                               Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION

                                         No. 04-17-00839-CV

                                         Marilyn STEWART,
                                              Appellant

                                                  v.

                                    FIESTA CITY REALTORS,
                                            Appellee

                      From the County Court at Law No. 3, Bexar County, Texas
                                  Trial Court No. 2017-CV-05536
                           Honorable David J. Rodriguez, Judge Presiding

Opinion by:       Sandee Bryan Marion, Chief Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Marialyn Barnard, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: October 3, 2018

VACATED

           Appellant Marilyn Stewart (“Stewart”) appeals the trial court’s judgment in a forcible

detainer action granting Appellee Fiesta City Realtors (“Fiesta City”) possession of a residential

property located in San Antonio, Texas. Because this appeal is moot, we vacate the judgment.

                                             Background

           Stewart and Fiesta City entered into a residential lease agreement whereby Stewart agreed

to lease a residential property owned by Fiesta City from November 2016 through November 2017.

In August 2017, Fiesta City initiated this forcible detainer suit, alleging Stewart violated the lease
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agreement by allowing two dogs to live at the property. The justice court entered judgment

awarding restitution of the premises to Fiesta City.

        Stewart appealed the judgment to the trial court. Following trial, the trial court entered

judgment awarding immediate possession of the property to Fiesta City. The trial court

subsequently entered a judgment nunc pro tunc to correct a typographical error in the original

judgment. A writ of possession issued and, according to Stewart, sheriff’s deputies evicted her

from the property on December 20, 2017. Stewart appeals.

                                                Discussion

        As an initial matter, we must determine whether this appeal is moot. A forcible detainer

action is intended to be a speedy, simple, and inexpensive means to obtain immediate possession

of property. Marshall v. Hous. Auth. of San Antonio, 198 S.W.3d 782, 787 (Tex. 2006). Judgment

of possession in a forcible detainer action is a determination of the right to immediate possession.

Id. When a tenant is no longer in possession of the property and has not superseded the judgment

of possession, her appeal is moot unless: (1) she timely and clearly expressed an intent to exercise

the right of appeal, and (2) appellate relief is not futile. Id. 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. (emphasis added). When a 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.

        In this case, Stewart did not post a supersedeas bond and was removed from the property

on December 20, 2017. Although Stewart timely and clearly expressed her intent to appeal by

filing a notice of appeal (erroneously titled “Writ of mandamus”) in the trial court, any appellate

relief regarding the right to current possession is futile. The lease agreement would have expired

in November 2017, and Stewart does not identify any other basis for claiming a right to current,
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actual possession of the property. Therefore, this appeal is moot, and we must vacate the trial

court’s judgment. See id. at 788 (“One purpose of vacating the underlying judgment if a case

becomes moot during appeal is to prevent prejudice to the rights of parties when appellate review

of a judgment on its merits is precluded.”); accord Devilbiss v. Burch, No. 04-16-00711-CV, 2018

WL 2418476, at *2 (Tex. App.—San Antonio May 30, 2018, no pet. h.) (mem. op.) (“[B]ecause

the issue of possession is moot, we must vacate the trial court’s judgment of possession.”).

                                           Conclusion

       Because this appeal is moot, the trial court’s judgment is vacated.

                                                 Sandee Bryan Marion, Chief Justice




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