Leroy Greer v. Honarable Gary D. Janssen ( 2023 )

Opinion issued May 11, 2023
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-21-00583-CV
———————————
LEROY GREER, Appellant
V.
HONORABLE GARY D. JANSSEN, Appellee
On Appeal from the County Court at Law No. 3
Fort Bend County, Texas
Trial Court Case No. 21-CCV-069521
MEMORANDUM OPINION
Appellant Leroy Greer appeals from the county court’s dismissal of his
petition for writ of mandamus. In a single issue on appeal, Greer argues that the
county court erred by dismissing his petition because the case is not moot. Because
the case has become moot, we dismiss for lack of subject-matter jurisdiction.
Background
In May 2021, JP Morgan Mortgage Acquisition Corp. (“JP Morgan”) obtained
a judgment against Greer and others in Fort Bend County Justice Court for
possession of certain real property in Fort Bend County.1 The judgment set an appeal
bond in the amount of $12,000. See TEX. R. CIV. P. 510.9(b). The parties agree that
Greer timely filed an appeal bond, thereby perfecting his appeal of the justice court’s
judgment to county court.2 See TEX. R. CIV. P. 510.9(a). Once a party perfects an
appeal from a justice court’s judgment, the justice court loses plenary power over
the proceeding, and the court must stay all proceedings and send certain documents
comprising the record of the proceedings to the clerk of the county court. TEX. R.
CIV. P. 507.1, 510.10(a).
After Greer perfected his appeal from the justice court’s judgment, the justice
court continued holding hearings and issuing other orders in the case. Nearly two
1
JP Morgan is the real party in interest in the underlying mandamus proceeding, but
it did not participate in that proceeding or file a brief in this appeal. The Honorable
Gary D. Janssen, who presided over the eviction proceeding in justice court, is the
respondent in the mandamus proceeding and filed a brief on appeal. The relators are
Leroy Greer, Bernice Greer, and all other occupants of the subject property. Only
Leroy Greer filed a notice of appeal and an appellate brief.
2
Some disputes arose over the filing of this bond, but the parties agree that the dispute
was resolved and Greer timely filed the appeal bond.
2
months after the court entered the judgment and Greer perfected an appeal from it,
the justice court issued a writ of possession to JP Morgan for the subject property,
which resulted in a constable serving Greer with a notice of eviction from the
property. See TEX. PROP. CODE § 24.0061(a), (d). Greer requested that the justice
court vacate this order, but the court initially declined to do so. The justice court also
delayed sending the record of the eviction proceeding to the county clerk, which
consequently delayed the docketing of Greer’s appeal in the county court. See TEX.
R. CIV. P. 510.10(a), (b). Greer thus faced imminent eviction pursuant to a justice
court judgment from which he had timely perfected an appeal, but he could not seek
relief from a reviewing court because the appeal had not been docketed and assigned
to a court.
Greer filed a writ of mandamus in county court (the “mandamus court”). He
argued that the justice court did not comply with Rule of Civil Procedure 510.10
because, after his appeal was perfected, the court did not stay all proceedings and
“immediately send” the record of the eviction proceeding to the clerk of the county
court. See TEX. R. CIV. P. 510.10(a). Greer primarily sought to compel the justice
court to vacate the writ of possession, but he also sought to compel the court to send
the record to the clerk of the county court. Greer supported his mandamus petition
with copies of the justice court’s judgment, the justice court’s writ of possession, the
constable’s eviction notice, the notice of appeal, the appeal bond, and an emergency
3
motion requesting that the justice court vacate its writ of possession. The record
indicates that the justice court did not rule on this emergency motion.
Greer also filed an emergency motion in the mandamus proceeding requesting
a stay of the justice court’s writ of possession. The mandamus court granted the
emergency motion and stayed enforcement of the writ of possession.
Before the court ruled on the mandamus petition, Judge Gary Janssen, who
presided over the justice court eviction proceeding, filed a motion to dismiss the
petition. According to the motion, the mandamus proceeding had become moot
because, after Greer filed the mandamus petition, the justice court signed an order
“recall[ing]” the writ of possession and “direct[ing] the file to be forwarded to the
Fort Bend County Clerk, for further proceedings.” The motion attached a copy of
this order.
After a hearing on Judge Janssen’s motion, the mandamus court granted the
motion and dismissed the mandamus petition. The court also entered written findings
of fact and conclusions of law. Concerning the mootness issue, the court concluded
that the mandamus proceeding was rendered moot by the justice court’s subsequent
order vacating the writ of possession and directing that the record of the eviction
proceeding be forwarded to the county court. This appeal followed.
