Donald G. WILHELM, Appellant,
v.
FEDERAL NATIONAL MORTGAGE ASSOCIATION, its Suсcessors and Assigns, Appellees.
Court of Appeals of Texas, Houston (14th Dist.).
Donald Wilhelm, Pearland, pro se.
*767 Robert L. Negrin, Houston, for appellees.
Panel consists of Justices FROST, JAMISON, and McCALLY.
OPINION
KEM THOMPSON FROST, Justice.
This appeal arises from a final summary-judgment in a de novo appeal from the justice court in a forcible-detainer case. The county court at law awarded possession of a residence to the mortgage holder following a foreclosure. On appeal, the homeowner challenges the trial court's summary judgment and its order setting the amount needed to supersede the judgment. Under рrecedent from the Supreme Court of Texas, because the former homeowner is no longer in possession of the premises and becаuse he has not asserted a potentially meritorious claim of right to possession of the premises, this appeal is moot. Accordingly, we vacate the county court at law's judgment and dismiss this appeal as moot.
FACTUAL AND PROCEDURAL BACKGROUND
Federal National Mortgage Association (hereinafter "Fannie Mаe") filed suit in justice court for forcible detainer against Donald G. Wilhelm. Fannie Mae sought possession of residential property inhabited by Wilhelm in Brazоria County, Texas (hereinafter "Property"). Following a trial in justice court, a jury found in favor of Wilhelm, and the justice court rendered a take-nothing judgment in his favor.
Fannie Mae timely appealed to the county court at law. Wilhelm responded, asserting counterclaims for wrongful foreclosure аnd eviction, fraud, and unjust enrichment for which he sought actual and punitive damages. Wilhelm also filed a no-evidence motion for summary judgment, which the county court denied.
Fannie Mae filed a traditional motion for summary judgment, claiming it was entitled to judgment as a matter of law because no genuine issues оf material fact existed. Fannie Mae attached a number of documents in support of its motion, including: a note signed in 1999 by Wilhelm and Michelle Wilhelm payable to Southwest Bank of Texas, N.A. for purchase of the Property; a Deed of Trust for the Property granting Southwest Bank of Texas a first-lien security interest in the Property; a substitute Trustee's Deed, conveying title in the Property to JPMorgan Chase Bank, National Association following a non-judicial foreclosure sale; and a special warranty deed, conveying title in the Property from JPMorgan Chase Bank, National Association to Fannie Mae.
In response, Wilhelm referred to a pending suit he had filed against Fannie Mae in state district court and claimed that he was not provided proper notice relating to the foreclosure of his mortgage. Wilhelm asserted that discovery was incomplete. He attached an affidаvit in support of his motion along with the justice court's judgment and letters from Chase Home Finance, notifying Wilhelm of default in December 2009.
In an order dated August 16, 2010, thе county court rendered summary judgment in favor of Fannie Mae, granting Fannie Mae possession of the Property. In the judgment, the county court decreed that a writ of possession would issue if Wilhelm and all other occupants did not vacate the premises within six days of the final summary judgment. In a separаte order, the county court struck Wilhelm's counterclaims for lack of jurisdiction.
The county court determined that the amount of bond needed to supersede the judgment was $41,000. Wilhelm filed a motion seeking to lower that amount. The *768 county court denied the motion. Wilhelm did not file a supersedeas bond. Pоssession of the Property was delivered to Fannie Mae by execution of a writ of possession, and Wilhelm vacated the premises. Wilhelm timely appealed the county court's judgment to this court.
ANALYSIS
In a single appellate issue, Wilhelm raises the following four arguments in support of his contention that the county court erred in granting summary judgment in favor of Fannie Mae and awarding possession of the Property to Fannie Mae:
(1) The trial court's summary judgment violated Texas Rule of Civil Procedure 755;
(2) Summary judgment was improper because the county court lacked jurisdiction over the matter given that Wilhelm initiated a suit to quiet title against Fannie Mae in state district court;
(3) Summary judgment was improper because discovery was incomplete; and
(4) The supersedeas bond amount was unreasonable.
Aсcording to Wilhelm, his affidavit, as attached to his response to Fannie Mae's motion for summary judgment, raised fact issues which should have precluded summаry judgment.
Is Wilhelm's appeal moot?
As a preliminary matter, we address Fannie Mae's argument that this court lacks jurisdiction because this appeal is moot. The only issue in an aсtion for forcible detainer is the right to actual possession of the premises, and the merits of title shall not be adjudicated. See TEX.R. CIV. P. 746; Marshall v. Housing Auth. of City of San Antonio,
Failure to supersede the judgment does not divest Wilhelm of his right to appeal. See Marshall,
Wilhelm asserts that the trial court's summary judgment violated Texas Rule of Civil Procedure 755. See TEX.R. CIV. P. 755. But this rule, entitled "Writ of Pоssession," addresses the issuance and execution of writs of possession and execution and the superseding of writs of possession. See id. This rule does nоt relate to when summary judgment is appropriate in a forcible-detainer action, nor does this rule provide a potential basis for a claim by Wilhelm that he is entitled to current, actual possession of the Property.
The pendency of Wilhelm's lawsuit in the district court does not prevent the court in the forcible-detainer action from determining that Fannie Mae has the superior right to immediate possession of the Property. See Marshall,
CONCLUSION
Because Wilhelm is no longer in possession of the Property and because he does not аssert a potentially meritorious claim of right to current, actual possession of the Property, Wilhelm's appeal is moot. See Marshall,