Johnathan Fisher v. Budget Suites of America ( 2022 )

VACATE and DISMISS and Opinion Filed November 17, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00703-CV
JOHNATHAN FISHER, Appellant
V.
BUDGET SUITES OF AMERICA, Appellee
On Appeal from the County Court at Law No. 5
Dallas County, Texas
Trial Court Cause No. CC-22-02407-E
MEMORANDUM OPINION
Before Chief Justice Burns, Justice Pedersen, III, and Justice Garcia
Opinion by Justice Garcia
This appeal follows the trial court’s judgment in a forcible detainer suit
awarding Budget Suites of America exclusive and immediate possession of a room
appellant occupied at the extended-stay. Asserting the appeal has become moot
because appellant was served with a writ of possession and has been removed from
the room, Budget Suites has filed a motion to dismiss for want of jurisdiction.
It is well-settled that a court lacks jurisdiction to consider a case that has
become moot. See Nat’l Collegiate Athletic Ass’n v. Jones, 1 S.W.3d 83, 86 (Tex.
1999). A case becomes moot if a controversy ceases to exist between the parties.
See In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 737 (Tex. 2005). If a case
becomes moot on appeal, an appellate court must set aside the trial court’s judgment
and dismiss the case. See Marshall v. Hous. Auth. of City of San Antonio, 198
S.W.3d 782, 785, 790 (Tex. 2006).
A forcible detainer action is a procedure to determine which party has the right
to immediate possession of the property. See Rice v. Pinney, 51 S.W.3d 705, 709
(Tex. App.—Dallas 2001, no pet.). If a tenant appeals from a judgment awarding
possession to the landlord but fails to supersede the judgment and is no longer in
possession of the property, the appeal is moot unless the tenant asserts a potentially
meritorious claim of right to current, actual possession of the property. See
Marshall, 198 S.W.3d at 786-87; Olley v. HVM, L.L.C., 449 S.W.3d 572, 575 (Tex.
App.—Houston [14th Dist.] 2014, pet. denied).
Budget Suites’s motion has been on file for more than ten days, and appellant
has not filed a response or otherwise contested the assertion that he has been evicted
or argued a claim of right to current, actual possession of the room. Accordingly,
we grant the motion, vacate the trial court’s judgment, and dismiss the case as moot.
See Marshall, 198 S.W.3d at 790.
/Dennise Garcia/
DENNISE GARCIA
JUSTICE
220703F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JOHNATHAN FISHER, Appellant On Appeal from the County Court at
Law No. 5, Dallas County, Texas
No. 05-22-00703-CV V. Trial Court Cause No. CC-22-02407-
E.
BUDGET SUITES OF AMERICA, Opinion delivered by Justice Garcia,
Appellee Chief Justice Burns and Justice
Pedersen, III participating.
In accordance with this Court’s opinion of this date, we VACATE the trial
court’s July 28, 2022 judgment and DISMISS the case as moot.
Judgment entered this 17th day of November 2022.
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