Marshall v. Housing Auth. City San Antonio

• Decision Date: 03 March 2006
• Docket Number: No. 04-0147.,04-0147.
• Citation: 198 S.W.3d 782
• Parties: Theresa MARSHALL, Petitioner, v. HOUSING AUTHORITY OF THE CITY OF SAN ANTONIO, Respondent.
• Court: Texas Supreme Court

198 S.W.3d 782

Theresa MARSHALL, Petitioner, v. HOUSING AUTHORITY OF THE CITY OF SAN ANTONIO, Respondent.

No. 04-0147.

Supreme Court of Texas.

Argued April 12, 2005.

Decided March 3, 2006.

COPYRIGHT MATERIAL OMITTED

Fred Fuchs, Nelson H. Mock, Texas RioGrande Legal Aid, Inc., Austin, David Miles Winters, Texas RioGrande Legal Aid, Inc., San Antonio, for Petitioner.

R. David Fritsche, Law Offices of R. David Fritsche, San Antonio, for Respondent.

Larry Niemann, Niemann and Niemann, Austin, for Amicus Curiae.

Justice JOHNSON delivered the opinion of the Court.

In this appeal we address the issues of whether a tenant may appeal from an adverse judgment in a forcible detainer action without posting a supersedeas bond, and whether a forcible detainer action is moot when the tenant is no longer in possession of the premises and her lease has expired. Answering both questions in the affirmative, we dismiss the case as moot and vacate the underlying judgments.

I. Background

Petitioner Theresa Marshall leased an apartment from a non-profit public facility corporation managed by the Housing Authority of the City of San Antonio for a term beginning on February 1, 2002, and ending on January 31, 2003. Her rent was subsidized by a federal housing assistance program. Following a shooting at her apartment, the Housing Authority gave Marshall notice that it was terminating her right to occupy the apartment, then filed a forcible detainer action seeking possession of the apartment. On November 1, 2002, the trial court entered judgment awarding the Housing Authority (1) possession of the apartment after November 14, 2002, (2) court costs, and (3) post-judgment interest. See TEX. PROP. CODE §§ 24.006, 24.0061. On November 8, 2002, Marshall filed a motion seeking suspension of enforcement of the judgment or, in the alternative, setting of a supersedeas bond. In the motion she specified that she intended to appeal. Following a hearing on November 7, 2002, a supersedeas bond amount was set pursuant to Texas Property Code Section 24.007, but Marshall did not post bond. On November 8, 2002, she filed notice of appeal.

The parties agree that a writ of possession was never executed. Marshall does not contest the Housing Authority's assertion that she vacated the apartment on November 14, 2002. The record does not indicate whether the Housing Authority re-let the apartment after Marshall relinquished possession.

On April 11, 2003, after her lease term had expired, Marshall filed her brief in the court of appeals praying that the court reverse the trial court's judgment and award her possession of the apartment. She did not claim in her brief or in her later reply brief any contractual or other right to possession.

The court of appeals determined that Marshall's appeal was moot and dismissed the appeal for want of jurisdiction, although it did not vacate the trial court's judgment. The court of appeals reasoned that because Marshall had relinquished possession of the apartment, the court could no longer grant effectual relief. 183 S.W.3d 689.

As this case was presented to the court of appeals and as it is presented to us, Marshall's lease has expired. She does not reference any evidence on which to base a claim that she is entitled to current immediate possession of the apartment. She nonetheless asserts that the court of appeals erred in dismissing her appeal without reviewing its merits because (1) contrary to the Housing Authority's position, review of her appeal on the merits should not be contingent on her having posted a supersedeas bond pursuant to Texas Property Code Section 24.007; (2) vacating her apartment did not moot her appeal because she vacated involuntarily and indicated her intent to appeal the trial court's judgment before she left the apartment; and (3) if she prevails, the trial court's judgment will be reversed and then (a) she will be entitled to recover the fair market value of her apartment from the time of her eviction through expiration of her lease; (b) the adverse collateral consequences she has suffered and will suffer because the judgment was entered, including the potential five-year loss of a federal rent subsidy, will be ameliorated; and (c) she will be relieved of liability for payment of the Housing Authority's court costs and post-judgment interest.

The Housing Authority responds that (1) Marshall failed to perfect appeal by filing a supersedeas bond, and (2) her appeal is moot and no exception to the mootness doctrine warrants consideration of her appeal on the merits. We granted Marshall's petition for review to consider whether the court of appeals correctly decided its jurisdiction. Del Valle Indep. Sch. Dist. v. Lopez, 845 S.W.2d 808, 809 (Tex.1992); see TEX. GOV'T CODE § 22.225.

