### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-09-00207- CV

J. Stephen S pencer, A ppellan t

v.
Jonathan M. G ilbert, Appellee

F ROM CO UNTY COURT O F B LANCO CO UNTY NO. 402 , H ONO RAB LE B ILL GUTH RIE, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

J . Stephen Spence r appe als the trial cour t’s judgme nt in a trial de novo review of a judgme nt by the justice court in a forc ible entry and detainer case
. The trial court found that lessor
J onathan M. Gilbert was entitled to possession of the house, and also order ed lessee Spencer to pay Gilbert monetary damag es suffe red during Spencer ’s withholding of the premises befor e judgme nt and pending appellate review. Bec ause Spenc er ha s vaca ted the pre mises, there is no contr oversy
reg arding possession of the prope rty . Wit hout addre ssing moot issues, we a ffirm the judg ment.

Gilbert filed this forc ible entry and deta i ner action in September 2008 to
evict Spencer , his tenant. Midway throug h trial at the justice court, Spe n ce r s o u gh t t o rec use
J ustice of the Peace Terr

y Carter

. J P Carter alleg edly consulted with J ustice of the Peace H.R. Riley
in Bla nco County conce rning his availability to hear the case , then rec used himself, and ref err ed the

case to JP Riley

. After Spencer pointed out that rec usal strips judge s of their power over the case ,J P Carter signe d a new order that simply rec used himself. J P Riley held a trial in November 2008,

finding that Gilbert had the rig ht to possession and order ing that Gilbert rec over $ 4 , 6 5 0 from Spencer as re nt. Spencer

filed a notice of appe al.
After a trial de novo in the county court—he ld on Fe b ru ar y 3 , 2 009, without Spencer ’s prese nce beca

use, he asser

ts in his brief, he was unable to attend due to inclement wea ther
while he was on business out of state—the county court awa rded possession to Gilbert and order ed
that Gilbert rec over $9,300 from Spencer as damag es for his withholding of the proper ty , plus $200
in late fee s. The county court also order ed Spencer to p ay $ 1 , 5 5 0 for eac h additional month he

reta ined possession of the house bey ond Fe bruar y 2009. Spencer appea led. Meanw hile, the lease 1 expired. Spencer

vacated the pre mises on September 18, 2009. Spencer alleges t h at , beca use he has vacated the premises, there is no longe r a
controve rsy , this case is moot, and we must vacate the trial court judgme nt and dismiss this appea l.
See Marshall v. Housing Auth. of City of San Antonio , 198 S.W .3d 782, 787 (Tex. 2006). I n
Marshall , the evicted tenant sought to continue her appea l even a fter she lost any claim to curr ent possession, arg uing that her claim for the fair m ar k et v alue of her lost lease hold interest kept the

case alive. Id. at 788. The supre me cour t held that beca

use her claims did not authorize rec overy within a forc ible entry and detainer action, their exis tence did not prese nt a controve rsy preve nting
dismiss al of the forc ible detainer case as moot. Id. I n this case , by contra st, the rules of proce dure

g overning forc ible entry

and deta iner a ctions expressly authorize rec overy

of dama g es as f

ollows:

He initially appea led to the district co u rt , which dismiss ed for want of jurisdiction. He 1 appea led that dismiss al to this Court. We dismiss ed that appea l. See Spence r v. Gilbert , No. 03-09- 00216-CV (Te x . App.—Austin Nov. 10, 2009, no pet.) ( mem. op.).
2On th e t ri al of the cause in the county court the appellant or appellee shall be

permitted to ple ad, prove and rec over his da mag es, if any , suffe red for withholding or def ending possession of the pre mises during the pende ncy of the a ppeal. Damag es may include but are not limit ed to loss of renta ls during the pendenc y of the appea l and re asonable attorney fee s in the justice and county courts provide d, as to attorney fee s, that the re q u i rements of Section 24.006 of the Texas Property Code have be en met.

