Kenneth J. Thomas v. Arriba Apartments ( 2019 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-18-00715-CV
Kenneth J. THOMAS,
Appellant
v.
ARRIBA APARTMENTS,
Appellee
From the County Court at Law No. 10, Bexar County, Texas
Trial Court No. 2018CV04988
Honorable Karen Crouch, Judge Presiding
Opinion by: Sandee Bryan Marion, Chief Justice
Sitting: Sandee Bryan Marion, Chief Justice
Rebeca C. Martinez, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: September 4, 2019
VACATED IN PART; AFFIRMED IN PART
Kenneth J. Thomas appeals the county court’s judgment in a forcible detainer action
granting Arriba Apartments a writ of possession for the premises described as 5200 Blanco Road,
Apt. #824, San Antonio, Texas (“Premises”), and awarding Arriba Apartments $2,700.00 in
unpaid rent and $1,250.00 in attorney’s fees. We vacate in part and affirm in part.
BACKGROUND
Arriba Apartments filed a forcible detainer action in justice court seeking to evict Thomas
from the Premises. Thomas appealed the justice court’s judgment to county court.
04-18-00715-CV
On August 29, 2018, the county court signed an order setting the cause for trial on
September 13, 2018. On September 10, 2018, Thomas filed a motion for continuance. The motion
contains a “notice of hearing” stating the motion was set for hearing on September 27, 2018. The
appellate record does not contain an order ruling on the motion for continuance.
On September 13, 2018, the date the cause was set for trial, the county court signed a
judgment. The judgment recites that Thomas failed to appear. As previously noted, the judgment
granted Arriba Apartments a writ of possession for the Premises, and also awarded Arriba
Apartments $2,700.00 in unpaid rent and $1,250.00 in attorney’s fees. Thomas appeals.
POSSESSION
Because the writ of possession issued by the trial court was executed on the premises
causing Thomas to vacate the premises, the issue of possession is moot. As a result, we vacate the
trial court’s judgment of possession. See Marshall v. Hous. Auth. of City of San Antonio, 198
S.W.3d 782, 785 (Tex. 2006); Cavazos v. San Antonio Hous. Auth., No. 04-09-00659-CV, 2010
WL 2772450, at *2 (Tex. App.—San Antonio July 14, 2010, no pet.) (mem. op.).
REMAINING ISSUES
“Although the issue of possession is moot, issues independent of possession are still
reviewable on appeal.” Cavazos, 2010 WL 2772450, at *2. As this court noted in our March 27,
2019 order, however, appellant’s original brief was stricken because it failed to comply with the
briefing rules in the Texas Rules of Appellate Procedure. Although appellant’s amended brief was
not stricken, this court’s order noted the amended brief did not correct all the deficiencies in the
original brief and advised Thomas that this court might ultimately conclude he waived his appellate
complaints due to inadequate briefing.
Most of the statements made in Thomas’s brief relate to the issue of possession which we
have held is moot. The remaining statements do not present issues setting out errors allegedly
-2-
04-18-00715-CV
committed by the county court, and the brief does not provide relevant citations to the record or
cite relevant authority. Accordingly, the brief does not present any issues for our review. See
Cammack v. Bank of New York Mellon, 04-18-00277-CV, 2019 WL 1547576, at *3 (Tex. App.—
San Antonio Apr. 10, 2019, no pet.) (mem. op.) (“Where, as here, an appellant fails to cite relevant
authority, provide relevant citations to the record, or provide substantive analysis of an issue raised
in the brief, nothing is presented for our review.”). For example, although the brief alludes to the
county court overlooking Thomas’s motion for continuance, in order to complain on appeal
regarding a ruling on a motion for continuance, “the record must show that the motion was brought
to the trial court’s attention and that the trial court either denied the motion or refused to rule on
the motion and the complaining party objected to the refusal.” Quintana v. CrossFit Dallas,
L.L.C., 347 S.W.3d 445, 449 (Tex. App.—Dallas 2011, no pet.). The record in this case does not
contain any such showing and, in fact, shows that the motion for continuance was set for a hearing
two weeks after the trial setting. In addition, Thomas attached documents to his brief that are not
part of the appellate record and cannot be considered by this court. See Kemp v. Santander
Consumer USA Inc., No. 04-17-00622-CV, 2018 WL 1935574, at *1 (Tex. App.—San Antonio
Apr. 25, 2018, no pet.) (mem. op.). Finally, Thomas did not appear at trial, and Thomas did not
file a motion for new trial which would have given the county court “the opportunity to consider
and weigh factual evidence.” Hewitt v. Gan, No. 05-18-00913-CV, 2019 WL 2402984, at *2 (Tex.
App.—Dallas June 7, 2019, no pet.) (mem. op.).
CONCLUSION
Because the issue of possession is moot, the trial court’s judgment of possession is vacated.
The remainder of the trial court’s judgment is affirmed.
Sandee Bryan Marion, Chief Justice
-3-