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 Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex.2000) (holding that because the case was moot the proper action was to vacate the court of appeals' judgment and opinion, and dismiss the case as moot); Speer v. Presbyterian Children's Home & Serv. Agency, 847 S.W.2d 227, 230 (Tex. 1993) (vacating the judgment of the court of appeals and of the trial court, and dismissing the case as moot).

II. Forcible Detainer Action

The only issue in a forcible detainer action is the right to actual possession of the premises. TEX. R. CIV. P. 746; see also TEX. PROP. CODE § 24.001. Some courts of appeals have held that if a tenant fails to post a supersedeas bond pursuant to Texas Property Code Section 24.007, the appellate court lacks jurisdiction.¹ Other courts of appeals have concluded that if a tenant vacates the premises, (1) the tenant's appeal is moot because the court can no longer grant effectual relief,² or (2) the issue of possession is moot, but the court can still consider issues unrelated to possession.³ At least one court of appeals has concluded that a tenant's appeal is not moot even though the tenant vacated the premises.⁴

To the extent holdings in such cases conflict with this opinion, we disapprove of them.

III. Analysis

A. Failure to Post Supersedeas Bond

Marshall argues that her failure to post a supersedeas bond pursuant to Texas Property Code Section 24.007 does not prevent her from appealing the trial court's judgment. Her argument anticipates the Housing Authority's position that Marshall's appeal must be dismissed because a supersedeas bond is required to perfect an appeal. See Reyes v. R.C. Mgmt., Inc., No. 04-01-00405-CV, 2001 WL 1479256, at *1 (Tex.App. — San Antonio, Nov. 21, 2001, pet. denied) (not designated for publication). We agree with Marshall.

The Texas Property Code provides that judgment in a forcible detainer action may not be stayed pending appeal unless the appellant timely files a supersedeas bond in the amount set by the trial court. TEX. PROP. CODE § 24.007. Thus, if a proper supersedeas bond is not filed, the judgment may be enforced, including issuance of a writ of possession evicting the tenant from the premises. However, there is no language in the statute which purports to either impair the appellate rights of a tenant or require a bond be posted to perfect an appeal. See id. Marshall's failure to supersede the judgment did not divest her of her right to appeal. See TEX. R. CIV. P. 621, 627; TEX. R. APP. P. 24, 25.

B. Mootness

Marshall argues that because she timely indicated her intent to appeal the trial court's judgment and because she vacated involuntarily to avoid execution of a writ of possession, her relinquishing possession of the apartment should not moot her appeal. The Housing Authority, however, urges that because the record does not include evidence supporting Marshall's assertion that she vacated the apartment involuntarily, her appeal was rendered moot when she vacated. Again, we agree with Marshall.

Usually, when a judgment debtor voluntarily satisfies the judgment, the case becomes moot and the debtor waives any right to appeal. See Riner v. Briargrove Park Prop. Owners Inc., 858 S.W.2d 370, 370 (Tex.1993) (citing Highland Church of Christ v. Powell, 640 S.W.2d 235, 236 (Tex. 1982)). The rule is intended to prevent a party who voluntarily satisfies a judgment from later changing his or her mind and appealing. Highland Church of Christ, 640 S.W.2d at 236 (holding that parties should not be allowed to mislead their opponent into believing that the controversy is over and then contest the payment and seek recovery). We have held, however, that payment of a judgment will not moot an 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. See Miga v. Jensen, 96 S.W.3d 207, 212 (Tex.2002).

Marshall timely filed a motion seeking suspension of enforcement of the judgment or, in the alternative, setting of a supersedeas bond. Her motion set out her intent to appeal. She timely filed notice of appeal before she vacated her apartment. In light of her timely and clear expression of intent to appeal, Marshall's action in giving up possession did not moot her appeal so long as appellate relief was not futile; that is, so long as she held and asserted a potentially meritorious claim of right to current, actual possession of the apartment. But, her lease expired on January 31, 2003, and she presents no basis for claiming a right to possession after that date. Thus, there was no live controversy between the parties as to the right of current possession after January 31, 2003, and the issue of possession was moot as of that date. See Williams v. Lara, 52 S.W.3d 171, 184 (Tex.2001) (holding that a case becomes moot if a controversy ceases to exist between the parties at any stage of the proceedings).

Persevering, and recognizing the possibility that the possession issue might be moot,...