Johnathan Fisher v. Budget Suites of America Appeal from County Court at Law No. 5 of Dallas County (memorandum opinion)
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VACATE and DISMISS and Opinion Filed November 17, 2022 S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00703-CV JOHNATHAN FISHER, Appellant V. BUDGET SUITES OF AMERICA, Appellee On Appeal from the County Court at Law No. 5 Dallas County, Texas Trial Court Cause No. CC-22-02407-E MEMORANDUM OPINION Before Chief Justice Burns, Justice Pedersen, III, and Justice Garcia Opinion by Justice Garcia This appeal follows the trial court’s judgment in a forcible detainer suit awarding Budget Suites of America exclusive and immediate possession of a room appellant occupied at the extended-stay. Asserting the appeal has become moot because appellant was served with a writ of possession and has been removed from the room, Budget Suites has filed a motion to dismiss for want of jurisdiction. It is well-settled that a court lacks jurisdiction to consider a case that has become moot. See Nat’l Collegiate Athletic Ass’n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999). A case becomes moot if a controversy ceases to exist between the parties. See In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 737 (Tex. 2005). If a case becomes moot on appeal, an appellate court must set aside the trial court’s judgment and dismiss the case. See Marshall v. Hous. Auth. of City of San Antonio, 198 S.W.3d 782, 785, 790 (Tex. 2006). A forcible detainer action is a procedure to determine which party has the right to immediate possession of the property. See Rice v. Pinney, 51 S.W.3d 705, 709 (Tex. App.—Dallas 2001, no pet.). If a tenant appeals from a judgment awarding possession to the landlord but fails to supersede the judgment and is no longer in possession of the property, the appeal is moot unless the tenant asserts a potentially meritorious claim of right to current, actual possession of the property. See Marshall, 198 S.W.3d at 786-87; Olley v. HVM, L.L.C., 449 S.W.3d 572, 575 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). Budget Suites’s motion has been on file for more than ten days, and appellant has not filed a response or otherwise contested the assertion that he has been evicted or argued a claim of right to current, actual possession of the room. Accordingly, we grant the motion, vacate the trial court’s judgment, and dismiss the case as moot. See Marshall, 198 S.W.3d at 790. /Dennise Garcia/ DENNISE GARCIA JUSTICE 220703F.P05 –2– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT JOHNATHAN FISHER, Appellant No. 05-22-00703-CV On Appeal from the County Court at Law No. 5, Dallas County, Texas Trial Court Cause No. CC-22-02407E. Opinion delivered by Justice Garcia, Chief Justice Burns and Justice Pedersen, III participating. V. BUDGET SUITES OF AMERICA, Appellee In accordance with this Court’s opinion of this date, we VACATE the trial court’s July 28, 2022 judgment and DISMISS the case as moot. Judgment entered this 17th day of November 2022. –3–
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