03-13-00362-CV
Tex. App.Dec 18, 2013Background
- This is a forcible-detainer action where Peck appeals a judgment awarding possession to FHLMC.
- FHLMC moved to dismiss the appeal as moot after possession was tendered following writs of possession.
- Judgment of possession was signed April 3, 2013; a writ issued April 11, 2013, but was recalled due to Peck's bankruptcy filing on April 19, 2013.
- After the bankruptcy stay was lifted, a new writ of possession issued and possession was tendered to FHLMC.
- The judgment did not set an amount for supersedeas bond; Peck did not supersede the judgment and filed motions to set bond amounts in April and May 2013.
- The court concluded Peck no longer possesses the property, and she did not demonstrate a potentially meritorious claim to current possession.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the appeal is moot because possession was tendered. | Peck contends the judgment should be reviewed and a bond issue set. | Once possession is tendered and no current possession claim exists, appeal is moot. | Appeal is moot; dismissal granted. |
| Whether the trial court erred by not setting a supersedeas bond amount. | The court failed to schedule a hearing and to set a bond amount in the judgment. | Bond timing is irrelevant when no current possession claim remains; the appeal remains moot. | Bond issue does not avoid mootness; no potential for current possession shown. |
Key Cases Cited
- Wilhelm v. Federal Nat’l Mortg. Ass’n, 349 S.W.3d 766 (Tex. App.—Houston [14th Dist.] 2011) (eviction issues focus on actual possession, not title)
- Marshall v. Housing Auth. of City of San Antonio, 198 S.W.3d 782 (Tex. 2006) (potential meritorious claim to current possession governs mootness)
- Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (mandamus burden and relief standards in Texas)