Motion Granted in Part and Denied in Part, Judgment Vacated, Appeal
Dismissed, and Memorandum Opinion filed February 12, 2019.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-18-00434-CV

IN THE ESTATE OF KIMBERLIE DENISE MENARD, INCAPACITATED

                      On Appeal from Probate Court No. 3
                             Harris County, Texas
                       Trial Court Cause No. 261740-401

                  MEMORANDUM                       OPINION
      This is a forcible detainer case. The plaintiff/appellee is the corporate trustee1
of Kimberlie Denise Menard, an incapacitated adult. The appellant is Jessie Smith,
Kimberlie’s mother. The Trustee has moved to dismiss the appeal as moot and for
damages for a frivolous appeal under Tex. R. App. P. 45. Smith, proceeding pro se
on appeal, has responded. We grant the motion to dismiss and deny the request for
sanctions.



1
 Raymond James Trust, N.A., Corporate Trustee of the Kimberlie Menard Section 142 Self-
Settled Special Needs Trust.
                                   Background

       The following facts are taken from the Trustee’s motion to dismiss. They
appear to be undisputed.

       Kimberlie owned a house, and Smith and many of Kimberlie’s other relatives
were living in the house without paying rent. Because Kimberlie could not live in
the house and did not benefit from ownership, her guardian decided to sell the house
and use the proceeds for Kimberlie’s benefit.

       The Trustee began eviction proceedings in Justice Court in November 2016
for possession and unpaid rent. The precise machinations are unclear from the
record, but the case was ultimately transferred to and decided by the probate court.
Smith did not appear at trial; a family member told the probate court she was
hospitalized. Smith did not seek a continuance.

       The probate court signed a final judgment on January 29, 2018 ordering Smith
and the other occupants to vacate the property. The judgment does not mention the
Trustee’s claim for unpaid rent; it appears that claim was abandoned. The judgment
awards the Trustee “all costs of Court and [5%] post-judgment interest accruing
thereon . . . .”

       Smith did not move for rehearing or a new trial. Instead, the Trustee says,
Smith and the other occupants “voluntarily vacated the Property.” The constable
who went to the property on March 7, 2018 to serve a writ of possession found the
property vacant. The property was then sold and conveyed to a new owner in August
2018. The Trustee attached a copy of the conveyance document (Special Warranty
Deed) to its motion to dismiss.




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                                       Analysis

I.    Dismissal for mootness
      The Trustee contends this case is moot because the only relief Smith seeks—
living in the house—has become impossible due to the sale of the house. We agree
the appeal is moot, but for a different reason: Smith does not assert any potentially
meritorious claim for possession of the property. Under controlling supreme court
precedent, it is the claimed right to possession, not actual possession (or lack thereof)
that is relevant to the mootness analysis.

      Forcible detainer. An action for forcible detainer is intended to be a speedy,
simple, and inexpensive means to obtain immediate possession of property.
Marshall v. Housing Auth. of the City of San Antonio, 198 S.W.3d 782, 787 (Tex.
2006). Judgment in a forcible detainer case is not intended to be a final determination
of whether the eviction is wrongful; rather, it is a determination of the right to
immediate possession. Id. (citing Tex. Prop. Code Ann. § 24.008)). The only issue
in a forcible detainer action is the right to possession of the property. Olley v. HVM,
LLC, 449 S.W.3d 572, 575 (Tex. App.—Houston [14th Dist.] 2014, pet. denied).

      Mootness. Marshall is the seminal case on mootness in a forcible detainer
action. Marshall leased an apartment in public housing. Following a shooting in her
apartment, the housing authority terminated her right to occupy the apartment, then
filed a forcible detainer action. 198 S.W.3d at 784. The trial court signed a judgment
awarding the housing authority possession, court costs, and post-judgment interest.
Id. Marshall indicated she would appeal. Id. at 784–85. A writ of possession was not
executed, but Marshall vacated the apartment. Id. at 785. The record did not indicate
whether the apartment had been re-let or otherwise occupied following Marshall’s
departure. Id. The court of appeals, apparently sua sponte, concluded the appeal was
moot because Marshall relinquished the apartment, which meant the court could not

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grant “effectual relief.” Id. The court of appeals did not vacate the trial court’s
judgment. Id.

      The supreme court wrote that due to her “timely and clear expression of intent
to appeal,” Marshall’s relinquishment of the apartment alone did not moot her appeal
“so long as appellate relief was not futile; that is, so long as she held and asserted a
potentially meritorious claim of right to current, actual possession of the apartment.”
Id. at 787. But, the supreme court continued, she did not hold such a claim because
her lease had expired (after the trial court’s judgment but during the pendency of the
appeal) and she did not suggest any other basis to which she might be entitled to
possession. Id. The forcible detainer portion of her appeal, therefore, was moot. Id.
Because the appeal was moot, the proper remedy was to dismiss the appeal and
vacate the trial court’s judgment. Id. at 785.

      In this appeal, Smith has never claimed a current right to possession. That fact
distinguishes this case from the facts of Kennedy v. Andover Place Apartments, 203
S.W.3d 495, 497 (Tex. App.—Houston [14th Dist.] 2006, no pet.), and Geters v.
Baytown Housing Authority, 430 S.W.3d 578, 582–83 (Tex. App.—Houston [14th
Dist.] 2014, no pet.). Because the appellant in each of those cases asserted a
potentially meritorious claim for possession, we concluded the forcible detainer
portion of the appeal was not moot. Rather, this case is more like Briones v. Brazos
Bend Villa Apartments, 438 S.W.3d 808, 812–13 (Tex. App.—Houston [14th Dist.]
2014, no pet.), in which we held the forcible detainer issue was moot because the
appellant had no legitimate claim to current possession.

