In Re Aderonke Aderemi v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: October 31, 2023
• Docket: 01-22-00525-CV
• Status: Published

Opinion

Opinion issued October 31, 2023

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-22-00520-CV NO. 01-22-00525-CV ——————————— ADERONKE ADEREMI, Appellant V. MASSANDRA KV VINEYARDS OWNER LLC, AS SUCCESSOR-IN- INTEREST TO PAC VINEYARDS LLC, Appellee

IN RE ADERONKE ADEREMI, Relator

On Appeal from the County Civil Court at Law No. 1 Harris County, Texas Trial Court Case No. 1176890

MEMORANDUM OPINION In this forcible detainer action, appellant Aderonke Aderemi appeals from the

county court’s judgment awarding possession of an apartment to appellee Massandra

KV Vineyards Owner LLC (“Massandra”), as alleged successor-in-interest to PAC

Vineyards LLC (“PAC Vineyards”). On appeal, Aderemi raises thirteen issues,

including that Massandra lacked standing to sue and that no evidence established

Massandra had a superior right to immediate possession of the apartment.1 For the

reasons discussed below, we conclude that Massandra had standing to bring the

eviction suit, but the evidence was legally insufficient to establish Massandra’s right

to possession. Accordingly, we reverse and render judgment.

Aderemi also filed a petition for writ of mandamus requesting that this Court

stay enforcement of the county court’s post-judgment order directing the issuance of

a writ of possession. We dismiss the petition as moot.

Background

In October 2020, Aderemi and PAC Vineyards entered into a lease agreement

for an apartment unit at the Vineyards apartment complex in Harris County. The

1 In her other issues, Aderemi contends that the county court erred by entering a judgment that was unclear; entering findings of fact unsupported by legally sufficient evidence; denying her objection to an assigned judge; and issuing a post- judgment writ of possession. Aderemi also raises issues concerning opposing counsel, her own counsel’s ineffective assistance, and the admission of evidence. Because the legal sufficiency challenge to Massandra’s right to possession is dispositive of this appeal, we do not reach these remaining issues. See TEX. R. APP. P. 47.1.

2 lease conveyed possession of the apartment to Aderemi for seventeen months from

November 2020 to April 2022. In April and May 2021, PAC Vineyards sent

Aderemi three notices stating that she had violated the lease by having garage sales

on Vineyards’ grounds and refusing access to her apartment for required inspections.

In June 2021, PAC Vineyards sent Aderemi a notice of eviction. According

to the notice, PAC Vineyards was terminating the lease due to the lease violations

described in the prior notices and because PAC Vineyards had received complaints

that Aderemi was harassing and threatening other Vineyards residents. The letter

requested that Aderemi vacate her apartment within three days. Aderemi did not

vacate the apartment.

In June 2021, PAC Vineyards filed an original petition for eviction against

Aderemi in Harris County justice court. See TEX. PROP. CODE § 24.004(a) (providing

that justice courts have jurisdiction to hear eviction suits and issue writs of

possession). In August 2021, Massandra filed a verified first amended petition.2 The

amended petition substituted Massandra as plaintiff, stating that Massandra was the

successor-in-interest of PAC Vineyards and was the “owner and landlord” of the

Vineyards apartment complex. Massandra’s authorized representative averred in the

2 The petition names “Aderemi and all occupants” as defendants, but Aderemi is the only defendant who filed an answer, participated in the underlying proceedings, and participated in this appeal. Thus, Massandra and Aderemi are the only parties to this appeal.

3 verification that each of the facts alleged in the petition were within her personal

knowledge and were true and correct.

The amended petition alleged that Massandra and Aderemi entered into a

lease agreement conveying possession of the apartment to Aderemi. The amended

petition further alleged that Aderemi had violated various provisions of the lease,

and Massandra had sent Aderemi a notice to vacate the apartment, but Aderemi

refused to vacate the apartment and was in possession when the amended petition

was filed. Massandra requested an award of possession of the apartment and other

relief, including attorney’s fees, costs, and interest.

