EKDE Group, LLC v. Dominique Moscow, Keyla Vega, and All Occupants

       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-23-00759-CV


                                 EKDE Group, LLC, Appellant

                                                 v.

               Dominique Moscow, Keyla Vega, and All Occupants, Appellees




             FROM THE COUNTY COURT AT LAW NO. 1 OF BELL COUNTY
         NO. 23CCV01168, THE HONORABLE PAUL A. MOTZ, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Appellant EKDE Group, LLC filed a notice of appeal challenging the trial court’s

final judgment in this forcible-detainer case awarding possession of certain rental property to

appellees Dominique Moscow, Keyla Vega, and all occupants. The October 30, 2023 final

judgment ordered that appellees retained possession of the property and also ordered that the Bell

County Clerk should issue a check payable to EKDE Group in the amount of $1,199 from rent

held in the trial court’s registry. The order stated that each side was responsible for its own legal

fees and court costs.

               Appellees filed a motion to dismiss asserting that the Court should dismiss this

appeal as moot because there is no longer an actual controversy between the parties. In the

motion, appellees inform the Court that they moved out of the property and received a final

accounting in September 2023. Appellees state that they “are no longer in possession of the
property and do not assert a potentially meritorious claim of right to current, actual possession of

the Subject Property.” Therefore, the appellees contend, the appeal is moot because “[t]he only

issue in a forcible detainer action is the right to actual possession of the premises.” Marshall

v. Housing Auth. of City of San Antonio, 

 (Tex. 2006); see also Tex. R.

Civ. P. 510.1-.13 (rules of practice governing eviction cases in justice courts and appeals to

county courts); Tex. Prop. Code § 24.002 (establishing elements of forcible detainer and

requirements for demand for possession).

               EKDE Group did not file a response to the motion to dismiss. The record reflects

that rent in the amount of $1,199 was deposited in the trial court’s registry, indicating that there

were sufficient funds for the County Clerk to comply with the trial court’s order to issue a check

in that amount to EKDE Group. In the absence of a response from the EKDE Group that there is

some live controversy remaining between the parties, we agree with appellees that the issue of

possession has become moot on appeal. See Marshall, 

 (concluding that

absent live controversy between parties as to right of current possession after tenant’s lease

expired, issue of possession became moot); see also Williams v. Lara, 

 (Tex.

2001) (holding that case becomes moot if controversy ceases to exist between parties at any

stage of proceedings).

               Having determined that the possession issue has become moot on appeal, we

grant appellees’ motion to dismiss. We vacate the trial court’s judgment awarding possession

without consideration of the merits and dismiss the case as moot.             See, e.g., Marshall,

; Texas Parks & Wildlife Dep’t v. Texas Ass’n of Bass Clubs, 

 (Tex. 1981) (“When an appeal is moot, the judgment is set aside and the cause is




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dismissed.”); Tex. R. App. P. 43.2(e) (appellate court may vacate trial court’s judgment and

dismiss case).



                                           __________________________________________
                                           Gisela D. Triana, Justice

Before Justices Baker, Triana, and Smith

Vacated and Dismissed as Moot

Filed: December 22, 2023




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