Gabriella Denise Roberts v. CitiMortgage, Inc.

• Court: Court of Appeals of Texas
• Decided: June 6, 2018
• Docket: 06-18-00024-CV
• Status: Published

Opinion

ACCEPTED 06-18-00024-cv SIXTH COURT OF APPEALS TEXARKANA, TEXAS 6/6/2018 1:18 PM DEBBIE AUTREY CLERK

NO. 06-18-00024-CV

IN THE COURT OF APPEALS FILED IN FOR THE SIXTH DISTRICT OF TEXAS 6thTEXARKANA, COURT OF APPEALS TEXAS AT TEXARKANA 6/6/2018 1:18:51 PM DEBBIE AUTREY Clerk GABRIELLA ROBERTS, appellant, v. CITIMORTGAGE, INC., appellee.

On appeal from Cause No. 430-12-CV in the County Court at Law No. 1 of Angelina County, Texas The Hon. Joe Lee Register presiding

APPELLEE CITIMORTGAGE, INC.'S MOTION TO DISMISS APPEAL AS MOOT AND FOR FAILURE TO PROSECUTE

Michael J. McKleroy, Jr., SBN: 24000095 michael.mckleroy@akerman.com Attorney in Charge C. Charles Townsend, SBN: 24028053 charles.townsend@akerman.com Monica Summers, SBN: 24083594 monica.summers@akerman.com AKERMAN LLP 2001 Ross Avenue, Suite 3600 Dallas, Texas 75201 Telephone: 214.720.4300 Facsimile: 214.981.9339

ATTORNEYS FOR APPELLEE CITIMORTGAGE, INC. _____________________________________________________________________________________________________________________ APPELLEE CITIMORTGAGE, INC.'S MOTION TO DISMISS APPEAL Page 1 of 5 Cause No. 12-18-00053-CV; Gabriella Roberts v. CitiMortgage, Inc. Appellee CitiMortgage, Inc. (CMI) respectfully moves to dismiss this appeal

because it is moot and appellant Gabriella Roberts has failed to prosecute it:

I. STATEMENT OF RELEVANT FACTS

1. On February 16, 2018, the county court at law number 1 of Angelina

County, Texas entered a judgment in favor of CMI granting it the immediate right

to possess the real property and improvements located at 276 Plantation Drive,

Lufkin, Texas 75901. See final judgment, ex. 1; see also docketing statement, ex. 2.

Ms. Roberts did not post a bond to supersede the judgment. See docketing statement

at 4, ex. 2. The writ of possession was executed on March 12, 2018. See writ of

possession, ex. 3. Ms. Roberts was removed from the property. See docketing

statement at 1, 5, 7, ex. 2 (stating "writ of possession of property/removed from my

residence" and identifying new address as 1552 Thigpen Road, Pollok, Texas).

2. The clerk's record was filed April 13, 2018. See docket. The reporter's

record was filed April 27, 2018. See docket. By rule, Ms. Roberts' opening brief

was due May 29, 2018. TEX. R. APP. P. 4.1(a), 38.6(a). By letter dated April 27,

2018, the clerk reminded Ms. Roberts of the May 29, 2018 deadline to file the brief.

See April 27, 2018 letter, ex. 4. Ms. Roberts has not filed her opening brief.

_____________________________________________________________________________________________________________________ APPELLEE CITIMORTGAGE, INC.'S MOTION TO DISMISS APPEAL Page 2 of 5 Cause No. 12-18-00053-CV; Gabriella Roberts v. CitiMortgage, Inc. II. ARGUMENTS & AUTHORITIES

A. Ms. Roberts' appeal is moot.

3. Ms. Roberts' failure to supersede the judgment for possession did not

divest her of her right to appeal, but her appeal became moot when she ceased to

have actual possession of the property. Marshall v. Housing Auth. of the City of San

Antonio, 198 S.W.3d 782, 787 (Tex. 2006). There is no basis for Ms. Roberts to

assert a meritorious claim of right to current, actual possession of the property.

There are no other issues to appeal.

B. Ms. Roberts' failure to prosecute warrants dismissal.

4. "If an appellant fails to timely file a brief, the appellate court may

dismiss the appeal for want of prosecution unless the appellant reasonably explains

the failure and the appellee is not significantly injured by the appellant's failure to

timely file a brief." TEX. R. APP. P. 38.8(a)(1); see also id. 42.3(c) (authorizing

court to dismiss appeal for want of prosecution or because appellant failed to comply

with a requirement of the rules, a court order or a notice from the clerk requiring a

response or other action within a specified time).

5. By rule, as well as by notice from the clerk, Ms. Roberts was required

to file her opening brief on or before May 29, 2018. To date, Ms. Roberts has filed

nothing. She has not filed her brief, a motion requesting an extension of time or

anything else providing an explanation of her failure to meet the briefing deadline.