In September 2021, the justice court signed a judgment awarding Massandra

possession of the apartment. Aderemi appealed the justice court’s judgment to the

county court for trial de novo. See TEX. R. CIV. P. 510.9(a) (authorizing party to

appeal judgment in eviction case), 510.10(c) (stating that appeal of eviction

judgment is by trial de novo in county court). Aderemi also filed an amended answer

in the county court generally denying Massandra’s allegations and asserting several

affirmative defenses. Massandra did not file any additional pleadings in the county

court, so its live pleading was the first amended petition that it had filed in the justice

court.

On December 6, 2021, the county court held a one-day bench trial in this case.

The court admitted several documents into evidence, including the lease agreement

4 between Aderemi and PAC Vineyards, the three lease-violation notices, and the

eviction notice.

Nancy Hernandez, an assistant property manager at the Vineyards apartment

complex, testified at trial. Massandra’s counsel asked Hernandez if “the current

entity that owns the Vineyards . . . took over that property from another entity fairly

recently” and if “it’s fair to say y’all are the new management.” Without further

explanation, Hernandez answered both questions in the affirmative.

Several times during trial, the county court raised the issue of whether

Massandra was a proper party. At the outset, the judge mentioned potential pleading

issues and directed the parties to discuss “what the pleadings are” off the record. The

court recessed, and afterwards the judge noted that the original petition listed PAC

Vineyards as the sole plaintiff while the amended petition listed Massandra as the

sole plaintiff. During Aderemi’s case-in-chief, the court acknowledged an objection

“to the party.” Massandra’s counsel represented that “the Vineyards [apartment

complex] [is] currently owned by Massandra,” but the court stated that “[t]here is

nothing in the record as to when the current owner of this property took over this

property.” Massandra’s counsel argued that Hernandez had testified about

ownership of the apartment complex.

At the end of trial, the court orally announced that judgment would be for

Massandra.

5 On April 5, 2022, the county court entered final judgment awarding

possession of the apartment to Massandra. The judgment stated that Massandra was

“entitled to obtain a Writ of Possession.” The judgment also set a supersedeas bond

in the amount of $12,480.

Aderemi filed a supersedeas bond on April 6, the day after the judgment was

signed. She also deposited $12,480 into the court’s registry. See TEX. R. APP. P.

24.1(a)(2) (providing that judgment may be superseded by filing bond), (c)(1)

(providing that, alternatively, judgment may be superseded by depositing funds in

court’s registry). Aderemi filed a notice of appeal on July 5, 2022.

After requesting that each party file proposed findings of fact and conclusions

of law, the county court adopted Massandra’s proposed findings and conclusions.

Finding No. 1 stated that “the parties entered into a lease contract . . . that conveyed

to [Aderemi] the right of possession” to the subject apartment. The court ultimately

concluded that Massandra was “entitled to possession” of the apartment.

On Massandra’s motion, the court entered an order directing the county clerk

to issue a writ of possession “in conformity with the final judgment.”3 The court

3 According to the motion, the county court had “refus[ed] to issue the writ of possession” because Aderemi had filed a supersedeas bond. See TEX. R. APP. P. 24.1(f) (“Enforcement of a judgment must be suspended if the judgment is superseded.”).

6 entered the order on July 15, 2022, after Aderemi had posted a supersedeas bond,

deposited funds into the court’s registry, and filed a notice of appeal.

Also on July 15, Aderemi filed an emergency petition for writ of mandamus

in this Court requesting that we stay the county court’s July 15 order and stay

execution of the writ of possession. The same day, this Court entered a temporary

order staying enforcement of the county court’s order. Four days later, Aderemi filed

an emergency motion in this Court arguing that despite this Court’s stay order, she

had received a notice to vacate the apartment within 24 hours. Aderemi’s motion

included the notice to vacate. The following day, this Court issued a second order

stating that “[a]ny efforts to execute on the trial court’s July 15, 2022 order granting

Massandra’s ‘Motion to Issue Writ of Possession’ are stayed pending resolution of

[Aderemi’s] petition for writ of mandamus” or further order of this Court.

Standing and Right of Immediate Possession

Throughout most of her issues, Aderemi argues that Massandra offered no

evidence proving that it was PAC Vineyards’ successor-in-interest or that it was the

actual owner or landlord of the apartment. Aderemi contends that Massandra

therefore lacked standing to bring the eviction suit. For the reasons discussed below,

we disagree that this presents an issue of standing and conclude that Massandra had

standing to sue.

