Penny Albaugh v. James Ward and Elda Gonzalez

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-21-00100-CV

Penny ALBAUGH, Appellant

v.

James WARD and Elda Gonzalez, Appellees

From the County Court, Frio County, Texas Trial Court No. 9642 Honorable Arnulfo C. Luna, Judge Presiding

PER CURIAM

Sitting: Rebeca C. Martinez, Chief Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice

Delivered and Filed: August 25, 2021

DISMISSED FOR LACK OF JURISDICTION

This is an appeal in a forcible detainer case. Appellee James Ward filed a suit for

possession of real property, alleging appellant Penny Albaugh was a holdover tenant. Albaugh

timely appealed the trial court’s judgment, which awarded court costs and possession of the real

property to Ward.

On July 2, 2021, the trial court clerk filed the clerk’s record in this appeal. Included in the

record is the trial court’s judgment and a writ of possession. The record does not show that

Albaugh filed a supersedeas bond to suspend the judgment. However, the record does not include 04-21-00100-CV

a sheriff’s return, indicating that the writ of possession had been executed and possession delivered

to Ward. On April 6, 2021, Albaugh filed a “Motion to Set Aside the Appeals’s Decision and

Motion for Reconsideration and A Motion Request to Stay the Writ of Possession,” which we

denied on April 8, 2021. In her motion, Albaugh states that she and her son “will be vacating [the

real property at issue] on or before May 1, 2021.”

A case becomes moot if, at any stage of the proceedings, a controversy ceases to exist

between the parties. See Marshall v. Hous. Auth. of City of San Antonio, 198 S.W.3d 782, 787

(Tex. 2006); Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001). In a forcible detainer suit,

[w]hen a tenant is no longer in possession of the property and has not superseded the judgment of possession, her appeal is moot unless: (1) she timely and clearly expressed an intent to exercise the right of appeal, and (2) appellate relief is not futile. [Marshall, 198 S.W.3d at 787]. Appellate relief is not futile if the tenant holds and asserts “a potentially meritorious claim of right to current, actual possession” of the property. Id. (emphasis added).

Stewart v. Fiesta City Realtors, No. 04-17-00839-CV, 2018 WL 4760151, at *1 (Tex. App.—San

Antonio Oct. 3, 2018, no pet.) (mem. op.). Issues independent of possession, such as damages and

attorney’s fees, may be reviewable, even if the issue of possession is moot. See Cavazos v. San

Antonio Hous. Auth., No. 04-09-00659-CV, 2010 WL 2772450, at *2 (Tex. App.—San Antonio

July 14, 2010, no pet.) (mem. op.).

The trial court did not award damages or attorney’s fees, and it is not apparent from the

record whether Albaugh holds current, actual possession of the property or holds and asserts a

potentially meritorious claim of right to current, actual possession of the property. Accordingly,

we ordered Albaugh to show cause in writing by July 27, 2021, why this appeal should not be

dismissed for lack of jurisdiction. See TEX. R. APP. P. 42.3(a), 43.2(f), 44.3; see also Marshall,

198 S.W.3d at 790 (holding trial court’s award of court costs to prevailing landlord did not prevent

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dismissal of appeal for mootness where tenant’s lease had expired and tenant had vacated the

property). Appellant has not responded. Therefore, we dismiss this appeal for lack of jurisdiction.

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