Ronnie Wade and Carolyn Wade v. Breckenridge Property Fund 2016, LLC

• Court: Court of Appeals of Texas
• Decided: August 2, 2023
• Docket: 05-23-00211-CV
• Status: Published

Opinion

Dismiss and Opinion Filed August 2, 2023

In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-00211-CV

RONNIE WADE AND CAROLYN WADE, Appellants V. BRECKENRIDGE PROPERTY FUND 2016, LLC, Appellee

On Appeal from the County Court at Law No. 2 Dallas County, Texas Trial Court Cause No. CC-22-05861-B

MEMORANDUM OPINION Before Chief Justice Burns, Justice Molberg, and Justice Pedersen, III Opinion by Justice Molberg The only issue in this forcible detainer appeal is whether the trial court

properly determined appellee had a superior right of possession to certain property

occupied by appellants. See Marshall v. Housing Auth. of City of San Antonio, 198

S.W.3d 782, 785, 787 (Tex. 2006). By verified motion, appellee informs the Court

that appellants are no longer in possession of the property and urges we dismiss the

appeal because the case has become moot. See Olley v. HVM, L.L.C., 449 S.W.3d

573, 575 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) (appellate courts lack

jurisdiction over moot controversies). Appellee also asks we award it attorney’s fees and costs. Although appellee’s motion has been on file for more than ten days,

appellants have not filed a response or otherwise refuted appellee’s contention.

Unless a tenant has “a potentially meritorious claim of right to current, actual

possession of the property,” the issue of possession in a forcible detainer action

becomes moot when the tenant vacates the property. See Marshall, 198 S.W.3d at

782. When the issue becomes moot on appeal and no other issues exist, the appellate

court must vacate the underlying judgment and dismiss the entire underlying case.

See id. at 785, 790.

We deny appellee’s motion to the extent appellee requests attorney’s fees and

costs, but, with nothing before us showing appellants have a potentially meritorious

claim of right to current possession of the property, we grant the motion to the extent

appellee asserts the case has become moot. We vacate the trial court’s final

judgment and dismiss the case. See Marshall, 198 S.W.3d at 785, 790.

/Ken Molberg// 230211f.p05 KEN MOLBERG JUSTICE

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

RONNIE WADE AND CAROLYN On Appeal from the County Court at WADE, Appellants Law No. 2, Dallas County, Texas Trial Court Cause No. CC-22-05861- No. 05-23-00211-CV V. B. Opinion delivered by Justice BRECKENRIDGE PROPERTY Molberg, Chief Justice Burns and FUND 2016, LLC, Appellee Justice Pedersen, III participating.

In accordance with this Court’s opinion of this date, we VACATE the trial court’s March 6, 2023 final judgment and DISMISS the case.

Judgment entered this 2nd day of August 2023.

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