Tex. R. C iv. P. 752. The damag es portion of the case is not moot . Gilbert has shown a continued
interest in collecting the money awa rded to him, including in his appellate brief. Be cause Spencer 2
has not conc eded on the question of the aw ard of damag es to Gilbert—instead, he seeks to have it

vacated—the contr oversy over the monetary

damag e aw ard pe rsists and is not moot

. Spence r contends that, beca use of proce dural irreg ularities following J P Carter ’s

rec usal, no other court ev er had jurisdiction and ever y subsequent order is void. He arg ues that

any action J P Carter took afte r rec using himself, including ref err ing the case to J P Riley , was void.
See Tex. R. Ci v
. P

. 1 8 a, 523; Johnson v. Pumjani , 56 S.W .3d 670, 672 (Tex. App.—Houston [14t h Dist.] 2 0 0 1 , no pet.). The rules of procedure for dist rict and county courts “also g overn the justice courts, insofar as they can be applied.” Tex. R. Civ. P. 523. The rules presc ribe that a judge
who rec uses himself “shall reque st the p re s i d i n g judge of the administrative judicial district to

Spencer arg ues t hat Gil bert’s brief must b e s t ru ck as noncompli ant wit h appellate rules. 2 We decline to strike the brief. We note that, unlike an appellant’ s failure to file a brief, see Tex. R. App. P. 38.8, even an appellee ’s outrig ht failure to file a brief has no conseque nce set by rule except that failure to co n t ro v er t a st atement of fac t will lead to the s tatement of fac t being taken as true. Tex. R. App. P. 38.1 (g). An appellee ’s failure to contra dict issues prese nted does not lead to conce ssion of err or throug h some sort of appellate defa ult judgme nt. See Dillard’s, Inc. v. Newman , 299 S.W .3d 144, 147 (Tex. App.—Amar i l l o 2 0 0 8, pet. denied) ; San Antonio Villa Del Sol Homeowne rs Ass’n v. Miller , 761 S.W .2d 460, 462 (Tex. App.—San Antonio 1988, no writ).
3assig n another judge to sit, and

. . . s h al l t ake no further action in the case except for g ood cause

stated in the order in which such action is taken. ” T ex
. R. Civ. P. 18a(c ). The cler k’s rec ord
contains a letter in which J P Carter states that, afte r his rec usal, he contac ted the administrative judge
for the reg ion, who declined to assig n a judge

. The g overnme nt code provides that, “[i] f the office
of justice of the peac e is vaca nt in a prec inct or if the justice i s ab s en t o r unable or unwilling to perf orm his duties, the near est justice in the county may tem p o rarily perf orm the duties of the
office .” Tex. Gov’t Code Ann. § 27.052 (West 2004). We take judicial notice of public information

re l at i n g to Bla

nco County

. There are two justices of the peac e in Bla nco County

—J P Carter an d
J P Riley

. Thus, when J P Carter rec used himself in response to Spencer ’s motion, he beca me unable

t o p er form his duties, and the near est—and only —justice of the peac e in the county temporari l y perf ormed his duties. Reg ardle ss of whether J P Carter ’s “re fe rr al ” t o J P Riley was eff ective or void, J P Riley had the power to hear the case and was the only J P in Bla nco County available to hear
the case
. Spencer does not complain on appea l o f an y err ors by J P Riley other than exercising jurisdiction. J P Riley ’s order s, the county court’s order s on de novo revie w, and this Court’s revie w

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wer e not rende red without jurisdiction or void by any err ors committed by J P Carter in his attempt
to refe r or tra

nsfer the ca se following his recusa l. Spencer co n t en ds that Gilbert lacke d standing to pursue this forc ible entry and
detainer action beca

use he acc epted rent chec ks. To show standing , a plaintiff must demonstrate he

I t appea rs that any err ors by J P Riley would have been rende red harmless by the appea l to 3 the county court for trial d e n o v o
. See In re Garza , 990 S.W .2d 372, 374 (Tex. App.—Corpus Christi 1999, orig

