the
foreclosure. The Sellers brought an additional claim for breach of the Rule 11 agreement,
alleging the Purchasers refused to peaceably vacate the property. Finally, the Sellers
brought a claim for abuse of process and malicious civil prosecution based on the
Purchasers having filed a Rule 202 proceeding seeking pre-suit discovery in El Paso
County, Texas. See TEX. R. CIV. P. 202 (“Deposition Before Suit or to Investigate Claims”).
The Sellers filed a motion for partial summary judgment on their deficiency claim.
They sought a judgment in the amount of $95,588.47 pursuant to the terms of the real
estate lien note, deed of trust, and commercial loan security agreement. That figure
represented the difference between the foreclosure sale price and the debt owed on the
date of foreclosure. The Sellers also maintained they were entitled to $94,044.78 in
attorney’s fees and expenses associated with the foreclosure. The Sellers further argued
5
that the foreclosure sale was properly conducted pursuant to the parties’ Rule 11
agreement. The Sellers’ motion was supported by the transaction agreements, the real
estate lien note, a special warranty deed with vendor’s lien, a deed of trust, the Rule 11
agreement, foreclosure notices, and the affidavits of the Sellers’ counsel. The Sellers also
filed a motion for equitable relief, requesting “that the gross revenues generated by [the
Purchasers] from [the property] be paid into the registry of the Court until such time as
possession is restored to [the Sellers].”
The Purchasers filed a response to the motions, contending that they entered into
the Rule 11 agreement only “given the proviso that the financial information would be
forthcoming” and that the Rule 11 agreement is void because the Sellers did not provide
such information. The Purchasers supported the motion with the affidavit of Carlos
Guerra.
The Sellers replied, noting that the Rule 11 agreement contained no provision
requiring the Sellers to provide financial information. 4
The trial court held a hearing on the Sellers’ motions for partial summary judgment
and for equitable relief. After hearing arguments, the trial court orally pronounced it was
granting the partial summary judgment in part—awarding attorney’s fees and expenses
associated with the foreclosure. However, the trial court found “there is no deficiency”
because the Sellers “do have the property back.” The trial court also orally pronounced
that it was granting the Sellers equitable relief and ordered the Purchasers to vacate the
property. The trial court then signed an order that: granted the motion for partial summary
4The Sellers also claimed that the trial court dismissed the Purchasers’ affirmative defenses. We
disagree. Whether the existence of these affirmative defenses precludes summary judgment is an issue
we discuss below.
6
judgment “in part”; awarded the Sellers a $95,588.47 “judgment for deficiency, reasonable
and necessary attorney fees, and expenses incurred as of March 3, 2020,” 5 along with
post-judgment interest, and costs; and ordered the Purchasers to vacate the property.
The trial court severed the partial summary judgment into a separate cause, leaving the
Sellers’ post-foreclosure claims remaining.
C. Final Summary Judgment
After the Sellers obtained possession of the property, they filed a motion for final
summary judgment on their post-foreclosure breach of contract and trespass claims. The
Sellers argued that the Purchasers: (1) breached the transaction agreements by failing to
pay 2019 property taxes; (2) breached the Rule 11 agreement by clouding title and
interfering with the Sellers’ lawful attempts to regain possession of the property; and (3)
trespassed upon the property after foreclosure. The Sellers sought damages for the
unpaid property taxes, lost use or rent of the property, and attorney’s fees and costs
incurred post-foreclosure. The Sellers explained that despite affixing notices on the
premises for the Purchasers to vacate in March of 2020, they did not vacate until
December 30, 2020, when the Cameron County Sheriff’s Office executed a writ of
possession. The Sellers’ motion was supported by the transaction agreements,
foreclosure sale deed, counsels’ affidavits, records pertaining to the Purchasers’ legal
efforts to retain possession of the property post-foreclosure, and affidavit testimony
concerning the lost rental value for the property.
