John Seay v. Del Roy Funds LP

Opinion

VACATE ORDER AND DISMISS and Opinion Filed April 17, 2023

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-01316-CV

JOHN SEAY, Appellant V. DEL ROY FUNDS, LP, Appellee

On Appeal from the County Court at Law No. 5 Dallas County, Texas Trial Court Cause No. CC-22-06072-E

MEMORANDUM OPINION Before Justices Molberg, Carlyle, and Smith Opinion by Justice Molberg This is an appeal from an order in a forcible detainer lawsuit awarding

possession of the subject property to appellee. Before the Court is appellee’s

motion to dismiss the appeal as moot. Appellee recites in the motion that a writ of

possession was executed, and appellant is no longer in possession of the property.

The only issue in a forcible detainer suit is the right to immediate possession

of the premises. See Olley v. HVM, L.L.C., 449 S.W.3d 572, 575 (Tex. App.—

Houston [14th Dist.] 2014, pet. denied). Unless an appellant has a potentially

meritorious claim of right to current, actual possession, the issue of possession and the case become moot when the appellant is no longer in possession of the

premises. See Marshall v. Hous. Auth. of City of San Antonio, 198 S.W.3d 782,

787, 790 (Tex. 2006). When a case becomes moot on appeal, an appellate court

must vacate the trial court’s judgment and dismiss the case. See City of Dallas v.

Woodfield, 305 S.W.3d 412, 416 (Tex. App.—Dallas 2010, no pet.).

More than ten days have passed since appellee filed its motion to dismiss

and appellant has not filed a response. Because nothing in the record before us

shows appellant has a potentially meritorious claim of right to current, actual

possession of the property, we grant appellee’s motion, vacate the trial court’s

December 2, 2022 order, and dismiss the case. See TEX. R. APP. P. 42.3(a);

Marshall, 198 S.W.3d at 790.

/Ken Molberb/ KEN MOLBERG JUSTICE

221316F.P05

–2– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

JOHN SEAY, Appellant On Appeal from the County Court at Law No. 5, Dallas County, Texas No. 05-22-01316-CV V. Trial Court Cause No. CC-22-06072- E. DEL ROY FUNDS, LP, Appellee Opinion delivered by Justice Molberg. Justices Carlyle and Smith participating.

In accordance with this Court’s opinion of this date, we VACATE the trial court’s December 2, 2022 order and DISMISS the case.

We ORDER that appellee DEL ROY FUNDS, LP recover its costs of this appeal from appellant JOHN SEAY.

Judgment entered April 17, 2023

–3–