LAW.coLAW.co

Larry Keith DeVere v. Gary Schuetze

2026-08-19

Summary

Holding. The court dismissed the appeal for lack of jurisdiction because no live controversy existed between the parties—DeVere had abandoned his challenge to possession and raised no issue concerning the monetary awards, leaving only a Rule 145 procedural complaint that could not produce effectual appellate relief.

DeVere appealed a forcible detainer judgment that awarded his landlord Schuetze possession of residential property along with monetary damages including unpaid rent, attorney's fees, court costs, and interest. DeVere initially filed an appeal but then voluntarily dismissed his challenge to the possession award and waived all requests for possessory relief. He narrowed his appeal to a single procedural complaint about the trial court's handling of his statement of inability to afford court costs under Texas Rule of Civil Procedure 145.

The appellate court found that because DeVere abandoned any challenge to possession—the primary issue in a forcible detainer action—and raised no objection to the monetary portions of the judgment, no actual controversy remained for the court to resolve. The court noted that even if it were to rule in DeVere's favor on the Rule 145 procedural issue, such a ruling would have no practical effect on the judgment or the parties' rights. Accordingly, the court lacked subject matter jurisdiction to hear the appeal.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether appellate jurisdiction exists when a party abandons the primary issue in a forcible detainer action
  • Whether a Rule 145 statement of inability to pay court costs presents a justiciable controversy on appeal
  • Mootness doctrine application to eviction judgments

Procedural posture

DeVere appealed from a trial court judgment in a forcible detainer suit, initially challenging possession and monetary awards, but subsequently narrowed his appeal to a single procedural issue regarding the court's handling of his Rule 145 statement.

Authorities cited

Opinion

majority opinion

Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-26-00178-CV

Larry Keith DEVERE,

Appellant

v.

Gary SCHUETZE,

Appellee

From the 451st Judicial District Court, Kendall County, Texas

Trial Court No. 26-102

Honorable Kirsten Cohoon, Judge Presiding

PER CURIAM

Sitting: Rebeca C. Martinez, Chief Justice

H. Todd McCray, Justice

Velia J. Meza, Justice

Delivered and Filed: August 19, 2026

DISMISSED FOR LACK OF JURISDICTION

Larry DeVere appeals from a trial court judgment awarding appellee Gary Schuetze

possession of residential property, unpaid rent, attorney’s fees, court costs, prejudgment interest,

and post-judgment interest. Because DeVere abandoned any challenge to the possession award,

raises no issue concerning the monetary portions of the judgment, and his remaining complaint

presents no live controversy, we dismiss the appeal for lack of jurisdiction.

04-26-00178-CV

BACKGROUND

In this forcible detainer suit, the trial court rendered judgment awarding Schuetze

possession of the premises at issue. The judgment also awarded Schuetze unpaid rent, prejudgment

interest, attorney’s fees, court costs, and post-judgment interest. After filing his notice of appeal

and several emergency motions, DeVere narrowed the scope of the appeal by filing a “Notice of

Partial Voluntary Dismissal of Specific Relief Requests,” waiving “all possessory stay

applications.” In his merits brief, DeVere states that “[t]he sole surviving issue presented for

appellate review” concerns the trial court’s handling of his Texas Rule of Civil Procedure 145

statement of inability to afford payment of court costs.

MOOTNESS

A controversy must exist between the parties at every stage of a suit, including on appeal.

Tex. Dep’t of Fam. & Protective Services v. Grassroots Leadership, Inc., 717 S.W.3d 854, 862-866 (Tex. 2025) (extensively discussing mootness doctrine). If a controversy ceases to exist on

appeal, the appeal becomes moot and the appellate court lacks subject matter jurisdiction. Id. at

873; Metro. Transit Auth. of Harris Cnty. v. Douglas, 544 S.W.3d 486 (2018).