7 However, Aderemi’s arguments also encompass the issue whether the

evidence is legally sufficient to prove that Massandra had a right to possession of

the apartment. See TEX. R. CIV. P. 510.3(e); Isaac v. CitiMortgage, Inc., 563 S.W.3d

305, 310 (Tex. App.—Houston [1st Dist.] 2018, pet. denied) (stating that “the only

issue to be adjudicated [in forcible-detainer action] is the right to actual possession”);

see also Li v. Pemberton Park Cmty. Ass’n, 631 S.W.3d 701, 706 (Tex. 2021) (per

curiam) (stating that courts should review and evaluate pro se pleadings with

liberality and patience); Manderscheid v. LAZ Parking of Tex., LLC, 506 S.W.3d

521, 522 n.1 (Tex. App.—Houston [1st Dist.] 2016, pet. denied) (op. on reh’g)

(applying liberal construction to pro se party’s appellate brief). For the reasons

discussed below, we conclude that no evidence establishes Massandra had a right to

possession of the apartment.

A. Standing

On appeal, Aderemi primarily challenges Massandra’s standing to sue.

1. Standard of Review and Governing Law

Standing is a jurisdictional prerequisite to suit, it may not be waived, and it

may be raised for the first time on appeal. Heckman v. Williamson Cnty., 369 S.W.3d

137, 150 (Tex. 2012); Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440,

445–46 (Tex. 1993). The plaintiff has the burden to affirmatively demonstrate

standing. Heckman, 369 S.W.3d at 154. Standing is determined at the time suit is

8 filed. Tex. Ass’n of Bus., 852 S.W.2d at 446 n.9; Rolle v. Hardy, 527 S.W.3d 405,

417 (Tex. App.—Houston [1st Dist.] 2017, no pet.). We review de novo the

jurisdictional issue of whether a party has standing to sue. Farmers Tex. Cnty. Mut.

Ins. Co. v. Beasley, 598 S.W.3d 237, 240 (Tex. 2020).

The standing inquiry focuses on the plaintiff’s alleged injury. Under Texas

law, standing requires that: (1) the plaintiff must be personally injured, and the injury

must be concrete and particularized, actual or imminent, not hypothetical; (2) the

plaintiff’s injury must be fairly traceable to the defendant’s conduct; and (3) the

plaintiff’s injury must be likely redressable by the requested relief. In re Abbott, 601

S.W.3d 802, 808 (Tex. 2020) (orig. proceeding) (per curiam) (quoting Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)). If the plaintiff lacks standing,

the trial court lacks subject-matter jurisdiction over the case, and the case must be

dismissed. Heckman, 369 S.W.3d at 150–51.

A party may challenge the trial court’s jurisdiction either on the pleadings or

by evidence negating jurisdictional facts. Tex. Dep’t of Parks & Wildlife v. Miranda,

133 S.W.3d 217, 226 (Tex. 2004). We first consider whether the plaintiff’s petition

alleged facts that affirmatively demonstrate the court’s jurisdiction. Id.; see

Heckman, 369 S.W.3d at 150 (“[O]ur [jurisdictional] analysis begins with the live

pleadings.”). We construe the pleadings liberally in favor of the plaintiff, taking as

true all factual allegations, and look to the pleader’s intent. Heckman, 369 S.W.3d at

9 150; Miranda, 133 S.W.3d at 226. We may also consider relevant evidence

submitted by the defendant to negate the existence of jurisdictional facts. Heckman,

369 S.W.3d at 150; Miranda, 133 S.W.3d at 227.

2. Analysis

Aderemi argues that all her relevant dealings were with PAC Vineyards, not

Massandra: she and PAC Vineyards were parties to the lease agreement; PAC

Vineyards sent the lease-violation and eviction notices; and PAC Vineyards filed the

original petition as sole plaintiff.4 Aderemi further argues that Massandra produced

no evidence proving that it succeeded to PAC Vineyards’ interests as the owner and

landlord of the Vineyards apartment complex. Thus, Aderemi contends that

Massandra lacked standing to sue.

