Sheila Olbrei and Richard Olbrei v. Victoria Coman AKA Victoria Lemay AKA Victoria Lane

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-18-00552-CV
Sheila OLBREI and Richard Olbrei,
Appellants
v.
Victoria COMAN aka Victoria Lemay aka Victoria Lane,
Appellee
From the County Court at Law No 1, Guadalupe County, Texas
Trial Court No. 2018CV0196
Honorable Robin V. Dwyer, Judge Presiding
PER CURIAM
Sitting: Sandee Bryan Marion, Chief Justice
Karen Angelini, Justice
Marialyn Barnard, Justice
Delivered and Filed: October 31, 2018
VACATED
Appellant Victoria Coman aka Victoria Lemay aka Victoria Lane (“Coman”) appeals the
trial court’s judgment in a forcible detainer action granting Appellees Sheila Olbrei and Richard
Olbrei (jointly, “Olbrei”) possession of a residential property located at 3438 Northern Heights in
Schertz, Texas. Because this appeal is moot, we vacate the judgment.
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04-18-00552-CV
Background
On May 16, 2018, Olbrei initiated this forcible detainer suit in the justice court against
Coman and Michael Lemay (“Lemay”). After the justice court entered final judgment of eviction
on June 5, 2018, Coman appealed to the trial court.
A trial was held on August 1, 2018, at which Coman initially appeared with counsel, who
withdrew, and then proceeded pro se. After hearing the evidence, the trial court signed a final
judgment for forcible eviction and detainer, finding Coman and Lemay were guilty of forcible
detainer and Olbrei was entitled to a writ of possession “due to nonpayment of rent into the
registry.” The trial court set the supersedeas bond at $5,000.
A writ of possession issued, and the constable’s return reflects that the writ of possession
was executed on August 9, 2018. The clerk’s record does not reflect that Coman posted a
supersedeas bond. Coman timely filed a notice of appeal from the trial court’s judgment.
On October 4, 2018, this court entered an order stating, in part:
Because the clerk’s record reflects that [Coman] is no longer in possession of the
subject premises and did not file a supersedeas bond, [Coman] is ORDERED to
show cause in writing within fifteen days of the date of this order that she has “a
potentially meritorious claim of right to current, actual possession” of the subject
premises and this appeal, therefore, is not moot.
(emphasis in original). On October 22, 2018, Coman filed a response to the order to show cause,
stating, in part:
Appellant Victoria Coman appealed because she has never leased or rented the
property at 3438 Northern Heights Schertz, TX 78108. Victoria Coman’s brother
Joseph Russell was buying the home 3438 Northern Heights Schertz from the
Olbrei’s, Olbrei’s owner financing the property to Joseph Russell for him + his
family, sister Victoria Coman.
In her cover letter enclosing the response, Coman stated her brother Joseph Russell “died from a
tragic brain trauma injury from a fall at work.”
04-18-00552-CV
Discussion
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, Coman did not post a supersedeas bond and was removed from the subject
property on August 9, 2018. Although Coman timely and clearly expressed her intent to appeal by
filing a notice of appeal in the trial court, any appellate relief regarding the right to current
possession is futile. In her response to this court’s order to show cause, Coman stated she never
leased or rented the subject property and did not identify any other basis for claiming a right to
current, 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.”).
04-18-00552-CV
Conclusion
Because this appeal is moot, the trial court’s judgment is vacated.
PER CURIAM