                                                                                                                            ACCEPTED
                                                                                                                         06-18-00024-cv
                                                                                                              SIXTH COURT OF APPEALS
                                                                                                                    TEXARKANA, TEXAS
                                                                                                                       6/6/2018 1:18 PM
                                                                                                                       DEBBIE AUTREY
                                                                                                                                 CLERK

                                           NO. 06-18-00024-CV

                                IN THE COURT OF APPEALS             FILED IN
                             FOR THE SIXTH DISTRICT OF TEXAS 6thTEXARKANA,
                                                                 COURT OF APPEALS
                                                                              TEXAS
                                     AT TEXARKANA            6/6/2018 1:18:51 PM
                                                                                              DEBBIE AUTREY
                                                                                                 Clerk
                                        GABRIELLA ROBERTS,
                                                    appellant,
                                                          v.
                                         CITIMORTGAGE, INC.,
                                                     appellee.


                        On appeal from Cause No. 430-12-CV in the
                    County Court at Law No. 1 of Angelina County, Texas
                            The Hon. Joe Lee Register presiding

                         APPELLEE CITIMORTGAGE, INC.'S
                        MOTION TO DISMISS APPEAL AS MOOT
                         AND FOR FAILURE TO PROSECUTE


                                                      Michael J. McKleroy, Jr., SBN: 24000095
                                                      michael.mckleroy@akerman.com
                                                      Attorney in Charge
                                                      C. Charles Townsend, SBN: 24028053
                                                      charles.townsend@akerman.com
                                                      Monica Summers, SBN: 24083594
                                                      monica.summers@akerman.com
                                                      AKERMAN LLP
                                                      2001 Ross Avenue, Suite 3600
                                                      Dallas, Texas 75201
                                                      Telephone: 214.720.4300
                                                      Facsimile: 214.981.9339

                                                      ATTORNEYS FOR APPELLEE
                                                      CITIMORTGAGE, INC.
_____________________________________________________________________________________________________________________
APPELLEE CITIMORTGAGE, INC.'S MOTION TO DISMISS APPEAL                                                      Page 1 of 5
Cause No. 12-18-00053-CV; Gabriella Roberts v. CitiMortgage, Inc.
         Appellee CitiMortgage, Inc. (CMI) respectfully moves to dismiss this appeal

because it is moot and appellant Gabriella Roberts has failed to prosecute it:

                        I.       STATEMENT OF RELEVANT FACTS

         1.       On February 16, 2018, the county court at law number 1 of Angelina

County, Texas entered a judgment in favor of CMI granting it the immediate right

to possess the real property and improvements located at 276 Plantation Drive,

Lufkin, Texas 75901. See final judgment, ex. 1; see also docketing statement, ex. 2.

Ms. Roberts did not post a bond to supersede the judgment. See docketing statement

at 4, ex. 2. The writ of possession was executed on March 12, 2018. See writ of

possession, ex. 3. Ms. Roberts was removed from the property. See docketing

statement at 1, 5, 7, ex. 2 (stating "writ of possession of property/removed from my

residence" and identifying new address as 1552 Thigpen Road, Pollok, Texas).

         2.       The clerk's record was filed April 13, 2018. See docket. The reporter's

record was filed April 27, 2018. See docket. By rule, Ms. Roberts' opening brief

was due May 29, 2018. TEX. R. APP. P. 4.1(a), 38.6(a). By letter dated April 27,

2018, the clerk reminded Ms. Roberts of the May 29, 2018 deadline to file the brief.

See April 27, 2018 letter, ex. 4. Ms. Roberts has not filed her opening brief.




_____________________________________________________________________________________________________________________
APPELLEE CITIMORTGAGE, INC.'S MOTION TO DISMISS APPEAL                                                      Page 2 of 5
Cause No. 12-18-00053-CV; Gabriella Roberts v. CitiMortgage, Inc.
                            II.      ARGUMENTS & AUTHORITIES

A.       Ms. Roberts' appeal is moot.

         3.       Ms. Roberts' failure to supersede the judgment for possession did not

divest her of her right to appeal, but her appeal became moot when she ceased to

have actual possession of the property. Marshall v. Housing Auth. of the City of San

Antonio, 198 S.W.3d 782, 787 (Tex. 2006). There is no basis for Ms. Roberts to

assert a meritorious claim of right to current, actual possession of the property.