5 This award corresponds with the Sellers request for a deficiency judgment—not the attorney’s
fees and costs associated with the foreclosure pursuant to the trial court’s oral pronouncement. To the
extent there is a conflict between the oral pronouncements and the judgment, the matters set forth in the
written judgment control. See In re L.G.R., 498 S.W.3d 195, 206 (Tex. App.—Houston [14th Dist.] 2016,
pet. denied); In re JDN Real Estate–McKinney, L.P., 211 S.W.3d 907, 914 n.3 (Tex. App.—Dallas, 2006,
orig. proceeding).
7
The Purchasers filed a response, arguing that there existed a genuine issue of
material fact as to the Sellers’ causes of action. The Purchasers again alleged that the
Sellers failed to provide certain financial documents in violation of the transaction
agreements, which they argue were incorporated into the Rule 11 agreement. The
Purchasers’ response was supported by various emails between the parties’ counsel
throughout litigation.
The Purchasers later filed a supplemental response reiterating that the Sellers
breached the parties’ Rule 11 and loan agreements by failing to provide financial
documents. The Purchasers maintained they were excused from performance due to the
Sellers’ breach. The Purchasers attached the affidavit of Lidia Guerra, who purported to
be a financial adviser for the Purchasers. Lidia averred that the Sellers provided three
years of profit statements prior to closing. She claimed that upon purchasing the property,
the Purchasers discovered the car wash business was not generating the expected profit.
Lidia stated that this caused the Purchasers to request further financial documents, which
the Sellers failed to provide. Lidia claimed that the Sellers were required to provide further
financial documents after closing pursuant to the following clause in the transaction
documents: “Seller agrees to execute and deliver any additional documents and to
perform any additional acts reasonably necessary or appropriate to carry out the intent of
this bill of sale in transferring the Purchased Assets to Buyer.”
The trial court granted the Sellers’ motion for final summary judgment, awarding:
$19,243.65 for unpaid property taxes; $40,409.25 for loss of use or rentals; $125,191.49
in attorney’s fees and expenses incurred after the non-judicial foreclosure; and post-
judgment interest.
8
D. Post-Judgment Proceedings
The Sellers filed an application for post-judgment turnover and appointment of
receiver. The trial court granted the application, and the court-appointed receiver later
seized possession of real property owned by the Purchasers and located in El Paso,
Texas (El Paso property). The receiver also seized cash from the Purchasers’ bank
accounts. The receiver later obtained the trial court’s authorization to sell the El Paso
property, and he subsequently did so.
E. Appeals and Motions
The Purchasers perfected appeals from all three trial court judgments, 6 and the
parties have filed several motions with this Court that will be disposed of in this
memorandum opinion. In their appeals, the Purchasers argue that the trial court: (1) erred
in granting partial summary judgment and final summary judgment because the Sellers’
motions did not address the Purchasers’ affirmative defenses, and because the
Purchasers raised a fact issue concerning the defenses of fraud and estoppel; and
(2) abused its discretion by granting the receiver authority to sell the El Paso property.
The Purchasers have filed a motion to set aside the receiver sale, or in the alternative, a
petition for writ of mandamus seeking such relief. 7 The Sellers, meanwhile, have filed a
6 The Purchasers have filed a motion to determine jurisdiction in appellate causes 13-20-00492-
CV and 13-21-00085-CV. The Purchasers note in the motion that they failed to reference the proper cause
number in their notice of appeal from the trial court’s partial summary judgment, but they cited the correct
order being challenged. The Purchasers argue that this constituted a bona fide attempt to invoke appellate
jurisdiction. We agree that the Purchasers have invoked appellate jurisdiction in each appellate cause. See
Mitschke v. Borromeo, 645 S.W.3d 251, 261 (Tex. 2022) (explaining that a document that is defective but
timely filed invokes appellate jurisdiction). We dismiss the Purchasers’ motion to determine jurisdiction as
moot.
7 The Sellers have filed a motion to strike a supplemental exhibit filed in support of the Purchasers’
motion to set aside the receiver sale. The court-appointed receiver has filed a motion to join and adopt the
Sellers’ motion to strike. We grant both motions. The supplemental exhibit is not a part of the record on
appeal. Documents filed with the Court, “but not appearing in the appellate record, cannot be considered
9
motion to dismiss as moot the Purchasers’ appeal from the trial court’s order authorizing
the receiver sale.
