Opinion
01-22-00043-CV
11-01-2022
DAVID GLOW AND MARGARET GRAHAM, Appellants v. EROS ADRAGNA, Appellee
On Appeal from the County Civil Court at Law No. 1 Harris County, Texas Trial Court Case No. 1178539
Panel consists of Chief Justice Radack and Justices Landau and Hightower.
MEMORANDUM OPINION
PER CURIAM
In this forcible-detainer action, appellants, David Glow and Margaret Graham, appeal from the county court's judgment granting possession of certain real property to appellee, Eros Adragna. 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 Authority 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 appellants did not supersede the judgment and that appellants no longer have possession of the property at issue in the underlying forcible detainer action. On August 2, 2022, this Court issued a letter informing appellants that the record indicated that the appeal is moot because appellee now has possession of the subject property. We requested that appellants file a response to whether the appeal was moot. Appellants did not respond, and therefore, have 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.