Court of Appeals of Texas, Second District, Fort Worth
COUNTY COURT AT LAW NO. 2 OF DENTON COUNTY TRIAL COURT NO.
GABRIEL, J.; LIVINGSTON, C.J.; and SUDDERTH, J.
MEMORANDUM OPINION 
Tawnya Brigandi appeals from the county court's order
dismissing her appeal of the justice court's judgment of
eviction. Because Brigandi is no longer in possession of the
property at issue and because her allegations do not raise a
potentially meritorious claim that she is entitled to
current, actual possession of the home, her appeal is moot
and we dismiss it as such.
11, 2003, Brigandi, along with her husband Nicholas Brigandi
(collectively, the Brigandis), executed a note for $142, 607
that was secured by a deed of trust to their home in Little
Elm, Texas ("the property"), in favor of First
Independent National Bank. The deed of trust provided that if
the property was sold at a foreclosure sale, the Brigandis
agreed to surrender possession of the home:
If the Property is sold [at a foreclosure sale], [the
Brigandis] or any person holding possession of the Property
through [the Brigandis] shall immediately surrender
possession of the Property to the purchaser at that sale. If
possession is not surrendered, [the Brigandis] or such person
shall be a tenant at sufferance and may be removed by writ of
several transfers and assignments, appellee American Mortgage
Investment Partners Fund I Trust became the owner and holder
of the note and deed of trust.
Default and Foreclosure
Brigandis defaulted on their payment obligations, and
American Mortgage gave them written notice of the defaults
and an opportunity to cure, which they failed to do. On April
5, 2016, the property was sold at a foreclosure sale to
American Mortgage as the highest bidder. Because the
Brigandis did not immediately surrender possession of the
property after the sale, they became tenants at sufferance
under the terms of the deed of trust. See Tex. Prop.
Code Ann. § 24.002(a)(2) (West 2014). On April 14, 2016,
American Mortgage served the Brigandis with a notice to
vacate and demand for possession. See id. §
24.004(a) (West 2014), § 24.005(b) (West Supp. 2016).
The Brigandis again failed to vacate the property.
Eviction Petition in Justice Court
2, 2016, American Mortgage filed an eviction petition in the
justice court, seeking possession of the property and the
Brigandis' removal. See Tex. R. Civ. P. 510.3.
On May 17, 2016, Brigandi filed a petition in the Denton
County probate court, seeking damages based on American
Mortgage's prior collection efforts and to set aside the
foreclosure sale and the substitute trustee's
deed.See Knoles v. Wells Fargo Bank,
N.A., 513 F.App'x 414, 416 (5th Cir. 2013)
(recognizing difference between appeal of forcible-detainer
suit and appeal of separate action for "infirmities in
the note, the deed of trust, and the process leading to
foreclosure"). Brigandi then sought to dismiss American
Mortgage's eviction petition based on her challenge to
the validity of the foreclosure and subsequent substitute
trustee's deed. She also asserted that the justice court
did not have jurisdiction to adjudicate title or ownership
based on her probate-court petition. On June 15, 2016, the
justice court signed a judgment of eviction, awarding
American Mortgage possession of the property, setting an
appellate bond at $1, 500, and stating that American Mortgage
was "entitled to such writs and abstracts as are
necessary to effect execution of this judgment."
See Tex. R. Civ. P. 510.8(b), 510.9(b). The justice
court did not award court costs, attorneys' fees, or back
rent in the judgment.
Appeal De ...