      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-14-00242-CV



                                      Ronda Floyd, Appellant

                                                   v.

                               21st Mortgage Corporation, Appellee


           FROM THE COUNTY COURT AT LAW NO. 1 OF TRAVIS COUNTY,
       NO. C-1-CV-13-010581, HONORABLE DAVID J. PHILLIPS, JUDGE PRESIDING



                              MEMORANDUM OPINION


                In this forcible-detainer action, appellant Ronda Floyd appeals from the trial court’s

judgment granting possession of certain real property to appellee 21st Mortgage Corporation.

See Tex. Prop. Code § 24.002 (statutory remedy of forcible detainer). On October 16, 2014,

21st Mortgage filed a motion to dismiss this appeal for lack of jurisdiction. Specifically, 21st Mortgage

argues that this appeal has become moot because Floyd failed to supersede enforcement of the

judgment, the trial court issued a writ of possession, and upon execution of the writ, 21st Mortgage

obtained possession of the property.

                The only issue in a forcible-detainer action is the right to actual possession of the

premises. Tex. R. Civ. P. 510.3(e); see also Marshall v. Housing Auth. of the City of San Antonio,

198 S.W.3d 782, 787 (Tex. 2006). Under the Texas Property Code, a judgment in a forcible-detainer

action “may not under any circumstances be stayed pending appeal unless, within ten days of the
signing of the judgment, the appellant files a supersedeas bond in an amount set by the county

court.” Tex. Prop. Code § 24.007. An appellant’s failure to supersede a forcible-detainer judgment

will not divest an appellant of her right to appeal, but does subject the judgment to enforcement,

including the issuance of a writ of possession. Marshall, 198 S.W.3d at 786-87. When the appellant

ceases to have actual possession of the property, an appeal of a judgment in a forcible-detainer action

becomes moot unless the appellant holds and asserts “a potentially meritorious claim of right to

current, actual possession.” Id. at 787.

                Here, the record establishes that the trial court signed the judgment of possession

on March 24, 2014; Floyd did not supersede the judgment, and 21st Mortgage subsequently

obtained possession of the property by execution of a writ of possession.1 Floyd has not responded

to 21st Mortgage’s assertion that this appeal is moot, but concedes in her brief that she is no longer

in possession of the property. In addition, the substance of Floyd’s appellate arguments is that the

underlying deed of trust and foreclosure, through which 21st Mortgage obtained title to the

property, were wrongful and invalid. These challenges, even if meritorious, cannot be resolved in

this forcible-detainer action and cannot form the basis of a “potentially meritorious claim of right


        1
          The record shows that the judgment of possession did not set an amount for supersedeas.
Although Floyd filed a motion to set bond, it was not filed until April 16, 2014, well after the 10-day
statutory deadline for filing a supersedeas bond had passed. See Tex. Prop. Code § 24.007.
Furthermore, Floyd does not dispute that she is no longer in actual possession of the property and
any complaint she may have regarding the trial court’s failure to set an amount for supersedeas
bond cannot provide “a potential basis for a claim” that she is “entitled to current, actual possession.”
See Wilhelm v. Federal Nat’l Mortg. Ass’n, 349 S.W.3d 766, 768 (Tex. App.—Houston [14th Dist.]
2011, no pet.); see also Peck v. Federal Home Loan Mortg. Corp., No. 03-13-00362-CV, 2013 WL
6805665, at *2 (Tex. App.—Austin Dec. 18, 2013, no pet.) (mem. op.) (concluding that appellant
failed to provide potential basis for claim of entitlement to current, actual possession where issues
on appeal were limited to trial court’s failure to set amount for supersedeas bond).

                                                   2
to current, actual possession.” See Wilhelm v. Federal Nat’l Mortg. Ass’n, 349 S.W.3d 766, 768-69

(Tex. App.—Houston [14th Dist.] 2011, no pet.) (concluding that pending suit for wrongful

foreclosure did not provide a “potential basis for a claim” that appellant was “entitled to current,

actual possession”); Resendez v. FV REO I, LLC, No. 03-13-00201-CV, 2014 WL 411720, at *2

(Tex. App.—Austin Jan. 31, 2014, no pet.) (mem. op.) (concluding that claim of wrongful foreclosure

could not be resolved in forcible-detainer action and could not provide basis for “potentially

meritorious claim of right to current, actual possession” because claim was independent of issue

of right to immediate possession).

               Because Floyd is no longer in possession of the property and has not asserted a

potentially meritorious claim of right to current, actual possession, Floyd’s appeal is moot. See

Marshall, 198 S.W.3d at 787. Accordingly, we grant appellee’s motion and dismiss the appeal

as moot.



                                              __________________________________________

                                              Scott K. Field, Justice

Before Chief Justice Rose, Justices Goodwin and Field

Dismissed on Appellee’s Motion

Filed: January 30, 2015




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