John Seay v. Del Roy Funds LP ( 2023 )

VACATE ORDER AND DISMISS and Opinion Filed April 17, 2023
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-01316-CV
JOHN SEAY, Appellant
V.
DEL ROY FUNDS, LP, Appellee
On Appeal from the County Court at Law No. 5
Dallas County, Texas
Trial Court Cause No. CC-22-06072-E
MEMORANDUM OPINION
Before Justices Molberg, Carlyle, and Smith
Opinion by Justice Molberg
This is an appeal from an order in a forcible detainer lawsuit awarding
possession of the subject property to appellee. Before the Court is appellee’s
motion to dismiss the appeal as moot. Appellee recites in the motion that a writ of
possession was executed, and appellant is no longer in possession of the property.
The only issue in a forcible detainer suit is the right to immediate possession
of the premises. See Olley v. HVM, L.L.C., 449 S.W.3d 572, 575 (Tex. App.—
Houston [14th Dist.] 2014, pet. denied). Unless an appellant has a potentially
meritorious claim of right to current, actual possession, the issue of possession and
the case become moot when the appellant is no longer in possession of the
premises. See Marshall v. Hous. Auth. of City of San Antonio, 198 S.W.3d 782,
787, 790 (Tex. 2006). When a case becomes moot on appeal, an appellate court
must vacate the trial court’s judgment and dismiss the case. See City of Dallas v.
Woodfield, 305 S.W.3d 412, 416 (Tex. App.—Dallas 2010, no pet.).
More than ten days have passed since appellee filed its motion to dismiss
and appellant has not filed a response. Because nothing in the record before us
shows appellant has a potentially meritorious claim of right to current, actual
possession of the property, we grant appellee’s motion, vacate the trial court’s
December 2, 2022 order, and dismiss the case. See TEX. R. APP. P. 42.3(a);
Marshall, 198 S.W.3d at 790.
/Ken Molberb/
KEN MOLBERG
JUSTICE
221316F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JOHN SEAY, Appellant On Appeal from the County Court at
Law No. 5, Dallas County, Texas
No. 05-22-01316-CV V. Trial Court Cause No. CC-22-06072-
E.
DEL ROY FUNDS, LP, Appellee Opinion delivered by Justice Molberg.
Justices Carlyle and Smith
participating.
In accordance with this Court’s opinion of this date, we VACATE the trial
court’s December 2, 2022 order and DISMISS the case.
We ORDER that appellee DEL ROY FUNDS, LP recover its costs of this
appeal from appellant JOHN SEAY.
Judgment entered April 17, 2023
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