_____________________________________________________________________________________________________________________ APPELLEE CITIMORTGAGE, INC.'S MOTION TO DISMISS APPEAL Page 3 of 5 Cause No. 12-18-00053-CV; Gabriella Roberts v. CitiMortgage, Inc. Her appeal should be dismissed for want of prosecution, failure to comply with the

rules, and failure to comply with clerk's notice.

III. PRAYER

CMI requests Ms. Roberts' appeal be dismissed and it be granted any and all

further relief to which it may show itself justly entitled.

Date: June 6, 2018 Respectfully submitted,

/s/ Michael J. McKleroy, Jr. Michael J. McKleroy, Jr.; SBN: 24000095 C. Charles Townsend; SBN: 24028053 Monica Summers; SBN: 24083594 AKERMAN LLP 2001 Ross Avenue, Suite 3600 Dallas, Texas 75201 Telephone: 214.720.4300 Facsimile: 214.981.9339 michael.mckleroy@akerman.com charles.townsend@akerman.com monica.summers@akerman.com

ATTORNEYS FOR APPELLEE CITIMORTGAGE, INC.

_____________________________________________________________________________________________________________________ APPELLEE CITIMORTGAGE, INC.'S MOTION TO DISMISS APPEAL Page 4 of 5 Cause No. 12-18-00053-CV; Gabriella Roberts v. CitiMortgage, Inc. CERTIFICATE OF SERVICE

I hereby certify that on June 6, 2018, a true and correct copy of the foregoing was served as follows:

Gabriella Roberts 1552 Thigpen Road Pollok, Texas 75969 VIA CERTIFIED MAIL RECEIPT NO. 9414 7266 9904 2092 0191 94

/s/ Michael J. McKleroy, Jr. Michael J. McKleroy, Jr.

_____________________________________________________________________________________________________________________ APPELLEE CITIMORTGAGE, INC.'S MOTION TO DISMISS APPEAL Page 5 of 5 Cause No. 12-18-00053-CV; Gabriella Roberts v. CitiMortgage, Inc. EXHIBIT 1 Filed:02/16/2018 14:07 Amy Fincher, County Clerk Angelina County, Texas By: Johnson, Nathan Deputy Clerk CAUSE NO. 430-12-CV

CITIMORTGAGE, INC., § IN THE COUNTY COURT § plaintiff, § § v. § AT LAW NO. 1 § GABRIELLA DENISE ROBERTS, et al., § § defendants. § ANGELINA COUNTY, TEXAS

FINAL JUDGMENT

On this day came on for hearing the motion for summary judgment filed by plaintiff

CitiMortgage, Inc. (CMI) in the above-styled and -numbered cause. This matter is an appeal by

defendant Gabriella Denise Roberts (Roberts) from a judgment awarding possession of the

property described below to plaintiff CitiMortgage, Inc. (CMI) issued by the justice of the peace

of Angelina County, Texas, precinct 4. The court finds Roberts was duly served with a copy of

CMI's motion and the notice of hearing thereon, but failed to file a timely response or summary

judgment evidence. Upon consideration of CMI's motion and the evidence presented therein, the

papers on file in this cause, and the arguments of counsel and pro se parties, this court is of the

opinion CMI's motion should be GRANTED and judgment should be entered as follows:

IT IS ORDERED, ADJUDGED and DECREED CMI is entitled to immediate possession

of, and have restitution to, the property located at 276 Plantation Drive, Lufkin, Texas 75901

(property) and more particularly described as follows:

BEING ALL THAT CERTAIN TRACT OR PARCEL OF LAND LYING AND SITUATED IN ANGELINA COUNTY, TEXAS, OUT OF THE THOMAS CARO SURVEY, ABSTRACT NO. 8 AND BEING A PART OF PORTION OF THAT CERTAIN CALLED 592.701 ACRE TRACT (AKA TRACT NO. 2) CONVEYED TO THOMAS G. FLOURNOY IN THE DOCUMENT RECORDED IN VOLUME 592 ON PAGE 419 OF THE REAL PROPERTY RECORDS OF ANGELINA COUNTY, TEXAS, TO WHICH REFERENCE IS HEREBY MADE FOR ALL PURPOSES AND BEING MORE PARTICULARLY DESCRIBED

FINAL JUDGMENT PAGE 1 of 3 Cause No. 430-12-cv; CitiMortgage, Inc. v. Gabriella Denise Roberts BY METES AND BOUNDS AS FOLLOWS, TO WIT:

BEGINNING AT A 1/2' IRON PIN FOUND FOR THE NORTHEAST CORNER OF A CALLED 143 ACRE TRACT (AKA LOT 25 OF SAID PLANTATION) CONVEYED TO ALFONSO COMPIAN, JR. IN THE DOCUMENT RECORDED IN VOLUME 1400 ON PAGE 289 OF THE OFFICIAL RECORDS OF SAID COUNTY, AND THE SOUTHEAST CORNER OF LOT 24 ON THE WEST RIGHT-OF-WAY LINE OF PLANTATION DRIVE;

