Courtney D. Alsobrook v. Mtglq Investors, Lp

Supreme Court of Texas
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No. 22-0079
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Courtney D. Alsobrook,
Petitioner,

v.

MTGLQ Investors, LP,
Respondent

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On Petition for Review from the
Court of Appeals for the Fifth District of Texas
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PER CURIAM

This case became moot after the trial court entered a final
judgment and before the plaintiff filed her notice of appeal. The court of
appeals dismissed, but it failed to vacate the trial court’s judgment. We
modify the court of appeals’ judgment to vacate the trial court’s
judgment and dismiss the case.
Courtney Alsobrook bought a home in 2004 but stopped making
the required mortgage payments in 2010. The mortgagee, MTGLQ
Investors, LP, set a foreclosure sale for November 6, 2018. Four days
before the sale, Alsobrook filed this suit seeking temporary and
permanent injunctive and declaratory relief. The trial court issued a
temporary restraining order one day before the scheduled foreclosure
sale, but Alsobrook did not seek a further injunction after the temporary
order eventually expired. Instead, MTGLQ moved for summary
judgment, arguing that an earlier judgment in favor of a prior mortgagee
permitted foreclosure and barred Alsobrook’s suit. The trial court
granted MTGLQ’s motion and denied Alsobrook’s subsequent new-trial
motion.
Before Alsobrook filed her notice of appeal, MTGLQ posted the
property for foreclosure sale and then purchased it by making the
highest bid at that sale. When Alsobrook later filed her appeal, MTGLQ
argued that Alsobrook’s loss of ownership of the property rendered the
appeal moot. ___ S.W.3d ___, 2021 WL 4958860, at *1 (Tex. App.—
Dallas Oct. 26, 2021). Concluding that a live controversy no longer
existed between the parties, the court of appeals agreed and “dismiss[ed]
the appeal without reaching the merits.” Id. at *3.
Alsobrook sought review in this Court. Although she concedes the
foreclosure sale rendered the case moot, she contends the court of
appeals should have vacated the trial court’s judgment and dismissed
the entire case for lack of subject matter jurisdiction. By dismissing the
appeal without vacating the underlying judgment, she argues, the court
of appeals effectively affirmed the trial court’s judgment. We agree.
We have long held that “when a case becomes moot on appeal, all
previous orders are [to be] set aside by the appellate court and the
case . . . dismissed.” Tex. Foundries, Inc. v. Int’l Moulders & Foundry
Workers’ Union, 248 S.W.2d 460, 461 (Tex. 1952). We recently reiterated
this long-standing rule. See Heckman v. Williamson County, 369 S.W.3d

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137, 162 (Tex. 2021) (“If a case is or becomes moot, the court must vacate
any order or judgment previously issued and dismiss the case for want
of jurisdiction.”). Earlier this year, we again noted our “usual practice”
is “to vacate the court of appeals’ judgment when a case become[s] moot
on appeal to this Court.” Tex. Dep’t of Fam. & Protective Servs. v. N.J.,
644 S.W.3d 189, 192 (Tex. 2022) (quoting Morath v. Lewis, 601 S.W.3d
785, 789 (Tex. 2020)). This is necessary because simply dismissing the
appeal “would have the effect of affirming the judgment of the lower
court without considering any assignments of error thereto.” Tex.
Foundries, 248 S.W.2d at 461.
Here, MTGLQ’s purchase of the property preceded Alsobrook’s
appeal. As the court of appeals correctly concluded, no live controversy
existed between the parties after the foreclosure, rendering Alsobrook’s
claims moot. 2021 WL 4958860, at *3 (“Alsobrook’s case has . . . become
moot and must be dismissed.”). The court of appeals thus correctly
concluded that dismissal was required. But, as explained, mootness on
appeal requires vacatur of the underlying judgment as well as dismissal
of the case. See Tex. Foundries, 248 S.W.2d at 461. The court of appeals
should have vacated the trial court’s judgment and dismissed the case.
See TEX. R. APP. P. 43.2(e); Morath, 601 S.W.3d at 792 (vacating the
lower court’s judgment and dismissing “the case”).
Alsobrook also requests that we vacate the court of appeals’
opinion. We typically do not vacate court of appeals’ opinions even when
the case has become moot, see N.J., 644 S.W.3d at 192 (citing Morath,
601 S.W.3d at 790), except in rare circumstances when “the public
interest would be served by a vacatur.” Morath, 601 S.W.3d at 791

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(quoting U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 26
(1994)). Alsobrook has not identified a public interest the court of
appeals’ opinion affects, nor have we. Moreover, although this case
became moot before Alsobrook filed the appeal, the court of appeals’
opinion only addressed the mootness question, and Alsobrook
acknowledges the opinion correctly determined that issue. Cf. id. at 792
(recognizing the threat of gamesmanship by “strategically timed
non-suits” by “the party who prevailed below” in “hopes of preserving a
favorable appellate precedent”). We therefore decline to vacate the court
of appeals’ opinion. See N.J., 644 S.W.3d at 193 (declining to vacate the
court of appeals’ opinion because the Court “d[id] not perceive that a
parent’s decision to voluntarily terminate his or her parental rights
would be motivated by a desire to manipulate precedent or any
gamesmanship whatsoever”).
For these reasons, without hearing oral argument pursuant to
Texas Rule of Appellate Procedure 59.1, we grant Alsobrook’s petition
for review, modify the court of appeals’ judgment to vacate the trial
court’s final judgment and dismiss the case, and affirm the judgment as
modified.

OPINION DELIVERED: November 18, 2022

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