Marie Bowser v. Rodeo Properties, LLC ( 2012 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-11-00806-CV
Marie Bowser, Appellant
v.
Rodeo Properties, LLC, Appellee
FROM COUNTY COURT AT LAW NO. 1 OF TRAVIS COUNTY
NO. C-1-CV-11-006365, HONORABLE ERIC SHEPPERD, JUDGE PRESIDING
MEMORANDUM OPINION
Marie Bowser appeals from the trial court’s judgment of possession of certain rental
property in favor of appellee Rodeo Properties, LLC. The record reflects that a writ of possession
was issued and Rodeo Properties’ owner, Marcus Hsia, took possession of the subject property on
April 26, 2012.1 As a preliminary matter, we must consider whether Bowser’s eviction from the
property renders her appeal moot. For the reasons set forth below, we conclude that it does.
The only issue in a forcible-detainer action is the right to actual possession of the
premises. Tex. R. Civ. P. 746; Tex. Prop. Code Ann. § 24.002 (West 2000); see also Marshall
v. Housing Authority of City of San Antonio, 198 S.W.3d 782, 785-86 (Tex. 2006). In this case, the
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Bowser stated in her appellate brief and in correspondence with this Court that she was
evicted from the property on April 26, 2012. The Court requested a supplemental clerk’s record that
includes the writ of possession and officer’s return, which confirm that the writ of possession was
executed in April 2012. See Tex. R. App. P. 34.5(c)(1), (3).
trial court issued a judgment and writ of possession on September 1, 2011. The judgment ordered
Bowser to vacate the premises and ordered that Rodeo Properties “shall have all writs of execution
and other process issued which are necessary to enforce the judgment should Marie Bowser
not vacate the premises as ordered, for which let execution issue.” On the same day, Bowser filed
her notice of appeal and a motion to set an amount for a supersedeas bond in the amount of $100.
See Tex. Prop. Code Ann. § 24.007 (West Supp. 2012) (requiring filing of supersedeas bond within
ten days of signing of judgment to stay judgment in eviction suit pending appeal).2 On September 6,
2011, the trial court set the amount of the supersedeas bond at $13,140, and Bowser filed an affidavit
of inability to pay costs on appeal. See Tex. R. App. P. 20.1, 24.2(a)(2). After a hearing, the
trial court approved the affidavit of inability to pay and ordered Bowser to deposit rent in the amount
of $1,095 on the first of each month during the pendency of the appeal to maintain possession of the
property. See Tex. Prop. Code Ann. § 24.0053(b) (West Supp. 2012) (providing for payment of rent
into court registry during pendency of appeal).
The record reflects that Rodeo Properties filed a notice of default and sworn motion
for writ of restitution and writ of possession on March 12, 2012. See id. § 24.0054(a-4), (b)-(e)
(West Supp. 2012) (establishing procedure for filing sworn motion that tenant has failed to pay rent
as required under section 24.0053 to obtain writ of possession because tenant is no longer entitled
to stay execution of judgment during appeal). On April 4, 2012, Bowser was served with the
motion and notice of the April 9, 2012 hearing date. At the April 9 hearing, the trial court granted
2
We cite to the current version of the property code for convenience because there have been
no intervening amendments that are material to our disposition of this appeal.
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the writ of possession, which was issued for execution on April 16, 2012. Notice to vacate the
premises was posted on the front door of the property on April 17, 2012. Possession of the premises
was delivered to Hsia, owner of Rodeo Properties, on April 26, 2012.
Bowser timely indicated her intent to appeal and did not voluntarily give up
possession of the property. But at trial both Bowser and Hsia testified that the lease had expired
and that Bowser was a holdover tenant on a month-to-month tenancy. Hsia also testified that he
had asked Bowser to vacate the property in February 2011. The record shows that Rodeo Properties
provided Bowser with the statutorily required three days’ written notice to vacate the premises before
filing the forcible-detainer suit in April 2011. See id. §§ 24.002, .005(a), (h) (West Supp. 2012),
91.001 (West 2007). Therefore, once Bowser failed to comply with the terms of the trial court’s
order approving her pauper’s affidavit and defaulted on her rent payment, she no longer had “a
potentially meritorious claim of right to current, actual possession” of the property. See Marshall,
198 S.W.3d at 787 (emphasis added). Bowser has presented no basis for claiming a right to
possession after May 2011 at the latest.3 See Tex. Prop. Code Ann. § 91.001 (providing that month-
to-month tenancy terminates one month after day on which notice of termination is given).
Moreover, she no longer has actual possession of the property. Consequently, there is no longer a
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Although Bowser asserted below and continues to assert on appeal that the parties had
entered into a purchase-option agreement in addition to the rental agreement, the option agreement
does not provide any independent basis for Bowser’s continued possession of the property. The
option agreement fails to establish a potentially meritorious claim of right to possess the property
because (1) the option agreement in the record is unsigned; (2) there is no evidence in the record that
Bowser ever provided the written notice of her intent to exercise the option that the agreement
requires; (3) the option agreement expired on March 31, 2008; and (4) the agreement is automatically
void for failure to make any rent payment due within 15 days of the due date.
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live controversy concerning the issue of possession for this Court to decide, and thus, Bowser’s
appeal is moot. See id.
Having determined that the case has become moot on appeal, we vacate the
underlying judgment without consideration of the merits and dismiss the appeal as moot. See, e.g.,
Marshall, 198 S.W.3d at 788-89; Texas Parks & Wildlife Dep’t v. Texas Ass’n of Bass Clubs,
622 S.W.2d 594, 596 (Tex. 1981) (“When an appeal is moot, the judgment is set aside and the
cause is dismissed.”).
__________________________________________
Diane M. Henson, Justice
Before Justices Puryear, Pemberton and Henson
Vacated and Dismissed as Moot
Filed: December 28, 2012
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