Donald G. Wilhelm v. Federal National Mortgage Association , Its Successors and Assigns
2011 Tex. App. LEXIS 6793
| Tex. App. | 2011Background
- Appeal from a final summary judgment in a de novo appeal from a justice court forcible-detainer action; county court awarded possession to the mortgage holder after foreclosure.
- Wilhelm (homeowner) challenged the summary judgment and the amount set to supersede the judgment; no supersedeas bond was filed.
- Fannie Mae attached foreclosure chain documents (note, deed of trust, substitute trustee deed, and special warranty deed) in support of its motion for summary judgment.
- Wilhelm asserted a pending district court suit and claimed improper notice/discovery issues; he sought damages via counterclaims.
- Writ of possession was issued and possession delivered to Fannie Mae after Wilhelm failed to supersede; appeal was taken to this court.
- The court ultimately held the appeal moot and vacated the judgment, dismissing the appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the appeal moot because Wilhelm is no longer in possession? | Wilhelm argues discovery and factual issues preclude summary judgment. | Because Wilhelm is out of possession, the appeal is moot and nothing to adjudicate on title. | Yes; moot. |
| Did the trial court err in granting summary judgment on possession? | Affidavits and pending district suit create genuine issues of material fact. | Evidence demonstrates Fannie Mae has superior right to immediate possession. | No reversible error; summary judgment appropriate. |
| Is the supersedeas bond issue moot due to mootness of the appeal? | Bond amount was improperly set/unreasonable. | Bond issue becomes moot when appeal is moot. | Moot; bond issue not reviewed. |
Key Cases Cited
- Marshall v. Housing Authority of City of San Antonio, 198 S.W.3d 782 (Tex. 2006) (mootness condition when defendant no longer possesses premises; appeal may be moot without meritorious possession claim)
- Continental Oil Co. v. Lesher, 500 S.W.2d 183 (Tex. Civ. App.—Houston [1st Dist.] 1973) (considerations of supersedeas and possession in forcible-detainer actions)