THE BANKRUPTCY ESTATE OF TODD WILSON and DOWNIE JOHNSON CRAIG, Appellants v. THE HONORABLE MICHAEL PETTY, JUDGE PRESIDING JUSTICE OF THE PEACE COURT, PRECINCT 4, PLACE 1, DALLAS COUNTY, Appellee

VACATE and DISMISS; Opinion issued May 16, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-01502-CV
............................
THE BANKRUPTCY ESTATE OF TODD WILSON and
DOWNIE JOHNSON CRAIG, Appellants
V.
THE HONORABLE MICHAEL PETTY, JUDGE PRESIDING JUSTICE OF THE
PEACE COURT, PRECINCT 4, PLACE 1, DALLAS COUNTY, Appellee
.............................................................
On Appeal from the 193rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. 06-10730
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MEMORANDUM OPINION
Before Justices Whittington, Richter, and Mazzant
Opinion By Justice Mazzant
        Appellee, a justice of the peace, entered a judgment for possession of real property against “Todd Wilson and all other occupants” and in favor of real party in interest Bayview Loan Servicing, L.L.C. Appellant Downie Johnson Craig, who was a tenant occupying the property in question, filed a petition for writ of mandamus in the district court contending appellee lacked subject-matter jurisdiction to render that judgment.   See Footnote 1  The district court denied the petition. We conclude that the appeal is moot, vacate the district court's judgment, and dismiss.
I. Background
        This dispute concerns the right to possession of real property located in DeSoto, Texas. According to Craig, the tract is “a historical landmark formerly known as the 'Nance Farm.'” In 2002, Todd Wilson owned the property subject to a deed of trust in favor of lender Trian LLC. In 2003, Trian assigned the deed of trust and associated promissory note to Wachovia Bank, N.A. Real party in interest Bayview Loan Servicing, L.L.C. was Wachovia's servicer for the mortgage. According to Bayview, Wilson defaulted on the promissory note in December 2003 and made no subsequent payments. Regardless, in June 2004, Wilson leased the property to Craig under the name “Trouble Shooting for Christ,” a non-profit organization dedicated to assisting grieving widows. The one-year lease required Craig to pay no rent, and it provided for automatic renewal at the end of its term on a month-to-month basis. Wachovia foreclosed on the property during the first year of the lease. According to the substitute trustee's deed, IB Property Holdings, L.L.C. bought the property at a foreclosure sale in December 2004 for one hundred dollars. Bayview alleges it is an affiliate of IB Property Holdings and is the “account servicer” for IB Property Holdings with respect to this property.
        Craig did not vacate the premises, and in March 2005, Bayview filed a complaint for forcible detainer in justice court in Dallas County. Wilson contested the justice court's jurisdiction, contending that the issue of possession was intertwined with a question of title. Wilson also sued Bayview in Dallas County district court for wrongful foreclosure, breach of contract, and tortious interference. Bayview answered and made a forcible-detainer counterclaim in the wrongful- foreclosure suit. It appears that Craig intervened in the wrongful-foreclosure suit as a plaintiff, although we do not find her plea in intervention in our appellate record. It further appears that Wilson filed for bankruptcy after filing the wrongful-foreclosure suit and that his bankruptcy estate participated in the litigation in both courts thereafter.
        At first, the justice court abated Bayview's forcible-detainer action in favor of the wrongful- foreclosure suit. But the justice court eventually reopened the case on Bayview's motion, conducted a trial, and signed a judgment for possession in favor of Bayview. As far as our record reveals, the wrongful-foreclosure suit remains pending in district court.
        Instead of appealing the justice court's judgment, Craig and the bankruptcy estate of Todd Wilson filed an original petition for writ of mandamus as a new proceeding in district court. They asserted the justice court lacked subject-matter jurisdiction to render its judgment because the issue of possession was inextricably interwoven with the question of title and because the district court had “already assumed” jurisdiction over the same controversy in the wrongful-foreclosure suit. Bayview responded as the judgment creditor, and the district judge conducted a hearing and signed an order denying the petition. Craig and Wilson's bankruptcy estate filed a notice of appeal from the denial of their mandamus petition. As noted above, Wilson's bankruptcy estate has dismissed its appeal.
II. Jurisdiction
        Bayview has filed a motion to dismiss this case for mootness. Bayview asserts it obtained a writ of possession based on the justice court's judgment for possession and the writ of possession was executed only a few days after Craig and Wilson's bankruptcy estate filed their notice of appeal. In her response to the motion to dismiss, Craig acknowledges that Bayview has taken possession of the property by virtue of the writ of possession but argues that the case is not moot.   See Footnote 2 
         A.
 
