Catapult Realty Capital, L.L.C. v. Johnson (In re Catapult Realty Capital, L.L.C.)

IN RE CATAPULT REALTY CAPITAL, L.L.C., Relator

CATAPULT REALTY CAPITAL, L.L.C., Appellant v. TOBIAN JOHNSON, Appellee

No. 05-19-01056-CV

No. 05-19-00109-CV

Court of Appeals Fifth District of Texas at Dallas

February 20, 2020

Original Proceeding from the County Court at Law No. 2 Dallas County, Texas

Trial Court Cause No. CC-18-05600-B

On Appeal from the 191st Judicial District Court Dallas County, Texas

Trial Court Cause No. DC-18-12714

MEMORANDUM OPINION

Before Justices Myers, Osborne,¹ and Nowell

Opinion by Justice Osborne

This interlocutory appeal, appeal, and original proceeding arise from the foreclosure of Tobian Johnson's real property.² The litigation in this matter has worked its way through variouscourts culminating in a web of proceedings and orders, including the orders that are the subject of these proceedings. In these proceedings, Catapult Realty Capital, L.L.C. (Catapult Capital) filed: (1) an interlocutory appeal and appeal (appellate cause no. 05-19-00109-CV) arguing the 191st District Court erred when it rendered the order entitled the "[second] temporary restraining order" (2nd TRO); and (2) a petition for a writ of mandamus (appellate cause no. 05-19-01056-CV) arguing the county court judge erred when she signed an order abating Johnson's appeal of the justice court's eviction judgment and administratively closing the case.

In the interlocutory appeal of the 2nd TRO³ and appeal of the portion of the 2nd TRO that issued a writ of mandamus⁴ against the county court judge,⁵ Catapult Capital raises three issues arguing the 298th district judge, acting for the 191st District Court, erred when she signed the 2ndTRO because: (1) it is void as it fails to state when it expires or provide the date of an injunction hearing or trial; (2) it has expired pursuant to Texas Rule of Civil Procedure 680; and (3) it is actually an injunction that impermissibly interferes with and stops an eviction. Johnson did not file a brief in the interlocutory appeal or appeal. However, Johnson did file a post-submission letter brief in response to this Court's jurisdictional concerns. We conclude the 298th district judge erred when she signed the 2nd TRO on behalf of the 191st District Court because she did not have the authority to do so and, as a result, the 2nd TRO is void. Accordingly, we do not have jurisdiction to consider the merits of this interlocutory appeal and appeal. The 2nd TRO is vacated and the interlocutory appeal and appeal are dismissed.

In the mandamus proceeding, Catapult Capital argues the county court judge erred when she abated and administratively closed the case because: (1) the county court judge abused her discretion when she concluded that she could not determine whether the county court had jurisdiction over the forcible-detainer action; and (2) Catapult Capital has no adequate remedy by appeal because the forcible-detainer action "shall remain in legal limbo indefinitely" because the county court judge abated the county court lawsuit for an indefinite period of time without stating how the case could be reinstated. Johnson, the real party in interest, did not file a response to Catapult Capital's petition for a writ of mandamus. We conditionally grant Catapult Capital's petition for a writ of mandamus.

I. FACTUAL AND PROCEDURAL BACKGROUND

On August 31, 2018, Johnson filed his first original petition against New Penn Financial, L.L.C. d/b/a Shellpoint Mortgage Servicing (Shellpoint) in the 191st District Court (trial court cause no. DC-18-12714) alleging violations of the Texas Property Code, Texas Business and Commerce Code, and Texas Finance Code, as well as seeking a declaratory judgment, temporary restraining order, and temporary and permanent injunctions preventing the foreclosure of hisproperty (first district court lawsuit). The record does not show that a temporary restraining order or temporary injunction was rendered in the first district court lawsuit.

On September 4, 2018, the property was sold for $202,000 in a foreclosure sale to Catapult Capital, a third party. According to Catapult Capital, it provided Johnson written notice to vacate on September 5, 2018.⁶

