John Rady v. CitiMortgage, Inc.

• Court: Court of Appeals of Texas
• Decided: March 9, 2012
• Docket: 03-11-00734-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-11-00734-CV

John Rady, Appellant

v.

CitiMortgage, Inc., Appellee

FROM THE COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY NO. C-1-CV-11-010098, HONORABLE ERIC SHEPPERD, JUDGE PRESIDING

MEMORANDUM OPINION

In this forcible-detainer action, John Rady, as assignee in interest of Illiyana Gibson

and an occupant of the property at issue, appeals from the trial court’s judgment of possession in

favor of appellee CitiMortgage, Inc. On January 30, 2012, CitiMortgage filed a motion to dismiss

Rady’s appeal as moot, stating that Rady failed to file a supersedeas bond, a writ of possession was

issued, and CitiMortgage took possession of the subject property on January 9, 2012. See Tex. Prop.

Code Ann. § 24.007 (West Supp. 2011).

“The only issue in an action for forcible detainer is the right to actual possession

of the premises, and the merits of title shall not be adjudicated.” Wilhelm v. Fannie Mae,

349 S.W.3d 766, 768 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (citing Tex. R. Civ. P. 746;

Marshall v. Housing Auth. of City of San Antonio, 198 S.W.3d 782, 785 (Tex. 2006)). Although the

failure to supersede a forcible-detainer judgment does not divest a defendant of his right to appeal when the defendant is no longer in possession of the premises, an appeal from the judgment in that

case is moot unless the defendant asserts a “potentially meritorious claim of right to current, actual

possession.” Marshall, 198 S.W.3d at 787; Wilhelm, 349 S.W.3d at 768.

On February 8, 2012, the clerk of this Court requested a response from Rady by

February 17, 2012, to CitiMortgage’s motion to dismiss Rady’s appeal as moot because

CitiMortgage had possession of the subject property. Rady has not filed a response and, therefore,

has failed to assert a potentially meritorious claim of right to current, actual possession. See

Marshall, 198 S.W.3d at 787; Wilhelm, 349 S.W.3d at 768. Accordingly, we grant the motion and

dismiss the appeal as moot.

__________________________________________

Melissa Goodwin, Justice

Before Justices Puryear, Henson and Goodwin

Dismissed as Moot

Filed: March 9, 2012