

Judgment Vacated, Appeal Dismissed, and
Opinion filed August 25, 2011.
 
In
The
Fourteenth
Court of Appeals

NO. 14-10-01205-CV

Donald G.
Wilhelm, Appellant 
v.
Federal
National Mortgage Association, its Successors and Assigns, Appellees 

On Appeal from
the County Court at Law No. 2
Brazoria County, Texas
Trial Court
Cause No. CI043646

 
OPINION 
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
precedent from the Supreme Court of Texas, because the former homeowner is no
longer in possession of the premises and because 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
Mae”) filed suit in justice court for forcible detainer against Donald G. Wilhelm. 
Fannie Mae sought possession of residential property inhabited by Wilhelm in Brazoria
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 and
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 of 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 affidavit 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, the 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
separate 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 county court denied the motion.  Wilhelm did not file
a supersedeas bond.  Possession 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.
According to Wilhelm, his
affidavit, as attached to his response to Fannie Mae’s motion for summary
judgment, raised fact issues which should have precluded summary 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 action 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, 198 S.W.3d 782, 785 (Tex. 2006).  If a
supersedeas bond in the amount set by the trial court is not filed, the
judgment in a forcible-detainer action may be enforced and a writ of possession
may be executed evicting the defendant from the premises in question.  See Tex. Prop. Code Ann. § 24.007 (West
2000); Marshall, 198 S.W.3d at 786.  In the case under review, Wilhelm
did not file a supersedeas bond in the amount set by the trial court, and
Fannie Mae obtained possession of the Property under a writ of possession.  
Failure to supersede the judgment does not divest
Wilhelm of his right to appeal.  See Marshall, 198 S.W.3d at 786–87.  But,
the Supreme Court of Texas has held that if a defendant in a forcible-detainer
action is no longer in possession of the premises, then an appeal from the
forcible-detainer judgment is moot unless the defendant asserts “a potentially
meritorious claim of right to current, actual possession of the [premises].”  See
id. at 787.
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 Possession,” addresses the issuance and execution of writs of
possession and execution and the superseding of writs of possession.  See id. 
This rule does not 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, 198 S.W.3d at 787; Gallien v. Fed. Home
Loan Mortg. Corp., No. 01-07-00219-CV, 2008 WL 4670465, at *4 (Tex.
App.—Houston [1st Dist.] Oct. 23, 2008, pet. dism’d w.o.j.) (mem. op.).  The
pendency of a district-court suit in which Wilhelm claims title to the Property
and asserts claims for wrongful foreclosure does not prevent this
forcible-detainer action from proceeding.  See Gallien, 2008 WL 4670465,
at *4.  The pendency of this district court suit does not provide a potential
basis for a claim by Wilhelm that he is entitled to current, actual possession
of the Property.  See id.  Finally, Wilhelm’s assertion that the county
court granted summary judgment before discovery was complete does not provide a
potential basis for a claim by Wilhelm that he is entitled to current, actual
possession of the Property.  
Conclusion
Because Wilhelm is no longer in possession of the
Property and because he does not assert a potentially meritorious claim of
right to current, actual possession of the Property, Wilhelm’s appeal is moot. 
See Marshall, 198 S.W.3d at 787; Gallien, 2008 WL 4670465, at
*2–4.  Because we are dismissing the appeal as moot, the issue of the
supersedeas amount is also moot.  See Beltway Green P’ship v. Arbor Capital
and Investments Co., No. 01-06-00487-CV, 2007 WL 2005085, at *6 (Tex.
App.—Houston [1st Dist.] Jul. 12, 2007, no pet.) (mem. op.); Continental Oil
Co. v. Lesher,  500 S.W.2d 183, 186 (Tex. Civ. App.—Houston [1st Dist.]
1973, orig. proceeding).  Accordingly, we vacate the county court’s judgment
and dismiss this appeal as moot.  See Marshall, 198 S.W.3d at 790.  
 
                                                                                    
                                                                        /s/        Kem
Thompson Frost
                                                                                    Justice
 
 
 
Panel consists of Justices Frost, Jamison, and McCally.

