No. 2014-005741-1

Federal National Mortgage § In the County Court

Association, §

Plaintiff, §

§

v. §

§ at Law Number 1

Tony R. Jimenez and §

Cynthia L. Jimenez and §

all occupants, §

Defendants §

1428 Shirley Way, Bedford, TX 76022 § Tarrant County, Texas

DEFENDANTS’ MOTION FOR NEW TRIAL

Defendants, Tony R. Jimenez and Cynthia L. Jimenez and all occupants

(hereinafter “Defendants”), still urging and relying on their other pleadings and argument

heretofore made, ask the Court to vacate the Judgment granted herein on or about April

14, 2015 (“Judgment”), in the interest of justice and fairness.

1. Motion is Permissible in County Court at Law. This Motion for New Trial

is permitted under applicable Texas Rules of Civil Procedure (“TRCP”). Shaw v. Shaw,

2008 Tex.App. LEXIS 3417 (Tex. App. – Fort Worth, May 8, 2008) at *4-*9 provides

a length analysis to this effect.

2. Judgment That Is Not Final Cannot Support Writ of Possession. Given 

DEFENDANTS’ MOTION FOR NEW TRIAL

E-FILED

TARRANT COUNTY, TEXAS

5/14/2015 10:23:05 PM

MARY LOUISE GARCIA

COUNTY CLERK

BY: H.E. F.

 FILED IN 2nd COURT OF APPEALS FORT WORTH, TEXAS 7/16/2015 4:46:47 PM DEBRA SPISAK Clerk
filing ofthis Motion forNewTrial,1

there is no final and appealable judgment to support

any writ of possession. The Thirteenth Court of Appeals has referred to “. . . a writ

of execution,which requires a judgment creditortowaitthirtydays afterthe finaljudgment

issigned ortheoverruling of amotion for newtrial.. .” InReGeneralMotorsAcceptance

Corporation,(Tex.App.–CorpusChristi 2008),No. 13-08-474-CV. Itseemswellsettled

that: “We have no doubt that in Texas the statutory term ‘execution’ includes writs

of possession ...” Williams v.Masterson,306S.W.2d 152,155(Tex.Civ.App.--Houston

1957).In the event this Motion is granted,there is likewise no final judgment to support

a writ. Texas courts have recognized this principle that a final judgment is required

to support a writ. The Supreme Court, in Hinde v. Hinde, 701 S.W.2d 637, 639 (Tex.

1985), stated, after a length analysis of the necessity of a final judgment to support

enforcement relief, that a “writ of execution can only issue after a judgment becomes

final.” In accordwith the same principles,theFifthCourt ofAppeals discussed,inmajority

and dissenting opinions in Conroy v.Manos, 679 S.W.2d 124 (Tex.App–Dallas 1984),

the basic principle of execution being available on a judgment only after it isfinal and

appealable. Forcible detainer rules and the statute are unusual, in that it is possible to

obtain issuance of a writ at the county court level before the judgment of the court can

even be bonded for appeal, but it is clear that in that instance there is no intention that

1

 Texas Rule of Civil Procedure (“TRCP”) 329b.

DEFENDANTS’ MOTION FOR NEW TRIAL 2
the writ be executable in the interim. Likewise, given the first principle established

in this Motion, that a motion for new trial is permissible in these cases, then in light

of the general principles of execution only on final judgments, there can be no valid

execution on a judgment herein until it is final and appealable, any motion for new

trial having been appropriately disposed.

3. Defective Pleading Meant Suit Should Have Been Abated or Dismissed,

or Judgment Should Not Have Been Granted. This suit should have been abated or

alternatively dismissed, due to the failure of the Original Petition to be sworn in

compliancewithTexasRuleofCivilProcedure (“TRCP”)510.3(a) and/orother applicable

law, because the Original Petition was not “sworn to by the plaintiff” as required by

the plain language of the Rule. TRCP 500.3(d) says: “Eviction cases are governed by

Rules 500-507 and 510 of Part V of the Rules of Civil Procedure. To the extent of any

conflict between Rule 510 and the rest of Part V, Rule 510 applies.” The following

subpart(e) specifiesthat the otherrules of evidence and procedure do not apply except

in limited circumstances yet to be defined by case law. There istherefore no provision

of the applicable rules that permits anyone other than a plaintiff’s authorized officer

to swear to a forcible detainer petition, so as the Original Petition stood at the time

of trial, it failed the threshold requirement of a valid pleading that could have been

considered by the Court.

DEFENDANTS’ MOTION FOR NEW TRIAL 3
Establishedlawrequiresthattheplain languageofRule510.3(a)be followed.

TheFourth Court ofAppeals,in analysislater approved bytheSupremeCourt, explains:

“Well-settled principles of law guide our interpretation ofthis procedural

rule. We apply the same rules of construction to procedural rules as we

applyto statutes.In reVanDeWater, 966 S.W.2d 730, 732 (Tex.App.-San

Antonio 1998, orig. proceeding). "Where a rule of procedure is clear,

unambiguous, and specific, we construe the rule's language according

to its literal meaning." Murphy v.Friendswood Dev.Co., 965 S.W.2d 708,

709 (Tex.App.-Houston [1st Dist.] 1998, no pet.). Rule interpretation is

"apurequestion oflawoverwhich the judgehas no discretion."SeeMitchell

Energy Corp. v. Ashworth, 943 S.W.2d 436, 437 (Tex.1997).

