William Richmond v. Forest Green Manor

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The judgment was not superseded, and a writ of possession was served on appellant.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.

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Accordingly, we vacate the trial court’s judgment of possession and dismiss the case. See id.

/Dennise Garcia/ DENNISE GARCIA JUSTICE

220450F.P05

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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

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