Otito Egbunike v. Citimortgage, Inc.

Opinion

Opinion issued October 4, 2012

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-11-00777-CV ——————————— OTITO EGBUNIKE, Appellant V. CITIMORTGAGE, INC., Appellee

On Appeal from the County Court at Law No. 2 Fort Bend County, Texas Trial Court Cause No. 11-CCV-045229

MEMORANDUM OPINION

In this forcible-detainer action, appellant, Otito Egbunike, appeals from the

trial court’s judgment of possession in favor of appellee, Citimortgage, Inc.1 On

1 In a forcible-detainer action, “the only issue shall be as to the right to actual possession; and the merits of the title shall not be adjudicated.” TEX. R. CIV. P. August 17, 2012, Citimortgage filed a motion to dismiss Egbunike’s appeal as

moot, stating that Egbunike failed to file a supersedeas bond, a writ of possession

was issued, and Citimortgage took possession of the subject property on August 1,

2012. See TEX. PROP. CODE ANN. § 24.007 (West Supp. 2011).

Although the failure to supersede a forcible-detainer judgment does not

divest an appellant of the right to appeal, an appeal from a forcible-detainer action

becomes moot if the appellant is no longer in possession of the property, unless the

appellant holds and asserts “a potentially meritorious claim of right to current,

actual possession” of the property. Marshall v. Housing Authority of the City of

San Antonio, 198 S.W.3d 782, 786–87 (Tex. 2006); see Wilhelm v. Fed. Nat.

Mortg. Ass’n, 349 S.W.3d 766, 768 (Tex. App.—Houston [14th Dist.] 2011, no

pet.); Gallien v. Fed. Home Loan Mortg. Corp., No. 01-07-00075-CV, 2008 WL

4670465, at *2–4 (Tex. App.—Houston [1st Dist.] Oct. 23, 2008, pet. dism’d

w.o.j.).

On August 21, 2012, the Clerk of this Court requested a response from

Egbunike, by August 31, 2012, to Citimortgage’s motion to dismiss. Egbunike has

not filed a response and, therefore, has failed to assert a potentially meritorious

claim of right to current, actual possession of the property. See Marshall, 198

S.W.3d at 787; Wilhelm, 349 S.W.3d at 768; Rady v. CitiMortgage, Inc., No. 03-

746; see Wilhelm v. Fed. Nat. Mortg. Ass’n, 349 S.W.3d 766, 768–69 (Tex. App.—Houston [14th Dist.] 2011, no pet.). 2 11-00734-CV, 2012 WL 753128, at *1 (Tex. App.—Austin March 9, 2012, no

pet.). Because Egbunike is no longer in possession of the property and has not

asserted a potentially meritorious claim of right to current, actual possession,

Egbunike’s appeal is moot. See Wilhelm, 349 S.W.3d at 769.

Accordingly, we grant appellee’s motion, vacate the county court’s

judgment, and dismiss the appeal as moot. See Marshall, 198 S.W.3d at 785, 787,

790; Wilhelm, 349 S.W.3d at 769. We dismiss all other pending motions as moot.

PER CURIAM Panel consists of Justices Jennings, Higley, and Sharp.