Billie J. Hernandez, Sara Hernandez, and All Occupants v. Green Tree Servicing, Llc.

NUMBER 13-13-00492-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
____________________________________________________________
BILLIE J. HERNANDEZ, SARA HERNANDEZ,
AND ALL OCCUPANTS, Appellants,
v.
GREEN TREE SERVICING LLC, Appellee.
____________________________________________________________
On appeal from the County Court at Law
of San Patricio County, Texas.
____________________________________________________________
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Garza
Memorandum Opinion Per Curiam
In this forcible-detainer action, appellants, Billie J. Hernandez, Sara Hernandez,
and all occupants, attempt to appeal from an order denying their motion to reconsider and
motion for new trial signed by the trial court on August 22, 2013. On October 11, 2013,
appellee filed a motion to dismiss the appeal as moot, stating that a writ of possession
was executed, appellants vacated the property voluntarily, the constable delivered
possession of the property to appellee on September 25, 2013, and appellants do not
assert a potentially meritorious claim of right to current and actual possession of the
property. See TEX. PROP. CODE ANN. § 24.007 (West Supp. 2012).
“The only issue in an action for forcible detainer is the right to actual possession of
the premises, and the merits of title shall not be adjudicated.” Wilhelm v. Fannie Mae,
349 S.W.3d 766, 768 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (citing Tex. R. Civ.
P. 746; Marshall v. Housing Auth. of City of San Antonio, 198 S.W.3d 782, 785 (Tex.
2006)). Although the failure to supersede a forcible-detainer judgment does not divest a
defendant of his right to appeal when the defendant is no longer in possession of the
premises, an appeal from the judgment in that case is moot unless the defendant asserts
a “potentially meritorious claim of right to current, actual possession.” Marshall, 198
S.W.3d at 787; Wilhelm, 349 S.W.3d at 768.
On October 21, 2013, the Clerk of the Court requested a response from appellants
by October 31, 2013. Appellants have not filed a response. Absent any assertion of a
potentially meritorious claim of right to current, actual possession, we grant appellee’s
motion and dismiss the appeal as moot. See Marshall, 198 S.W.3d at 787; Wilhelm, 349
S.W.3d at 768.
PER CURIAM
Delivered and filed the 5th
day of December, 2013.
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