General principles of the law of mootness
 
        A case becomes moot if a controversy ceases to exist between the parties at any stage of the legal proceedings, including the appeal. In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 737 (Tex. 2005). Generally, an appeal is moot when the court's action on the merits cannot affect the rights of the parties. VE Corp. v. Ernst & Young, 860 S.W.2d 83, 84 (Tex. 1993) (per curiam).
        The Texas Supreme Court specifically addressed the proper application of the mootness doctrine in forcible-detainer cases in Marshall v. Housing Authority of San Antonio, 198 S.W.3d 782 (Tex. 2006). The Housing Authority filed a forcible-detainer action against its tenant, Marshall, and won a judgment for possession. Id. at 784. Marshall appealed but later voluntarily vacated the premises. Id. at 785. While her appeal was pending, her lease with the Housing Authority expired, and the court of appeals dismissed the appeal as moot. Id. The supreme court held that Marshall's voluntary departure alone did not moot her appeal in light of her timely and clear expression of intent to appeal. Id. at 787. Rather, the mootness question turned on whether she continued to hold and assert a potentially meritorious claim of right to current, actual possession of the apartment. Id. Because the lease had expired and Marshall presented no basis for claiming any right to possession after the lease's expiration date, the court held the issue of possession became moot when the lease expired. Id. Accordingly, it vacated the lower courts' orders and dismissed the case. Id. at 784.
        Courts of appeals have relied on Marshall to dismiss appeals as moot on similar fact patterns. For example, in another appeal brought by an evicted tenant, the tenant's lease expired during the pendency of her appeal, but her lease provided it would be automatically renewed on a month-to- month basis unless a party gave 30 days' written notice of termination. De La Garza v. Riverstone Apts., No. 04-06-00732-CV, 2007 WL 3270769, at *1 (Tex. App.-San Antonio Nov. 7, 2007, no pet.) (mem. op.). The landlord had given the tenant notice to vacate more than 30 days before the lease's expiration date, so the court of appeals held the tenant had no continuing right of possession on which to base her appeal and concluded the issue of possession was moot. Id.; see also Mitz v. Bishop, No. 2-06-330-CV, 2007 WL 3317807 (Tex. App.-Fort Worth Nov. 8, 2007, no pet.) (mem. op.) (reaching the same result on similar facts). By contrast, the court of appeals distinguished Marshall and declined to dismiss a tenant's appeal from a forcible-detainer judgment as moot in Kennedy v. Andover Place Apartments, 203 S.W.3d 495 (Tex. App.-Houston [14th Dist.] 2006, no pet.). That case involved a HUD lease that the landlord could not terminate except for good cause. Id. at 497. There was no evidence that there was any good cause for terminating the tenant's lease after the forcible-detainer action was filed, so the court of appeals concluded that the tenant still had a basis for claiming a current right to possession, and the appeal was not moot. Id.
        In short, “[w]hen possession changes hands and there is no basis for a claim of right to possession, the issue of possession becomes moot.” De La Garza, 2007 WL 3270769, at *1. But if the evicted party has some potentially meritorious claim to current possession of the premises, his or her appeal does not become moot by reason of the eviction. See Kennedy, 203 S.W.3d at 497.
         B.
 
The unusual procedural posture of this case
 
        Marshall and its progeny all involve direct appeals from forcible-detainer judgments rendered by county courts at law, which in turn resulted from direct appeals from justice courts. See, e.g., Marshall, 198 S.W.3d at 788. In this case, by contrast, Craig did not pursue a direct appeal to the county court at law from the justice court's judgment for possession. Rather, she filed an original proceeding in district court seeking a writ of mandamus against the justice court, arguing the justice court had lacked subject-matter jurisdiction to decide possession on the facts of this case. She contends a direct appeal to the county court at law would have been improper because the justice court's lack of subject-matter jurisdiction likewise deprived the county court at law of jurisdiction over a direct appeal.
        At the outset, Craig's rationale for proceeding by petition for writ of mandamus in the district court is questionable. Texas courts possess jurisdiction to determine their own subject-matter jurisdiction. Dolenz v. Vail, 200 S.W.3d 338, 341 (Tex. App.-Dallas 2006, no pet.). We see no reason she could not have appealed to the county court at law and raised her jurisdictional challenge in that forum. Indeed, the cases she principally relies on in her brief on the merits are mostly direct- appeal cases, not appeals from original proceedings in the district court. E.g., A Plus Invs., Inc. v. Rushton, No. 2-03-174-CV, 2004 WL 868866, at *1 (Tex. App.-Fort Worth April 22, 2004, no pet.) (mem. op.); Rice v. Pinney, 51 S.W.3d 705, 707 (Tex. App.-Dallas 2001, no pet.); Mitchell v. Armstrong Capital Corp., 911 S.W.2d 169, 171 (Tex. App.-Houston [1st Dist.] 1995, writ denied). On the other hand, district courts do possess the power to issue writs of mandamus against justice courts in some circumstances. See Thompson v. Velasquez, 155 S.W.3d 551, 552 (Tex. App.-San Antonio 2004, no pet.) (district court had jurisdiction to consider mandamus petition against justices of the peace in two municipal courts). Courts of appeals generally lack mandamus power over justice courts. Tex. Gov't Code Ann. § 22.221 (Vernon 2004); Easton v. Franks, 842 S.W.2d 772, 773 (Tex. App.-Houston [1st Dist.] 1992, orig. proceeding). And Bayview, we note, does not challenge the propriety of Craig's decision to proceed by petition for writ of mandamus instead of by direct appeal.
         C.
 
