Larry Keith DeVere v. Gary Schuetze

Opinion

Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-26-00178-CV

Larry Keith DEVERE,

Appellant

v.

Gary SCHUETZE,

Appellee

From the 451st Judicial District Court, Kendall County, Texas Trial Court No. 26-102

Honorable Kirsten Cohoon, Judge Presiding

PER CURIAM

Sitting: Rebeca C. Martinez, Chief Justice H. Todd McCray, Justice

Velia J. Meza, Justice

Delivered and Filed: August 19, 2026 DISMISSED FOR LACK OF JURISDICTION Larry DeVere appeals from a trial court judgment awarding appellee Gary Schuetze possession of residential property, unpaid rent, attorney’s fees, court costs, prejudgment interest, and post-judgment interest. Because DeVere abandoned any challenge to the possession award, raises no issue concerning the monetary portions of the judgment, and his remaining complaint presents no live controversy, we dismiss the appeal for lack of jurisdiction.

BACKGROUND

In this forcible detainer suit, the trial court rendered judgment awarding Schuetze possession of the premises at issue. The judgment also awarded Schuetze unpaid rent, prejudgment interest, attorney’s fees, court costs, and post-judgment interest. After filing his notice of appeal and several emergency motions, DeVere narrowed the scope of the appeal by filing a “Notice of Partial Voluntary Dismissal of Specific Relief Requests,” waiving “all possessory stay applications.” In his merits brief, DeVere states that “[t]he sole surviving issue presented for appellate review” concerns the trial court’s handling of his Texas Rule of Civil Procedure 145 statement of inability to afford payment of court costs.

MOOTNESS

A controversy must exist between the parties at every stage of a suit, including on appeal.

Tex. Dep’t of Fam. & Protective Services v. Grassroots Leadership, Inc., 717 S.W.3d 854, 862- 866 (Tex. 2025) (extensively discussing mootness doctrine). If a controversy ceases to exist on appeal, the appeal becomes moot and the appellate court lacks subject matter jurisdiction. Id. at 873; Metro. Transit Auth. of Harris Cnty. v. Douglas, 544 S.W.3d 486 (2018).

POSSESSION

The predominant issue in a forcible detainer action is the right to actual possession of the property. TEX. R. CIV. P. 510.3(e); Marshall v. Hous. Auth. of the City of San Antonio, 198 S.W.3d 782, 785 (Tex. 2006). An appeal from the possession portion of a forcible detainer judgment becomes moot when possession is no longer at issue because the appellate court can no longer grant effectual relief regarding possession. Id. at 787. Here, DeVere expressly abandoned any request for possessory relief, stating in his brief that he waived all possessory stay applications and narrowed the appeal to a single Rule 145 issue. Accordingly, any challenge to the possession award

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is no longer before us. Because possession is no longer at issue, any controversy concerning that portion of the judgment is moot. See id.

MONETARY JUDGMENT

Unlike possession, the monetary portions of an eviction judgment—including unpaid rent, attorney’s fees, court costs, and interest—may continue to present a live controversy after possession has been resolved. Spencer v. Gilbert, No. 03-09-00207-CV, 2010 WL 3064346, at *2 (Tex. App.—Austin Aug. 4, 2010, pet. dism’d w.o.j.). Here, the judgment awards Schuetze unpaid rent, prejudgment interest, attorney’s fees, court costs, and post-judgment interest.

Devere, however, raises no issue challenging any of those monetary awards. Instead, he expressly limits his appeal to the trial court’s handling of his Rule 145 statement of inability to afford payment of court costs. Because DeVere presents no complaint regarding the only portions of the judgment that remain capable of affecting the parties’ rights, no live controversy exists concerning those portions of the judgment.

RULE 145 COMPLAINT

DeVere’s sole issue asserts the trial court failed to properly recognize and rule on his amended Rule 145 statement of inability to afford payment of court costs. See TEX. R. CIV. P. 145.

Even assuming, that DeVere could establish error under Rule 145, 1 such a determination would 0F

afford him no effectual appellate relief. A Rule 145 statement of inability to pay court costs is a

1 Appellant appears to conflate two distinct concepts. Rule 145 governs a party’s ability to proceed on appeal without prepaying court costs. It does not relieve a party of the obligation to post a supersedeas bond to suspend enforcement of a judgment. See TEX. PROP. CODE ANN. § 24.007 (“[a] judgment of a county court in an eviction suit may not under any circumstances be stayed pending appeal unless…the appellant files a supersedeas bond.”). Thus, although DeVere argues that the trial court’s refusal to accept his Rule 145 affidavit “permitted an $8,000 monetary judgment” against him, the record shows only that the trial court set the supersedeas bond at $8,000. The judgment does not condition that amount on appellant’s ability to pay costs, nor does it indicate that the Rule 145 ruling affected the supersedeas requirement. In fact, indigency is irrelevant to supersedeas. See Morse v.Fed. Nat’l Mortgage Ass’n, No. 05-18-00999- CV, 2018 WL 4784585, at *1 (Tex. App.—Dallas Oct. 4, 2018, no pet.) (holding “[a] defendant’s indigence does not relieve him of the obligation to file a supersedeas bond”).

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procedural cost governing mechanism that does not independently confer or preserve appellate jurisdiction. See TEX. R. CIV. P. 145.

DeVere has abandoned any challenge to possession and does not contest the monetary portions of the judgment. Consequently, a determination regarding the Rule 145 proceedings would not alter the judgment or affect a live controversy between the parties. Therefore, any ruling we could make on the propriety of the court’s action in regard to Devere’s statement of inability to afford payment of court costs would have no practical effect. See Hous. Auth. of City of San Antonio v. Zambrano, No. 04-24-00288-CV, 2025 WL 2058090, at *1 (Tex. App.—San Antonio July 23, 2025, no pet.) (citing State ex rel. Best v. Harper, 562 S.W.3d 1, 6 (Tex. 2018)).

CONCLUSION

Because no live controversy remains for this court to resolve, we conclude that we lack subject matter jurisdiction over this appeal and dismiss it for lack of jurisdiction.

PER CURIAM