All of Aderemi’s standing-related arguments challenge only part of the first

element of standing: whether Massandra was personally injured by Aderemi’s

refusal to return possession of the apartment upon demand. See In re Abbott, 601

4 Aderemi also argues that the county court’s findings of fact and conclusions of law identified PAC Vineyards—not Massandra—as the plaintiff. However, we determine standing from the beginning of suit, when Massandra filed the amended petition in county court. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 n.9 (Tex. 1993); Rolle v. Hardy, 527 S.W.3d 405, 417 (Tex. App.—Houston [1st Dist.] 2017, no pet.). Massandra first appeared as plaintiff in the first amended petition, which alleged that Massandra was PAC Vineyards’ successor-in-interest and Massandra was the owner and landlord of the apartment. For purposes of our jurisdictional analysis, we consider whether Massandra’s amended petition affirmatively demonstrated standing. See Heckman v. Williamson Cnty., 369 S.W.3d 137, 150 (Tex. 2012).

10 S.W.3d at 808. Aderemi does not contend that the alleged injury—the landlord’s

loss of possession of the apartment, whomever the landlord may be—was not

concrete, particularized, and imminent; fairly traceable to her conduct; or likely to

be redressed by any relief. See id.; see also TEX. PROP. CODE § 24.002(a)(1)

(providing that “person who refuses to surrender possession of real property on

demand commits a forcible detainer if the person is a tenant . . . wilfully and without

force holding over after the termination of the tenant’s right of possession”); Salazar

v. HPA Tex. Sub 2016-1 LLC, No. 01-19-00330-CV, 2020 WL 7702176, at *5 (Tex.

App.—Houston [1st Dist.] Dec. 29, 2020, pet. denied) (mem. op.) (stating that owner

and lessor have standing to bring eviction suit and that plaintiff’s “status as a

lessor/landlord demonstrates that it has a justiciable interest in the outcome of this

proceeding”). We therefore consider only whether Massandra alleged that it was

personally injured. See In re Abbott, 601 S.W.3d at 808.

We begin our jurisdictional analysis with the live pleadings, which we

liberally construe in Massandra’s favor. See Heckman, 369 S.W.3d at 150; Miranda,

133 S.W.3d at 226. Massandra first appeared as plaintiff in the amended petition

filed in the justice court, alleging that it was the successor-in-interest to PAC

Vineyards. See Finley Res., Inc. v. Headington Royalty, Inc., 672 S.W.3d 332, 342

(Tex. 2023) (stating that “successor” “refers to rights and obligations transferred by

merger, consolidation, or other legal succession”) (citation omitted); Broadway

11 Nat’l Bank, Tr. of Marty Frances Evers Tr. v. Yates Energy Corp., 631 S.W.3d 16,

25 n.5 (Tex. 2021) (“Corporations and other business entities do not have heirs, but

they can have successors.”). The amended petition also alleged that Massandra was

the owner and landlord of the Vineyards apartment complex, Massandra entered into

a lease agreement with Aderemi conveying to her possession of the apartment, the

lease was terminated due to alleged lease violations, and Aderemi refused to

surrender possession of the apartment.

These allegations affirmatively demonstrate that Massandra was personally

injured by Aderemi’s lease violations and refusal to return possession of the

apartment upon demand. See In re Abbott, 601 S.W.3d at 808. Based solely on the

allegations in the pleadings, Massandra was entitled to possession of the apartment

because Massandra had a landlord-tenant relationship with Aderemi arising from a

lease agreement, the lease was terminated due to alleged lease violations by

Aderemi, and Aderemi refused to return possession of the apartment to Massandra.

See Salazar, 2020 WL 7702176, at *5.

Aderemi did not produce any evidence in the county court to negate

Massandra’s jurisdictional allegations. See Heckman, 369 S.W.3d at 150 (stating that

courts may review relevant evidence submitted by defendant to negate existence of

jurisdictional facts alleged in pleadings). On appeal, however, Aderemi relies on the

lease agreement, the lease-violation notices, and the eviction notice, and she

12 correctly argues that these documents show that Massandra was neither a party to

the lease agreement nor the sender of the notices. Nevertheless, this evidence does

not raise a fact issue on Massandra’s standing to sue. See Miranda, 133 S.W.3d at

227–28.

We determine standing at the time suit is filed. Tex. Ass’n of Bus., 852 S.W.2d

at 446 n.9; Rolle, 527 S.W.3d at 417. The lease agreement was executed in October

2020 and became effective in November 2020. The three lease-violation notices

were dated in April 2021 and May 2021, and the eviction notice was dated in June

2021. In sum, all the evidence Aderemi relies on is dated between October 2020 and

June 2021, but Massandra did not file the amended petition until August 2021.

