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THE SUPREME COURT OF TEXAS
Housing Authority of The City
of San Antonio,
On Petition for Review from the
Court of Appeals for the Fourth District of
Argued on April 12, 2005
Justice Johnson delivered the opinion of
Justice Green did not participate in the
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
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.
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.
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.
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.
___ S.W.3d ___.
this case was presented to the court of appeals and as it is presented to us,
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
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
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
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).
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.
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
or (2) the issue of possession is moot, but the court can still consider issues
unrelated to possession.
At least one court of appeals has concluded that a tenant’s appeal is not moot
even though the tenant vacated the premises.
the extent holdings in such cases conflict with this opinion, we disapprove of
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.
Antonio, Nov. 21, 2001, pet. denied) (not designated for
publication). We agree with Marshall.
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.
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.
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).
and recognizing the possibility that the possession issue might be moot,
Marshall asserts that even if the possession issue is moot, there are three
reasons why the merits of her appeal should be determined.
argues that her case is not moot because if successful on the merits she will be
able to recover, in this action, the fair market value of her leasehold interest
for the time between the date she vacated the apartment and the date her lease
expired. We disagree.
action for forcible detainer is intended to be a speedy, simple, and inexpensive
means to obtain immediate possession of property. See Scott v. Hewitt, 90
S.W.2d 816, 818-19 (Tex. 1936). 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.
See Tex. Prop. Code §
24.008 (providing that a suit for forcible detainer “does not bar a suit for
trespass, damages, waste, rent, or mesne profit”).
argues that recovery of the fair market value of her lost leasehold interest in
this forcible detainer action is authorized by section 34.022 of the Texas Civil
Practice and Remedies Code and by Texas Rule of Civil Procedure 752. See
Tex. Civ. Prac. & Rem. Code §
34.022 (authorizing recovery of the market value of the person’s property that
has been seized through execution of a writ issued by a court if the judgment on
which execution is issued is reversed or set aside but the property has been
sold at execution); Tex. R. Civ.
P. 752 (authorizing a prevailing party in a forcible detainer action to
recover “damages, if any, suffered for withholding or defending possession of
the premises during the pendency of the appeal” from justice court to county
court). Neither of these provisions, however, authorize the type of damages that
Her property was not sold at execution, and the damages she seeks did not arise
until after her county court appeal was complete. See Tex. Civ. Prac. & Rem. Code §
34.022; Tex. R. Civ. P. 752. Thus,
even if her appeal were to be heard and found to have merit, Marshall would not be
authorized to recover damages in the forcible detainer suit on the bases she
Consequently, the damage claims do not present a controversy preventing
dismissal of the forcible detainer case as moot.
“Collateral Consequences” Exception
next consider Marshall’s position that even if a live
controversy does not exist, her appeal falls within the “collateral
consequences” exception to the requirement that cases without live controversies
are to be dismissed as moot. She argues that a favorable appellate ruling
reversing the trial court’s judgment would ameliorate collateral consequences to
her resulting from the judgment. See State v. Lodge, 608 S.W.2d 910, 912
(Tex. 1980) (applying the collateral
consequences exception to the mootness doctrine in a case involving involuntary
commitment to a mental hospital); Carrillo v. State, 480 S.W.2d 612,
1972) (applying the collateral consequences exception to the mootness doctrine
in a case involving a minor’s adjudication as a juvenile delinquent). Marshall submits that the
judgment for eviction caused loss of her federal rent subsidy and that loss of
the subsidy might last for up to five years. See 24 C.F.R. §§
982.552(b)(2) (2006) (providing that certain federal housing assistance must be
terminated if a family is evicted for a serious violation of the lease);
(c)(1)(ii) (providing that assistance may be denied if any member of the family
has been evicted from federally assisted housing in the last five years). She
also asserts that the judgment has adverse practical collateral consequences,
including the possibility that landlords may be dissuaded from renting an
apartment to her.
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 precluded. See Danciger Oil & Ref. Co. v. R.R.