. proce eding ); Gree nfield v. Chas. K. Horton, Inc. , 64 S.W .2d 369, 370 (Tex. Civ. App.—Waco 1933, no wr it); see also Robe rts v. McCamant , 8 S.W . 543, 543-44 (Te x . 1888).
4posses s es an i ntere st in the controve rsy distinct from that of the g ener al public, such that the

defe ndant’s actions have c aused the plaintiff some par ticular injury

. W

illiams v. Lara , 52 S.W .3d 171, 178-79 (Tex. 2001). Standing l i mits a court’s subject matter jurisdiction to those case s that
involve a distinct injury to the plaintiff and a rea l controve rsy betwee n the parties that will be
decide d by the suit. Brown v. Todd , 53 S.W .3d 297, 305 (Tex. 20 0 1 ). A l an d lord’s acc eptanc e
of rent chec ks does not waive his rig ht to evict hi s t en ant and exercise possession of the proper ty
if the landlord cont i n u es t o t ak e steps to evict the tenant. Estes v. W ilson , 682 S.W .2d 711, 714 (Tex. App.—For

t Worth 198 4 , writ ref

’d n.r.e.)

. Gilbert alleg ed that he was the landlord of the

proper ty and Spencer was his tenant. He alleg ed that Spencer brea ched the leas e, am o n g other

means, by keeping dog s on the premises in violation of the lease ’s prohibition of pets and by failing
to pay require d late fe es despite notice . Gilbert ar ticulated a r ight to possession and c ontroversie s
reg arding his exercise of that rig ht. Spencer does not explain, much less show support in the rec ord,
fo r t h e p roposi tion that Gilbert’s mere acc eptanc e of some rent chec ks while Spencer withhel d possession from Gilbert resolved the controve rsies or deprive d Gilbert of the rig ht to possess or
pursue possession of the proper ty based on Spencer ’s brea ch of the lease

. Gilbert showed standing to seek possession of his prope rty and unpaid r ent. Spencer asser

ts that the county court er re d b y failing to sustain his aff irmative
defe nses. He also asser

t s t h at t h e evidence is leg ally and fac tually insufficient to support the
county court’s judgme nt. Ther e i s n o repor ter’s rec ord in the file despite corr espondenc e among Spencer , the repor

ter, and th i s Court’s cler

k reg arding responsibility for prepa ration of the rec ord
and arr ang ements to pay for the rec ord. See Tex. R. App. P. 35.3(b). Spencer chose to file his brief
and have the case submitt ed wit h o u t t h e reporter’s rec ord. I n the absenc e of a repor ter’s rec ord,

5we must presume that the rec ord sup p o rt s the county court’s decisions. See Schafer v. Conner ,

8 1 3 S.W .2d 154, 155 (Tex. 1991); Public, Inc. v. County of Galveston , 264 S.W .3 d 3 3 8 , 3 4 1 (Tex. App.—Houston [14t h Dist.] 2008, no pet.); N i ch o l s o n v. Fifth Third Bank , 226 S.W .3d 581, 583 (Tex. App.—Houston [1st Dist.] 2007, no pet.). The amounts of damag es awa rded are consistent with and do not exceed amounts of rent acc ruing bas ed on the renta l rate listed in the
lease filed in the cler

k’s rec ord as part of the justice court rec ord, the date Gilbert filed suit seeking possession, and the date Spencer states he vacated the premises. Spencer has not prese nted a rec ord showing err or. Although there is no longe r a controve rsy reg arding which party has the superior rig ht

to possession, we decline to vaca te the portions of the judgme nt resolving that dispute beca use they
rela te to the continuing co n t ro v er s y reg arding damag es awa rded to Gilbert from Spencer for Spencer ’s withholding of the premises. We do not revie w the propriety of the trial court’s judgme nt

reg arding possession of the proper ty

. We conclude that Spencer has not demon s tr a te d e r ror requiring

reve rsal of the rema inder of the judgme nt.

Affir med.

G. Alan Waldrop, Just ice
Be fore Chief J ustice Jones, J ustices Pemberton a nd Waldrop
Affir med Filed: Aug ust 4, 2010
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