Ramiro G. Serrano v. Union Planters National Bank, N. A.--Appeal from County Court at Law No 7 of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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RAMIRO GUSTAVO SERRANO, ) No. 08-02-000346-CV

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Appellant, ) Appeal from

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v. ) County Court at Law No. 7

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UNION PLANTERS NATIONAL BANK, N.A., ) of El Paso County, Texas

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Appellee. ) (TC# 2002-J00024-7)

O P I N I O N

Ramiro Gustavo Serrano appeals from the trial court=s judgment entered in a forcible detainer action brought by Union Planters National Bank, N.A. (UPB). The trial court granted judgment for Union Planters and ordered a writ of possession. Pending before the Court is Serrano=s motion seeking to enjoin UPB from selling the property. We deny the motion for injunctive relief and dismiss the appeal as moot.

FACTUAL AND PROCEDURAL SUMMARY

Until recently, Serrano was the occupant of a residential property located in El Paso, Texas. On July 17, 2002, Union Planters National Bank obtained a judgment in the county court at law granting it possession of the property. Although Serrano filed a notice of appeal on August 9, 2002, he did not file a supersedeas bond. According to Serrano=s request for injunctive relief, a writ of possession has issued. We note that Serrano has filed a separate suit against UPB in the 34th District Court of El Paso alleging breach of contract. That suit is scheduled for trialon November 21, 2002.

JURISDICTION

A forcible detainer action is a procedure to determine the right to immediate possession of real property. See Tex.R.Civ.P. 746. It is intended to be a speedy, simple, and inexpensive means to obtain possession without resort to an action on the title. Scott v. Hewitt, 127 Tex. 31, 35, 90 S.W.2d 816, 818-19 (1936); Kemper v. Stonegate Manor Apartments, Ltd., 29 S.W.3d 362, 363 (Tex.App.--Beaumont 2000, pet. dism=d w.o.j.). Therefore, the only issue in such a proceeding is which party has the right to immediate possession of the property. Tex.R.Civ.P. 746; Cuellar v. Martinez, 625 S.W.2d 3, 5 (Tex.Civ.App.--San Antonio 1981, no writ). A judgment of a county court may not under any circumstances be stayed pending appeal unless, within ten days of signing of the judgment, the appellant files a supersedeas bond in an amount set by the county court. Tex.Prop.Code Ann. ' 24.007 (Vernon 2000).

This Court is empowered by Section 24.007 to stay the judgment of a county court in a forcible detainer action in order to protect our jurisdiction and to preserve the subject matter of the appeal. Kemper, 29 S.W.3d at 363; Chang v. Resolution Trust Corporation, 814 S.W.2d 543, 545 (Tex.App.--Houston [1st Dist.] 1991, no writ). However, this power may be exercised only where a supersedeas bond is filed. Kemper, 29 S.W.3d at 363. In the absence of a supersedeas bond, the judgment of the county court may not be stayed and the prevailing party may proceed to take possession. Id.; McCartney v. California Mortgage Service, 951 S.W.2d 549, 550 (Tex.App.--El Paso 1997, no writ). Once this has occurred, the case becomes moot. Kemper, 29 S.W.3d at 363. Given the limited issue presented in an appeal from a judgment granting a forcible detainer, we lack the authority to enjoin UPB from selling the subject property because the relief sought pertains to which party has title to the property. Furthermore, Serrano=s appeal is moot because he failed to file a supersedeas bond within ten days of the judgment and a writ of possession has been issued removing him from the premises. Consequently, his appeal must be dismissed. We deny the request for injunctive relief and dismiss the appeal as moot.

September 12, 2002

ANN CRAWFORD McCLURE, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

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