Opinion
NO. 01-16-00764-CV
04-04-2017
GENEVA W. COLBERT, Appellant v. GLENNA FAYE STAFFORD OLIVER, Appellee
On Appeal from the County Court at Law No. 3 Harris County, Texas
Trial Court Case No. 1081843
MEMORANDUM OPINION
In this forcible-detainer action, appellant, Geneva W. Colbert, appeals from the county court's judgment granting possession of certain real property to appellee, Glenna Faye Stafford Oliver. We dismiss the appeal as moot.
The only issue in a forcible-detainer action is the right to actual possession of the subject property; "the merits of the title shall not be adjudicated." TEX. R. CIV. P. 746; see Wilhelm v. Fed. Nat. Mortg. Ass'n, 349 S.W.3d 766, 768-69 (Tex. App.—Houston [14th Dist.] 2011, no pet.). Therefore, although the failure to supersede a forcible-detainer judgment does not divest an appellant of the right to appeal, an appeal from a forcible-detainer action becomes moot if the appellant is no longer in possession of the property, unless the appellant holds and asserts "a potentially meritorious claim of right to current, actual possession" of the property. Marshall v. Housing Auth. of the City of San Antonio, 198 S.W.3d 782, 786-87 (Tex. 2006); see Wilhelm, 349 S.W.3d at 768; Gallien v. Fed. Home Loan Mortg. Corp., No. 01-07-00075-CV, 2008 WL 4670465, at *2-4 (Tex. App.—Houston [1st Dist.] Oct. 23, 2008, pet. dism'd w.o.j.) (mem. op.).
The record reflects that appellant did not supersede the judgment, a writ of possession was executed on November 14, 2016, and that appellant no longer has possession of the property at issue in the underlying forcible detainer action. On January 19, 2017, this Court issued a letter informing appellant that the record indicates that the appeal is moot because appellee now has possession of the subject property. We requested that appellant file a response to whether the appeal was moot. Appellant did not respond, and, therefore, has failed to assert a potentially meritorious claim of right to current, actual possession of the property. See Marshall, 198 S.W.3d at 787; Wilhelm, 349 S.W.3d at 768; Soza v. Fed. Home Loan Mortg. Corp., No. 01-11-00568-CV, 2013 WL 3148616, at *1 (Tex. App.—Houston [1st Dist.] June 18, 2013, no pet.) (mem. op.) (stating that appellant who failed to respond to appellee's motion to dismiss had failed to assert potentially meritorious claim of right to current, actual possession).
Accordingly, we dismiss the case as moot. See Marshall, 198 S.W.3d at 785, 787, 790; Wilhelm, 349 S.W.3d at 769; Bey v. ASD Fin., Inc., No. 05-14-00534-CV, 2014 WL 4180933, at *1 (Tex. App.—Dallas Aug. 11, 2014, no pet.) (mem. op.) (dismissing appeal of forcible detainer action as moot because appellant no longer possessed property at issue); TEX. R. APP. P. 42.3(c). We dismiss all other pending motions as moot.
PER CURIAM Panel consists of Chief Justice Radack and Justices Brown and Lloyd.