Opinion
04-23-00542-CV
07-11-2023
Santos MOLINAR-OWENS, Appellant v. FIFTH THIRD BANK BY MERGER FIFTH THIRD MORTGAGE COMPANY, Appellee
From the County Court at Law No. 3, Bexar County, Texas Trial Court No. 2023CV00079 Honorable Cesar Garcia, Judge Presiding
ORDER
LUZ ELENA D. CHAPA, JUSTICE
This appeal arises out of a forcible detainer action filed by Santos Molinar-Owens. The clerk's record shows on May 5, 2023, the county court at law signed an order awarding possession of a leased premises to appellee Fifth Third Bank by Merger Fifth Third Mortgage Company and granting a writ of possession. The clerk's record also shows the writ of possession was issued on May 17, 2023 and executed on June 6, 2023. There is nothing in the record showing Molinar-Owens filed a supersedeas bond to suspend the order of possession.
We have a duty to examine our own jurisdiction. Guillen v. U.S. Bank, N.A., 494 S.W.3d 861,865 (Tex. App.-Houston [14th Dist.] 2016, no pet.). In general, we lack jurisdiction to decide moot appeals. Briones v. Brazos Bend Villa Apts., 438 S.W.3d 808, 812 (Tex. App.- Houston [14th Dist.] 2014, no pet.). If a former tenant has appealed but has not superseded the judgment and is no longer in possession of the property, the appeal is moot unless there is a basis for concluding the appeal is not futile. Marshall v. Hous. Auth. of San Antonio, 198 S.W.3d 782, 787 (Tex. 2006). This is because the judgment of possession determines only the right to immediate possession and is not a final determination of whether an eviction is wrongful. Marshall, 198 S.W.3d at 787. As explained by this court, "[n]o other issues, controversies or rights of the parties related to the property . . . can be adjudicated in a detainer suit." AAA Free Move Ministorage, LLC v. OIS Invs., Inc., 419 S.W.3d 522, 526 (Tex. App.-San Antonio 2013, pet. denied). With respect to the issue of possession, appellate relief is not futile if the tenant holds and asserts "a potentially meritorious claim of right to current, actual possession" of the property. Id.
Based on the foregoing, Fifth Third Bank filed a motion to dismiss, arguing this appeal is moot because the writ of possession had been executed and Molinar-Owens was no longer in possession of the property. Because the record shows Molinar-Owens did not pay a supersedeas bond to suspend the order of possession and the writ of possession was subsequently executed, this appeal appears moot unless Molinar-Owens can identify a basis for claiming a right to actual possession of the property.
We therefore order Molinar-Owens to file a response in this court by July 26, 2023 explaining why Fifth Third Bank's motion to dismiss should not be granted and this appeal dismissed as moot. A failure to timely respond and show this court why this appeal is not moot will result in a dismissal of this appeal. All other appellate deadlines are suspended until further order of this court.