There are no other issues to appeal.

B.       Ms. Roberts' failure to prosecute warrants dismissal.

         4.       "If an appellant fails to timely file a brief, the appellate court may

dismiss the appeal for want of prosecution unless the appellant reasonably explains

the failure and the appellee is not significantly injured by the appellant's failure to

timely file a brief." TEX. R. APP. P. 38.8(a)(1); see also id. 42.3(c) (authorizing

court to dismiss appeal for want of prosecution or because appellant failed to comply

with a requirement of the rules, a court order or a notice from the clerk requiring a

response or other action within a specified time).

         5.       By rule, as well as by notice from the clerk, Ms. Roberts was required

to file her opening brief on or before May 29, 2018. To date, Ms. Roberts has filed

nothing. She has not filed her brief, a motion requesting an extension of time or

anything else providing an explanation of her failure to meet the briefing deadline.

_____________________________________________________________________________________________________________________
APPELLEE CITIMORTGAGE, INC.'S MOTION TO DISMISS APPEAL                                                      Page 3 of 5
Cause No. 12-18-00053-CV; Gabriella Roberts v. CitiMortgage, Inc.
Her appeal should be dismissed for want of prosecution, failure to comply with the

rules, and failure to comply with clerk's notice.

                                               III.     PRAYER

         CMI requests Ms. Roberts' appeal be dismissed and it be granted any and all

further relief to which it may show itself justly entitled.



Date: June 6, 2018                                Respectfully submitted,


                                                     /s/ Michael J. McKleroy, Jr.
                                                  Michael J. McKleroy, Jr.; SBN: 24000095
                                                  C. Charles Townsend; SBN: 24028053
                                                  Monica Summers; SBN: 24083594
                                                  AKERMAN LLP
                                                  2001 Ross Avenue, Suite 3600
                                                  Dallas, Texas 75201
                                                  Telephone: 214.720.4300
                                                  Facsimile: 214.981.9339
                                                  michael.mckleroy@akerman.com
                                                  charles.townsend@akerman.com
                                                  monica.summers@akerman.com

                                                  ATTORNEYS FOR APPELLEE
                                                  CITIMORTGAGE, INC.




_____________________________________________________________________________________________________________________
APPELLEE CITIMORTGAGE, INC.'S MOTION TO DISMISS APPEAL                                                      Page 4 of 5
Cause No. 12-18-00053-CV; Gabriella Roberts v. CitiMortgage, Inc.
                                   CERTIFICATE OF SERVICE

      I hereby certify that on June 6, 2018, a true and correct copy of the foregoing
was served as follows:

Gabriella Roberts
1552 Thigpen Road
Pollok, Texas 75969
VIA CERTIFIED MAIL RECEIPT
NO. 9414 7266 9904 2092 0191 94


                                                                     /s/ Michael J. McKleroy, Jr.
                                                                Michael J. McKleroy, Jr.




_____________________________________________________________________________________________________________________
APPELLEE CITIMORTGAGE, INC.'S MOTION TO DISMISS APPEAL                                                      Page 5 of 5
Cause No. 12-18-00053-CV; Gabriella Roberts v. CitiMortgage, Inc.
EXHIBIT 1
                                                                                         Filed:02/16/2018 14:07
                                                                                         Amy Fincher, County Clerk
                                                                                         Angelina County, Texas
                                                                                         By: Johnson, Nathan
                                                                                             Deputy Clerk
                                                   CAUSE NO. 430-12-CV

CITIMORTGAGE, INC.,                                                   §   IN THE COUNTY COURT
                                                                      §
          plaintiff,                                                  §
                                                                      §
v.                                                                    §   AT LAW NO. 1
                                                                      §
GABRIELLA DENISE ROBERTS, et al.,                                     §
                                                                      §
          defendants.                                                 §   ANGELINA COUNTY, TEXAS

