Opinion
04-23-00859-CV
02-07-2024
Harold Jerome THORTON, III and All Other Occupants, Appellant[1] v. FRANKEL FAMILY TRUST D/B/A Villas at Oakwell Farms, Appellee
From the County Court at Law No. 3, Bexar County, Texas Trial Court No. 2023-CV-04366 Honorable David J. Rodriguez, Judge Presiding
Sitting: Irene Rios, Justice Beth Watkins, Justice Liza A. Rodriguez, Justice
MEMORANDUM OPINION
PER CURIAM
DISMISSED FOR LACK OF JURISDICTION
This is an appeal in a forcible detainer case. Appellant appealed the trial court's judgment, which awarded possession of the real property to appellee. Included in the clerk's record on appeal is the trial court's judgment and a writ of possession. The record includes a constable's return, indicating the writ of possession has been executed and possession delivered to appellee. The record does not show that appellant filed a supersedeas bond to suspend the judgment.
A case becomes moot if, at any stage of the proceedings, a controversy ceases to exist between the parties. See Marshall v. Hous. Auth. of City of San Antonio, 198 S.W.3d 782, 787 (Tex. 2006). "When a tenant is no longer in possession of the property and has not superseded the judgment of possession, [the tenant's] appeal is moot unless: (1) [the tenant] timely and clearly expressed an intent to exercise the right of appeal, and (2) appellate relief is not futile." Stewart v. Fiesta City Realtors, No. 04-17-00839-CV, 2018 WL 4760151, at *1 (Tex. App.-San Antonio Oct. 3, 2018, no pet.) (mem. op.). "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. (emphasis in original) (quoting Marshall, 198 S.W.3d at 787). Issues independent of possession may be reviewable, even if the issue of possession is moot. See Cavazos v. San Antonio Hous. Auth., No. 04-09-00659-CV, 2010 WL 2772450, at *2 (Tex. App.-San Antonio July 14, 2010, no pet.) (mem. op.).
Here, the record appears to show that appellant no longer has possession of the real property. Additionally, it is not apparent from the record whether appellant holds and asserts a potentially meritorious claim of right to current, actual possession of the property or whether there are reviewable issues independent of possession. Accordingly, on December 1, 2023, we ordered appellant to show cause in writing by December 22, 2023 why this appeal should not be dismissed for lack of jurisdiction. See Tex. R. App. P. 42.3(a), 43.2(f), 44.3. In our order, we cautioned appellant that if he did not respond within the time provided, we would dismiss this appeal. See Tex. R. App. P. 42.3(c).
Appellant did not respond to our December 1, 2023 order. We therefore dismiss this appeal for lack of jurisdiction. In light of our disposition of this appeal, we deny appellant's October 4, 2023 Motion for New Trial and October 31, 2023 Motion to Stay Writ of Possession as moot.