Fourth Court of Appeals
San Antonio, Texas
August 10, 2022
No. 04-22-00409-CV
Jim KIRKLAND,
Appellant
v.
V & S TOTAL TRADE, LLC,
Appellee
From the County Court at Law No. 3, Bexar County, Texas
Trial Court No. 2022 CV01025
Kevin Henderson, Judge Presiding
ORDER
This is an appeal in a forcible detainer case. Appellant appealed the trial court’s
judgment, which awarded possession of the real property to appellee. Included in the clerk’s
record on appeal is the trial court’s judgment and a writ of possession. The record does not show
that appellant filed a supersedeas bond to suspend the judgment. Nor does the record include a
sheriff’s return, indicating the writ of possession has been executed and possession delivered to
appellee.
A case becomes moot if, at any stage of the proceedings, a controversy ceases to exist
between the parties. See Marshall v. Hous. Auth. of City of San Antonio, 198 S.W.3d 782, 787
(Tex. 2006). “When a tenant is no longer in possession of the property and has not superseded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.” Stewart v. Fiesta City
Realtors, No. 04-17-00839-CV, 2018 WL 4760151, at *1 (Tex. App.—San Antonio Oct. 3,
2018, no pet.) (mem. op.). “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 in original). Issues independent of possession may be reviewable, even if the issue of
possession is moot. See Cavazos v. San Antonio Hous. Auth., No. 04-09-00659-CV, 2010 WL
2772450, at *2 (Tex. App.—San Antonio July 14, 2010, no pet.) (mem. op.). Here, it is
unclear whether appellant currently holds possession of the real property at issue in this appeal.
It also is not apparent from the record whether appellant holds and asserts a potentially
meritorious claim of right to current, actual possession of the property.
Accordingly, we ORDER appellant to show cause in writing no later than August 25,
2022 why this appeal should not be dismissed for lack of jurisdiction. See TEX. R. APP. P.
42.3(a), 43.2(f), 44.3. If appellant does not respond by August 25, 2022, this appeal is subject to
dismissal. All other appellate deadlines are SUSPENDED pending further order of this court.
_________________________________
Rebeca C. Martinez, Chief Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 10th day of August, 2022.
___________________________________
MICHAEL A. CRUZ, Clerk of Court