Neil R. Foga and Marlene C. Turner-Foga v. GHK Enterprises, LP ( 2020 )

Fourth Court of Appeals
San Antonio, Texas
February 21, 2020
No. 04-19-00720-CV
Neil R. FOGA and Marlene C. Turner-Foga,
Appellants
v.
GHK ENTERPRISES, LP,
Appellee
From the County Court, Frio County, Texas
Trial Court No. 9268
Arnulfo C. Luna, Judge Presiding
ORDER
This is an appeal in a forcible detainer case. Appellants Neil R. Foga and Marlene C.
Turner seek to appeal from the county court’s order dismissing their de novo appeal from a
judgment of the justice court ordering possession of real property to appellee GHK Enterprises,
L.P. See TEX. R. CIV. P. 510.9(a), 510.10(c) (providing for a trial de novo in a county court upon
the timely appeal of a justice court’s judgment in an eviction case). On February 12, 2020, the
trial court clerk filed the clerk’s record in this appeal. Included in the record is an affidavit of
inability to pay, in which Foga avers that he and Turner “are currently without a place to stay.”
A case becomes moot if, at any stage of the proceedings, a controversy ceases to exist
between the parties. See Marshall v. Hous. Auth. of City of San Antonio, 198 S.W.3d 782, 787
(Tex. 2006); Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001). In a forcible detainer suit,
[w]hen a tenant is no longer in possession of the property and has not superseded
the judgment of possession, her appeal is moot unless: (1) she timely and clearly
expressed an intent to exercise the right of appeal, and (2) appellate relief is not
futile. [Marshall, 198 S.W.3d at 787]. Appellate relief is not futile if the tenant
holds and asserts “a potentially meritorious claim of right to current, actual
possession” of the property. Id. (emphasis added).
Stewart v. Fiesta City Realtors, No. 04-17-00839-CV, 2018 WL 4760151, at *1 (Tex.
App.—San Antonio Oct. 3, 2018, no pet.) (mem. op.). Issues independent of possession,
such as damages and attorney’s fees, may be reviewable, even if the issue of possession
is moot. See Cavazos v. San Antonio Hous. Auth., No. 04-09-00659-CV, 2010 WL
2772450, at *2 (Tex. App.—San Antonio July 14, 2010, no pet.) (mem. op.).
Because it appears that appellants are no longer in possession of the real property
at issue in this appeal and because it appears that neither the justice court nor the county
court awarded damages or attorney’s fees, we ORDER appellants to show cause in
writing within fifteen days from the date of this order why this appeal should not be
dismissed for lack of jurisdiction. See TEX. R. APP. P. 42.3(a), 43.2(f), 44.3. All other
appellate deadlines are SUSPENDED pending further order of this court.
_________________________________
Rebeca C. Martinez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 21st day of February, 2020.
___________________________________
Michael A. Cruz,
Clerk of Court