Claire Duke v. American Homes 4 Rent Properties Eight, LLC, a Delaware Limited Liability Company ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00162-CV
CLAIRE DUKE APPELLANT
V.
AMERICAN HOMES 4 RENT APPELLEE
PROPERTIES EIGHT, LLC, A
DELAWARE LIMITED LIABILITY
COMPANY
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FROM COUNTY COURT AT LAW NO. 1 OF TARRANT COUNTY
TRIAL COURT NO. 2015-002186-1
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MEMORANDUM OPINION1
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Appellant Claire Duke appeals from a final judgment of possession in a
forcible detainer action. Appellee American Homes 4 Rent Properties Eight,
LLC, A Delaware Limited Liability Company has filed a motion to dismiss the
1
See Tex. R. App. P. 47.4.
appeal as moot. Appellee states in its motion that Duke did not supersede
enforcement of the trial court’s May 12, 2015 judgment; that a writ of possession
was executed on or about June 23, 2015; and that Appellee is now in possession
of the property at issue. The certificate of conference on Appellee’s motion notes
that Appellee’s counsel attempted to confer by phone with Duke on two separate
dates but that Duke did not return the phone calls. We held Appellee’s motion to
dismiss for ten days to await any response from Duke, but no response was
received.2
An appeal in a forcible detainer action becomes moot when the appellant
ceases to have actual possession of the property unless the appellant holds and
asserts a meritorious claim of right to current, actual possession of the premises.
Marshall v. Housing Auth. of San Antonio, 198 S.W.3d 782, 787–88 (Tex. 2006);
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.).
Because we have not received any response showing that Duke holds and is
asserting a meritorious claim as to current, actual possession of the premises,
we grant Appellee’s motion and dismiss the appeal as moot. See Tex. R. App.
P. 42.3(a); Marshall, 198 S.W.3d at 790; Stillwell v. AH4R I TX, LLC, No. 02-13-
2
Additionally, neither the record nor briefs have been filed in this appeal
because the appeal was previously abated for two months due to Duke’s notice
of bankruptcy. We reinstated this appeal on July 28, 2015.
2
00437-CV, 2014 WL 1668475, at *1 (Tex. App.—Fort Worth Apr. 24, 2014, no
pet.) (mem. op.).
/s/ Sue Walker
SUE WALKER
JUSTICE
PANEL: WALKER, MEIER, and GABRIEL, JJ.
DELIVERED: September 24, 2015
3