Summary
In Alsobrook, we concluded that where the subject property had been sold in foreclosure, "any judgment issued by the Court would have no effect as there is no longer a controversy to resolve."
Summary of this case from In Estate of WebbOpinion
No. 05-20-00400-CV
10-26-2021
Courtney D. ALSOBROOK, Appellant v. MTGLQ INVESTORS, LP, Appellee
David M. Vereeke, Jack B. Peacock Jr., and Mary Heliane Fabian, Gagnon, Peacock & Vereeke, P.C., Dallas, for Appellant. Jeffry Becker Lewis, Stephanie Jo Wellner, Robertson Anschutz Vetters, LLC, Houston, for Appellee.
David M. Vereeke, Jack B. Peacock Jr., and Mary Heliane Fabian, Gagnon, Peacock & Vereeke, P.C., Dallas, for Appellant.
Jeffry Becker Lewis, Stephanie Jo Wellner, Robertson Anschutz Vetters, LLC, Houston, for Appellee.
Before Justices Myers, Partida-Kipness, and Garcia
MEMORANDUM OPINION
Opinion by Justice Partida-Kipness
Appellant Courtney D. Alsobrook appeals a summary judgment in favor of Appellee MTGLQ Investors, L.P. Alsobrook brought the underlying action to stop foreclosure proceedings on her home. MTGLQ contends this appeal is moot because the property at issue was sold pursuant to a foreclosure sale on February 4, 2020. We conclude the property which was the subject of the underlying lawsuit has been sold and dismiss the appeal as moot.
BACKGROUND
In 2004, Alsobrook purchased real property located at 221 Alta Vista, Rockwall, Texas 75087. She financed the purchase with an adjustable rate note secured by a lien and evidenced by a Deed of Trust. Alsobrook stopped making payments on the loan on July 1, 2010, leaving an unpaid balance of more than $155,000 as of January 31, 2019.
MTGLQ was not the original mortgagee on the property, but was the mortgagee when Alsobrook filed the underlying action. On October 15, 2018, a Notice of Foreclosure Sale of the property was filed with the Rockwall County Clerk. The sale was scheduled for November 6, 2018. On November 2, 2018, Alsobrook filed the underlying action. In her original petition, Alsobrook sought a temporary restraining order to stop the foreclosure sale, injunctive relief, and a declaratory judgment. She sought declarations that MTGLQ was not entitled to foreclose because MTGLQ was not the record holder of the note and deed of trust, the notices were void, and any right to foreclose was barred by the statute of limitations because of a 2010 acceleration that was not rescinded. The trial court issued a TRO on November 5, 2018, which restrained MTGLQ from completing the foreclosure sale scheduled for the next day. The TRO expired on its own terms, and Alsobrook did not obtain a temporary or permanent injunction to stop future foreclosure proceedings.
After mediation failed, MTGLQ filed a motion for summary judgment. MTGLQ argued Alsobrook's claims were barred by res judicata because the prior mortgagee had obtained a final judgment permitting foreclosure in a different proceeding. MTGLQ also argued that Alsobrook's declaratory judgment action failed as a matter of law.
The trial court granted MTGLQ's motion for summary judgment on December 16, 2019, and notified the parties that the summary judgment was final and appealable. Alsobrook filed a motion for new trial, MTGLQ filed a response, and the trial court denied the motion by written order dated January 31, 2020. Alsobrook filed her notice of appeal on March 12, 2020. She contends on appeal that summary judgment was erroneously granted and seeks remand for a new trial.
ANALYSIS
In its response brief on appeal, MTGLQ represents to this Court that the appeal is moot and should be dismissed because the property was sold to MTGLQ at a foreclosure sale on February 4, 2020, and title to the property was conveyed to MTGLQ by Foreclosure Sale Deed dated February 15, 2020. A live controversy between the parties is essential to this Court's exercise of appellate jurisdiction. See Valley Baptist Med. Ctr. v. Gonzalez , 33 S.W.3d 821, 822 (Tex. 2000). We must, therefore, consider the question of mootness before addressing the merits of the case.