                                                    FINAL JUDGMENT

          On this day came on for hearing the motion for summary judgment filed by plaintiff

CitiMortgage, Inc. (CMI) in the above-styled and -numbered cause. This matter is an appeal by

defendant Gabriella Denise Roberts (Roberts) from a judgment awarding possession of the

property described below to plaintiff CitiMortgage, Inc. (CMI) issued by the justice of the peace

of Angelina County, Texas, precinct 4. The court finds Roberts was duly served with a copy of

CMI's motion and the notice of hearing thereon, but failed to file a timely response or summary

judgment evidence. Upon consideration of CMI's motion and the evidence presented therein, the

papers on file in this cause, and the arguments of counsel and pro se parties, this court is of the

opinion CMI's motion should be GRANTED and judgment should be entered as follows:

          IT IS ORDERED, ADJUDGED and DECREED CMI is entitled to immediate possession

of, and have restitution to, the property located at 276 Plantation Drive, Lufkin, Texas 75901

(property) and more particularly described as follows:

          BEING ALL THAT CERTAIN TRACT OR PARCEL OF LAND LYING AND
          SITUATED IN ANGELINA COUNTY, TEXAS, OUT OF THE THOMAS CARO
          SURVEY, ABSTRACT NO. 8 AND BEING A PART OF PORTION OF THAT
          CERTAIN CALLED 592.701 ACRE TRACT (AKA TRACT NO. 2) CONVEYED
          TO THOMAS G. FLOURNOY IN THE DOCUMENT RECORDED IN
          VOLUME 592 ON PAGE 419 OF THE REAL PROPERTY RECORDS OF
          ANGELINA COUNTY, TEXAS, TO WHICH REFERENCE IS HEREBY MADE
          FOR ALL PURPOSES AND BEING MORE PARTICULARLY DESCRIBED


FINAL JUDGMENT                                                                                     PAGE 1 of 3
Cause No. 430-12-cv; CitiMortgage, Inc. v. Gabriella Denise Roberts
          BY METES AND BOUNDS AS FOLLOWS, TO WIT:

          BEGINNING AT A 1/2' IRON PIN FOUND FOR THE NORTHEAST CORNER
          OF A CALLED 143 ACRE TRACT (AKA LOT 25 OF SAID PLANTATION)
          CONVEYED TO ALFONSO COMPIAN, JR. IN THE DOCUMENT
          RECORDED IN VOLUME 1400 ON PAGE 289 OF THE OFFICIAL RECORDS
          OF SAID COUNTY, AND THE SOUTHEAST CORNER OF LOT 24 ON THE
          WEST RIGHT-OF-WAY LINE OF PLANTATION DRIVE;

          THENCE ACROSS THE SAID 592.701 ACRE TRACT AND ALONG THE
          COMMON BOUNDARY LINE OF THE SAID LOT 24 AND THE SAID 1.43
          ACRE TRACT, N. 88' 02' 58" W AT 313.75 FEET TO A 1/2' IRON PIN FOUND
          FOR THE SOUTHWEST CORNER OF THE SAID LOT 24 AND THE
          SOUTHEAST CORNER OF A RESIDUS OF A CALLED 7.43 ACRE TRACT
          (AKA LOT 17 OF THE SAID PLANTATION) CONVEYED TO CLIFFORD E.
          FACOR, ET AL. IN THE DOCUMENT RECORDED IN VOLUME 1187 ON
          PAGE 508 OF THE SAID REAL PROPERTY RECORDS AND THE
          NORTHWEST CORNER OF THE SAID 1.43 ACRE TRACT;

          THENCE CONTINUING ACROSS THE SAID 592.701 ACRE TRACT AND
          ALONG THE COMMON BOUNDARY LINE OF THE SAID LOT 24 ACRE
          TRACT AND THE SAID RESIDUE, N. 00' 46' 55" E AT 365.48 FEET 3 1/2
          IRON PIN FOUND FOR THE NORTHWEST CORNER OF THE SAID LOT 24
          AND THE SOUTHWEST CORNER OF LOT 23;