In Re Emeritus Corporation, 179 S.W.3d 112, 114 (Tex.App.—San Antonio 2005).

TheTexasSupremeCourt,in In reChristus Spohn Hospital Kleberg, 222

S.W.3d 434, 437 (Tex. 2007)(emphasis supplied), cited to InReEmeritusCorporation

and affirmed that rules of procedure are interpreted by

“ . . . applying the same rules of construction that govern the interpretation

ofstatutes. SeeBASFFinaPetrochemicalsLtd. v.H.B.Zachry, 168S.W.3d

867, 871 (Tex.App.-Houston [1st Dist.] 2004, pet. denied); see also In

re Emeritus Corp., 179 S.W.3d 112, 114 (Tex. App.-San Antonio 2005,

orig. proceeding) (holding that a rule of procedure issubject to the same

rules of construction asstatutes). When a rule of procedure is clear and

unambiguous, we construe the rule's language according to its plain

or literal meaning. See Tex. Dep't of Transp. v. Needham, 82 S.W.3d

314, 318 (Tex.2002).

The inescapable conclusion fromapplying the foregoing principles is that the Judgment

was not predicated on a valid pleading, and should be set aside.

12 United States Code §4502(12) defines who has executive authority to act

DEFENDANTS’ MOTION FOR NEW TRIAL 4
for Plaintiff, which is an “enterprise” covered by thisstatute per subsections(3), (10)

and (20):

“(12)Executive officerThe term“executive officer”means,

with respect to an enterprise, the chairman of the board of

directors, chief executive officer, chief financial officer,

president, vice chairman, any executive vice president, and

any senior vice president in charge of a principal business

unit, division, or function.

12 United States Code §1723(b) details how the board of directors of Plaintiff is to

appoint each and every person who shall be an officer authorized to conduct business

for the Plaintiff, including in the context of Plaintiff suing and being sued:

. . . Within the limitations of law and regulation, the board

shall determine the general policies which shall govern the

operations ofthe corporation, and shall have powerto adopt,

amend, and repeal bylaws governing the performance ofthe

powers and duties granted to or imposed upon it by law. The

board of directorsshallselect and effect the appointment of

qualified persons to fill the offices of president and vice

president, and such other offices as may be provided for in

the bylaws.

There has been before the Court no evidence whatsoever that the person purporting

to swear to the petition in this case has been appointed by the board of directors of

Plaintiff as an officer of Plaintiff to act for it in this case or any other matter. Further,

Defendants would show that the plain language of the applicable Rule mandates that

the original petition be “sworn to by the plaintiff” and a lack of such is not curable

DEFENDANTS’ MOTION FOR NEW TRIAL 5
by an amendment to pleading as in the instant case.

4. Plaintiff Does Not Have Right to Rely on the Deed of Trust’s Tenancy

Language. Thissuit should be abated or dismissed because the Plaintiff is not entitled

to the benefit of the language regarding tenancy on which Plaintiff relies for its claim

that Plaintiffs are tenants at sufferance and Plaintiff has a superior right to immediate

possession of the real property at issue. Plaintiff was not a beneficiary of the Deed of

Trust nor was it the grantor of a trustee’s deed to the real property.Due to the foregoing,

there is therefore no foundation for the Judgment.

Wherefore, Defendants ask that theCourt recall anywrit of possession presently

issued or that may hereafter be issued, vacate the Judgment in its entirety, vacate all

relief granted as sought by Plaintiff as Plaintiff has (and had) no standing, grant the

Defendants a hearing and new trial, and at such new trial an abatement or dismissal

ofPlaintiff’s case,in the interest of justice and fairness.Defendants pray for such other

and further relief, at law or in equity, to which they may be entitled.

DEFENDANTS’ MOTION FOR NEW TRIAL 6
Respectfully submitted,

/s/ Michael Brinkley

_____________________________________

Michael Brinkley

State Bar No. 03004300

BRINKLEY LAW PLLC

P. O. Box 820711

Fort Worth, Texas 76182-0711

(817) 284-3535; metro (817) 589-7111

fax (888) 511-0946

michael@brinkleypllc.com

Attorney for Defendants

Certificate of Service

I hereby certify that a true and correct copy of the foregoing has been served

on the following attorney(s) of record personally or through their representative in

accordancewith Texas Rules ofCivil Procedure 21 and 21a, on Monday,May14, 2015:

Cole D. Patton / Lance J. Erickson

MCCARTHY, HOLTHUS & ACKERMAN, LLP

1255 West 15th Street, Suite 1060

Plano, Texas 75075

(214) 291-3800 / (214) 291-3801 fax

/s/ Michael Brinkley

_____________________________________

Michael Brinkley

DEFENDANTS’ MOTION FOR NEW TRIAL 7