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Mandamus
On appeal, Greer challenges the county court’s order granting Judge Janssen’s
motion to dismiss and dismissing the petition for writ of mandamus on the ground
that the mandamus proceeding was moot. After Greer filed the mandamus petition
seeking to compel the justice court to vacate the writ of possession and transmit the
record of the eviction proceeding to the county clerk, the presiding justice court
judge, Judge Janssen, entered an order purporting to grant Greer the relief he sought
by mandamus. Judge Janssen then moved to dismiss the mandamus petition on the
sole ground that his subsequent order had mooted the mandamus proceeding.
Greer argues on appeal, however, that the justice court lacked plenary power
to enter this order because it was entered after he perfected his appeal to the county
court, thereby rendering the order void. According to Greer, mandamus is the proper
vehicle to vest plenary power back in the justice court to reenter the void order
affording him the mandamus relief he requested. Greer thus contends that the case
is not moot.
“A case becomes moot when there ceases to be a justiciable controversy
between the parties or when the parties cease to have ‘a legally cognizable interest
in the outcome.’” State ex rel. Best v. Harper, 562 S.W.3d 1, 6 (Tex. 2018) (quoting
Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001)). In other words, “a case is moot
5
when the court’s action on the merits cannot affect the parties’ rights or interests.”
Heckman v. Williamson Cnty., 369 S.W.3d 137, 162 (Tex. 2012).
A case can be moot upon its filing or at any time during the pendency of the
litigation, including on appeal. Harper, 562 S.W.3d at 6. When a case becomes
moot, the court loses jurisdiction to decide the case because any decision would
constitute an impermissible advisory opinion. Id.; Heckman, 369 S.W.3d at 162.
Once a case becomes moot, the court must vacate any order or judgment previously
issued and dismiss the case for want of jurisdiction. Heckman, 369 S.W.3d at 162.
Mootness is a question of law that we review de novo. Id. at 150.
Greer’s challenge on appeal concerns the process of appealing a justice court’s
forcible detainer judgment and the effect of an appeal on the justice court’s plenary
power. Within five days after a forcible detainer judgment is signed, a party may
appeal the judgment by filing a bond, cash deposit, or statement of inability to afford
court costs with the justice court. See TEX. R. CIV. P. 510.9(a). The appeal is to the
county court, which does not sit as a true appellate court but instead conducts a “trial
de novo [which] is a new trial in which the entire case is presented as if there had
been no previous trial.” TEX. R. CIV. P. 510.10(c); see Triple Crown Moving &
Storage, LLC v. Ackerman, 632 S.W.3d 626, 636 (Tex. App.—El Paso 2020, no pet.)
(“[B]ecause of the de novo nature of the proceedings, a county court does not sit as
a true appellate court, and does not review the justice court’s decision for legal
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errors; instead, it tries the case for itself as if no ruling had ever been made in the
justice court.”).
The appeal from the justice court’s judgment is perfected when the bond, cash
deposit, or statement of inability to pay is filed. TEX. R. CIV. P. 510.9(f). Once the
appeal is perfected, the justice court loses plenary power over the case. TEX. R. CIV.
P. 507.1. “[T]he judge must stay all further proceedings on the judgment and must
immediately send to the clerk of the county court” certified copies of all docket
entries, the bill of costs, and the original papers in the case, as well as any money in
the court registry. TEX. R. CIV. P. 510.10(a). The county clerk must docket the case
and immediately notify the parties of the date it received the transcript and the docket
number. TEX. R. CIV. P. 510.10(b).
Here, Greer perfected an appeal from the eviction judgment by timely filing
an appeal bond. However, the justice court delayed sending the record of the eviction
proceeding to the county clerk, which in turn delayed the county court’s docketing
of Greer’s appeal. During this delay, the justice court entered a writ of possession,
and a constable served Greer with a notice of impending eviction from the subject
property. After unsuccessfully urging the justice court to vacate the writ of
possession, Greer filed the underlying mandamus proceeding seeking an order
compelling the justice court to comply with Rule 510.10(a) by vacating the writ of
possession and sending the record of the eviction proceeding to the county clerk.
