COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00443-CV
RAY BELL APPELLANT
V.
RICK C. RAY APPELLEE
----------
FROM THE COUNTY COURT OF YOUNG COUNTY
TRIAL COURT NO. CV04558
----------
MEMORANDUM OPINION1
----------
Appellant Ray Bell attempts to appeal from a judgment in a forcible entry
and detainer suit. After finding that Bell breached his lease with Appellee Rick C.
Ray, the trial court signed a judgment awarding Ray possession of the premises
and awarding Ray money damages of less than $250.2
1
See Tex. R. App. P. 47.4.
2
This case was originally submitted without oral argument on September
18, 2013, before a panel consisting of Justice Gardner, Justice McCoy, and
Following perfection of this appeal, Bell vacated the property. The term of
Bell’s lease expired. Bell conceded in his appellant’s brief that the issues related
to possession are now moot because he vacated the property. Because the
possession issues are moot and because the money judgment was less than
$250, we notified Bell by letter dated June 25, 2014, of our concern that we
lacked jurisdiction over his appeal and stated that his appeal could be dismissed
for want of jurisdiction unless he or any party desiring to continue the appeal filed
a response on or before 5 p.m. on July 7, 2014, showing grounds for continuing
the appeal. See Tex. R. App. P. 43.2(f); see also Tex. Civ. Prac. & Rem. Code
Ann. § 51.012 (West Supp. 2013); Tex. Gov’t Code Ann. § 22.220(a) (West
Supp. 2013) (both stating that in civil cases, the judgment or amount in
controversy must exceed $250, exclusive of interest and costs, in order for an
appeal to be taken to the court of appeals). Bell filed a response conceding that
we lacked jurisdiction over his appeal.3 Accordingly, we dismiss the appeal as
moot and we vacate the trial court’s judgment. See Marshall v. Hous. Auth. of
San Antonio, 198 S.W.3d 782, 785 (Tex. 2006) (requiring court of appeals to
vacate judgment when dismissing as moot); see also Tex. R. App. P. 42.3(a),
Justice Meier. The court, on its own motion on June 10, 2014, ordered this case
reset without oral argument on July 1, 2014; assigned this case to a new panel,
consisting of Justice Walker, Justice McCoy, and Justice Meier; and assigned the
undersigned to author the opinion.
3
Ray, who appeared pro se in the trial court and is pro se on appeal, did
not file an appellee brief in this appeal, nor did he file a response to our
jurisdiction letter.
2
43.2(f); Tex. Civ. Prac. & Rem. Code Ann. § 51.012; Tex. Gov’t Code Ann. §
22.220(a).
Also in our letter dated June 25, 2014, we notified Bell that to the extent his
appellate brief sought disbursement of the supersedeas bond funds he had
posted in the trial court, we would construe this request as a petition for writ of
mandamus and rule on it in due course. See, e.g., CMH Homes v. Perez, 340
S.W.3d 444, 452–54 (Tex. 2011) (construing appeal as petition for writ of
mandamus); In re Dorsett, No. 02-05-00438-CV, 2006 WL 20392, at *1 (Tex.
App.—Fort Worth Jan. 5, 2006, orig. proceeding) (mem. op., not designated for
publication) (construing motion for new bond as a petition for writ of mandamus).
We construe Bell’s issues regarding the supersedeas bond funds as a petition for
writ of mandamus in which he asks this court to order the trial court to release the
supersedeas bond funds. See Tex. R. App. P. 24.2; Tex. Prop. Code Ann.
§ 24.007 (West Supp. 2013). We are of the opinion that relief should be denied.
The supersedeas bond at issue secures Ray for any rental amounts accruing
during the appeal, any property damage caused by Bell during the appeal, and
any business revenue lost by Ray as a result of time spent handling the appeal.
No evidence exists in the record before us as to the amounts, if any, of these
damages; Bell vacated the property shortly after the appeal was perfected. The
amount of the supersedeas bond funds to be disbursed to Ray, and the
remaining amount—if any—to be disbursed to Legal Aid of Northwest Texas,
must be determined in the trial court, not in this court, “by proof of facts
3
transpiring after judgment.” See Whitmire v. Greenridge Place Apartments, 333
S.W.3d 255, 263 (Tex. App.—Houston [1st Dist.] 2010, pet. dism’d) (citing State
v. Watts, 197 S.W.2d 197, 199 (Tex. Civ. App.—Austin 1946, writ ref’d)); see
also 2200 W. Ala., Inc. v. Doc’s Delight, L.L.C., No. 01-10-00364-CV, 2011 WL
2436288, at *2–4 (Tex. App.—Houston [14th Dist.] June 16, 2011, no pet.) (mem.
op., not designated for publication) (involving trial court order releasing cash
deposit after appellate court dismissed for want of prosecution appeal from
judgment awarding possession of premises).4
Accordingly, we deny Bell’s petition for writ of mandamus.
/s/ Sue Walker
SUE WALKER
JUSTICE
PANEL: WALKER, MCCOY, and MEIER, JJ.
DELIVERED: July 17, 2014
4
The trial court must conduct an evidentiary hearing with both parties
present to determine who is entitled to disbursement of the funds. Ray will have
the opportunity, as well as the burden of proof, to establish the amounts—if
any—for monthly rent, potential damage Bell caused the physical property, and
revenue lost by Ray in his private business as a result of dealing with the
appeal—that accrued after the trial court signed the July 30, 2012 judgment
through the date that Bell vacated the rental property. The trial court may then
order the disbursement of the supersedeas bond funds to Ray in accordance
with any amounts established by Ray and may order disbursement of any
remainder to Legal Aid of Northwest Texas. See 2200 W. Ala., Inc., 2011 WL
2436288, at *2–3.
4