Troy Cave v. A-1 Systems, Inc. D/B/A Lon Smith Roofing Company ( 2004 )

Troy Cave v. A-1 Systems, Inc. d/b/a Lon Smith Roofing Company

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-04-118-CV

TROY CAVE APPELLANT

V.

A-1 SYSTEMS, INC. D/B/A LON APPELLEE

SMITH ROOFING COMPANY

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FROM COUNTY COURT AT LAW NO. 1 OF TARRANT COUNTY

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MEMORANDUM OPINION ^{(footnote: 1)}

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On August 10, 2004, Appellee filed its Motion to Dismiss and alternative Motion to Delay Filing of Appellee’s Brief, seeking dismissal of this appeal because Appellant had paid the entire amount owed under and was released from the trial court’s judgment.  In the certificate of conference, Appellee’s attorney stated that Appellant’s attorney opposed the relief sought in the motion to dismiss.  However, Appellant filed no response to appellee’s motion.

A judgment debtor’s voluntary payment and satisfaction of an adverse judgment moots the controversy, waives the debtor’s right to appeal, and requires dismissal of the case unless the judgment debtor clearly expresses  that he intends to exercise his right of appeal and appellate relief is not futile.   Miga v. Jensen , 96 S.W.3d 207, 211-12 (Tex. 2002); Highland Church of Christ v. Powell , 640 S.W.2d 235, 236 (Tex. 1982).  Appellee’s attorney filed his affidavit in support of the motion to dismiss in which he states that Appellant paid the full amount of the judgment and Appellee provided the Release of Judgment upon request by Appellant’s attorney.  The affidavit further states:  “It was my understanding that the payment of the judgment amount and the execution of the Release of Judgment were intended to end all controversies between these parties.”  There is no evidence to the contrary in the record, nor is there any indication that appellate relief would not be futile.  Thus, the controversy between the parties is moot.

We grant Appellee’s motion to dismiss and dismiss this appeal.

ANNE GARDNER

JUSTICE

PANEL D: DAUPHINOT, HOLMAN, and GARDNER, JJ.

DAUPHINOT, J. dissents without opinion.

DELIVERED:  November 12, 2004

FOOTNOTES

1:

See Tex. R. App. P. 47.4.