      Under Marshall and Briones, the forcible detainer portion of this appeal is
moot not because the house has been sold, as the Trustee contends; in Marshall there
was no evidence of what happened to the property in question, but the appeal was
still moot. Nor is it moot merely because Smith vacated the house, as the Marshall

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court of appeals suggested; Smith’s “timely and clear expression of intent to appeal”
would keep the controversy live if appellate relief was not futile. The forcible
detainer portion of the appeal is moot because Smith has no claim of right to
possession of the house.

      Court costs and post-judgment interest. The Trustee’s motion does not
mention the other portion of the judgment—the award of court costs and post-
judgment interest. Because we are bound to consider our own jurisdiction, we must
determine whether that award prevents the appeal from being moot.

      Marshall holds the trial court’s award of court costs and post-judgment
interest did not prevent the appeal from being moot. Id at 790. The sole issue of court
costs might be enough in some instances to keep the controversy alive, the court
said, but Marshall’s appeal was not such a case:

      We agree with Marshall that in some instances a case is not moot even
      though the only issue presented relates to court costs. [citations] If the
      trial court’s judgment is vacated as a result of the case being moot,
      however, 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. Moreover, we
      conclude that the Housing Authority’s seeking dismissal of the case
      because it is otherwise moot and concurrently asserting that the costs
      awarded by the trial court are de minimum constitute good cause for the
      Housing Authority to be responsible for its own trial court costs.

Id.

      Our own court reached a different conclusion on mootness in light of an award
of court costs and attorneys’ fees in Briones. There, the judgment required the
appellant to pay statutory attorneys’ fees. 438 S.W.3d at 813. The Briones court did
not mention Marshall’s discussion of the impact of an award of court costs on
mootness or suggest an award of attorneys’ fees was distinguishable from an award
of court costs. Instead, Briones followed Kennedy and Geters, both of which
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involved a similar attorneys’ fees award and both of which held the award was
improper under the governing statute. Id. at 814–15. Rather than vacate the trial court
judgment, Briones “reverse[d] the portion of the judgment awarding Brazos Bend
its attorney’s fees and court costs and render[ed] judgment that it take nothing on its
request for attorney’s fees and court costs.” Id. at 815.

      The costs award in this case appears conceptually identical to that in Marshall
and distinguishable from that in Briones because no attorneys’ fees are awarded. For
that reason, we believe Marshall controls the analysis and disposition of the costs
issue. The underlying judgment will be vacated, so there will no longer be a
judgment requiring Smith to pay the Trustee’s trial court costs or post-judgment
interest on those costs.

II.   Damages for frivolous appeal
      The Trustee asks us to order Smith to pay attorneys’ fees as a sanction for
bringing this frivolous appeal. Attached to the motion is an affidavit stating $3,850
is a reasonable fee in this case.

      Rule 45 of the Texas Rules of Appellate Procedure states:

      If the court of appeals determines that an appeal is frivolous, it may—
      on motion of any party or on its own initiative, after notice and a
      reasonable opportunity for response—award each prevailing party just
      damages. In determining whether to award damages, the court must not
      consider any matter that does not appear in the record, briefs, or other
      papers filed in the court of appeals.

Tex. R. App. P. 45. To determine whether an appeal is objectively frivolous, we
review the record from the viewpoint of the advocate and decide whether the
advocate had reasonable grounds to believe the case could be reversed. Glassman v.
Goodfriend, 347 S.W.3d 772, 782 (Tex. App.—Houston [14th Dist.] 2011, pet.
denied) (op. on reh’g en banc) (“Glassman I”).

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      This court rarely awards damages under rule 45. Our decisions in Glassman I
and its 2017 sequel, Glassman v. Goodfriend, 522 S.W.3d 669 (Tex. App.—Houston
[14th Dist.] 2017, pet. denied) (“Glassman II”), are notable exceptions. Glassman, a
lawyer disbarred in 2013, was a repeat litigant who repeatedly raised the same non-
meritorious claims and arguments in probate litigation against her sister. We
sanctioned her $2,500 in Glassman I. 347 S.W.3d at 783. When she made effectively
the same meritless arguments in Glassman II, we sanctioned her $10,000. 522
S.W.3d at 673–75.

      This case is distinguishable from the Glassman cases. First, this is the first
time Smith has challenged the underlying judgment, and her appeal was timely.
Glassman, by contrast, challenged the underlying judgment by collateral attack five
years late. Second, Smith had not vacated the property at the time she filed her notice
of appeal. She may have believed she had a right to the property that she would assert
on appeal; the record gives us no basis to conclude otherwise. Third, Marshall came
to the supreme court amidst a split in the courts of appeals about whether a forcible
detainer action became moot after the claimant vacated the property. Marshall, 198
S.W.3d at 786 (collecting cases). If appellate justices could not agree if such vacatur
rendered the appeal moot, it is unreasonable to expect a pro se, non-lawyer litigant
to know her appeal would become moot once she no longer had a potentially
meritorious claim for possession.

                                     Conclusion

      We grant the Trustee’s motion to dismiss but deny its request for damages.
We VACATE the trial court’s judgment and DISMISS the appeal for mootness.

                                    PER CURIAM

Panel consists of Justices Christopher, Hassan, and Poissant.


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