Zachary Onuh v. Freo Texas LLC

• Court: Court of Appeals of Texas
• Decided: April 17, 2014
• Docket: 01-13-01092-CV
• Status: Published

Opinion

Opinion issued April 17, 2014

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-13-01092-CV ——————————— ZACHARY ONUH, Appellant V. FREO TEXAS LLC, Appellee

On Appeal from the County Court at Law No. 2 Harris County, Texas Trial Court Case No. 1040674

MEMORANDUM OPINION

In this forcible-detainer action, appellant, Zachary Onuh, appeals from the

trial court’s judgment granting possession of certain real property to appellee, Freo

Texas LLC. On February 14, 2014, Freo Texas moved to dismiss Onuh’s appeal

as moot, stating that, because Onuh “did not supersede enforcement of the trial court’s judgment,” a writ of possession was issued and “was then served and

possession of the Subject Property tendered to appellee.” We grant appellee’s

motion, vacate the trial court’s judgment, and dismiss the case.

The only issue in a forcible-detainer action is the right to actual possession

of the subject property; the merits of the title are not adjudicated. TEX. R. CIV. P.

510.3(e); see Wilhelm v. Fed. Nat’l Mortg. Ass’n, 349 S.W.3d 766, 768–69 (Tex.

App.—Houston [14th Dist.] 2011, no pet.). Therefore, 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. Hous. Auth. of the City of San Antonio, 198 S.W.3d 782, 786–87 (Tex.

2006); see Wilhelm, 349 S.W.3d at 768; 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.).

Freo Texas has moved to dismiss the appeal as moot, averring that it has

regained possession of the property and that Onuh “does not assert a potentially

meritorious claim of right to current, actual possession of the property.” See TEX.

R. APP. P. 10.1, 10.2. Onuh has not responded to Freo Texas’s motion and,

therefore, has failed to assert a potentially meritorious claim of right to current,

2 actual possession of the property. See Marshall, 198 S.W.3d at 787; Wilhelm, 349

S.W.3d at 768; Soza v. Fed. Home Loan Mortg. Corp., No. 01-11-00568-CV, 2013

WL 3148616, at *1 (Tex. App.—Houston [1st Dist.] June 18, 2013, no pet.)

(stating that appellant who failed to respond to appellee’s motion to dismiss had

failed to assert potentially meritorious claim of right to current, actual possession).

Accordingly, we grant appellee’s motion, vacate the trial court’s judgment,

and dismiss the case. 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 Chief Justice Radack and Justices Massengale and Huddle.