Gwen Hurt v. Heritage Estates of Huntsville

IN THE
TENTH COURT OF APPEALS

No. 10-22-00170-CV

GWEN HURT,
Appellant
v.

HERITAGE ESTATES OF HUNTSVILLE,
Appellee

From the County Court at Law
Walker County, Texas
Trial Court No. 13998CV

MEMORANDUM OPINION

Gwen Hurt appeals the trial court’s judgment awarding possession of an

apartment to Heritage Estates of Huntsville. Because Hurt does not hold and assert a

potentially meritorious claim of right to current, actual possession of the apartment, her

appeal is moot and is dismissed.

BACKGROUND

Hurt leased an apartment from Heritage. Her lease term expired in March of 2022.

In January of 2022, Heritage informed Hurt that her lease would be terminated at the end
of the lease term. When Hurt did not timely vacate the apartment, Heritage issued a

notice to vacate and then filed a petition for eviction in the justice court. After the justice

court awarded possession of the apartment to Heritage, Hurt appealed to the county

court at law for a trial de novo. After a trial to the court, the county court at law awarded

possession of the apartment to Heritage and set an amount for a supersedeas bond. Hurt

timely appealed before the time period to pay the supersedeas bond expired but did not

ultimately pay the supersedeas bond. When Hurt did not vacate the apartment and did

not pay the supersedeas bond, Heritage requested a writ of possession. A writ of

possession was issued which evicted Hurt from the apartment.

LAW

In Texas, the procedure to determine the right of possession of real property, if

there was no unlawful entry, as in this case, is the action of forcible detainer. See TEX.

PROP. CODE § 24.002. A 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). 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. Id.; see TEX. PROP. CODE § 24.008

(“An eviction suit does not bar a suit for trespass, damages, waste, rent, or mesne

profits.").

Usually, when a judgment debtor voluntarily satisfies the judgment, the case

becomes moot and the debtor waives any right to appeal. Marshall, 198 S.W.3d at 787.

However, “payment” of a judgment, such as vacating the property, will not moot an

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appeal from that judgment if the judgment debtor timely and clearly expresses an intent

to exercise the right of appeal and if appellate relief is not futile; that is, so long as the

judgment debtor holds and asserts a potentially meritorious claim of a right to current,

actual possession of the leased premises. See id.

Hurt timely and clearly expressed an intent to appeal prior to being evicted

pursuant to a writ of possession. Thus, the question in this case becomes whether she

held and asserted potentially meritorious claims of a right to current, actual possession

of her apartment.

MOTION TO DISMISS

Heritage claims in a motion to dismiss that Hurt’s appeal is moot based on the law

expressed in Marshall v. Hous. Auth. and Olley v. HVM, L.L.C., 449 S.W.3d 572 (Tex. App.—

Houston [14th Dist.] 2014, pet. denied). But in Marshall and Olley, both courts reviewed

whether the appellants had potentially meritorious claims of a right to current, actual

possession before determining the appeals were moot. In Marshall, when reviewing

whether the appellant had a potentially meritorious claim of a right to current, actual

possession, the Texas Supreme Court determined the appeal was moot since the

appellant vacated her apartment before her lease expired, and the appellant presented no

basis for claiming a right to possession after that date. In Olley, the appeal was dismissed

as moot after the court determined that the hotel guest’s arguments did not present an

arguable right to possession after a hotel was awarded possession of a hotel room and

the guests were soon thereafter dispossessed by a writ of possession. Heritage, however,

fails to discuss whether Hurt’s claims on appeal were potentially meritorious claims of a

Hurt v. Heritage Estates Page 3
right to current, actual possession. We must review those claims before determining

whether or not the appeal is moot.

APPLICATION

Hurt argues we should reinstate her right to lease the apartment and gives many

reasons why we should do so. Those reasons are grouped into two categories: no just

cause to terminate the lease, and retaliation. Both of these categories, and the reasons

within these categories, relate to whether Heritage’s decision to terminate the lease at the

end of Hurt’s lease term was wrongful, not whether she has a current right to possession.

Accordingly, Hurt has failed to assert a potentially meritorious claim of a right to current,

actual possession of the apartment she rented, and thus, her appeal is moot.

CONCLUSION

For reasons different than expressed in Heritage’s motion to dismiss, we find the

appeal is moot, and we dismiss it for want of jurisdiction. Heritage’s Appellee’s Motion

to Dismiss Appeal is likewise dismissed as moot.

TOM GRAY
Chief Justice

Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Motion dismissed
Appeal dismissed
Opinion delivered and filed March 8, 2023
[CV06]

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