Avery Setzer and Sanda Setzer v. Branch Banking and Trust Company

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-12-00064-CV
Avery Setzer and Sanda Setzer, Appellants
v.
Branch Banking and Trust Company, Appellee
FROM THE COUNTY COURT AT LAW NO. 4 OF WILLIAMSON COUNTY
NO. 11-1850-CC4, HONORABLE JOHN McMASTER, JUDGE PRESIDING
MEMORANDUM OPINION
Appellants Avery Setzer and Sanda Setzer appeal the trial court’s judgment in a
forcible detainer suit that awarded possession of certain real property to appellee Branch Banking
and Trust Company. As a preliminary matter, appellee argues that this appeal has become moot
because the Setzers voluntarily vacated the subject property before the execution of a writ of
possession.
The purpose of a forcible detainer action is to obtain immediate possession of
property. See Scott v. Hewitt, 90 S.W.2d 816, 818-19 (1936). Judgment of possession in a forcible
detainer action does not determine whether an eviction is wrongful but does determine the right to
immediate possession. See Marshall v. Housing Auth. of the City of San Antonio, 198 S.W.3d 782,
787 (Tex. 2006); see also Tex. R. Civ. P. 510.3(e) (“only issue” before justice court in eviction cases
is “right to actual possession and not title”). An appeal from the judgment in 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. Id. at 787; see Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001) (holding that case
becomes moot if a controversy ceases to exist between the parties at any stage of the proceedings).
Here, the constable’s return on the writ of possession for the subject property states
that the “premises had been vacated prior to execution.” Further, the Setzers did not respond to the
appellee’s argument that this appeal is moot and did not assert any potentially meritorious claim
of right to current, actual possession of the property.1 Accordingly, we dismiss this appeal as moot.
Jeff Rose, Justice
Before Chief Justice Jones, Justices Rose and Goodwin
Dismissed as Moot
Filed: December 20, 2013
1
Additionally, the Setzers’ brief references an unsuccessful suit in federal court on their
wrongful foreclosure claims. See Setzer v. Richards, No. A-11-CA-214-LY, 2012 WL 32943, at *9
(W.D. Tex. Jan. 5, 2012) (magistrate’s report and recommendation of dismissal to district court).
2