II. SUMMARY JUDGMENT
A. Standard of Review
We review the trial court’s grant of summary judgment de novo. Valence Operating
Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). A party moving for traditional summary
judgment bears the burden of proving that there is no genuine issue of material fact and
that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c). A plaintiff movant
must conclusively prove all essential elements of its cause of action as a matter of law.
Draughon v. Johnson, 631 S.W.3d 81, 87 (Tex. 2021). If the plaintiff does so, then the
burden shifts to the defendant “to present to the trial court any issues or evidence that
would preclude summary judgment.” Duncan v. Hindy, 590 S.W.3d 713, 719 (Tex. App.—
Eastland 2019, pet. denied) (citing City of Houston v. Clear Creek Basin Auth., 589
S.W.2d 671, 678–79 (Tex. 1979)).
“If the non-movant relies on affirmative defenses to defeat summary judgment on
the movant’s cause of action, the non-movant must do more than merely plead the
affirmative defense.” Wyrick v. Bus. Bank of Tex., N.A., 577 S.W.3d 336, 346–47 (Tex.
App.—Houston [14th Dist.] 2019, no pet.) (citing Lujan v. Navistar Fin. Corp., 433 S.W.3d
699, 704 (Tex. App.—Houston [1st Dist.] 2014, no pet.)). “[T]he defendant must bring
forth evidence sufficient to raise a genuine issue of material fact on each element of its
affirmative defense.” TEC Olmos, LLC v. ConocoPhillips Co., 555 S.W.3d 176, 180–81
(Tex. App.—Houston [1st Dist.] 2018, pet. denied) (citing Brownlee v. Brownlee, 665
on appellate review.” Hogg v. Lynch, Chappell & Alsup, P.C., 480 S.W.3d 767, 773 (Tex. App.—El Paso
2015, no pet.).
10
S.W.2d 111, 112 (Tex. 1984)). “Issues not expressly presented to the trial court by written
motion, answer or other response shall not be considered on appeal as grounds for
reversal.” TEX. R. CIV. P. 166a(c). Therefore, “any issues a non-movant contends avoid
the movant’s entitlement to summary judgment must be expressly presented by written
answer to the motion or by other written response to the motion and are not expressly
presented by mere reference to summary judgment evidence.” Mercier v. Sw. Bell Yellow
Pages, Inc., 214 S.W.3d 770, 774 (Tex. App.—Corpus Christi–Edinburg 2007, no pet.)
(citing McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993)).
When reviewing a summary judgment, we take as true all evidence favorable to
the non-movant, indulging every reasonable inference and resolving any doubts in the
non-movant's favor. Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015).
B. Analysis
The Purchasers do not contend on appeal that the Sellers failed to meet their initial
summary judgment burden to conclusively establish their claims as a matter of law. See
TEX. R. CIV. P. 166a(c). Therefore, we do not address the issue. See Brumley v. McDuff,
616 S.W.3d 826, 830 (Tex. 2021) (“With the exception of fundamental errors, a court of
appeals must not reverse a trial court’s judgment in the absence of properly assigned
error.”). Rather, the Purchasers argue that the summary judgment was improper because
(1) the Sellers’ motions failed to address the Purchasers’ affirmative defenses, and (2) the
Purchasers “raised a fact question concerning the affirmative defenses of fraud and
estoppel” in their responses to each motion.
First, the Sellers carried no burden to negate the Purchasers’ affirmative defenses
in their motions. “[A] plaintiff is not required to move for summary judgment on the
11
defendant’s affirmative defenses and has no obligation to negate those defenses.” Marx
v. FDP, LP, 474 S.W.3d 368, 377–78 (Tex. App.—San Antonio 2015, pet. denied) (first
citing Brownlee, 665 S.W.2d at 112; and then citing Woodside v. Woodside, 154 S.W.3d
688, 691 (Tex. App.—El Paso 2004, no pet.)); see also Wise v. Luke Dev., LLC, No. 04-
12-00477-CV, 2013 WL 4483381, at *2 (Tex. App.—San Antonio Aug. 21, 2013, no pet.)