Application of the law to the facts
 
        We conclude Craig's appeal is moot. That is, even if we were to rule in Craig's favor, and even if we or the district court on remand were to issue the writ, the parties' rights would not be affected.
        We reach this conclusion by the following analysis. By this mandamus proceeding, Craig seeks a writ voiding the justice court's judgment for possession. But even if we, or the district court on remand, were to grant such relief, the writ of mandamus alone would not actually return possession of the property to Craig; it would simply wipe the “possession” slate clean from the judicial perspective. Bayview would still be in actual possession of the property, so Craig would have to take some further legal action in order to retake possession. See Lighthouse Church of Cloverleaf v. Tex. Bank, 889 S.W.2d 595, 603 (Tex. App.-Houston [14th Dist.] 1994, writ denied) (Texas does not recognize “self-help repossession” of real estate). She could not proceed by a forcible-detainer action in justice court because Bayview would still hold the property under the foreclosure deed, which postdates her lease, and to demonstrate a superior right to possession she would have to challenge title. Disputes that require title determination are outside the justice court's subject-matter jurisdiction. Rice, 51 S.W.3d at 713.
        To regain possession after a reversal of the district court's judgment, Craig would have to pursue a wrongful-foreclosure suit against Bayview. See Hong Kong Dev., Inc. v. Nguyen, 229 S.W.3d 415, 444 (Tex. App.-Houston [1st Dist.] 2007, no pet.) (noting that forcible-detainer judgment's resolution of possession can be altered if litigation of other property issues results in a different determination). Indeed, she is already prosecuting such a suit in district court. But as far as we can perceive, a disposition of this appeal in her favor would not aid her in that proceeding either. Craig claims that her ability to prosecute her wrongful-foreclosure claim may be hampered by issue preclusion or claim preclusion. We disagree. Because the justice court had no jurisdiction with regard to title, its judgment has no preclusive effect in separate litigation to establish title. Bacon v. Jordan, 763 S.W.2d 395, 396 (Tex. 1988); Lopez v. Sulak, 76 S.W.3d 597, 605-07 (Tex. App.-Corpus Christi 2002, no pet.). The district court's denial of her petition for writ of mandamus implies only a conclusion that the justice court had jurisdiction to resolve the issue of immediate possession. Craig identifies no harmful preclusive effects flowing from this judgment, and we cannot perceive any.
        We note that our mootness analysis would be exactly the same if Craig had directly appealed from the justice court's judgment, suffered another adverse judgment of possession in the county court at law, appealed to this Court, and vacated the premises during the pendency of the appeal. Bayview would still be in possession of the property under a foreclosure deed subsequent in time to Craig's lease. Reversal of the judgment of possession for lack of subject-matter jurisdiction on a direct appeal would not, in and of itself, entitle Craig to retake possession of the property. Lighthouse Church of Cloverleaf, 889 S.W.2d at 603. Nor would such a reversal entitle her to seek recourse from a justice court in the face of the foreclosure deed. She would have to seek redress via a wrongful-foreclosure suit, which reversal of the judgment of possession on direct appeal would not aid. The existence of the foreclosure deed distinguishes this case from Kennedy because the tenant in that case could potentially demonstrate a superior right to immediate possession under her lease without having to attack the landlord's title to the property. See generally Kennedy, 203 S.W.3d at 497. Craig cannot.
        We conclude that the outcome of this appeal can have no effect on the parties' respective rights. Accordingly, the appeal is moot.
III. Conclusion
        We vacate the trial court's judgment and dismiss this case for lack of jurisdiction as moot.
 
 
                                                          
                                                          AMOS L. MAZZANT
                                                          JUSTICE
 
061502F.P05
 
Footnote 1 The Bankruptcy Estate of Todd Wilson joined in the mandamus petition and in this appeal, but it has voluntarily dismissed its appeal.
Footnote 2 Craig objects to Bayview's motion to dismiss because Bayview did not confer with her or include a certificate of conference as required by Texas Rule of Appellate Procedure 10.1(a)(5). Although we do not condone Bayview's disregard of the rule, we conclude no purpose would be served by striking the motion and requiring a conference since Craig has filed a written opposition to the motion.