Texas Causes of Action & Affirmative Defenses

Texas Causes of Action & Affirmative Defenses

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Wednesday, January 11, 2012

The limited nature of eviction proceedings in justice court (and appeals from them)

  
EVICTION SUITS ARE DIFFERENT
   
Forcible Detainer dispute can easily become moot because the only issue is the right to current possession of the premises  
   
The only issue in a forcible detainer action is the right to immediate possession, not the merits of title to the property. See Tex. R. Civ. P. 746; Marshall v. Housing Auth. of City of San Antonio, 198 S.W.3d 782, 785 (Tex. 2006). If a defendant in a forcible detainer action is no longer in possession of the premises, then an appeal from the forcible detainer judgment is moot unless the defendant asserts "a potentially meritorious claim of right to current, actual possession of the [premises]." The pendency of a claim to title to the property does not prevent the court in the forcible detainer action from determining that the plaintiff has the superior right to immediate possession of the property. Wilhelm v. Fed. Nat. Mortg. Ass'n, 349 S.W.3d 766, 768 (Tex. App.-Houston [14th Dist.] 2011, no pet.); see also Villalon v. Bank One, 176 S.W.3d 66, 70 (Tex. App.-Houston [1st Dist.] 2004, pet. denied) (mortgagee established right to immediate possession in forcible detainer action following its purchase of property at foreclosure sale, despite allegations of failure to comply with Fair Debt Collection Practice Act).
  
SOURCE: HOUSTON COURT OF APPEALS – 14th DIST – 1/5/12
Forcible Detainer Action [per Supreme Court of Texas]
The only issue in a forcible detainer action is the right to actual possession of the premises. TEX. R. CIV. P. 746; see also TEX. PROP. CODE § 24.001. Some courts of appeals have held that if a tenant fails to post a supersedeas bond pursuant to Texas Property Code Section 24.007, the appellate court lacks jurisdiction.[1] Other courts of appeals have concluded that if a tenant vacates the premises, (1) the tenant's appeal is moot because the court can no longer grant effectual relief,[2] or (2) the issue of possession is moot, but the court can still consider issues unrelated to possession.[3] At least one court of appeals has concluded that a tenant's appeal is not moot even though the tenant vacated the premises.[4]

Read more on moot appeal in eviction case from Houston …

This appeal arises from a judgment signed December 9, 2010, in a de novo appeal from the justice court in a forcible detainer action. The county court at law awarded possession of appellant's residence to the mortgage holder following a foreclosure. Appellant did not supersede the judgment, and a writ of possession was executed on November 29, 2011, evicting appellant from the property. See Tex. Prop. Code § 24.007.
On December 2, 2011, appellee filed a motion to dismiss the appeal as moot. See Tex. R. App. P. 42.3(a); see also FDIC v. Nueces Cty., 886 S. W.2d 766, 767 (Tex. 1994) (holding that mootness doctrine limits courts to deciding cases in which an actual controversy exists). Appellant has not responded to the motion.
Because appellant is no longer in possession of the property and he does not assert a potentially meritorious claim of right to current, actual possession of the property, his appeal is moot. See Marshall, 198 S.W.3d at 787; Wilhelm, 349 S.W.3d at 769.
Appellee's motion is granted. Accordingly, we vacate the county court's judgment and dismiss this appeal as moot. See Marshall, 198 S.W.3d at 790.

Motion Granted; Judgment Vacated, Appeal Dismissed.
SOURCE: HOUSTON COURT OF APPEALS – 14th DIST – 1/5/12