Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Hernandez v. Constable R.A. Sommers Precinct #7

Court of Appeals of Texas, Eighth District, El Paso

August 28, 2019

ALEJANDRO HERNANDEZ AND THE FREEDOM INDEED FOUNDATION, INC., Appellants,
v.
CONSTABLE R.A. SOMMERS PRECINCT #7, Appellee.

          Appeal from the County Court at Law No. 7 of El Paso County, Texas (TC# 2017DCV0816)

          Before McClure, C.J., Rodriguez, and Palafox, JJ.

          OPINION

          YVONNE T. RODRIGUEZ, JUSTICE

         Alejandro Hernandez and The Freedom Indeed Foundation, Inc. are appealing from an order granting Constable R.A. Sommers' plea to the jurisdiction and dismissing their suit against her.[1] We affirm.

         FACTUAL AND PROCEDURAL SUMMARY

         This is the fourth appeal related to or arising out of an eviction proceeding against Alejandro Hernandez and all occupants of certain real property located in El Paso, Texas. To put the instant appeal in its proper context, we will briefly set forth the underlying facts and procedural history. As will be addressed in more detail below, the plea to the jurisdiction will be reviewed based on the pleadings and jurisdictional evidence properly before the trial court.

         The Eviction Proceeding Justice Court Cause No. 715-00214-FED County Count at Law Cause No. 2016-CCV00265 Appeal Cause Nos. 08-16-00218-CV and 08-16-00290-CV

         In 2014, U.S. Bank Trust purchased certain real property at a non-judicial foreclosure sale, and it sent notice to vacate to Hernandez, a tenant pursuant to an alleged oral lease with the former owners. When Hernandez failed to vacate, U.S. Bank Trust filed a forcible detainer suit in the justice court (cause number 715-00214-FED). A jury awarded possession to U.S. Bank Trust, and the justice court entered judgment in U.S. Bank Trust's favor. Hernandez appealed to the county court at law. The case was styled U.S. Bank Trust N.A. as Trustee for LSF8 Master Participation Trust and numbered 2016-CCV00265. We dismissed Hernandez's attempted appeal from an interlocutory order granting U.S. Bank Trust's motion for Hernandez to pay monthly rental payments into the court's registry during the pendency of the case. See Alex Hernandez v. U.S. Bank Trust N.A. as Trustee for LSF8 Master Participation Trust, No. 08-16-00218-CV, 2016 WL 4801601 (Tex.App.-El Paso September 14, 2016, no pet.)(Hernandez I). The county court at law granted U.S. Bank Trust's motion for summary judgment, and Hernandez brought a second appeal which was docketed under cause number 08-16-00290-CV.

         Both Hernandez and U.S. Bank Trust filed motions pursuant to Tex.R.App.P. 24.4 for review of the supersedeas order entered by the county court at law. See Hernandez v. U.S. Bank Trust N.A. for LSF8 Master Participation Trust, 527 S.W.3d 307 (Tex.App.-El Paso 2017, no pet.)(op. on motion)(Hernandez II). In an opinion issued on February 17, 2017, we concluded that Hernandez failed to timely supersede the judgment and U.S. Bank Trust had the right to enforce the judgment awarding it possession of the subject property. See Hernandez II, 527 S.W.3d at 310. U.S. Bank Trust subsequently obtained a writ of possession. Constable Sommers executed the writ of possession on March 13, 2017 and U.S. Bank Trust took possession of the subject property. See Hernandez v. U.S. Bank Trust, N.A., for LSF8 Master Participation Trust, No. 08-16-00290-CV, 2017 WL 1953291, at *1 (Tex.App.-El Paso May 11, 2017, no pet.)(Hernandez III). Consequently, we dismissed Hernandez's appeal as moot. Id., at *2.

         Application for Writ of Reentry Justice Court No. 717-0030-CV County Court at Law No. 2017-CCV00661 Appeal Cause No. 08-17-00141-CV

         While the appeal in cause number 08-16-00290-CV was pending, Alberto Enrique Hernandez and Reynaldo Aaron Morales (hereinafter referred to as "the Purchasers") placed a winning bid via an online auction on February 2, 2017 to purchase the subject property, and they executed a real estate Purchase Agreement for the property the following day. See Hernandez v. Hernandez, 547 S.W.3d 898, 899 (Tex.App.-El Paso 2018, pet. denied)(Hernandez IV). U.S. Bank Trust signed a Special Warranty Deed for the property on February 27, 2017, and the deed was delivered to U.S. Bank Trust's attorney. See Hernandez IV, 547 S.W.3d at 899. On March 16, 2017, three days after the writ of possession was executed, the real estate transaction closed. Id. The Purchasers satisfied the closing requirements by depositing the balance of the purchase proceeds with the title company and the title company released the executed Special Warranty Deed for recording and delivery to the Purchasers. Id. at 899-900. The deed was recorded on March 21, 2017. Id. at 900.

         On April 13, 2017, Appellants filed an application for writ of reentry in the justice court alleging that the Purchasers had unlawfully evicted them and locked them out of the property. Id. at 900. They also sought damages. Id. The justice court denied the application, and Appellants appealed to the county court at law. Id. That case was styled Alejandro Hernandez and the Freedom Indeed Foundation, Inc. v. Alberto Enrique Hernandez and Reynaldo Aaron Morales and numbered 2017-CCV00661. Finding that title to the property did not convey until the closing on March 16, 2017, the county court at law denied the application for writ of reentry on June 1, 2017 and dismissed the cause with prejudice. Id. Appellants appealed, and we docketed the appeal under cause number 08-17-00141-CV. Rejecting Appellants' argument that the Purchasers effectively became the "landlord" on February 27, 2017 when U.S. Bank Trust signed the Special Warranty Deed, we affirmed the county court at law's order denying the application for writ of reentry. See Hernandez IV, 547 S.W.3d at 901. We also held that the Purchasers did not have any obligation under the Property Code to file a new FED action, to file a new notice to vacate, or to provide any other notice to Appellants prior to the execution of the writ of possession on March 13, 2017. Id.

         Suit for Damages in District Court Trial Court No. 2017DCV0816 Appeal No. 08-18-00045-CV

         On March 13, 2017, FIF filed suit in cause number 2017DCV0816 against Constable Sommers seeking injunctive relief to prevent her from executing the writ of possession. FIF asserted that it had not been served with notice to vacate, named in a forcible detainer action, or given an opportunity to be heard. After the writ of possession was executed, both FIF and Hernandez filed an amended petition against Constable Sommers and U.S. Bank Trust seeking injunctive relief to allow them to reenter the property. They also sought damages based on their allegation that their right to due process had been violated. Constable Sommers filed an answer and plea to the jurisdiction seeking dismissal of the suit because: (1) she is immune from both suit and liability in her capacity as an elected Constable in El Paso County, Texas; (2) she is protected by judicial immunity and, (3) Appellants failed to state any claim against her.

         Appellants filed a second amended petition against Constable Sommers, U.S. Bank Trust, Alberto Enrique Hernandez, Reynaldo Aaron Morales, and Victor Vasquez seeking damages on their claims for violation of due process, abuse of process, and civil conspiracy.[2] Appellants alleged that Constable Sommers knew or reasonably should have known that the writ of possession was facially invalid and that its execution would be unlawful because she knew or reasonably should have known that U.S. Bank Trust was no longer the owner of the subject property and title had been transferred to the Purchasers on February 27, 2017.

         At the hearing on the plea to the jurisdiction, Constable Sommers introduced into evidence a certified copy of the writ of possession, which included the constable's return showing it was delivered to her on March 7, 2017 and executed ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.