ACCEPTED
06-18-00024-cv
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
6/6/2018 1:18 PM
DEBBIE AUTREY
CLERK
NO. 06-18-00024-CV
IN THE COURT OF APPEALS FILED IN
FOR THE SIXTH DISTRICT OF TEXAS 6thTEXARKANA,
COURT OF APPEALS
TEXAS
AT TEXARKANA 6/6/2018 1:18:51 PM
DEBBIE AUTREY
Clerk
GABRIELLA ROBERTS,
appellant,
v.
CITIMORTGAGE, INC.,
appellee.
On appeal from Cause No. 430-12-CV in the
County Court at Law No. 1 of Angelina County, Texas
The Hon. Joe Lee Register presiding
APPELLEE CITIMORTGAGE, INC.'S
MOTION TO DISMISS APPEAL AS MOOT
AND FOR FAILURE TO PROSECUTE
Michael J. McKleroy, Jr., SBN: 24000095
michael.mckleroy@akerman.com
Attorney in Charge
C. Charles Townsend, SBN: 24028053
charles.townsend@akerman.com
Monica Summers, SBN: 24083594
monica.summers@akerman.com
AKERMAN LLP
2001 Ross Avenue, Suite 3600
Dallas, Texas 75201
Telephone: 214.720.4300
Facsimile: 214.981.9339
ATTORNEYS FOR APPELLEE
CITIMORTGAGE, INC.
_____________________________________________________________________________________________________________________
APPELLEE CITIMORTGAGE, INC.'S MOTION TO DISMISS APPEAL Page 1 of 5
Cause No. 12-18-00053-CV; Gabriella Roberts v. CitiMortgage, Inc.
Appellee CitiMortgage, Inc. (CMI) respectfully moves to dismiss this appeal
because it is moot and appellant Gabriella Roberts has failed to prosecute it:
I. STATEMENT OF RELEVANT FACTS
1. On February 16, 2018, the county court at law number 1 of Angelina
County, Texas entered a judgment in favor of CMI granting it the immediate right
to possess the real property and improvements located at 276 Plantation Drive,
Lufkin, Texas 75901. See final judgment, ex. 1; see also docketing statement, ex. 2.
Ms. Roberts did not post a bond to supersede the judgment. See docketing statement
at 4, ex. 2. The writ of possession was executed on March 12, 2018. See writ of
possession, ex. 3. Ms. Roberts was removed from the property. See docketing
statement at 1, 5, 7, ex. 2 (stating "writ of possession of property/removed from my
residence" and identifying new address as 1552 Thigpen Road, Pollok, Texas).
2. The clerk's record was filed April 13, 2018. See docket. The reporter's
record was filed April 27, 2018. See docket. By rule, Ms. Roberts' opening brief
was due May 29, 2018. TEX. R. APP. P. 4.1(a), 38.6(a). By letter dated April 27,
2018, the clerk reminded Ms. Roberts of the May 29, 2018 deadline to file the brief.
See April 27, 2018 letter, ex. 4. Ms. Roberts has not filed her opening brief.
_____________________________________________________________________________________________________________________
APPELLEE CITIMORTGAGE, INC.'S MOTION TO DISMISS APPEAL Page 2 of 5
Cause No. 12-18-00053-CV; Gabriella Roberts v. CitiMortgage, Inc.
II. ARGUMENTS & AUTHORITIES
A. Ms. Roberts' appeal is moot.
3. Ms. Roberts' failure to supersede the judgment for possession did not
divest her of her right to appeal, but her appeal became moot when she ceased to
have actual possession of the property. Marshall v. Housing Auth. of the City of San
Antonio, 198 S.W.3d 782, 787 (Tex. 2006). There is no basis for Ms. Roberts to
assert a meritorious claim of right to current, actual possession of the property.
There are no other issues to appeal.
B. Ms. Roberts' failure to prosecute warrants dismissal.
4. "If an appellant fails to timely file a brief, the appellate court may
dismiss the appeal for want of prosecution unless the appellant reasonably explains
the failure and the appellee is not significantly injured by the appellant's failure to
timely file a brief." TEX. R. APP. P. 38.8(a)(1); see also id. 42.3(c) (authorizing
court to dismiss appeal for want of prosecution or because appellant failed to comply
with a requirement of the rules, a court order or a notice from the clerk requiring a
response or other action within a specified time).
5. By rule, as well as by notice from the clerk, Ms. Roberts was required
to file her opening brief on or before May 29, 2018. To date, Ms. Roberts has filed
nothing. She has not filed her brief, a motion requesting an extension of time or
anything else providing an explanation of her failure to meet the briefing deadline.
_____________________________________________________________________________________________________________________
APPELLEE CITIMORTGAGE, INC.'S MOTION TO DISMISS APPEAL Page 3 of 5
Cause No. 12-18-00053-CV; Gabriella Roberts v. CitiMortgage, Inc.
Her appeal should be dismissed for want of prosecution, failure to comply with the
rules, and failure to comply with clerk's notice.