Comm’n, 56 S.W.2d 1075, 1076 (Tex. 1933); see also U.S. Bancorp Mortgage
Co. v. Bonner Mall P’ship, 513 U.S. 18, 22-25 (1994) (noting that one
purpose of vacating the underlying judgment if a matter becomes moot during
appeal is to prevent prejudice to the rights of parties when appellate review of
a judgment on its merits is prevented by some reason other than voluntary action
of the parties). Once the judgment is vacated and the case dismissed, the
collateral consequences of the judgment are ordinarily negated to the same
extent as if the judgment were reversed on the basis of any other procedural
error. See Employees Fin. Co. v. Lathram, 369 S.W.2d 927, 930 (Tex. 1963). The
collateral consequences exception to the mootness doctrine is invoked only under
narrow circumstances when vacating the underlying judgment will not cure the
adverse consequences suffered by the party seeking to appeal that judgment.
See Lodge, 608 S.W.2d at 912; Carrillo, 480 S.W.2d at 617. Such
narrow circumstances exist when, as a result of the judgment’s entry, (1)
concrete disadvantages or disabilities have in fact occurred, are imminently
threatened to occur, or are imposed as a matter of law; and (2) the concrete
disadvantages and disabilities will persist even after the judgment is vacated.
See Spencer v. Kemna, 523 U.S. 1, 8 (1998); see also Gen. Land Office
v. Oxy U.S.A., Inc., 789 S.W.2d 569, 571 (Tex. 1990) (noting that the
collateral consequences exception is invoked only when prejudicial events have
occurred whose effects will continue to stigmatize after dismissal of the case
order to invoke the collateral consequences exception, then, Marshall must show both
that a concrete disadvantage resulted from the judgment and that the
disadvantage will persist even if the judgment is vacated and the case dismissed
as moot. See Spencer, 523 U.S. at 8; Gen. Land Office,
789 S.W.2d at 571. She does not do so. The record contains neither evidence nor
an attempt to provide evidence
federal rent subsidy will be denied in the future if the trial court’s judgment
is vacated. As to the “practical” consequences Marshall complains of, she specifically
identifies only one: future landlords may be dissuaded from renting an apartment
to her. Again, however, the record contains neither evidence nor an attempt to
provide evidence supporting her assertion that this practical consequence will
persist even if the judgment is vacated. And, we do not consider factual
assertions that appear solely in briefs and are not supported by the record.
See Tex. R. App. P.
55.2(g), (i) (requiring petitioner’s statement of facts and argument to be
supported by appropriate references to the record); Perry v. S.N., 973
S.W.2d 301, 303 (Tex. 1998).
this record we decline to hold that the fact a judgment allowing eviction was
entered will cause such continuing concrete disadvantages as warrant expansion
of the collateral consequences exception, even after the judgment has been
vacated for mootness. See Spencer, 523 U.S. at 8;
Gen. Land Office, 789 S.W.2d at 571.
Costs and Post-Judgment Interest
we address Marshall’s argument that because the trial
court’s judgment held her liable for court costs incurred by the Housing
Authority and for post-judgment interest, her contest of liability for costs
constitutes a live controversy. In response, the Housing Authority asserts that
the costs awarded were for a nominal amount, and therefore, the doctrine of
de minimus non curat lex or “the law does not care for trifling matters”
should be applied to prevent consideration of the case on appeal. See, e.g.,
Yates Ford, Inc. v. Ramirez, 692 S.W.2d 51, 55 (Tex. 1985) (applying the
de minimis doctrine to overcharges in a consumer credit case).
agree with Marshall that in some instances a case is not
moot even though the only issue presented relates to court costs. See
Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 642-43 (Tex. 2005); see also Furr’s Supermarkets, Inc. v.
Bethune, 53 S.W.3d 375, 378 (Tex. 2001). If the trial court’s judgment is
vacated as a result of the case being moot, however, either there will be no
order assessing costs and each party will be required to pay its own costs under
Texas Rule of Civil Procedure 127, or the appellate court will tax costs.
Moreover, we conclude that the Housing Authority’s seeking dismissal of the case
because it is otherwise moot and concurrently asserting that the costs awarded
by the trial court are de minimus constitute good cause for the Housing
Authority to be responsible for its own trial court costs. See Tex. R. App. P. 60.4 (stating that the
Court may, for good cause, tax costs other than as provided by rule). We do not
consider the issue of the Housing Authority’s costs and post-judgment interest
on those costs to present a controversy preventing dismissal of the case for
Marshall’s case is moot as
to the issue of possession and no exception applies to warrant consideration of
the appeal on its merits except the issue of costs. We tax costs to the party by
whom incurred, vacate the court of appeals’ judgment and opinion, vacate the
trial court’s judgment, and dismiss the case as moot.
DELIVERED: March 3, 2006