Summary
holding appeal moot because tenant did not supersede judgment and was evicted even though trial court did not set supersedeas bond
Summary of this case from Ingram v. BarraganOpinion
No. 04-05-00324-CV
Delivered and Filed: January 25, 2006.
Appeal from the County Court at Law No. 2, Bexar County, Texas, Trial Court No. 301121, Honorable H. Paul Canales, Judge Presiding.
Dismissed.
Sitting: Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
Ivana Usatequi appeals the trial court's judgment granting possession of her former residence to Harold Meller, deceased, and Barbara Meller. Usatequi purchased the real property at issue from the Mellers. Upon Usatequi's default in monthly payments according to the contract of deed, the Mellers filed a petition for forcible entry and detainer. After a jury trial in the Justice Court, judgment was entered in favor of the Mellers. Usatequi appealed to the County Court at Law. After a jury trial in the county court at law, judgment was again entered in favor of the Mellers. The Mellers then filed a post-judgment motion for enforcement of the judgment, requesting that a writ of possession issue. The trial court granted the motion, issued a writ of possession, and ordered the constable to execute the writ. Usatequi appeals. However, instead of filing a supersedeas bond as required by section 24.007 of the Texas Property Code and Texas Rule of Appellate Procedure 24.1(b), Usatequi filed a document titled "Appeal Bond."
Because Usatequi did not properly supersede the judgment and because a writ of possession has issued, the question of possession is moot. As such, we must dismiss the appeal.
According to section 24.007 of the Texas Property Code, the judgment of a county court in an eviction suit may not under any circumstances be stayed pending appeal unless, within ten days of the signing of the judgment, the appellant files a supersedeas bond in the amount set by the county court:
A final judgment of a county court in an eviction suit may not be appealed on the issue of possession unless the premises in question are being used for residential purposes only. A judgment of a county court may not under any circumstances be stayed pending the 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. In setting the supersedeas bond the county court shall provide protection for the appellee to the same extent as in any other appeal, taking into consideration the value of rents likely to accrue during the appeal, damages which may occur as a result of the stay during appeal, and other damages or amounts as the court may deem appropriate.
Tex. Prop. Code Ann. § 24.007 (Vernon 2005). An appellate court's power to stay the judgment of the county court in a forcible detainer action is limited; it is only empowered to stay the judgment of the county court in a forcible detainer action if a supersedeas bond has been filed. Kemper v. Stonegate Manor Apartments, Ltd., 29 S.W.3d 362, 363 (Tex.App.-Beaumont 2000, pet. dism'd w.o.j.); McCartney v. Cal. Mortgage Serv., 951 S.W.2d 549, 550 (Tex.App.-El Paso 1997, no writ); Marshall v. Hous. Auth. of the City of San Antonio, No. 04-02-00821-CV, 2003 WL 22794301, at *1 (Tex.App.-San Antonio 2003, pet. granted) (review granted on the issue of whether section 24.007 should apply to indigent parties); Serrano v. Union Planters Nat'l Bank, N.A., No. 08-02-00346-CV, 2002 WL 31033079, at *1 (Tex.App.-El Paso 2002, no pet.). Otherwise the judgment of the county court may not be stayed and the prevailing party may proceed to take possession. Kemper, 29 S.W.3d at 363; Marshall, 2003 WL 22794301, at *1. Once this occurs, the case becomes moot. Kemper, 29 S.W.3d at 363; Marshall, 2003 WL 22794301, at * 1. A justiciable controversy between the parties must exist at every stage of the legal proceedings, including the appeal, or the case is moot. James v. Hubbard, 21 S.W.3d 558, 560 (Tex.App.-San Antonio 2000, no pet.); Marshall, 2003 WL 22794301, at *1. We are prohibited from deciding moot controversies. Kemper, 29 S.W.3d at 363.
Here, although Usatequi filed a document titled "Appeal Bond," which she and two other individuals signed, it did not comply with the requirements of rule 24.1(b) of the Texas Rules of Appellate Procedure. See Tex.R.App.P. 24.1(b). Furthermore, the record does not reflect that the trial court set an amount for a supersedeas bond as required by section 24.007 of the Texas Property Code. Therefore, because Usatequi failed to file a supersedeas bond within ten days of the judgment and a writ of possession has issued removing her from the premises, this appeal is moot.
Usatequi argues in her brief that the trial court's judgment was not final. We disagree. Here, the judgment clearly disposed of all parties and claims. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001).
Accordingly, we dismiss this appeal as moot.