POSSESSION

The predominant issue in a forcible detainer action is the right to actual possession of the

property. TEX. R. CIV. P. 510.3(e); Marshall v. Hous. Auth. of the City of San Antonio, 198 S.W.3d

782, 785 (Tex. 2006). An appeal from the possession portion of a forcible detainer judgment

becomes moot when possession is no longer at issue because the appellate court can no longer

grant effectual relief regarding possession. Id. at 787. Here, DeVere expressly abandoned any

request for possessory relief, stating in his brief that he waived all possessory stay applications and

narrowed the appeal to a single Rule 145 issue. Accordingly, any challenge to the possession award

-2-04-26-00178-CV

is no longer before us. Because possession is no longer at issue, any controversy concerning that

portion of the judgment is moot. See id.

MONETARY JUDGMENT

Unlike possession, the monetary portions of an eviction judgment—including unpaid rent,

attorney’s fees, court costs, and interest—may continue to present a live controversy after

possession has been resolved. Spencer v. Gilbert, No. 03-09-00207-CV, 2010 WL 3064346, at *2

(Tex. App.—Austin Aug. 4, 2010, pet. dism’d w.o.j.). Here, the judgment awards Schuetze unpaid

rent, prejudgment interest, attorney’s fees, court costs, and post-judgment interest.

Devere, however, raises no issue challenging any of those monetary awards. Instead, he

expressly limits his appeal to the trial court’s handling of his Rule 145 statement of inability to

afford payment of court costs. Because DeVere presents no complaint regarding the only portions

of the judgment that remain capable of affecting the parties’ rights, no live controversy exists

concerning those portions of the judgment.

RULE 145 COMPLAINT

DeVere’s sole issue asserts the trial court failed to properly recognize and rule on his

amended Rule 145 statement of inability to afford payment of court costs. See TEX. R. CIV. P. 145.

Even assuming, that DeVere could establish error under Rule 145, 1 such a determination would

0F

afford him no effectual appellate relief. A Rule 145 statement of inability to pay court costs is a

1

Appellant appears to conflate two distinct concepts. Rule 145 governs a party’s ability to proceed on appeal without prepaying court costs. It does not relieve a party of the obligation to post a supersedeas bond to suspend enforcement of a judgment. See TEX. PROP. CODE ANN. § 24.007 (“[a] judgment of a county court in an eviction suit may not under any circumstances be stayed pending appeal unless…the appellant files a supersedeas bond.”). Thus, although DeVere argues that the trial court’s refusal to accept his Rule 145 affidavit “permitted an $8,000 monetary judgment” against him, the record shows only that the trial court set the supersedeas bond at $8,000. The judgment does not condition that amount on appellant’s ability to pay costs, nor does it indicate that the Rule 145 ruling affected the supersedeas requirement. In fact, indigency is irrelevant to supersedeas. See Morse v.Fed. Nat’l Mortgage Ass’n, No. 05-18-00999-CV, 2018 WL 4784585, at *1 (Tex. App.—Dallas Oct. 4, 2018, no pet.) (holding “[a] defendant’s indigence does not relieve him of the obligation to file a supersedeas bond”).

-3-04-26-00178-CV

procedural cost governing mechanism that does not independently confer or preserve appellate

jurisdiction. See TEX. R. CIV. P. 145.

DeVere has abandoned any challenge to possession and does not contest the monetary

portions of the judgment. Consequently, a determination regarding the Rule 145 proceedings

would not alter the judgment or affect a live controversy between the parties. Therefore, any ruling

we could make on the propriety of the court’s action in regard to Devere’s statement of inability

to afford payment of court costs would have no practical effect. See Hous. Auth. of City of San

Antonio v. Zambrano, No. 04-24-00288-CV, 2025 WL 2058090, at *1 (Tex. App.—San Antonio

July 23, 2025, no pet.) (citing State ex rel. Best v. Harper, 562 S.W.3d 1, 6 (Tex. 2018)).

CONCLUSION

Because no live controversy remains for this court to resolve, we conclude that we lack

subject matter jurisdiction over this appeal and dismiss it for lack of jurisdiction.

PER CURIAM

-4-