THENCE ACROSS THE SAID 592.701 ACRE TRACT AND ALONG THE COMMON BOUNDARY LINE OF THE SAID LOT 24 AND THE SAID 1.43 ACRE TRACT, N. 88' 02' 58" W AT 313.75 FEET TO A 1/2' IRON PIN FOUND FOR THE SOUTHWEST CORNER OF THE SAID LOT 24 AND THE SOUTHEAST CORNER OF A RESIDUS OF A CALLED 7.43 ACRE TRACT (AKA LOT 17 OF THE SAID PLANTATION) CONVEYED TO CLIFFORD E. FACOR, ET AL. IN THE DOCUMENT RECORDED IN VOLUME 1187 ON PAGE 508 OF THE SAID REAL PROPERTY RECORDS AND THE NORTHWEST CORNER OF THE SAID 1.43 ACRE TRACT;

THENCE CONTINUING ACROSS THE SAID 592.701 ACRE TRACT AND ALONG THE COMMON BOUNDARY LINE OF THE SAID LOT 24 ACRE TRACT AND THE SAID RESIDUE, N. 00' 46' 55" E AT 365.48 FEET 3 1/2 IRON PIN FOUND FOR THE NORTHWEST CORNER OF THE SAID LOT 24 AND THE SOUTHWEST CORNER OF LOT 23;

THENCE ALONG THE COMMON BOUNDARY LINE OF THE SAID LOT 24 AND THE SAID LOT 23 S 86' 22' 11" E AT 316.72 FEET A 1/2 IRON PIN FOUND FOR THE NORTHWEST CORNER OF THE SAID LOT 24 AND THE SOUTHEAST CORNER OF LOT 23, ON THE WEST RIGHT-OF-WAY LINE OF PLANTATION DRIVE;

THENCE, ALONG THE EAST BOUNDARY LINE OF THE SAID LOT 24 AND THE ALONG THE SAID ROW LINE S 01' 12' 28" W AT 356.15 FEET THE POINT AND PLACE OF BEGINNING AND CONTAINING 2.610 ACRES OF LAND, MORE OR LESS.

THE BEARING FOR THIS TRACT ARE BASED ON THE WEST ROW LINE OR PLANTATION DRIVE AS RECORDED IN VOLUME 786 ON PAGE 255 OF THE REAL PROPERTY RECORDS.

being the same property described in the deed of trust recorded in the official public records of

Angelina County, Texas on August 4, 2006 as instrument 2006-00217358.

IT IS FURTHER ORDERED, ADJUDGED and DECREED the clerk of this court shall

issue a writ of possession in favor of CMI for the property, and CMI shall be entitled to execute

FINAL JUDGMENT PAGE 2 of 3 Cause No. 430-12-cv; CitiMortgage, Inc. v. Gabriella Denise Roberts the writ of possession against Roberts and all other occupants.

IT IS FURTHER ORDERED, ADJUDGED and DECREED CMI is awarded a judgment

against Roberts for all costs of court.

It is the intent of the court this final judgment resolves all claims against all parties to the

above-styled and numbered suit and be a final judgment for all purposes, including appeal.

16th day of February, 2018. SIGNED on the ____

____________________________________ AP JUDGE PRESIDING

SUBMITTED BY:

/s/ Michael J. McKleroy, Jr. Michael J. McKleroy, Jr. Attorney for CitiMortgage, Inc.

FINAL JUDGMENT PAGE 3 of 3 Cause No. 430-12-cv; CitiMortgage, Inc. v. Gabriella Denise Roberts EXHIBIT 2 EXHIBIT 3 EXHIBIT 4 FILE COPY

CHIEF JUSTICE Court of Appeals CLERK JOSH R. MORRISS, III Sixth Appellate District DEBRA K. AUTREY

JUSTICES State of Texas BI-STATE JUSTICE BUILDING BAILEY C. MOSELEY 100 NORTH STATE LINE AVENUE #20 TEXARKANA, TEXAS 75501 RALPH K. BURGESS (903) 798-3046

Friday, April 27, 2018

Gabriella Roberts Michael J. McKleroy 1552 Thigpen Attorney at Law Pollok, TX 75969 2001 Ross Ave * DELIVERED VIA E-MAIL * Dallas, TX 75201 * DELIVERED VIA E-MAIL *

RE: Appellate Case Number: 06-18-00024-CV Trial Court Case Number: 430-12-CV

Style: Gabriella Denise Roberts, et al. v. CitiMortgage, Inc.

The certified Reporter’s Record (4 volumes) has this date been electronically received and filed in the referenced proceeding.

Pro Se Appellant’s brief is due on or before Tuesday, May 29, 2018.

IF COUNSEL WANTS TO MAKE AN ORAL ARGUMENT, A REQUEST TO DO SO MUST APPEAR ON THE FRONT COVER OF THE BRIEF. TEX.R.APP.P.39.7.

Respectfully submitted,

Debra K. Autrey, Clerk

By ___________________________ Deputy

cc: Melvin Power, Official Court Reporter (DELIVERED VIA E-MAIL)