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William Richmond v. Forest Green Manor ( 2023 )


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  • VACATE and DISMISS and Opinion Filed August 16, 2023
    S  In The
    Court of Appeals
    Fifth District of Texas at Dallas
    No. 05-22-00450-CV
    WILLIAM RICHMOND, Appellant
    V.
    FOREST GREEN MANOR, Appellee
    On Appeal from the County Court at Law No. 3
    Dallas County, Texas
    Trial Court Cause No. CC-22-01665-C
    MEMORANDUM OPINION
    Before Justices Goldstein, Garcia, and Miskel
    Opinion by Justice Garcia
    This is an appeal from a judgment of possession in a forcible detainer suit.
    The judgment was not superseded, and a writ of possession was served on appellant.
    Appellee subsequently filed a motion to dismiss the appeal, supported by affidavit,
    asserting that the appeal has become moot because appellant is no longer in
    possession of the property. See Olley v. HVM, LLC, 
    449 S.W.3d 572
    , 575 (Tex.
    App.—Houston [14th Dist.] 2014, pet. denied) (generally, appeal in forcible detainer
    action becomes moot when appellant is no longer in possession of premises).
    Williams v. Lara, 
    52 S.W.3d 171
    , 184 (Tex. 2001) (case becomes moot if, at any
    stage of proceedings, a controversy ceases to exist between parties).
    The only issue in a forcible detainer case is the right to actual possession of
    property. See Marshall v. Housing Auth’y of City of San Antonio, 
    198 S.W.3d 782
    ,
    787 (Tex. 2006). When a writ of possession has been executed following the filing
    of an appeal and possession is no longer an issue, the appeal in a forcible detainer
    case becomes moot and the appellate court lacks jurisdiction unless the appellant
    holds and asserts a meritorious claim of right to current, actual possession of the
    property or damages or attorney’s fees remain at issue. See Daftary v. Prestonwood
    Mkt. Square, Ltd., 
    399 S.W.3d 708
    , 711 (Tex. App.—Dallas 2013, pet. denied).
    Although appellant has had more than ten days to respond to appellee’s
    motion, he has not done so. See TEX. R. APP. P. 42.3(a), (c). Accordingly, it appears
    on the record before us that appellant is no longer in possession of the premises and
    nothing before us shows appellant has a potentially meritorious claim of right to
    current, actual possession.
    When an appeal has become moot, an appellate court must vacate the trial
    court’s judgment and dismiss the case. See Marshall, 198 S.W.3d at 785.
    –2–
    Accordingly, we vacate the trial court’s judgment of possession and dismiss
    the case. See id.
    /Dennise Garcia/
    DENNISE GARCIA
    JUSTICE
    220450F.P05
    –3–
    S
    Court of Appeals
    Fifth District of Texas at Dallas
    JUDGMENT
    WILLIAM RICHMOND, Appellant                    On Appeal from the County Court at
    Law No. 3, Dallas County, Texas
    No. 05-22-00450-CV           V.                Trial Court Cause No. CC-22-01665-
    C.
    FOREST GREEN MANOR,                            Opinion delivered by Justice Garcia.
    Appellee                                       Justices Goldstein and Miskel
    participating.
    In accordance with this Court’s opinion of this date, the judgment of the trial
    court is VACATED and the case is DISMISSED.
    It is ORDERED that each party bear its own costs of this appeal.
    Judgment entered August 16, 2023
    –4–
    

Document Info

Docket Number: 05-22-00450-CV

Filed Date: 8/16/2023

Precedential Status: Precedential

Modified Date: 8/23/2023