Dana Dutschmann and Kevin Bierwirth v. Federal National Mortgage Association
03-14-00561-CV
| Tex. App. | May 7, 2015Background
- Kevin Bierwirth executed a deed of trust on property at 3305 Spaniel Drive; after default a prior court entered final summary judgment and authorized a non‑judicial home‑equity foreclosure; the property was conveyed to FNMA in 2012.
- Bierwirth unsuccessfully challenged the foreclosure and related writs in earlier proceedings; FNMA obtained title by Special Warranty Deed.
- Bierwirth procured access to the property on May 30, 2013; Dana Dutschmann leased and occupied the property from June 2013 through trial.
- FNMA filed a forcible‑detainer (eviction) action May 22, 2014; justice court default judgment entered June 17, 2014; appeal to county court followed.
- County court tried the forcible‑detainer on August 5, 2014, and entered judgment for FNMA on August 7, 2014; a writ of possession issued August 13, 2014 and was executed August 19, 2014.
- Post‑judgment, appellants raised (1) mootness (possession), (2) statute‑of‑limitations, (3) collateral attack on prior foreclosure/writs, (4) failure to set a supersedeas bond and alleged due‑process/judicial errors; trial court denied a writ of reentry and this appeal ensued.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness (possession) | Appeal is moot because appellants no longer possess the property and assert no meritorious right to immediate possession | Appellants contest procedural errors but do not claim entitlement to current possession | Appeal is moot unless appellants have a potentially meritorious claim to actual possession; appellants lack such a claim, so dismissal affirmed |
| Statute of limitations | FNMA: eviction claim timely; occupancies are continuing torts so each day gives rise to a new cause of action (filed within 2 years) | Appellants argued the claim was time‑barred | Court treats occupant’s possession as continuing or accruing at latest when access/lease began; FNMA’s suit was timely |
| Collateral attack on prior foreclosure/writs | FNMA: challenges to prior summary judgment/foreclosure are impermissible collateral attack and were previously adjudicated | Bierwirth sought to relitigate validity of prior summary judgment and Rule 310 writs | Challenges to the earlier foreclosure and writs constitute an impermissible collateral attack and are barred by prior adjudication |
| Supersedeas bond / Due process / Timing of writ | FNMA: failure to set a supersedeas bond is not reversible error; writ issued consistent with Rule 510.8(d)(1); appellants waived objections and had opportunity to appeal | Appellants argued the court failed to set a bond, writ issued prematurely, and due process/judicial error occurred | Court rejects these contentions: writ was issued on the sixth day after judgment as permitted, omission of bond amount is not reversible error, and no due‑process or judicial‑signing error shown |
Key Cases Cited
- Coinmach Corp. v. Aspenwood Apartment Corp., 417 S.W.3d 909 (Tex. 2013) (continuing‑tort and accrual principles)
- Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826 (Tex. 1990) (general accrual rule for causes of action)
- Wilhelm v. Federal National Mortgage Association, 349 S.W.3d 766 (Tex. App.—Houston [14th Dist.] 2011) (forcible‑detainer rule that only possession is at issue)
- Williams v. Bank of New York Mellon, 315 S.W.3d 926 (Tex. App.—Dallas 2010) (speedy nature and limited scope of forcible‑detainer actions)
- Two Pesos, Inc. v. Gulf Ins. Co., 901 S.W.2d 495 (Tex. App.—Houston [14th Dist.] 1995) (continuing‑tort discussion)