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After Greer filed the mandamus petition, the justice court entered an order
vacating the writ of possession and directing transmittal of the record of the eviction
proceeding to the county clerk for purposes of Greer’s appeal of the forcible detainer
judgment. Judge Janssen, who issued the order as the presiding justice court judge,
relied on his own order in seeking dismissal of Greer’s mandamus petition on the
ground that the order rendered the mandamus petition moot. The mandamus court
granted the motion and dismissed Greer’s petition, stating in separate findings of
fact and conclusions of law that “this mandamus proceeding was rendered moot due
to lack of a justiciable controversy” after the justice court entered the order vacating
the writ of possession and directing that the record be sent to the county clerk.
We agree with Greer that the justice court lacked jurisdiction to enter the order
purporting to vacate the writ of possession and transmit the record of the eviction
proceeding to the county clerk. “A justice court loses plenary power over a case
when an appeal is perfected . . . .” TEX. R. CIV. P. 507.1; see also TEX. R. CIV. P.
510.10(a) (providing that “when an appeal has been perfected” in eviction case in
justice court, “the judge must stay all further proceedings on the judgment”). After
Greer perfected the appeal of the justice court’s forcible detainer judgment, the
justice court lost plenary power to enter further orders, including the writ of
possession and the subsequent order vacating the writ and directing transmittal of
the eviction record to the clerk of the county court. A judicial action taken by a court
8
after losing plenary power is void. Villalon v. Bank One, 176 S.W.3d 66, 69 (Tex.
App.—Houston [1st Dist.] 2004, pet. denied) (stating that judgment is void when
court lacked jurisdiction to render judgment); Bass v. Bass, 106 S.W.3d 311, 318
(Tex. App.—Houston [1st Dist.] 2003, no pet.). We conclude that the justice court’s
writ of possession and its subsequent order vacating the writ and directing the
transmission of the record of the eviction proceeding to the county clerk were void
for lack of plenary power. See State ex rel. Latty v. Owens, 907 S.W.2d 484, 486
(Tex. 1995) (per curiam) (“We declare the order appealed from void because it was
signed after the district court’s plenary jurisdiction expired.”); Bass, 106 S.W.3d at
318 (stating that appellate court may “declare void any orders the trial court signed
after losing plenary power over the case”).
Generally, mandamus relief is appropriate when a court issues an order after
its plenary power has expired. In re Panchakarla, 602 S.W.3d 536, 539 (Tex. 2020)
(orig. proceeding) (per curiam); In re Brookshire Grocery Co., 250 S.W.3d 66, 68
(Tex. 2008) (orig. proceeding). Therefore, Greer properly sought mandamus relief
from the justice court’s void orders.
Mandamus was also appropriate to compel the justice court to transmit the
record of the proceeding to the clerk of the county court. Rule 510.10(a) requires
that the justice court, upon perfection of an appeal, “must immediately send” certain
specified documents and any money in the court’s registry to the clerk of the county
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court.3 TEX. R. CIV. P. 510.10(a). This act is ministerial because “the law clearly
spells out the duty to be performed by the official with sufficient certainty that
nothing is left to the exercise of discretion.” Schroeder v. Escalera Ranch Owners’
Ass’n, 646 S.W.3d 329, 333 (Tex. 2022) (quoting Anderson v. City of Seven Points,
806 S.W.2d 791, 793 (Tex. 1991)). Mandamus is the proper remedy to compel the
performance of a ministerial act or duty. Walker v. Packer, 827 S.W.2d 833, 839
(Tex. 1992) (orig. proceeding). Therefore, to the extent the justice court did not
“immediately send” the record of the eviction proceeding to the county clerk as
required by Rule 510.10(a), mandamus was the proper remedy to compel this
ministerial act. See TEX. R. CIV. P. 510.10(a); Walker, 827 S.W.2d at 839.
Subsequent events, however, have rendered this case moot. Judge Janssen
filed an appellate brief in this appeal, and he raised an alternative basis for mootness
3
Greer appears to argue on appeal that this rule requires the justice court to send the
record by written order and to do so while the justice court retains plenary power.
By its plain language, however, Rule 510.10(a) does not require the justice court to
transmit the record by written order. TEX. R. CIV. P. 510.10(a). It simply provides
that the “judge . . . must immediately send” the record to the clerk of the county
court. Id. (emphasis added). Furthermore, the justice court cannot always send the
record while it retains plenary power because the action that triggers the duty to
send the record—perfection of an appeal—is the same action that simultaneously
deprives the justice court of its plenary power. TEX. R. CIV. P. 507.1 (“A justice
court loses plenary power over a case when an appeal is perfected[.]”); TEX. R. CIV.
