Opinion
04-23-00542-CV
08-23-2023
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
Sitting: Luz Elena D. Chapa, Justice, Irene Rios, Justice Beth Watkins, Justice
MEMORANDUM OPINION
PER CURIAM
MOTION TO DISMISS GRANTED; DISMISSED FOR LACK OF JURISDICTION
This appeal arises out of a forcible detainer action seeking to evict appellant Santos Molinar-Owens from a residential property. Molinar-Owens appeals the county court's order awarding possession of the property to appellee Fifth Third Bank by merger Fifth Third Mortgage Company and granting Fifth Third Bank a writ of possession. The clerk's record shows Molinar-Owens did not request or file a supersedeas bond to stay the order of possession; instead, Molinar-Owens filed a pro se notice of appeal on May 10, 2023. The clerk's record also shows on May 17, 2023, the Bexar County Clerk issued a writ of possession, which a Bexar County sheriff's deputy executed on June 6, 2023.
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 If a former tenant has appealed but has not superseded the judgment of possession and is no longer in possession of the property, the appeal is moot unless there is a basis for concluding the appeal is not futile.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, 786-87 (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 Molinar-Owens did not file a supersedeas bond to stay the order of possession, the writ of possession was executed, and Molinar-Owens was no longer in possession of the property. Because the appeal appeared moot, we ordered Molinar-Owens to file a response explaining why we should not grant Fifth Third Bank's motion to dismiss and dismiss the appeal as moot. Molinar-Owens filed a response, arguing the county court had a duty to set a supersedeas bond amount, and by not setting an amount, it deprived her of the opportunity to stay enforcement of the order of possession. Molinar-Owens also requested we compel the parties to mediation. Fifth Third Bank filed a reply in support of its motion to dismiss arguing there is no basis for Molinar-Owens's argument and opposing her request to compel mediation.
Section 24.007 of the Texas Property Code provides, "A judgment of a county court may not under any circumstances be stayed pending appeal unless, within 10 days of the signing of the judgment, the appellant files a supersedeas bond in an amount set by the county court." Tex. Prop. Code § 24.007. "Thus, if a proper supersedeas bond is not filed, the judgment may be enforced, including issuance of a writ of possession evicting the tenant from the premises." Marshall, 198 S.W.3d at 786.
According to Molinar-Owens, under section 24.007, the county court had a duty to set a supersedeas bond amount. However, there is nothing in the statute imposing a duty on the trial court to set a supersedeas bond each time it signs an order of possession. Instead, the statute limits when a court can stay an order of possession to cases where an appellant files a supersedeas bond. See Tex. Prop. Code § 24.007; Marshall, 198 S.W.3d at 786 . Only in cases where a party has requested a bond have Texas courts imposed a duty on a county court to set a supersedeas bond amount. See In re Smitherman, 533 S.W.3d 907, 908-09 (Tex. App.-Houston [14th Dist.] 2017, orig. proceeding.) (directing county court to set supersedeas bond amount within ten day deadline after relator had filed emergency motion asking county court to set bond); see also In re Cooper, No. 05-18-01286-CV, 2018 WL 6583363, at *3 (Tex. App.-Dallas Dec. 14, 2018, orig. proceeding) (mem. op.) (concluding trial court's failure to rule on relator's emergency motion to set supersedeas bond before statutory deadline deprived relator of opportunity to post bond to stay execution of judgment of possession). And most recently, this court has rejected the contention "that the county court at law should have set a supersedeas bond regardless of whether [appellant] requested one." Herrera v. Inverterra Holdings, LLC, No. 04-22-00794-CV, 2023 WL 2297423, at *2 (Tex. App.-San Antonio Mar. 1, 2023, no pet.) (mem. op.).
Here, there is nothing in the record showing Molinar-Owens requested a supersedeas bond. Instead, the record shows Molinar-Owens did not request or file a supersedeas bond, and a Bexar County sheriff's deputy executed the writ of possession on June 6, 2023, evicting Molinar-Owens from the premises. Because the writ of possession was executed and Molinar-Owens has not shown she has a potentially meritorious claim of right to actual possession of the property, we conclude Molinar-Owens's appeal is moot. See Marshall, 198 S.W.3d at 786-87. We therefore grant Fifth Third Mortgage Company's motion to dismiss and dismiss this appeal for want of jurisdiction. We further deny Molinar-Owens's request to compel the parties to mediation.