          THENCE ALONG THE COMMON BOUNDARY LINE OF THE SAID LOT 24
          AND THE SAID LOT 23 S 86' 22' 11" E AT 316.72 FEET A 1/2 IRON PIN
          FOUND FOR THE NORTHWEST CORNER OF THE SAID LOT 24 AND THE
          SOUTHEAST CORNER OF LOT 23, ON THE WEST RIGHT-OF-WAY LINE
          OF PLANTATION DRIVE;

          THENCE, ALONG THE EAST BOUNDARY LINE OF THE SAID LOT 24 AND
          THE ALONG THE SAID ROW LINE S 01' 12' 28" W AT 356.15 FEET THE
          POINT AND PLACE OF BEGINNING AND CONTAINING 2.610 ACRES OF
          LAND, MORE OR LESS.

          THE BEARING FOR THIS TRACT ARE BASED ON THE WEST ROW LINE
          OR PLANTATION DRIVE AS RECORDED IN VOLUME 786 ON PAGE 255
          OF THE REAL PROPERTY RECORDS.

being the same property described in the deed of trust recorded in the official public records of

Angelina County, Texas on August 4, 2006 as instrument 2006-00217358.

          IT IS FURTHER ORDERED, ADJUDGED and DECREED the clerk of this court shall

issue a writ of possession in favor of CMI for the property, and CMI shall be entitled to execute


FINAL JUDGMENT                                                                         PAGE 2 of 3
Cause No. 430-12-cv; CitiMortgage, Inc. v. Gabriella Denise Roberts
the writ of possession against Roberts and all other occupants.

          IT IS FURTHER ORDERED, ADJUDGED and DECREED CMI is awarded a judgment

against Roberts for all costs of court.

          It is the intent of the court this final judgment resolves all claims against all parties to the

above-styled and numbered suit and be a final judgment for all purposes, including appeal.

                        16th day of February, 2018.
          SIGNED on the ____



                                                                       ____________________________________
                                                                      AP
                                                                       JUDGE PRESIDING


SUBMITTED BY:




       /s/ Michael J. McKleroy, Jr.
Michael J. McKleroy, Jr.
Attorney for CitiMortgage, Inc.




FINAL JUDGMENT                                                                                     PAGE 3 of 3
Cause No. 430-12-cv; CitiMortgage, Inc. v. Gabriella Denise Roberts
EXHIBIT 2
EXHIBIT 3
EXHIBIT 4
                                                                                            FILE COPY




          CHIEF JUSTICE          Court of Appeals                                   CLERK
      JOSH R. MORRISS, III          Sixth Appellate District                 DEBRA K. AUTREY

           JUSTICES                       State of Texas                    BI-STATE JUSTICE BUILDING
      BAILEY C. MOSELEY                                                 100 NORTH STATE LINE AVENUE #20
                                                                            TEXARKANA, TEXAS 75501
      RALPH K. BURGESS
                                                                                  (903) 798-3046


                                     Friday, April 27, 2018

Gabriella Roberts                                Michael J. McKleroy
1552 Thigpen                                     Attorney at Law
Pollok, TX 75969                                 2001 Ross Ave
* DELIVERED VIA E-MAIL *                         Dallas, TX 75201
                                                 * DELIVERED VIA E-MAIL *

RE:      Appellate Case Number:      06-18-00024-CV
         Trial Court Case Number:    430-12-CV

Style: Gabriella Denise Roberts, et al.
       v.
       CitiMortgage, Inc.

The certified Reporter’s Record (4 volumes) has this date been electronically received and filed
in the referenced proceeding.

Pro Se Appellant’s brief is due on or before Tuesday, May 29, 2018.

IF COUNSEL WANTS TO MAKE AN ORAL ARGUMENT, A REQUEST TO DO SO
MUST APPEAR ON THE FRONT COVER OF THE BRIEF. TEX.R.APP.P.39.7.

                                                              Respectfully submitted,

                                                              Debra K. Autrey, Clerk


                                                              By ___________________________
                                                                                      Deputy

cc:     Melvin Power, Official Court Reporter (DELIVERED VIA E-MAIL)