Between June 2021 and August 2021, however, Massandra could have succeeded to

PAC Vineyards’ interests in the Vineyards apartment complex and become the

owner and landlord. Thus, the evidence Aderemi relies on has no bearing on whether

Massandra had standing when it filed the amended petition.5

5 Additionally, we note that it is well settled that whether an owner or landlord is a successor-in-interest to the original owner or landlord presents an issue of capacity to sue, not standing to sue. E.g., King-Mays v. Nationwide Mut. Ins. Co., 194 S.W.3d 143, 145 (Tex. App.—Dallas 2006, pet. denied) (stating that “challenge to privity is a capacity issue, not standing”); Nine Greenway Ltd. v. Heard, Goggan, Blair & Williams, 875 S.W.2d 784, 786, 787 (Tex. App.—Houston [1st Dist.] 1994, writ denied) (holding that whether plaintiff-landlord is successor-in-interest to original landlord is issue of capacity, not standing).

13 We therefore conclude that Massandra’s live pleading affirmatively

demonstrated Massandra had standing to sue, and the jurisdictional evidence does

not negate Massandra’s standing. See id. at 150; Miranda, 133 S.W.3d at 226, 227–

28; see also DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 305 (Tex. 2008) (“A

plaintiff does not lack standing simply because he cannot prevail on the merits of his

claim; he lacks standing because his claim of injury is too slight for a court to afford

redress.”); Yarbrough v. Household Fin. Corp. III, 455 S.W.3d 277, 280 (Tex.

App.—Houston [14th Dist.] 2015, no pet.) (stating that landlord-tenant relationship

is not jurisdictional prerequisite to forcible detainer action). We therefore hold that

Massandra had standing to bring the eviction suit.

We overrule Aderemi’s issues to the extent they challenge standing.

B. Right of Immediate Possession

To prove the merits of its forcible detainer claim and establish its entitlement

to possession of the apartment, however, Massandra was required to produce

evidence of its superior right to immediate possession.

A forcible detainer action is designed to be a speedy, simple, and inexpensive

means to determine the right of immediate possession of real property where there

is no claim of unlawful entry. Marshall v. Hous. Auth. of San Antonio, 198 S.W.3d

782, 787 (Tex. 2006); Isaac, 563 S.W.3d at 310. The only issue to be adjudicated is

14 the right of immediate possession of real property. TEX. R. CIV. P. 510.3(e); Shields

Ltd. P’ship v. Bradberry, 526 S.W.3d 471, 478 (Tex. 2017); Isaac, 563 S.W.3d at

310.

In a forcible detainer action, the plaintiff bears the burden of proving its

superior right to immediate possession by producing evidence showing that: (1) the

plaintiff owns the property or has a landlord-tenant relationship with the defendant;

(2) the defendant is either a tenant at will, a tenant at sufferance, or a tenant or

subtenant willfully holding over after the termination of the defendant’s right of

possession; (3) the plaintiff gave proper notice to the defendant to vacate the

premises; and (4) the defendant refused to vacate the premises. Bradberry, 526

S.W.3d at 478; Isaac, 563 S.W.3d at 310–11 (stating that proof of landlord-tenant

relationship establishes basis for determining right of immediate possession). The

plaintiff is not required to prove title to establish a right of possession; rather, the

plaintiff is only required to show sufficient evidence of ownership to demonstrate a

superior right of immediate possession. Isaac, 563 S.W.3d at 311.

In an appeal from a bench trial, the trial court’s findings of fact have the same

weight as a jury’s verdict. Hall v. Lewis, 639 S.W.3d 197, 204 (Tex. App.—Houston

[1st Dist.] 2021, no pet.). We therefore review the trial court’s findings for legal and

factual sufficiency using the same standards that we use to review a jury verdict. Id.

15 at 204–05. When a complete reporter’s record exists, findings of fact are not binding

unless they are supported by the evidence. Id. at 205.

