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Pannell v. Invum Three LLC

Court of Appeals of Texas, Fourteenth District

June 20, 2019

DAN MICHAEL PANNELL AND EVERLASTING ARMS, Appellants
v.
INVUM THREE LLC, Appellee

          On Appeal from the County Civil Court at Law No. 3 Harris County, Texas Trial Court Cause No. 1106690

          Panel consists of Justices Christopher, Hassan and Poissant.

          MEMORANDUM OPINION

          MEAGAN HASSAN JUSTICE.

         Appellants Dan Michael Pannell and Everlasting Arms appeal the trial court's judgment for possession granted in favor of Appellee Invum Three LLC. We affirm.

         Background

         This appeal arises out of the foreclosure and sale of real property located at 6144 Imogene Street in Houston. The property was sold at a substitute trustee's sale on May 2, 2017 to Invum. Under the terms of the deed of trust, Pannell became a tenant at sufferance. Invum sent a Notice to Vacate Pursuant to Foreclosure to "Pannell and/or all occupants" on May 15, 2017. Invum's authorized agent, Jose Portillo, filed a petition for eviction on May 22, 2017 in justice court on behalf of GS Remodeling LLC as the plaintiff and against Dan M. Pannell and Everlasting Arms as defendants. Portillo filed an amended petition for eviction on June 13, 2017 in justice court, naming Invum Three LLC as the plaintiff.

         Appellants removed the case to federal district court on June 19, 2017. The federal district court remanded the case on September 12, 2017 and concluded "removal of the case was improper and this Court lacks subject matter jurisdiction." In its order, the federal district court acknowledged an amended petition had been "filed in state court, amending the name of Plaintiff to Invum Three, LLC." Pannell then filed a Notice of Stay on October 12, 2017, stating he "commence[d] a chapter 13 bankruptcy case." The bankruptcy court signed an order on January 16, 2018, dismissing Pannell's bankruptcy case with prejudice.

         By December 1, 2017, Invum had hired an attorney to represent it in its forcible detainer suit in justice court. The justice court signed an eviction judgment on February 2, 2018, which states: (1) Plaintiff Invum Three LLC and Defendants Dan M. Pannell and Everlasting Arms were present and announced ready for trial; (2) Invum was represented by its attorney; and (3) the "court, having heard evidence, determined judgment is for the Plaintiff for possession."

         Appellants appealed to the county civil court at law. Invum filed an Amended Petition for Forcible Detainer in the county court. The county court held a bench trial on March 19, 2018. Pannell appeared pro se and Invum was again represented by its attorney. After considering the evidence and arguments presented, the county court awarded possession to Invum and signed a judgment for possession. Appellants filed a timely appeal.

         Analysis

         I. Mootness

         As a preliminary matter, we address Invum's argument that Appellants' appeal should be dismissed as moot because (1) "Appellants did not post a supersedeas bond;" (2) "a Writ of Possession was issued on April 4, 2018 and executed;" and (3) Invum "is now in possession of the subject property."

         The only issue in an action for forcible detainer is the right to actual possession of the premises. See Marshall v. Hous. Auth. of City of San Antonio, 198 S.W.3d 782, 785 (Tex. 2006). If a supersedeas bond in the amount set by the trial court is not filed, the judgment in a forcible detainer action may be enforced and a writ of possession may be executed evicting the defendant from the premises in question. See id. at 786. Failure to supersede the judgment does not divest the defendant of his right to appeal. Wilhelm v. Fed. Nat'l Mortg. Ass'n, 349 S.W.3d 766, 768 (Tex. App.-Houston [14th Dist.] 2011, no pet.). However, if a defendant in a forcible detainer action is no longer in possession of the premises, then an appeal from the judgment of possession is moot "unless the defendant asserts 'a potentially meritorious claim of right to current, actual possession of the [premises].'" Id. (quoting Marshall, 198 S.W.3d at 787).

         Contrary to Invum's assertion, there is no support in the record before us that a writ of possession was executed or that Invum "is now in possession of the subject property." Therefore, we reject ...


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