Copenhaver, Walter Alexander v. Federal Home Loan Mortgage Corporation ( 2002 )

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

WALTER ALEXANDER COPENHAVER,                             Appellant, v. FEDERAL HOME LOAN MORTGAGE CORPORATION,                             Appellee.

' ' ' ' '  '

No. 08-02-00016-CV Appeal from the County Court at Law No. 7 of El Paso County, Texas (TC# 2001-00058-7)

O P I N I O N

The appeal arises from a forcible detainer case decided in favor of Federal Home Loan Mortgage Corporation (AFreddie Mac@).  Under the judgment, signed December 21, 2001, Walter Alexander Copenhaver was instructed to vacate the premises by January 15, 2002; failure to do so would entitle Freddie Mac to obtain a writ of possession ordering the constable to remove appellant from the premises.

Prior to execution of the judgment, appellant filed an appeal in this Court and a voluntary petition under the United States Bankruptcy Code.  Because of the latter action, action in this Court was stayed.

The bankruptcy case was then dismissed.  Thereafter, appellant filed another petition in bankruptcy.  Freddie Mac sought relief from the automatic stay; that motion was granted by the bankruptcy court on March 30.  The bankruptcy court found that appellant was impermissibly employing the Bankruptcy Code to thwart Freddie Mac from exercising its legitimate remedies to gain possession of the property. Therefore, the court authorized Freddie Mac to proceed with eviction of appellant.  The bankruptcy court dismissed the second case on April 18.

On April 16, the constable executed a writ of possession and forcibly removed appellant from the property.  Freddie Mac then filed a motion to dismiss this appeal on May 20.  On May 21, this Court, having received the bankruptcy court=s order annulling stay and granting relief, ordered the stay be lifted and the appeal reinstated for purposes of filing and considering the motion to dismiss.

Freddie Mac=s motion to dismiss claims under Kemper v. Stonegate Manor Apartments, Ltd., 29 S.W.3d 362, 363 (Tex. App.--Beaumont 2000, pet. dism=d w.o.j.), that the appeal of the forcible detainer action is moot as the writ of possession has been issued and appellant has been removed from the premises.  We agree.  A case is moot where judgment when rendered can have no legal effect upon the controversy.  Swank v. Sharp, 358 S.W.2d 950, 951 (Tex. Civ. App.--Dallas 1962, no writ). And we do not decide cases in which there is no controversy between the parties.  Camarena v. Texas Employment Comm=n, 754 S.W.2d 149, 151 (Tex. 1988). As the Supreme Court noted in Polk v. Davidson, 196 S.W.2d 632 (Tex. 1946), A[W]hen a case becomes moot the only proper judgment is one dismissing the cause.@ Id. at 633.  Because in this case the writ of possession has been executed, there is no longer a justiciable controversy between the parties.

Accordingly, we grant appellee=s motion and dismiss the appeal.

SUSAN LARSEN, Justice

June 20, 2002

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)