Thelma Garza v. Deutsche Bank National Trust Company ( 2022 )

Fourth Court of Appeals
San Antonio, Texas
December 21, 2022
No. 04-22-00673-CV
Thelma GARZA et al,
Appellant
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY,
Appellees
From the County Court at Law No. 15, Bexar County, Texas
Trial Court No. 2022CV01903
Honorable Melissa Vara, Judge Presiding
ORDER
This appeal arises out of a forcible detainer action. Appellant Robert Stricker appeals the
county court’s judgment awarding possession of a premises to appellee Deutsche Bank National
Trust Company, as trustee for Morgan Stanley ABS Capital I Inc. Trust 2006 HE8 Mortgage
Pass-Through Certificates, Series 2006-HE8. The clerk’s record reflects the county court signed
the order awarding possession on September 26, 2022, granting a writ of possession, but not
including any monetary award. A writ of possession was issued October 4, 2022. On October 20,
2022, the county court denied a motion to stay the execution of the writ of possession. The
record does not show that Appellant filed a supersedeas bond to suspend the judgment. A
supplemental clerk’s record shows the writ of possession was executed on November 28, 2022
and possession was delivered to appellee.
We have a duty to examine our own jurisdiction. Guillen v. U.S. Bank, N.A., 494 S.W.3d
861,865 (Tex. App.—Houston [14th Dist.] 2016, no pet.). In general, we lack jurisdiction to
decide moot appeals. Briones v. Brazos Bend Villa Apts., 438 S.W.3d 808, 812 (Tex. App.—
Houston [14th Dist.] 2014, no pet.). If a former tenant has appealed but has not superseded the
judgment and is no longer in possession of the property, the appeal is moot unless there is a basis
for concluding the appeal is not futile. Marshall v. Hous. Auth. of San Antonio, 198 S.W.3d 782,
787 (Tex. 2006). This is because the judgment of possession determines only the right to
immediate possession and is not a final determination of whether an eviction is wrongful.
Marshall, 198 S.W.3d at 787. As explained by this court, “[n]o other issues, controversies or
rights of the parties related to the property . . . can be adjudicated in a detainer suit.” AAA Free
Move Ministorage, LLC v. OIS Invs., Inc., 419 S.W.3d 522, 526 (Tex. App.—San Antonio 2013,
pet. denied). With respect to the issue of possession, appellate relief is not futile if the tenant
holds and asserts “a potentially meritorious claim of right to current, actual possession” of the
property. Id. When the tenant’s lease has expired and she identifies no basis for claiming a right
to possession after that expiration, there is no longer a live controversy between the parties as to
the right of current possession. Id. However, we may consider an appeal that is otherwise moot if
the record establishes that vacating the underlying judgment will not cure adverse collateral
consequences of the judgment. Id. at 788-89.
Here, Stricker did not file a supersedeas bond and he is no longer in possession of the
premises. Accordingly, this appeal appears to be moot unless Stricker can identify a basis for
claiming a right to actual possession of the property. We therefore order Robert Stricker to file a
response in this court by January 5, 2023 explaining why this appeal should not be dismissed as
moot. A failure to timely respond and show this court why this appeal is not moot will result in a
dismissal of this appeal.
_________________________________
Luz Elena D. Chapa, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 21st day of December, 2022.
___________________________________
MICHAEL A. CRUZ, Clerk of Court