Opinion issued April 17, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-01092-CV
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ZACHARY ONUH, Appellant
V.
FREO TEXAS LLC, Appellee
On Appeal from the County Court at Law No. 2
Harris County, Texas
Trial Court Case No. 1040674
MEMORANDUM OPINION
In this forcible-detainer action, appellant, Zachary Onuh, appeals from the
trial court’s judgment granting possession of certain real property to appellee, Freo
Texas LLC. On February 14, 2014, Freo Texas moved to dismiss Onuh’s appeal
as moot, stating that, because Onuh “did not supersede enforcement of the trial
court’s judgment,” a writ of possession was issued and “was then served and
possession of the Subject Property tendered to appellee.” We grant appellee’s
motion, vacate the trial court’s judgment, and dismiss the case.
The only issue in a forcible-detainer action is the right to actual possession
of the subject property; the merits of the title are not adjudicated. TEX. R. CIV. P.
510.3(e); see Wilhelm v. Fed. Nat’l Mortg. Ass’n, 349 S.W.3d 766, 768–69 (Tex.
App.—Houston [14th Dist.] 2011, no pet.). Therefore, although the failure to
supersede a forcible-detainer judgment does not divest an appellant of the right to
appeal, an appeal from a forcible-detainer action becomes moot if the appellant is
no longer in possession of the property, unless the appellant holds and asserts “a
potentially meritorious claim of right to current, actual possession” of the property.
Marshall v. Hous. Auth. of the City of San Antonio, 198 S.W.3d 782, 786–87 (Tex.
2006); see Wilhelm, 349 S.W.3d at 768; Gallien v. Fed. Home Loan Mortg. Corp.,
No. 01-07-00075-CV, 2008 WL 4670465, at *2–4 (Tex. App.—Houston [1st Dist.]
Oct. 23, 2008, pet. dism’d w.o.j.).
Freo Texas has moved to dismiss the appeal as moot, averring that it has
regained possession of the property and that Onuh “does not assert a potentially
meritorious claim of right to current, actual possession of the property.” See TEX.
R. APP. P. 10.1, 10.2. Onuh has not responded to Freo Texas’s motion and,
therefore, has failed to assert a potentially meritorious claim of right to current,
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actual possession of the property. See Marshall, 198 S.W.3d at 787; Wilhelm, 349
S.W.3d at 768; Soza v. Fed. Home Loan Mortg. Corp., No. 01-11-00568-CV, 2013
WL 3148616, at *1 (Tex. App.—Houston [1st Dist.] June 18, 2013, no pet.)
(stating that appellant who failed to respond to appellee’s motion to dismiss had
failed to assert potentially meritorious claim of right to current, actual possession).
Accordingly, we grant appellee’s motion, vacate the trial court’s judgment,
and dismiss the case. See Marshall, 198 S.W.3d at 785, 787, 790; Wilhelm, 349
S.W.3d at 769. We dismiss all other pending motions as moot.
PER CURIAM
Panel consists of Chief Justice Radack and Justices Massengale and Huddle.
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