Cortlandt Overbay v. Frankel Family Trust D/B/A Sedona Ranch Apartments ( 2024 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-23-00918-CV
Cortlandt OVERBAY,
Appellant
v.
FRANKEL FAMILY TRUST D/B/A Sedona Ranch Apartments,
Appellee
From the County Court at Law No. 3, Bexar County, Texas
Trial Court No. 2023-CV-05195
Honorable David J. Rodriguez, Judge Presiding
PER CURIAM
Sitting: Beth Watkins, Justice
Liza A. Rodriguez, Justice
Lori I. Valenzuela, Justice
Delivered and Filed: February 7, 2024
DISMISSED FOR WANT OF JURISDICTION
This is an appeal in a forcible detainer action in which the clerk’s record shows the county
court at law signed a judgment of possession in favor of appellee on October 6, 2023. The clerk’s
record does not show that appellant paid a supersedeas bond to stay execution of the judgment.
The record shows the county court at law subsequently issued a writ of possession to enforce the
October 6 judgment, and the writ of possession was executed on November 9, 2023. The officer’s
return states that on the date the writ was executed, appellant’s personal possessions were removed
04-23-00918-CV
from the premises, the locks were changed, and the property manager took possession of the
premises.
The only issue in a forcible detainer action is the right to actual possession of the property.
See TEX. R. CIV. P. 510.3(e); Marshall v. Hous. Auth. of the City of San Antonio, 198 S.W.3d 782,
785 (Tex. 2006); see also TEX. PROP. CODE ANN. §§ 24.001–.002. A judgment of possession in
such an action determines only the right to immediate possession and is not a final determination
of whether an eviction was wrongful. Marshall, 198 S.W.3d at 787. When a forcible detainer
defendant fails to pay a supersedeas bond in the amount set by the county court at law, the
judgment may be enforced and a writ of possession may be executed, evicting the defendant from
the property. See TEX. PROP. CODE ANN. § 24.007; TEX. R. CIV. P. 510.13; Marshall, 198 S.W.3d
at 786. If a forcible detainer defendant fails to supersede the judgment and loses possession of the
property, the appeal is moot unless he: (1) timely and clearly expressed his intent to appeal; and
(2) asserted “a potentially meritorious claim of right to current, actual possession of the
[property].” See Marshall, 198 S.W.3d at 786–87.
Because the record appeared to show that appellant did not pay a supersedeas bond to stay
execution of the October 6, 2023 judgment and that the writ of possession was subsequently
executed, we ordered appellant to file a written response by January 12, 2024 explaining why this
appeal should not be dismissed as moot. Appellant did not file a response to our order.
Accordingly, we dismiss this appeal.
PER CURIAM
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