Court of Appeals of Texas, Fourth District, San Antonio
the County Court at Law No. 3, Bexar County, Texas Trial
Court No. 2016CV04843 Honorable Tommy Stolhandske, Judge
Angelini, Justice, Marialyn Barnard, Justice Rebeca C.
IN PART AND AFFIRMED IN PART
Devilbiss appeals the trial court's judgment in a
forcible detainer action granting Marjorie Burch possession
of a condominium unit located in San Antonio, Texas. We
vacate the judgment in part and affirm in part.
and his wife leased a condominium owned by Marjorie
Burch. The lease agreement expired November 1,
2015, and then became a month-to-month lease. On May 15,
2016, notice was given to the Devilbisses that rent would be
increased beginning on July 1, 2016. When the Devilbisses
refused to pay the increased amount, Burch filed a forcible
detainer action against them in the justice court.
Devilbiss's wife voluntarily vacated the condominium.
After the justice court found in favor of Burch, Devilbiss
appealed the justice court's judgment to the county court
at law. On October 11, 2016, the county court at law ordered
that Burch recover possession from Devilbiss of the property
described in the petition. On October 20, 2016, the county
court at law heard Devilbiss's motion to modify, correct,
or reform the judgment and denied the motion. On October 28,
2016, the county court at law heard another motion for new
trial filed by Devilbiss and a motion for sanctions filed by
Burch. The trial court denied Devilbiss's motion for new
trial, and granted Burch's motion for sanctions, ordering
Devilbiss pay Burch $787.50 in attorney's fees. Devilbiss
then filed a notice of appeal.
appeal, Devilbiss brings ten issues. In response, Burch filed a
motion to dismiss, arguing that because Devilbiss has vacated
the premises, his appeal is now moot. We agree nine of
Devilbiss's issues are moot because Devilbiss vacated the
condominium in question on November 10, 2016. However, one of
Devilbiss's issues, which concerns whether the trial
court erred in ordering sanctions against him, is not moot.
forcible detainer action is intended to be a speedy, simple,
and inexpensive means to obtain immediate possession of
property. Marshall v. Hous. Auth., 198 S.W.3d 782,
787 (Tex. 2006); see Tex. Prop. Code Ann.
§§ 24.001-.011 (West 2014 & Supp. 2017).
Judgment of possession in a forcible detainer action is not
intended to be a final determination of whether the eviction
is wrongful; rather it is a determination of the right to
immediate possession. Marshall, 198 S.W.3d at 787.
Thus, the only issue in an action for forcible detainer is
the right to actual and immediate possession. See
id.; Salaymeh v. Plaza Centro, LLC, 264 S.W.3d
431, 437 (Tex. App.- Houston [14th Dist.] 2008, no pet.).
When a tenant gives up possession of the property in
question, his appeal from the judgment of eviction is moot
unless he timely and clearly expresses an intent to exercise
the right of appeal and 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). However, when a tenant's lease expires
and the tenant presents no basis for claiming a right to
possession after the date the lease expired, there is no
longer a live controversy between the parties "as to the
right of current possession." Id. If there is
no live controversy between the parties at the time the
appeal is to be decided, the appeal is moot. Id.
Devilbiss timely filed his notice of appeal before he vacated
the premises, giving a clear expression of an intent to
appeal. However, any appellate relief regarding the right to
current possession is futile. The lease governing the
premises has expired. Devilbiss presents no basis for
claiming a right to possession after expiration of the lease.
See Marshall, 198 S.W.3d at 787. Nine of his ten
issues either relate to possession or whether his eviction
was wrongful, which is not an issue to be determined in a
forcible detainer action. See id. (explaining a
judgment of possession in a forcible detainer action is not
intended to be a determination of whether an eviction was
wrongful, but rather a determination of the right to
immediate possession). We conclude that nine of the appellate
issues brought by Devilbiss are therefore moot; no
controversy currently exists between the parties with regard
to possession of the condominium.
because the issue of possession is moot, we must vacate the
trial court's judgment of possession. See id. at
785 ("We conclude that Marshall's case is moot and
that the court of appeals erred in dismissing only the appeal
and leaving the trial court's judgment in place.");
see also id. at 788 (explaining that "[o]ne
purpose of vacating the underlying judgment if a case becomes
moot during appeal is to prevent prejudice to the rights of
parties when appellate review of a judgment on its merits is
regard to Devilbiss's issue regarding the granting of
sanctions, that issue is not moot. Issues on appeal not
dependent on the trial court's possession determination
are reviewable on appeal. Rice v. Pinney, 51 S.W.3d
705, 707 (Tex. App.-Dallas 2001, no pet.); De La Garza v.
Riverstone Apartments, No. 04-06-00732-CV, 2007 WL
3270769, at *2 (Tex. App.-San Antonio 2007, no pet.). For
example, an issue relating to a claim for unpaid rent, which
the Texas Rules of Civil Procedure specifically allow to be
brought with a forcible detainer action, may be reviewed on
appeal. Cavazos v. San Antonio Hous. Auth., No.
04-09-00659-CV, 2010 WL 2772450, at *3 (Tex. App.-San Antonio
2010, no pet.). Similarly, an award of attorney's fees
and costs are independent of possession and may be reviewed
on appeal. See De La Garza, 2007 WL 3270769, at *2.
We conclude Devilbiss's issue relating to whether the
trial court erred in assessing sanctions against him is
independent of the issue of possession and may be considered
on appeal. Thus, we will consider whether the trial court
erred in assessing sanctions against Devilbiss.
the trial court signed the judgment in this case, Devilbiss
filed a motion to modify, correct or reform the judgment. In
a conclusory fashion, Devilbiss asked the trial court
"to reconsider [the] trial record and the judgment
rendered in the context of the wording of Rules 11 and 63 of
the T.R.C.P." On October 20, 2016, the trial court heard
Devilbiss's motion. Devilbiss represented himself. At the
end of the hearing, the trial court denied Devilbiss's
motion. Burch's attorney then urged the trial court
"to remember this case, " and argued the following:
This is taking up so much of my client's time, additional
funds. If there's any further motions filed pro se, we
ask that [Devilbiss] be held in contempt or that the Court
find a suitable remedy, because it's taking up way too
much time on a judgment that has already been rendered.
days later, on October 28, 2016, the trial court held another
motion for new trial hearing set by Devilbiss. That same day,
Burch filed and set for hearing a motion for sanctions
against Devilbiss. At the hearing, when presenting his motion
for new trial, Devilbiss did not bring any new arguments. The
trial court denied Devilbiss's motion for new trial.
Burch's counsel then requested the motion for sanctions
be granted and attorney's fees ...