P. 510.10(a) (stating that “when an appeal has been perfected, the judge . . . must
immediately send” the record of eviction proceeding). Therefore, we disagree with
Greer that the justice court is required to send the record by written order prior to
its plenary power expiring. Rather, the court “must immediately send” the record
upon perfection of the appeal. See TEX. R. CIV. P. 510.10(a).
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for the first time: Greer’s appeal of the justice court’s judgment was eventually
docketed and assigned to a county court, the county court reached a final judgment
after a trial de novo that awarded possession of the subject property to JP Morgan,
and Greer has directly appealed that judgment to our sister Houston Court of
Appeals. See Harrison v. Reiner, 607 S.W.3d 450, 458 (Tex. App.—Houston [14th
Dist.] 2020, pet. denied) (stating that jurisdictional challenges, including mootness,
may be raised for first time on appeal).
As support for this contention that the appeal has subsequently become moot,
Judge Janssen attached an appendix to his brief containing copies of the county
court’s final judgment and Greer’s appellate brief filed in the direct appeal of the
judgment to the Fourteenth Court of Appeals. Although Judge Janssen relies on these
documents, they are not included in the appellate record and Judge Janssen does not
specifically request that the Court take judicial notice of the documents.
Generally, appellate courts may not consider documents outside the record on
appeal even if they are included in an appendix to an appellate brief. Dauz v. Valdez,
571 S.W.3d 795, 811 (Tex. App.—Houston [1st Dist.] 2018, no pet.) (“We cannot
consider documents outside the record” on appeal even if document is appended to
appellate brief). Appellate courts may, however, take judicial notice of facts outside
the record when necessary to determine jurisdiction over an appeal. See TEX. R.
EVID. 201(d); Freedom Commc’ns, Inc. v. Coronado, 372 S.W.3d 621, 623–24 (Tex.
11
2012) (per curiam) (taking judicial notice of plea agreement entered in federal court,
which was not contained in appellate record, because agreement was relevant to
jurisdictional issue); In re Lombana, 542 S.W.3d 699, 701 n.1 (Tex. App.—Houston
[14th Dist.] 2017, orig. proceeding) (taking judicial notice of order that is publicly
available on district clerk’s website). Because the issue of mootness implicates
subject-matter jurisdiction, we may take judicial notice of facts outside the record in
determining whether the case is moot. See Freedom Commc’ns, 372 S.W.3d at 624.
And we may do so sua sponte. See TEX. R. EVID. 201(c)(1); see Graves v. Diehl, No.
01-00-00412-CV, 2006 WL 1699527, at *1 n.1 (Tex. App.—Houston [1st Dist.]
June 22, 2006, pet. denied) (mem. op.) (“Though the Diehls have not requested us
to take judicial notice of the records from the bankruptcy proceeding, we may do so
sua sponte.”).
For a fact to be the proper subject of judicial notice, the fact must not be
subject to reasonable dispute because it is either generally known within the court’s
territorial jurisdiction or it can be accurately and readily determined from sources
whose accuracy cannot reasonably be questioned. TEX. R. EVID. 201(b); see
Freedom Commc’ns, 372 S.W.3d at 623; see also Perez v. Williams, 474 S.W.3d
408, 419 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (stating that although court
can judicially notice existence of certain documents, it may not judicially notice truth
of factual statements and allegations in pleadings, affidavits, or other documents).
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Judge Janssen relies on records from another domestic court, specifically a trial court
judgment and an appellate brief on direct appeal from that judgment. These
documents are not, however, authenticated or certified, which is generally required
before a court may take judicial notice of another court’s records. See Perez, 474
S.W.3d at 419–20 (concluding that trial court did not err in refusing to take judicial
notice of unauthenticated or uncertified documents filed in another court). Despite
the lack of authentication or certification, however, our review of the documents