When, as here, an appellant challenges the legal sufficiency of an adverse

finding on an issue on which she did not have the burden of proof at trial, the

appellant must demonstrate that no evidence supported the adverse finding. Exxon

Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194, 215 (Tex. 2011). We consider

the evidence in the light most favorable to the challenged finding, crediting favorable

evidence if a reasonable factfinder could and disregarding contrary evidence unless

a reasonable fact finder could not. City of Keller v. Wilson, 168 S.W.3d 802, 822,

827 (Tex. 2005). We will sustain a no-evidence challenge if the record shows: (1) a

complete absence of evidence of a vital fact; (2) the court is barred by the rules of

law or evidence from giving weight to the only evidence offered to prove a vital fact;

(3) the evidence offered to prove a vital fact is no more than a mere scintilla; and

(4) the evidence conclusively establishes the opposite of a vital fact. Id. at 810

(citation omitted).

Aderemi’s legal sufficiency arguments are the same as her standing

arguments. That is, Aderemi argues that all the evidence shows her relevant dealings

were with PAC Vineyards, not Massandra: she and PAC Vineyards were parties to

the lease and PAC Vineyards sent the lease-violation and eviction notices. Aderemi

16 argues that Massandra produced no evidence proving that it actually succeeded to

the interests of PAC Vineyards or was the owner or landlord of the apartment. We

construe these arguments as a no-evidence challenge to Massandra’s right to

possession.

The final judgment awarded possession of the apartment to Massandra. The

county court also entered findings of fact and conclusions of law.6 Finding No. 1

stated that “the parties entered into a lease contract . . . that conveyed to [Aderemi]

the right of possession” of the apartment. No other finding addressed Massandra’s

6 In the findings of fact, the case style identified Massandra, as PAC Vineyards’ successor-in-interest, as the plaintiff, but the body of the findings identified only PAC Vineyards as the plaintiff. In a subsequent appellate issue, Aderemi argues that the incorrect identification of PAC Vineyards as the plaintiff in the body of the findings further supports her no-evidence challenge to Massandra’s right to possession. We disagree. “A misnomer occurs when a party misnames itself or another party, but the correct parties are involved.” In re Greater Houston Orthopaedic Specialists, Inc., 295 S.W.3d 323, 325 (Tex. 2009) (orig. proceeding) (per curiam). “A misnomer does not invalidate a judgment as between parties where the record and judgment together point out, with certainty, the persons and subject matter to be bound.” Chen v. Breckenridge Ests. Homeowners Ass’n, Inc., 227 S.W.3d 419, 420 (Tex. App.—Dallas 2007, no pet.). Here, Massandra filed the amended petition as plaintiff; Massandra appeared at trial, presented evidence, and questioned witnesses; and the judgment listed Massandra as plaintiff and awarded Massandra possession of the apartment. Furthermore, the county court adopted Massandra’s proposed findings and conclusions as the court’s findings and conclusions, which indicates that Massandra misnamed itself in the body of the findings. To the extent the findings in this case “are susceptible of different constructions, they will be construed, if possible, to be in harmony with the judgment and to support it.” See Brown v. Frontier Theatres, Inc., 369 S.W.2d 299, 301 (Tex. 1963); Tex. Outfitters Ltd. v. Nicholson, 534 S.W.3d 65, 74 (Tex. App.— San Antonio 2017), aff’d, 572 S.W.3d 647 (Tex. 2019). We therefore conclude that the misnomer in the findings does not invalidate either the findings or the judgment.

17 right to possession. Thus, we consider whether legally sufficient evidence supports

Finding No. 1.

At trial, the county court admitted several documents into evidence, including

the lease agreement, the notices of lease violations, and the eviction notice. The lease

agreement identified the parties to the agreement as Aderemi and Preferred

Apartment Advisors, LLC, as agent for PAC Vineyards. The lease does not mention

Massandra. Furthermore, all the lease-violation notices and the eviction notice

expressly state that they were sent on behalf of PAC Vineyards. The notices do not

mention Massandra.

Nancy Hernandez, the assistant property manager of the apartment complex,

testified at trial. The only testimony remotely concerning Massandra’s right to

possession was the following exchange between Massandra’s counsel and

Hernandez:

Q. And just to be clear, the—the current entity that owns the Vineyards, it took over that property from another entity fairly recently, right? A. Yes, on July 19th. Q. Okay. And so it’s fair to say y’all are the new management? A. Correct.