III. PRAYER
CMI requests Ms. Roberts' appeal be dismissed and it be granted any and all
further relief to which it may show itself justly entitled.
Date: June 6, 2018 Respectfully submitted,
/s/ Michael J. McKleroy, Jr.
Michael J. McKleroy, Jr.; SBN: 24000095
C. Charles Townsend; SBN: 24028053
Monica Summers; SBN: 24083594
AKERMAN LLP
2001 Ross Avenue, Suite 3600
Dallas, Texas 75201
Telephone: 214.720.4300
Facsimile: 214.981.9339
michael.mckleroy@akerman.com
charles.townsend@akerman.com
monica.summers@akerman.com
ATTORNEYS FOR APPELLEE
CITIMORTGAGE, INC.
_____________________________________________________________________________________________________________________
APPELLEE CITIMORTGAGE, INC.'S MOTION TO DISMISS APPEAL Page 4 of 5
Cause No. 12-18-00053-CV; Gabriella Roberts v. CitiMortgage, Inc.
CERTIFICATE OF SERVICE
I hereby certify that on June 6, 2018, a true and correct copy of the foregoing
was served as follows:
Gabriella Roberts
1552 Thigpen Road
Pollok, Texas 75969
VIA CERTIFIED MAIL RECEIPT
NO. 9414 7266 9904 2092 0191 94
/s/ Michael J. McKleroy, Jr.
Michael J. McKleroy, Jr.
_____________________________________________________________________________________________________________________
APPELLEE CITIMORTGAGE, INC.'S MOTION TO DISMISS APPEAL Page 5 of 5
Cause No. 12-18-00053-CV; Gabriella Roberts v. CitiMortgage, Inc.
EXHIBIT 1
Filed:02/16/2018 14:07
Amy Fincher, County Clerk
Angelina County, Texas
By: Johnson, Nathan
Deputy Clerk
CAUSE NO. 430-12-CV
CITIMORTGAGE, INC., § IN THE COUNTY COURT
§
plaintiff, §
§
v. § AT LAW NO. 1
§
GABRIELLA DENISE ROBERTS, et al., §
§
defendants. § ANGELINA COUNTY, TEXAS
FINAL JUDGMENT
On this day came on for hearing the motion for summary judgment filed by plaintiff
CitiMortgage, Inc. (CMI) in the above-styled and -numbered cause. This matter is an appeal by
defendant Gabriella Denise Roberts (Roberts) from a judgment awarding possession of the
property described below to plaintiff CitiMortgage, Inc. (CMI) issued by the justice of the peace
of Angelina County, Texas, precinct 4. The court finds Roberts was duly served with a copy of
CMI's motion and the notice of hearing thereon, but failed to file a timely response or summary
judgment evidence. Upon consideration of CMI's motion and the evidence presented therein, the
papers on file in this cause, and the arguments of counsel and pro se parties, this court is of the
opinion CMI's motion should be GRANTED and judgment should be entered as follows:
IT IS ORDERED, ADJUDGED and DECREED CMI is entitled to immediate possession
of, and have restitution to, the property located at 276 Plantation Drive, Lufkin, Texas 75901
(property) and more particularly described as follows:
BEING ALL THAT CERTAIN TRACT OR PARCEL OF LAND LYING AND
SITUATED IN ANGELINA COUNTY, TEXAS, OUT OF THE THOMAS CARO
SURVEY, ABSTRACT NO. 8 AND BEING A PART OF PORTION OF THAT
CERTAIN CALLED 592.701 ACRE TRACT (AKA TRACT NO. 2) CONVEYED
TO THOMAS G. FLOURNOY IN THE DOCUMENT RECORDED IN
VOLUME 592 ON PAGE 419 OF THE REAL PROPERTY RECORDS OF
ANGELINA COUNTY, TEXAS, TO WHICH REFERENCE IS HEREBY MADE
FOR ALL PURPOSES AND BEING MORE PARTICULARLY DESCRIBED
FINAL JUDGMENT PAGE 1 of 3
Cause No. 430-12-cv; CitiMortgage, Inc. v. Gabriella Denise Roberts
BY METES AND BOUNDS AS FOLLOWS, TO WIT:
BEGINNING AT A 1/2' IRON PIN FOUND FOR THE NORTHEAST CORNER
OF A CALLED 143 ACRE TRACT (AKA LOT 25 OF SAID PLANTATION)
CONVEYED TO ALFONSO COMPIAN, JR. IN THE DOCUMENT
RECORDED IN VOLUME 1400 ON PAGE 289 OF THE OFFICIAL RECORDS
OF SAID COUNTY, AND THE SOUTHEAST CORNER OF LOT 24 ON THE
WEST RIGHT-OF-WAY LINE OF PLANTATION DRIVE;
THENCE ACROSS THE SAID 592.701 ACRE TRACT AND ALONG THE
COMMON BOUNDARY LINE OF THE SAID LOT 24 AND THE SAID 1.43
ACRE TRACT, N. 88' 02' 58" W AT 313.75 FEET TO A 1/2' IRON PIN FOUND
FOR THE SOUTHWEST CORNER OF THE SAID LOT 24 AND THE
SOUTHEAST CORNER OF A RESIDUS OF A CALLED 7.43 ACRE TRACT
(AKA LOT 17 OF THE SAID PLANTATION) CONVEYED TO CLIFFORD E.