indicates that they are not subject to reasonable dispute because their accuracy
cannot reasonably be questioned. See TEX. R. EVID. 201(b)(2); Freedom Commc’ns,
372 S.W.3d at 623.
For example, the records are file-stamped and publicly available on the
respective county clerk and appellate court websites. See Freedom Commc’ns, 372
S.W.3d at 623–24; In re Lombana, 542 S.W.3d at 701 n.1; In re Risner, No. 01-14-
00497-CV, 2014 WL 3002178, at *1 (Tex. App.—Houston [1st Dist.] June 27, 2014,
orig. proceeding) (mem. op.) (per curiam) (judicially noticing information available
on Harris County Clerk’s election division website where information was relevant
to issue of jurisdiction and was capable of accurate and ready determination by resort
to Harris County Clerk’s website). Greer did not object to Judge Janssen’s reliance
on these documents on appeal. Nor does Greer dispute that the documents are
authentic, his appeal of the eviction judgment at issue in this case was eventually
13
docketed in the county court, that appeal reached a final decision on the merits after
a trial de novo, and he has directly appealed that judgment. See Stephens v. LNV
Corp., 488 S.W.3d 366, 373 (Tex. App.—El Paso 2015, no pet.) (judicially noticing
file-stamped federal pleading because it is readily verifiable as public federal record
and opposing party did not object to document). We therefore take judicial notice of
these documents. See TEX. R. EVID. 201; Freedom Commc’ns, 372 S.W.3d at 623–
24.
These documents show that, while this appeal of the mandamus dismissal has
been pending, Greer’s appeal of the underlying eviction judgment entered by the
justice court was eventually docketed in county court and has reached a final
judgment after a trial de novo. As stated above, the appeal to county court was by
trial de novo, which is “a new trial in which the entire case is presented as if there
had been no previous trial.” TEX. R. CIV. P. 510.10(c). It is well-settled that “[o]nce
an appeal is perfected from a justice court to a county court at law for trial de novo,
the judgment of the justice court is annulled and vacated.” Praise Deliverance
Church v. Jelinis, LLC, 536 S.W.3d 849, 855 (Tex. App.—Houston [1st Dist.] 2017,
pet. denied); Villalon, 176 S.W.3d at 69–70. Thus, the justice court judgment
awarding possession of the subject property to JP Morgan was annulled and vacated
when Greer perfected the appeal from the judgment.
14
Furthermore, by perfecting the appeal and receiving a trial de novo in county
court, the issue concerning the writ of possession in the justice court is rendered
moot. See Laguan v. U.S. Bank Tr., No. 14-14-00577-CV, 2016 WL 750172, at *1
(Tex. App.—Houston [14th Dist.] Feb. 25, 2016, no pet.) (mem. op.) (holding that
party’s complaint that justice court violated due process rights was mooted when
party perfected appeal to county court, which vacated and annulled justice court’s
judgment, and party received trial de novo in county court). Compelling the justice
court to vacate the writ of possession would have no legal effect upon Greer’s rights
or interest in possession of the subject property in light of the county court’s final
judgment after a trial de novo. See Harper, 562 S.W.3d at 6 (stating that case
becomes moot when parties cease to have legally cognizable interest in outcome);
Heckman, 369 S.W.3d at 162 (stating that case is moot when court’s action on merits
cannot affect parties’ rights or interests); City of Houston v. Kallinen, 516 S.W.3d
617, 622 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (“The same is true [a case
becomes moot] if a judgment would not have any practical legal effect upon a then-
existing controversy.”). We therefore conclude that this issue has become moot.
Similarly, the issue concerning transmittal of the record of the eviction
proceeding has become moot. Once an appeal has been perfected, the judge of the
justice court “must immediately send” certified copies of all docket entries, the bill
of costs, and the original papers as well as any money in the court registry to the
15
clerk of the county court. TEX. R. CIV. P. 510.10(a). Presumably, the justice court
eventually complied with this provision because a county court tried the case de
novo and reached a judgment, which Greer has directly appealed. See TEX. R. CIV.
P. 510.10(b). Indeed, Greer argues on appeal that the record was not sent “initially,”
which implies that the record was sent eventually.
Furthermore, Greer does not point to any argument or evidence that he was
prohibited from relying upon in the county court’s trial de novo due to a lack of a
record from the justice court proceeding. In any event, considering that the county
court has already reached a final judgment in the forcible detainer appeal, an order
compelling the justice court to send the record of the eviction proceeding to the clerk
of the county court would not affect Greer’s rights or interest in possession of the
subject property. See Harper, 562 S.W.3d at 6; Heckman, 369 S.W.3d at 162. We
therefore conclude that this issue has also become moot.
We overrule Greer’s sole issue on appeal.
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Conclusion
Because the case has become moot, we dismiss the appeal for want of
jurisdiction.
April L. Farris
Justice
Panel consists of Justices Kelly, Farris, and Radack.4
4
The Honorable Sherry Radack, Senior Justice, Court of Appeals, First District of
Texas at Houston, sitting by assignment.
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