Hernandez did not identify the “current entity” that owns the Vineyards apartment

complex.

18 To establish its claim of forcible detainer, Massandra was required to prove

that it owned the apartment or had a landlord-tenant relationship with Aderemi. See

Bradberry, 526 S.W.3d at 478; Isaac, 563 S.W.3d at 311. In the challenged Finding

No. 1, the county court found that Massandra and Aderemi had entered into a lease

agreement. The appellate record, however, reveals a complete absence of evidence

that Massandra and Aderemi were parties to any lease agreement. See City of Keller,

168 S.W.3d at 810 (stating that reviewing court will sustain no-evidence challenge

if record shows complete absence of evidence of vital fact); cf. Trimble v. Fed. Nat’l

Mortg. Ass’n, 516 S.W.3d 24, 30 (Tex. App.—Houston [1st Dist.] 2016, pet. denied)

(concluding that original deed of trust, foreclosure sale deed, documents showing

default of lease, and notice of eviction were legally sufficient evidence supporting

finding that landlord-tenant relationship existed and, thus, landlord had superior

right of immediate possession). Accordingly, we conclude that no evidence supports

Finding No. 1 that Massandra and Aderemi entered into a lease agreement.

Massandra argues on appeal that Aderemi failed to raise the issue of whether

Massandra was successor-in-interest to PAC Vineyards. However, Massandra bore

the burden to prove the elements of its forcible-detainer claim, including that it either

owned the apartment or had a landlord-tenant relationship with Aderemi. See

Bradberry, 526 S.W.3d at 478; Isaac, 563 S.W.3d at 310–11. Aderemi was not

required to object to the sufficiency of the evidence supporting the elements of

19 Massandra’s claim to preserve her sufficiency challenge for appellate review. See

TEX. R. APP. P. 33.1(d) (“In a civil nonjury case, a complaint regarding the legal or

factual insufficiency of the evidence . . . may be made for the first time on appeal in

the complaining party’s brief.”); accord Superbash 2017, LLC v. Fun Fest Ent., 634

S.W.3d 471, 477 (Tex. App.—Houston [14th Dist.] 2021, no pet.) (stating that legal

insufficiency challenge “falls within an exception to the usual preservation-of-error

requirements”).

Massandra also argues on appeal that its employee testified that Massandra

was the successor-in-interest to PAC Vineyards. But the county court did not find

that Massandra was PAC Vineyards’ successor-in-interest; rather, it found that

Massandra was a party to a lease agreement, and this finding served as the basis for

concluding that Massandra was entitled to possession. Additionally, Massandra does

not cite any part of the appellate record supporting this argument. See TEX. R. APP.

P. 38.1(i) (stating that appellate brief must contain clear and concise argument with

appropriate citations to authorities and to record). Presumably, Massandra’s

“employee” refers to Hernandez.7 As discussed above, however, Hernandez did not

7 Massandra’s appellate brief does not mention Hernandez. At trial, Hernandez was the only witness to testify other than Aderemi, and Hernandez testified that she was the assistant property manager at the Vineyards complex. Hernandez was not asked to identify her employer. Although the record does not indicate that Hernandez was Massandra’s employee, for purposes of our analysis, we will assume without deciding that Massandra’s “employee” refers to Hernandez.

20 identify “the current entity that owns the Vineyards.” Therefore, we disagree with

Massandra that Hernandez’s testimony supported Finding No. 1.

We note that the county court pointed out this issue several times at trial,

thereby providing Massandra with several opportunities to prove its right of

possession. For example, the judge mentioned potential pleading issues and noted

that Aderemi had objected “to the party.” Massandra’s counsel responded that “the

Vineyards [apartment complex] [is] currently owned by Massandra,” but argument

of counsel is not evidence. See Fallon v. MD Anderson Physicians Network, 586

S.W.3d 58, 75 (Tex. App.—Houston [1st Dist.] 2019, pet. denied).

We hold that the evidence is legally insufficient to support the county court’s

Finding No. 1 that Massandra and Aderemi were parties to a lease agreement.

Therefore, no evidence establishes that Massandra had any right to possession of the

apartment. See Isaac, 563 S.W.3d at 310 (stating that “the only issue to be

adjudicated [in forcible-detainer action] is the right to actual possession”). We

sustain Aderemi’s issues concerning the legal sufficiency of the evidence supporting

Massandra’s right to possession.

