Opinion
No. 04-17-00839-CV
10-03-2018
Marilyn STEWART, Appellant v. FIESTA CITY REALTORS, Appellee
MEMORANDUM OPINION
From the County Court at Law No. 3, Bexar County, Texas
Trial Court No. 2017-CV-05536
Honorable David J. Rodriguez, Judge Presiding Opinion by: Sandee Bryan Marion, Chief Justice Sitting: Sandee Bryan Marion, Chief Justice Marialyn Barnard, Justice Patricia O. Alvarez, Justice VACATED
Appellant Marilyn Stewart ("Stewart") appeals the trial court's judgment in a forcible detainer action granting Appellee Fiesta City Realtors ("Fiesta City") possession of a residential property located in San Antonio, Texas. Because this appeal is moot, we vacate the judgment.
Background
Stewart and Fiesta City entered into a residential lease agreement whereby Stewart agreed to lease a residential property owned by Fiesta City from November 2016 through November 2017. In August 2017, Fiesta City initiated this forcible detainer suit, alleging Stewart violated the lease agreement by allowing two dogs to live at the property. The justice court entered judgment awarding restitution of the premises to Fiesta City.
Stewart appealed the judgment to the trial court. Following trial, the trial court entered judgment awarding immediate possession of the property to Fiesta City. The trial court subsequently entered a judgment nunc pro tunc to correct a typographical error in the original judgment. A writ of possession issued and, according to Stewart, sheriff's deputies evicted her from the property on December 20, 2017. Stewart appeals.
Discussion
As an initial matter, we must determine whether this appeal is moot. A forcible detainer action is intended to be a speedy, simple, and inexpensive means to obtain immediate possession of property. Marshall v. Hous. Auth. of San Antonio, 198 S.W.3d 782, 787 (Tex. 2006). Judgment of possession in a forcible detainer action is a determination of the right to immediate possession. Id. When a tenant is no longer in possession of the property and has not superseded the judgment of possession, her appeal is moot unless: (1) she timely and clearly expressed an intent to exercise the right of appeal, and (2) appellate relief is not futile. Id. 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 added). When a tenant's lease has expired and she identifies no basis for claiming a right to possession after that expiration, there is no longer a live controversy between the parties as to the right of current possession. Id.
In this case, Stewart did not post a supersedeas bond and was removed from the property on December 20, 2017. Although Stewart timely and clearly expressed her intent to appeal by filing a notice of appeal (erroneously titled "Writ of mandamus") in the trial court, any appellate relief regarding the right to current possession is futile. The lease agreement would have expired in November 2017, and Stewart does not identify any other basis for claiming a right to current, actual possession of the property. Therefore, this appeal is moot, and we must vacate the trial court's judgment. See id. at 788 ("One purpose of vacating the underlying judgment if a case becomes moot during appeal is to prevent prejudice to the rights of parties when appellate review of a judgment on its merits is precluded."); accord Devilbiss v. Burch, No. 04-16-00711-CV, 2018 WL 2418476, at *2 (Tex. App.—San Antonio May 30, 2018, no pet. h.) (mem. op.) ("[B]ecause the issue of possession is moot, we must vacate the trial court's judgment of possession.").
Conclusion
Because this appeal is moot, the trial court's judgment is vacated.
Sandee Bryan Marion, Chief Justice