(mem. op.) (“The defendant’s mere pleading of an affirmative defense does not prevent
the rendition of summary judgment for a plaintiff who has conclusively established each
element of its cause of action as a matter of law.”).
Second, the Purchasers did not expressly raise their affirmative defenses in the
trial court. In their response to both motions for summary judgment, the Purchasers
argued that a fact issue existed regarding the Sellers’ claims for breach of the parties’
agreements because the Sellers breached their obligations to provide certain financial
information. However, the Purchasers made no arguments regarding the affirmative
defenses. The Purchasers did not reference their affirmative defenses at all, much less
identify their elements. 8 Therefore, the Purchasers failed to expressly present their
affirmative defenses as a basis for denying the Sellers’ motions. See TEX. R. CIV.
P. 166a(c). Mercier, 214 S.W.3d at 775 (“Because Mercier failed to expressly present the
affirmative defenses in his written response, . . . his response raised no fact issues
precluding summary judgment.”); see also Haley v. Beneficial Fin. I Inc., No. 13-18-
8 As set out above, the Purchasers summary judgment responses relied on their contention that
the Sellers breached the parties’ agreement by failing to provide unspecified financial documents long after
the sale was completed. In support of their argument, the Sellers relied solely on the following contract
clause: “Seller agrees to execute and deliver any additional documents and to perform any additional acts
reasonably necessary or appropriate to carry out the intent of this bill of sale in transferring the Purchased
Assets to Buyer.” Even if we were to construe this as raising an affirmative defense, the Purchasers do not
re-urge this argument on appeal. At any rate, we note that this provision imposes no obligation on the
Sellers to provide the Purchasers further documents after delivery of the “Purchased Assets.”
12
00058-CV, 2019 WL 2709015, at *5 (Tex. App.—Corpus Christi–Edinburg June 28, 2019,
no pet.) (mem. op.) (“[B]ecause the [non-movants] failed to expressly raise their
affirmative defenses in their responses to [plaintiff’s] motion for summary judgment, they
were not preserved for our review.”). We overrule the Purchasers’ sole issue in its appeal
from both summary judgments.
III. RECEIVER’S SALE
In their appeal from the trial court’s post-judgment order, the Purchasers argue that
the trial court abused its discretion by granting the court-appointed receiver authority to
sell the El Paso property. Particularly, the Purchasers argue that, prior to the order, they
superseded the judgments by posting sufficient bond. The Sellers disagree that the bonds
were sufficient. The Sellers further argue that the issue is moot because the property has
already been sold, and they have filed a motion to dismiss the appeal on that basis. The
Purchasers have filed their own motion to set aside the sale.
A. Pertinent Facts
On August 13, 2021, the Sellers filed an application for post-judgment turnover
and appointment of receiver. On September 15, 2021, the trial court appointed a receiver
and ordered the Purchasers to turn over all non-exempt assets. On September 21, 2021,
the receiver seized the Purchasers’ El Paso property. Three days later, the receiver
sought authorization to sell the property. The Purchasers then filed a motion to terminate
the receivership, contending they filed supersedeas bonds on September 27, 2021, that
were sufficient to supersede the judgments. The trial court clerk approved the bonds,
which were issued on behalf of Guerra only. The Sellers filed a response contending that
the bond amounts did not cover court costs and interest and did not include Speedy Car
13
Wash, the party that owned the El Paso property. On October 18, 2021, the Purchasers
filed their first amended supersedeas bonds. One of the amended bonds was made
payable to an unrelated third party and it was in the amount of only $10,000. These
amended bonds had not been approved by the trial court clerk as of that date. See TEX.
R. APP. P. 24.1(b)(2) (“To be effective a bond must be approved by the trial court clerk.”).
On October 19, 2021, the trial court held a hearing on the pending motions. At the
hearing, the receiver represented that that the commercial lien holder of the El Paso
property had agreed to allow the receiver to take possession and sell the property to avoid
foreclosure. The trial court entertained arguments from both parties regarding the
sufficiency of the supersedeas bonds. From the bench, the trial court granted the
receiver’s application to sell the El Paso property, while denying the Purchasers’ motion
to terminate the receivership. That same day the trial court signed an order authorizing
the sale.