Mandamus

On July 15, 2022—after the county court entered judgment awarding

possession to Massandra, and after Aderemi posted a supersedeas bond, deposited

funds into the court’s registry, and perfected her appeal to this Court—the county

21 court signed an order directing the county clerk “to issue a writ of possession in

conformity with the final judgment in this case.” The same day this order was signed,

Aderemi filed an emergency petition for writ of mandamus requesting that this Court

“stay the execution of a Writ of Possession granted by the Trial Court.” Pending

resolution of her mandamus petition, this Court issued two temporary orders staying

enforcement of the county court’s order and execution of a writ of possession. See

TEX. R. APP. P. 24.4(c) (“The appellate court may issue any temporary orders

necessary to preserve the parties’ rights.”); TEX. R. APP. P. 52.10(b) (authorizing

appellate court to “grant any just relief pending the court’s action” on petition in

original appellate proceeding).

As discussed below, we conclude that Aderemi’s petition for writ of

mandamus has become moot following our resolution of her direct appeal. We

therefore do not consider the merits of her mandamus petition. See In re J.J.R.S.,

627 S.W.3d 211, 225 (Tex. 2021) (“Any ruling on the merits of a moot issue

constitutes an advisory opinion, which we lack jurisdiction to issue.”).

Mootness occurs if the relief requested will not “affect the parties’ rights or

interests.” State ex rel. Best v. Harper, 562 S.W.3d 1, 6 (Tex. 2018) (quoting

Heckman, 369 S.W.3d at 162). A case can become moot at any time, including on

appeal. Id. When a case becomes moot, the court loses jurisdiction over the case

because any decision would constitute an impermissible advisory opinion. Id.

22 However, an entire case “is not rendered moot simply because some of the issues

become moot during the appellate process.” Id. (quoting In re Kellogg Brown &

Root, Inc., 166 S.W.3d 732, 737 (Tex. 2005) (orig. proceeding)). If only some issues

become moot, the case remains live as to other issues that are not moot. Id.

Here, we have already resolved Aderemi’s direct appeal in her favor, resulting

in reversal of the county court’s judgment. Upon reversal, the county court’s

judgment becomes a nullity and unenforceable, and this Court’s judgment becomes

the judgment of both courts. See Phillips v. Bramlett, 407 S.W.3d 229, 240 (Tex.

2013); Bramlett v. Phillips, 359 S.W.3d 304, 310 (Tex. App.—Amarillo 2012), aff’d,

407 S.W.3d 229 (Tex. 2013).

The county court’s order directed the county clerk to issue a writ of possession

“in conformity with the final judgment,” and our judgment awards possession to

Aderemi. Thus, Aderemi—and only Aderemi—would be entitled to a writ of

possession “in conformity with the final judgment.” Rule of Civil Procedure 510.8,

however, only authorizes a prevailing plaintiff in an eviction case to obtain a writ of

possession; a prevailing defendant is not entitled to a writ of possession. See TEX. R.

CIV. P. 510.8(b)–(d). Because neither Massandra—as the non-prevailing party—nor

Aderemi—as the defendant in the county court—may obtain a writ of possession in

the eviction case, any decision from this Court granting or denying mandamus relief

to stay execution of the writ of possession would not affect the parties’ rights or

23 interests. See Harper, 562 S.W.3d at 6. In light of our decision in Aderemi’s direct

appeal, we vacate the county court’s July 15, 2022 order directing issuance of a writ

of possession.

Accordingly, without regard to the merits, we hold that Aderemi’s petition for

writ of mandamus is moot, and we therefore dismiss it for want of jurisdiction. We

lift our prior stay orders. See TEX. R. APP. P. 52.10(b) (“Unless vacated or modified,

an order granting temporary relief is effective until the case is finally decided.”).

Conclusion

We reverse the county court’s judgment and render judgment that Aderemi is

entitled to possession of the subject apartment. We dismiss the petition for writ of

mandamus for want of jurisdiction. We release and discharge the supersedeas bond

and order that all funds deposited by Aderemi with the county court to suspend

enforcement of the county court’s judgment be released to Aderemi.

April L. Farris Justice

Panel consists of Justices Kelly, Landau, and Farris.