Opinion
NO. 01-16-01001-CV
10-17-2017
W.M. ROBERSON, Appellant v. ANTHONY SAINT VAL, Appellee
On Appeal from the County Civil Court at Law No. 3 Harris County, Texas
Trial Court Case No. 1085226
MEMORANDUM OPINION
In this forcible-detainer action, appellant, W.M. Roberson, appeals from the trial court's judgment granting possession of certain real property to appellee, Anthony Saint Val. 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." See Wilhelm v. Fed. Nat'l 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 June 22, 2017, and appellant no longer has possession of the property at issue in the underlying forcible detainer action. On August 10, 2017, this Court notified 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 addressing whether the appeal was moot. Appellant responded that he had a meritorious claim, arguing that (1) the trial court did not set a supersedeas bond; (2) the trial court improperly granted a post-answer default judgment; and (3) appellee's debt foreclosure and title is void due to a four-year statute of limitations.
Appellant's first two arguments concern complaints about the trial court, but appellant has failed to properly and timely raise these issues below, and they do not show a potentially meritorious claim of right to current, actual possession of the property. See Peck v. Fed. Home Loan Mortg. Corp., No. 03-13-00362-CV, 2013 WL 6805665, at *2 (Tex. App.—Austin Dec. 18, 2013, no pet.) (mem. op.) (concluding that trial court's failure to set amount for supersedeas bond did not provide potentially meritorious claim of right to current, actual possession). Appellant's third argument alleges that appellee did not have valid title. But appellee's alleged lack of proper title does not show that appellant has a potentially meritorious claim of right to current, actual possession of the property. See Hernandez v. US Bank Trust, NA for LSF8 Master Participation Trust, No. 08-16-00290-CV, 2017 WL 1953291, at *2 (Tex. App.—El Paso May 11, 2017, no pet.) (mem. op.) (stating that issue is whether appellant holds and asserts potentially meritorious claim of right to possession of property in his own right). Appellant's arguments fail 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.
Accordingly, we dismiss the appeal 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 Keyes and Caughey.