Ronnie Wade and Carolyn Wade v. Breckenridge Property Fund 2016, LLC ( 2023 )

Dismiss and Opinion Filed August 2, 2023
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00211-CV
RONNIE WADE AND CAROLYN WADE, Appellants
V.
BRECKENRIDGE PROPERTY FUND 2016, LLC, Appellee
On Appeal from the County Court at Law No. 2
Dallas County, Texas
Trial Court Cause No. CC-22-05861-B
MEMORANDUM OPINION
Before Chief Justice Burns, Justice Molberg, and Justice Pedersen, III
Opinion by Justice Molberg
The only issue in this forcible detainer appeal is whether the trial court
properly determined appellee had a superior right of possession to certain property
occupied by appellants. See Marshall v. Housing Auth. of City of San Antonio, 198
S.W.3d 782, 785, 787 (Tex. 2006). By verified motion, appellee informs the Court
that appellants are no longer in possession of the property and urges we dismiss the
appeal because the case has become moot. See Olley v. HVM, L.L.C., 449 S.W.3d
573, 575 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) (appellate courts lack
jurisdiction over moot controversies). Appellee also asks we award it attorney’s fees
and costs. Although appellee’s motion has been on file for more than ten days,
appellants have not filed a response or otherwise refuted appellee’s contention.
Unless a tenant has “a potentially meritorious claim of right to current, actual
possession of the property,” the issue of possession in a forcible detainer action
becomes moot when the tenant vacates the property. See Marshall, 198 S.W.3d at
782. When the issue becomes moot on appeal and no other issues exist, the appellate
court must vacate the underlying judgment and dismiss the entire underlying case.
See id. at 785, 790.
We deny appellee’s motion to the extent appellee requests attorney’s fees and
costs, but, with nothing before us showing appellants have a potentially meritorious
claim of right to current possession of the property, we grant the motion to the extent
appellee asserts the case has become moot. We vacate the trial court’s final
judgment and dismiss the case. See Marshall, 198 S.W.3d at 785, 790.
/Ken Molberg//
230211f.p05 KEN MOLBERG
JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
RONNIE WADE AND CAROLYN On Appeal from the County Court at
WADE, Appellants Law No. 2, Dallas County, Texas
Trial Court Cause No. CC-22-05861-
No. 05-23-00211-CV V. B.
Opinion delivered by Justice
BRECKENRIDGE PROPERTY Molberg, Chief Justice Burns and
FUND 2016, LLC, Appellee Justice Pedersen, III participating.
In accordance with this Court’s opinion of this date, we VACATE the trial
court’s March 6, 2023 final judgment and DISMISS the case.
Judgment entered this 2nd day of August 2023.
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