Judy Kay Fulbright v. Betty A. Bradley, as Guardian of Estate for Dollie Mae Fulbright ( 2016 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00308-CV
JUDY KAY FULBRIGHT APPELLANT
V.
BETTY A. BRADLEY, AS APPELLEE
GUARDIAN OF ESTATE FOR
DOLLIE MAE FULBRIGHT
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FROM COUNTY COURT AT LAW NO. 1 OF TARRANT COUNTY
TRIAL COURT NO. 2015-004726-1
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MEMORANDUM OPINION1
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Appellant Judy Kay Fulbright (Judy), pro se, appeals from a judgment
granting appellee Betty A. Bradley, as guardian of estate for Dollie Mae Fulbright
(Dollie), possession of a residence located in Arlington, Texas, in which Judy had
been residing. Because we conclude that events subsequent to the judgment
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See Tex. R. App. P. 47.4.
have mooted Judy’s appeal, we vacate the judgment and dismiss the case.
See Tex. R. App. P. 43.2(e).
Judy’s mother, Dollie, owned a residence in Arlington, Texas. At some
point, Judy came to live at the residence; but she does not claim any ownership
interest in it, and she concedes that she does not have a lease granting her a
right to occupy it. In response to a report of neglect concerning Dollie, the Adult
Protective Services Division of the Texas Department of Family and Protective
Services investigated and ultimately placed Dollie in a nursing home. On July 6,
2015, a Texas probate court found Dollie to be an incapacitated person and
appointed Bradley as the guardian of Dollie’s estate. See Tex. Est. Code Ann.
§ 1002.017 (West 2014). Three days later, Bradley provided Judy with written
notice to vacate the residence, and the notice further stated that Bradley would
initiate eviction proceedings if Judy did not vacate. See Tex. Prop. Code Ann.
§ 24.005 (West 2014). Judy did not vacate, and Bradley filed an eviction suit in
the justice court. See Tex. Prop. Code Ann. § 24.004 (West 2014); Tex. R. Civ.
P. 510.
The justice court entered a judgment awarding Bradley possession of the
residence. See Tex. R. Civ. P. 510.8(b). Judy appealed the judgment to the
county court at law. See Tex. R. Civ. P. 510.9. The county court at law set a
bench trial for September 9, 2015. Judy did not appear at the trial, and the
county court at law entered a judgment that awarded Bradley possession of the
residence. See Tex. R. Civ. P. 510.12. The county court at law set a $7,500
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supersedeas bond. See Tex. R. Civ. P. 510.13. Judy perfected an appeal to this
Court but never filed the supersedeas bond. See Tex. Prop. Code Ann. § 24.007(West 2014); Tex. R. Civ. P. 510.13. Both parties represent in their briefs that
the county court at law issued a writ of possession and that Judy was removed
from possession of the residence. See Tex. R. Civ. P. 510.13. The parties
further represent that while this appeal was pending, Bradley sold the residence
to a third party. See Tex. R. App. P. 38.1(g).
Our review of the record and briefing in this appeal leads us to conclude
that we must address whether this case has become moot. A case becomes
moot when events subsequent to its filing cause the justiciable controversy
between the parties to cease such that “the court’s action on the merits cannot
affect the parties’ rights or interests.” Heckman v. Williamson Cty., 369 S.W.3d
137, 162 (Tex. 2012). We have no jurisdiction to decide an appeal that becomes
moot, and we may consider whether an appeal has become moot sua sponte.
Meeker v. Tarrant Cty. Coll. Dist., 317 S.W.3d 754, 758–59 (Tex. App.—Fort
Worth 2010, pet. denied). If an appeal has become moot, we must “vacate any
order or judgment previously issued and dismiss the case for want of
jurisdiction.” Heckman, 369 S.W.3d at 162.
This is an appeal from a judgment in an eviction suit. See Tex. Prop. Code
Ann. § 24.007. The only issue presented in such a suit is the right to actual
possession of the premises. Marshall v. Hous. Auth. of the City of San Antonio,
198 S.W.3d 782, 785–86 (Tex. 2006). Thus, an appeal in an eviction suit
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becomes moot when the appellant ceases to have actual possession of the
premises unless the appellant holds and asserts a meritorious claim of right to
current, actual possession. Marshall, 198 S.W.3d at 787–88; Brewer v. Green
Lizard Holdings, L.L.C., No. 02-13-00119-CV, 2013 WL 5303064, at *1 (Tex.
App.—Fort Worth Sept. 19, 2013, no pet.) (mem. op.). Judy does not dispute
that neither she nor Bradley has current possession of the residence. We
therefore consider whether Judy holds and asserts a meritorious claim of right to
current, actual possession of the residence. See Marshall, 198 S.W.3d at 787–
88; Brewer, 2013 WL 5303064, at *1.
At the time Bradley filed this eviction action, Dollie owned the residence.
Although Judy at some point came to live at the residence with Dollie, Judy does
not claim to have any ownership interest in the residence, and she concedes that
she does not have any lease that could give her the right to current, actual
possession of the residence. And Judy has presented no other basis upon which
she can assert a meritorious claim of right to current, actual possession of the
residence.
In addition, no party disputes that after Judy was removed from possession
of the premises pursuant to the county court at law’s writ of possession, Bradley
sold the residence to a third party while this appeal was pending. Bradley is not
presently in possession of the residence, nor does she assert a right to current
possession of it. Thus, even if Judy were to prevail on the merits of her appeal,
she would not be entitled to immediate possession of the residence because
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prevailing on the merits of this appeal against Bradley would not entitle Judy to
current, actual possession of a residence that both parties acknowledge is now
owned and occupied by a third party. Any judgment on the merits of this appeal
would have no practical effect on the current possession of the residence.
See Heckman, 369 S.W.3d at 162; see also Taylor v. Margo, No. 08-14-00066-
CV, 2015 WL 5449806, at *7 (Tex. App.—El Paso Sept. 16, 2015, pet. denied)
(noting that case may become moot when appellate court’s judgment “cannot
have any practical legal effect on a then-existing controversy” between the
parties such that “it becomes impossible for the court to grant effectual relief”);
see generally Tex. R. Civ. P. 510.3(e) (providing “[o]nly [i]ssue” in eviction suit is
“actual possession and not title”).
For these reasons, we hold that this case is moot, vacate the county court
at law’s judgment, and dismiss the case. See Marshall, 198 S.W.3d at 785
(holding that where case was moot, the “court of appeals erred in dismissing only
the appeal and leaving the trial court’s judgment in place”).
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.
DELIVERED: August 25, 2016.
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