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Date: 09-18-2022

Case Style:

Carrie Leija v. De Koro Homes LLC

Case Number: 02-22-00248-CV

Judge: Bonnie Sudderth


Court of Appeals Second Appellate District of Texas at Fort Worth

On appeal from the County Court at Law No. 1 Tarrant County, Texas

Plaintiff's Attorney:

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Defendant's Attorney: Daniel Paz


Fort Worth, Texas – Real Estate lawyer represented Appellant with a forcible detainer judgment.

In January 2022, the trial court signed a forcible detainer judgment evicting
Appellant Carrie Leija from a property owned by Appellee De Koro Homes, LLC.
See Tex. Prop. Code Ann. § 24.002. Leija timely filed a notice of appeal with the trial
court, but for unexplained reasons, the trial court did not notify this court of Leija’s
appeal for five months. Cf. Tex. R. App. P. 25.1(f) (directing trial court clerk to
“immediately deliver a copy of the notice of appeal to the appellate court clerk”).
Meanwhile, because Leija had not filed a supersedeas bond, the trial court’s judgment
was carried out; the record contains an executed writ of possession with the
constable’s note that the “real property [was] restored back to the rightful owner in a
[l]awful manner.” See Tex. Prop. Code Ann. §§ 24.0061, 24.007.
Because “[t]he only issue in a forcible detainer action is the right to actual
possession of the premises,” Marshall v. Hous. Auth. of San Antonio, 198 S.W.3d 782,
785 (Tex. 2006), a forcible detainer appeal becomes moot upon an appellant’s eviction
from the property unless (1) the appellant asserts a meritorious claim of right to
current, actual possession of the property, or (2) damages or attorney’s fees remain at
issue. Martinez v. HD Tex. Invs. LLC, No. 02-21-00178-CV, 2021 WL 4319709, at *1
This forcible detainer case was originally filed in a justice court. See Tex. Gov’t
Code Ann. § 27.031(a)(2); Tex. Prop. Code Ann. § 24.004(a). After the justice court
awarded possession of the property to De Koro Homes, LLC, the case was appealed
to the county court at law for a trial de novo. See Tex. R. Civ. P. 510.10.
(Tex. App.—Fort Worth Sept. 23, 2021, no pet.) (mem. op.); Gillespie v. Erker, No. 02-
20-00331-CV, 2021 WL 733084, at *1 (Tex. App.—Fort Worth Feb. 25, 2021, no
pet.) (mem. op.); Ratliff v. Homes by Ashley, Inc., No. 02-20-00014-CV, 2020 WL
1057320, at *1 (Tex. App.—Fort Worth Mar. 5, 2020, no pet.) (mem. op.).
Accordingly, on July 29, 2022, we notified Leija that this case appeared moot.
We warned her that we would dismiss the appeal unless, within ten days, she filed a
response showing (1) that she intends to assert a meritorious claim of right to current,
actual possession of the property, (2) that damages or attorney’s fees remain at issue,
or (3) that there are other grounds for continuing the appeal. See Tex. R. App. P. 44.3.
More than ten days have passed, and Leija has not filed a response.

The trial court did not award damages or attorney’s fees; it awarded only court
costs. And although “in some instances a case is not moot even though the only issue
presented relates to court costs,” if a trial court’s judgment is vacated as moot, “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.”
Marshall, 198 S.W.3d at 790; see also Brewer v. Green Lizard Holdings, L.L.C., No. 02-13-
00119-CV, 2013 WL 5303064, at *1 (Tex. App.—Fort Worth Sept. 19, 2013) (per
curiam) (mem. op.) (quoting Marshall and noting that “the supreme court has held in
similar circumstances that an issue of costs does not prevent the dismissal of the case
as moot”).
Leija also failed to pay the relevant filing fee and to file a docketing statement.
Cf. Tex. R. App. P. 5, 32.1. We warned Leija that her appeal could be dismissed for
failure to pay the filing fee, and we gave her more than a month to remedy the issue.
See Tex. R. App. P. 42.3(c), 44.3. So, even if the case were not moot, we would
dismiss the appeal due to Leija’s failure to pay the filing fee. See Tex. R. App. P.
42.3(c), 43.2(f)

Outcome: Because Leija is no longer in possession of the property, because she has not
identified an ongoing, live controversy between the parties, and because she has not shown any other grounds for continuing the appeal, we vacate the trial court’s
judgment and dismiss the case as moot.

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