FACOR, ET AL. IN THE DOCUMENT RECORDED IN VOLUME 1187 ON
PAGE 508 OF THE SAID REAL PROPERTY RECORDS AND THE
NORTHWEST CORNER OF THE SAID 1.43 ACRE TRACT;
THENCE CONTINUING ACROSS THE SAID 592.701 ACRE TRACT AND
ALONG THE COMMON BOUNDARY LINE OF THE SAID LOT 24 ACRE
TRACT AND THE SAID RESIDUE, N. 00' 46' 55" E AT 365.48 FEET 3 1/2
IRON PIN FOUND FOR THE NORTHWEST CORNER OF THE SAID LOT 24
AND THE SOUTHWEST CORNER OF LOT 23;
THENCE ALONG THE COMMON BOUNDARY LINE OF THE SAID LOT 24
AND THE SAID LOT 23 S 86' 22' 11" E AT 316.72 FEET A 1/2 IRON PIN
FOUND FOR THE NORTHWEST CORNER OF THE SAID LOT 24 AND THE
SOUTHEAST CORNER OF LOT 23, ON THE WEST RIGHT-OF-WAY LINE
OF PLANTATION DRIVE;
THENCE, ALONG THE EAST BOUNDARY LINE OF THE SAID LOT 24 AND
THE ALONG THE SAID ROW LINE S 01' 12' 28" W AT 356.15 FEET THE
POINT AND PLACE OF BEGINNING AND CONTAINING 2.610 ACRES OF
LAND, MORE OR LESS.
THE BEARING FOR THIS TRACT ARE BASED ON THE WEST ROW LINE
OR PLANTATION DRIVE AS RECORDED IN VOLUME 786 ON PAGE 255
OF THE REAL PROPERTY RECORDS.
being the same property described in the deed of trust recorded in the official public records of
Angelina County, Texas on August 4, 2006 as instrument 2006-00217358.
IT IS FURTHER ORDERED, ADJUDGED and DECREED the clerk of this court shall
issue a writ of possession in favor of CMI for the property, and CMI shall be entitled to execute
FINAL JUDGMENT PAGE 2 of 3
Cause No. 430-12-cv; CitiMortgage, Inc. v. Gabriella Denise Roberts
the writ of possession against Roberts and all other occupants.
IT IS FURTHER ORDERED, ADJUDGED and DECREED CMI is awarded a judgment
against Roberts for all costs of court.
It is the intent of the court this final judgment resolves all claims against all parties to the
above-styled and numbered suit and be a final judgment for all purposes, including appeal.
16th day of February, 2018.
SIGNED on the ____
____________________________________
AP
JUDGE PRESIDING
SUBMITTED BY:
/s/ Michael J. McKleroy, Jr.
Michael J. McKleroy, Jr.
Attorney for CitiMortgage, Inc.
FINAL JUDGMENT PAGE 3 of 3
Cause No. 430-12-cv; CitiMortgage, Inc. v. Gabriella Denise Roberts
EXHIBIT 2
EXHIBIT 3
EXHIBIT 4
FILE COPY
CHIEF JUSTICE Court of Appeals CLERK
JOSH R. MORRISS, III Sixth Appellate District DEBRA K. AUTREY
JUSTICES State of Texas BI-STATE JUSTICE BUILDING
BAILEY C. MOSELEY 100 NORTH STATE LINE AVENUE #20
TEXARKANA, TEXAS 75501
RALPH K. BURGESS
(903) 798-3046
Friday, April 27, 2018
Gabriella Roberts Michael J. McKleroy
1552 Thigpen Attorney at Law
Pollok, TX 75969 2001 Ross Ave
* DELIVERED VIA E-MAIL * Dallas, TX 75201
* DELIVERED VIA E-MAIL *
RE: Appellate Case Number: 06-18-00024-CV
Trial Court Case Number: 430-12-CV
Style: Gabriella Denise Roberts, et al.
v.
CitiMortgage, Inc.
The certified Reporter’s Record (4 volumes) has this date been electronically received and filed
in the referenced proceeding.
Pro Se Appellant’s brief is due on or before Tuesday, May 29, 2018.
IF COUNSEL WANTS TO MAKE AN ORAL ARGUMENT, A REQUEST TO DO SO
MUST APPEAR ON THE FRONT COVER OF THE BRIEF. TEX.R.APP.P.39.7.
Respectfully submitted,
Debra K. Autrey, Clerk
By ___________________________
Deputy
cc: Melvin Power, Official Court Reporter (DELIVERED VIA E-MAIL)