At 6:38 p.m. the next day, the Purchasers filed an emergency motion for stay and
to determine sufficiency of the bonds in this Court. See TEX. R. APP. P. 24.4(a), (c). On
October 21, we granted a temporary stay of the enforcement of the partial and final
summary judgments, and we requested that the Sellers file a response to the motion.
Unbeknownst to the Purchasers, and before they filed their emergency motion, the
receiver previously executed a special warranty deed on October 20, 2021, at 1:00 p.m.
that was recorded in the real property records later that day at 3:18 p.m. The title company
wired the receiver the sale proceeds the next day.
On October 29, 2021, the trial court clerk approved the Purchasers’ amended
supersedeas bonds. We later issued an order abating the appeals and instructing the trial
14
court to rule expressly on the sufficiency of the security in the first instance. We directed
the trial court to hold a hearing and to issue findings and conclusions regarding the
supersedeas issue. Before the trial court could hear the matter, the parties filed a joint
stipulation agreement with this Court in which they stipulated that, as of October 29, 2021,
the supersedeas bonds were sufficient to supersede the judgments and that enforcement
of the judgments was suspended. As a result, we lifted our stay and reinstated the
appeals.
B. Mootness
The Sellers have filed a motion to dismiss this appeal as moot. They contend that
the receiver’s sale moots any issues pertaining to the trial court’s order authorizing the
sale. The Purchasers respond that there remains a live controversy because the
receiver’s sale is void and may be set aside.
“Under the Texas Constitution’s separation-of-powers doctrine, courts lack
jurisdiction to issue an advisory opinion, the ‘distinctive feature’ of which is that it ‘decides
an abstract question of law without binding the parties.’” Abbott v. Mexican Am. Legis.
Caucus, Tex. House of Representatives, 647 S.W.3d 681, 689 (Tex. 2022) (quoting Tex.
Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993)); see TEX. CONST.
art. II, § 1. Therefore, an appellate court lacks jurisdiction to issue an opinion on a moot
controversy. See Heckman v. Williamson County, 369 S.W.3d 137, 162 (Tex. 2012). “A
case becomes moot if, since the time of filing, there has ceased to exist a justiciable
controversy between the parties—that is, if the issues presented are no longer ‘live,’ or if
the parties lack a legally cognizable interest in the outcome.” Id. (citations omitted). In
15
other words, “a case is moot when the court’s action on the merits cannot affect the
parties’ rights or interests.” Id.“When a party appeals an order appointing a receiver or authorizing sale of certain
property and the property has been sold, the appeal of the order becomes moot.” Mitchell
v. Turbine Res. Unlimited, Inc., 523 S.W.3d 189, 196 (Tex. App.—Houston [14th Dist.]
2017, pet. denied) (citing Beard v. Beard, 49 S.W.3d 40, 71 (Tex. App.—Waco 2001, pet.
denied)). Here, the receiver has completed the sale authorized by the trial court. As a
result, any determination that the trial court erred in authorizing the sale would have no
effect as there is no longer a controversy to resolve. See Heckman, 369 S.W.3d at 162.
Therefore, this appeal is moot, and we must dismiss the appeal for lack subject-matter
jurisdiction. See Alsobrook v. MTGLQ Inv’rs, LP, 656 S.W.3d 394, 395 (Tex. 2022)
(holding that the appeal of a foreclosure order was mooted by the sale of the property at
issue) (per curiam); Moss-Schulze v. EMC Mortg. Corp., 280 S.W.3d 876, 877 (Tex.