On September 10, 2018, Johnson filed a second lawsuit for wrongful foreclosure against Mortgage Electronic Registration Systems, Inc., as nominee for Countrywide Bank, F.S.B., its successors and assigns, Shellpoint, The Bank of New York Mellon f/k/a The Bank of New York, as trustee for the Certificate Holders of SWALT, Inc., Alternative Loan Trust 2007-OH2, Mortgage Pass-Through Certificates, Series 2007-OH2, and Catapult Realty Partners, L.L.C. (Catapult Partners)⁷ in the 101st District Court (trial court cause no. DC-18-13296) (second district court lawsuit). The second district court lawsuit alleged claims for violations of the Texas Business and Commerce Code and sought a temporary restraining order and temporary and permanent injunctions that would prevent the defendants from taking possession of the property. It also requested the 101st District Court set aside the sale of the property and sought economic, punitive, treble, and exemplary damages as well as attorneys' fees.⁸ The record does not show that Catapult Partners was served with, answered, or otherwise appeared in the second district court lawsuit.⁹Also, Johnson's petition in the second district court lawsuit did not assert any claims against Catapult Capital, nor did it allege that Catapult Capital is the officer, agent, servant, or employee of Catapult Partners.¹⁰

On September 12, 2018, Catapult Capital filed its petition for eviction against Johnson in justice court (trial court cause no. JE-18-02293-L). Catapult Capital alleged that it established a landlord-tenant relationship by Johnson's occupancy of the property after a foreclosure sale and sought eviction on the basis of holding over because Johnson failed to surrender possession after receiving written notice to vacate the property, committing a forcible detainer.

On October 1, 2018, Shellpoint filed a motion seeking to consolidate the first district court lawsuit against it in the 191st District Court with the second district court lawsuit pending in the 101st District Court. On October 10, 2018, the 191st District Court granted Shellpoint's motion to consolidate and ordered that the consolidated actions proceed in the 191st District Court (trial court cause no. DC-18-12714) (consolidated district court lawsuit). The record does not show that Catapult Partners was served or filed an answer in the consolidated district court lawsuit.¹¹

Meanwhile, on October 4, 2018, after a jury trial, the justice court rendered a judgment notwithstanding the verdict in favor of Catapult Capital for possession of the property and set the appeal bond at $2,020. Johnson appealed the justice court's judgment to the county court (trial court cause no. CC-18-05600-B) for a trial de novo (county court lawsuit or forcible-detainer action).¹²

On November 30, 2018, the 191st District Court signed a temporary restraining order (1st TRO) in the consolidated district court lawsuit. The 1st TRO was styled "Tobian Johnson v.Catapult Realty Partners LLC d/b/a Catapult Realty Capital LLC"¹³ and enjoined "Catapult Realty Capital LLC" from proceeding in the county court lawsuit, which was set for trial on December 3, 2018, until further order of the 191st District Court. The 1st TRO also ordered Johnson to execute and file a bond in the amount of $500 with the district clerk and set the matter for a temporary injunction hearing on December 14, 2018, fourteen days from the district court's order. Further, the 191st District Court's docket sheet entry for the 1st TRO states, "Catapult Realty Capital LLC Unserved."

On December 7, 2018, the county court judge sua sponte held a hearing by telephone with the parties to address the inadequacy of the initial bond in light of the 191st District Court's "injunction" or the 1st TRO.

The 191st District Court's docket sheet reflects that a temporary injunction hearing was held on December 14, 2018. We do not have a reporter's record from the hearing but Catapult Capital asserts that the 191st district judge took the matter under advisement. Further, the 1st TRO expired by its own terms on December 14, 2018, and the record does not show that it was extended. Nor does the record indicate which parties or counsel appeared at the temporary injunction hearing.

On January 2, 2019, the county court judge signed an order acknowledging the 191st District Court's "injunction" or the 1st TRO, noting that Johnson remained in possession of the property and had not paid anything to Catapult Capital, and setting an additional bond to address "the inadequacy of the [i]nitial [b]ond after the [191st [District Court's] injunction [or the 1st TRO]." The county court ordered Johnson to pay $6,000 into the registry of the county court and an additional $2,000 each subsequent month.

On January 3, 2019, the 298th district judge signed the 2nd TRO in the consolidated district court lawsuit on behalf of the 191st District Court. The 2nd TRO was styled "Tobian Johnson v. Catapult Realty Partners LLC d/b/a Catapult Realty Capital LLC" and granted the injunctive relief sought by Johnson. In particular, it: (1) enjoined "Catapult Realty Capital LLC" from executing a substitute trustee's sale or otherwise taking possession of the property; and (2) ordered the abatement of the county court lawsuit until the consolidated district court lawsuit is resolved.¹⁴ The 2nd TRO also stated that Johnson must execute and file with the district clerk a bond in the amount of $6,000 by "the end of December 2018" with a subsequent $2,000 bond per month by the fourth day of each month until the proceedings are concluded.¹⁵ However, the 2nd TRO does not include an order setting a date for either a hearing on a temporary or permanent injunction or a trial on the merits with respect to the ultimate relief sought.¹⁶

On February 22, 2019, the county ...