MTGLQ has not provided the Court with a copy of the Foreclosure Sale Deed or any tangible proof of the sale. But there are publicly-available property records of which we could take judicial notice and determine the ownership of the property. An appellate court has the power to take judicial notice for the first time on appeal of adjudicative facts that are matters of public record and not subject to reasonable dispute because they can be accurately and readily determined from sources whose accuracy cannot be reasonably questioned. Cnty. of El Paso v. Navar , 584 S.W.3d 73, 77–79 (Tex. App.—El Paso 2018, no pet.) (first citing TEX. R. EVID. 201(b), (c); and then citing Off. of Pub. Util. Couns. v. Pub. Util. Comm'n of Tex. , 878 S.W.2d 598, 600 (Tex. 1994) and Taylor v. Margo , 508 S.W.3d 12, 24 (Tex. App.—El Paso 2015, pet. denied) ). For example, appellate courts take judicial notice of facts not in evidence before the trial court if the facts deprive the appellate court of jurisdiction, for example by mooting an appellate issue. E.g., Meeker v. Tarrant Cnty. Coll. Dist. , 317 S.W.3d 754, 759, 761–63 (Tex. App.—Fort Worth 2010, pet. denied) (holding that appeal was moot and stating that "[b]ecause mootness is a matter that ordinarily arises after the rendition of the judgment or order appealed from, we can only determine whether Meeker's appeal is moot by considering evidence of matters occurring subsequent to the trial court's summary judgment order"); accord FinServ Cas. Corp. v. Transam. Life Ins. Co. , 523 S.W.3d 129, 147 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (taking judicial notice of subsequent order that rendered appeal moot); In re Estate of Hemsley , 460 S.W.3d 629, 638–39 (Tex. App.—El Paso 2014, pet. denied) (taking judicial notice of obituary published in the El Paso Times and news reports of burial to determine whether appellate issue was moot); City of Shoreacres v. Tex. Comm'n on Env't Quality , 166 S.W.3d 825, 828–38 & n.2 (Tex. App.—Austin 2005, no pet.) (taking judicial notice of permit issued by United States Army Corps of Engineers and concluding that the permit rendered appeal moot.).
Here, the Rockwall County Central Appraisal District on-line records show the property at issue, 221 Alta Vista Drive, Rockwall, Texas 75087, was conveyed by Alsobrook to MTGLQ by foreclosure sale deed on February 4, 2020. Those records also list MTGLQ as the current owner of the property and indicate the property was taxed in the name of MTGLQ in 2020 and 2021. These records are publicly available and are not subject to reasonable dispute because the information can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. See, e.g., Newton v. Holland , 2014 WL 318567, at *1 n.1 (E.D. Ky, Jan. 29, 2014) (mem. op.) ("[B]ecause records and information located on government websites are self-authenticating under Federal Rule of Evidence 902, [a] court may take judicial notice of them."); see also Kew v. Bank of Am., N.A. , CIV. A. H-11-2824, 2012 WL 1414978, at *3 (S.D. Tex. Apr. 23, 2012) (taking judicial notice of the appraised fair-market value of certain real property published on the Harris County Appraisal District's website was proper); Kitty Hawk Aircargo, Inc. v. Chao , 418 F.3d 453, 457 (5th Cir. 2005) (taking judicial notice of approval by the National Mediation Board published on the agency's website); Coleman v. Dretke , 409 F.3d 665, 667 (5th Cir. 2005) (per curiam) (taking judicial notice of Texas agency's website). As such, we take judicial notice of these records and the facts they contain, and conclude these records provide sufficient proof that the property has been sold to MTGLQ and that Alsobrook no longer owns the property.
https://propaccess.trueautomation.com/clientdb/Property.aspx?cid=42 & prop_id=17213.
Id.
Having concluded that the foreclosure sale occurred and MTGLQ owns the property, we must next determine whether a live controversy remains between the parties. The mootness doctrine dictates that courts avoid rendering advisory opinions by only deciding issues that present a "live" controversy at the time of the decision. Camarena v. Tex. Emp. Comm'n , 754 S.W.2d 149, 151 (Tex. 1988) ; Young v. Young , 168 S.W.3d 276, 287 (Tex. App.—Dallas 2005, no pet.). An issue becomes moot when (1) it appears that one seeks to obtain a judgment on some controversy, which in reality does not exist or (2) when one seeks a judgment on some matter which, when rendered for any reason, cannot have any practical legal effect on a then-existing controversy. City of Farmers Branch v. Ramos , 235 S.W.3d 462, 469 (Tex. App.—Dallas 2007, no pet.) (citing Young , 168 S.W.3d at 287 ). When the judgment of this Court can have no effect on an existing controversy, a case becomes moot and should be dismissed. See Fed. Deposit Ins. Corp. v. Nueces Cnty. , 886 S.W.2d 766, 767 (Tex. 1994) ; Meeker , 317 S.W.3d at 759 ; Moss-Schulze v. EMC Mortg. Corp. , 280 S.W.3d 876, 877 (Tex. App.—El Paso 2008, pet. denied).
Here, the property, which is the subject of this appeal and the property to be foreclosed, has been sold. As a result, any judgment issued by the Court would have no effect as there is no longer a controversy to resolve. See e.g., Moss-Schulze , 280 S.W.3d at 877 (appeal of foreclosure order mooted by sale of property at issue). Alsobrook's case has, therefore, become moot and must be dismissed. See id.
CONCLUSION
The property at issue was sold at a foreclosure sale after the trial court rendered the judgment below. No controversy remains between the parties and, as such, this appeal is moot. Accordingly, we dismiss the appeal without reaching the merits.