App.—El Paso 2008, pet. denied) (same); see also Bass v. Bass, No. 05-15-01362-CV,
2016 WL 1703007, at *1 (Tex. App.—Dallas Apr. 27, 2016) (mem. op.) (“Because the
property that was the subject of the appealed interlocutory order appointing a receiver
has been sold, the appeal from that order is now moot.”). Accordingly, we grant the
Sellers’ motion to dismiss this appeal. However, as explained below, this does not moot
the Purchasers’ motion to set aside the sale filed in the summary judgment appeals, to
the extent the motion presents arguments for voiding the sale that do not assail the trial
court authorization order. See In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 737
(Tex. 2005) (orig. proceeding) (explaining that if only some claims or issues become
moot, the case remains live as to other claims or issues that are not moot).
16
C. Was our Stay Violated?
In their motion to set aside the sale, the Purchasers allege that the sale is void
because it occurred after this Court’s stay order issued. 9 Actions taken in violation of an
appellate stay order are void. In re Bates, 429 S.W.3d 47, 53 (Tex. App.—Houston [1st
Dist.] 2014, orig. proceeding); see Stephens v. Hemyari, 216 S.W.3d 526, 529 (Tex.
App.—Dallas 2007, pet. denied) (explaining that a sale of real property that violates a
bankruptcy court’s automatic stay “is void and passes no title”). Therefore, whether the
sale is void for violating our stay order presents a live controversy. See Heckman, 369
S.W.3d at 162; see also Welch v. Specialized Loan Serv., LLC, No. 01-21-00704-CV,
2023 WL 2249202, at *4 n.3 (Tex. App.—Houston [1st Dist.] Feb. 28, 2023, no pet. h.)
(mem. op.) (concluding that a claim that a foreclosure sale was void for violating a
temporary restraining order was not mooted by the property’s sale).
Here, the record establishes that the sale was completed before the Purchasers
sought emergency appellate relief, and before our stay order was issued. See Thompson
v. Six Shooter Enters., LLC, 633 S.W.3d 107, 114 (Tex. App.—El Paso 2021, no pet.) (“In
Texas, it is settled that title to real property will vest upon execution and delivery of the
deed.”). Before the Purchasers sought emergency relief, the receiver had executed and
9 The Purchasers also argue that the sale should be set aside because their supersedeas bonds
were sufficient to supersede the judgment. However, this argument was presented to and rejected by the
trial court when it issued its order authorizing the sale. For the reasons previously discussed, any issues
concerning whether the trial court erred in authorizing the sale are moot. At any rate, we note that the bonds
approved by the trial court clerk superseded the judgment only as to Guerra, individually. The El Paso
property was owned by Speedy Car Wash. At the time of the sale, there were no bonds in place, approved
by the trial court clerk, that would prohibit the receiver from enforcing the judgment as to Speedy Car Wash.
See Fortune v. McElhenney, 645 S.W.2d 934, 935 (Tex. App.—Austin 1983, no writ) (holding that each
joint and severally liable judgment debtor must file a sufficient supersedeas bond, either separately or
jointly); see also Jackson Walker, LLP v. Kinsel, No. 07-13-00130-CV, 2014 WL 720889, at *3 (Tex. App.—
Amarillo Feb. 14, 2014, no pet.) (mem. op.) (explaining that “each judgment debtor should be obligated to
supersede the judgment by providing security in an amount equal to his respective liability imposed by the
decree”).
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recorded a special warranty deed. See id. (“The recording . . . establishes a prima facie
case of delivery and the accompanying presumption that the grantor intended to convey
the land according to the terms of the deed.”). The Purchasers argue that there is
evidence the title company wired the proceeds of the sale after our stay issued, a fact the
Sellers dispute. However, this fact is immaterial because the receiver completed all
necessary actions to finalize the sale prior to our order, and he took no actions following
our order that must be voided for violating the stay. We deny the Purchasers’ motion to
set aside the sale. We dismiss as moot the Purchasers’ alternative request that we treat
the motion as a petition for writ of mandamus.
IV. CONCLUSION
We affirm the trial court’s judgments in appellate cause numbers 13-20-00492-CV
and 13-21-00085-CV. We dismiss as moot appellate cause number 13-21-00425-CV.
L. ARON PEÑA
Justice
Delivered and filed on the
11th day of May, 2023.
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