### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00502- CV

Jam es Salvagio, Trus tee for the Gulf Coast Arm s, a Non-P rofit Trust, App ellant

v. Capital Far m Cre dit, FC LA, Appellee

F ROM TH E CO UNTY COURT AT LAW O F F AY ETTE COUNTY NO. 349 1, H ONO RAB LE EDWARD F . JANECKA, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Appellant J ames Salvag io, acting in his capa city as trustee for Gulf Coast Arms, appea ls from the county court’s judgme nt in favor of appellee Capital Fa rm Credit, FCLA (“Capital Fa rm”), in Capital Fa

rm’s suit for forc ible detainer in connec tion with cer tain ag ricultural proper

ty located in Fa

y ette County

. Capital Fa

rm has filed a motion to dismiss , asser ting that this Court does not have jurisdiction over the appea l in light of section 24.007 of t he p ro p erty code, which s tates, in rele vant part, “A final judgme nt of a county court in an eviction suit may not be appea led on the issue of poss ession unless the premises in question are being used for residential purposes only .” Tex. Prop. Code Ann. § 24.007 (West 2000). In its order on a motion to rec onsider the approva l of Salvag io’s superse deas bond, the trial court made an express findingthat the ag ricultural propertyat i ssue here i s “n o t being used for residential purposes only .” Acc ording ly , we lack j urisdiction 1 to revie w t he county court’s determination of the right of poss ession and any finding s essential to the issue of possession. See id ; see also Terra XXI, Ltd. v. Ag Acc eptance Corp. , 280 S.W .3d 414, 416 (Tex. App.—Amarillo 2008, pet. denie d) (c ollecting case s).

The county court’s judgme nt conce rns only possession of the premises, awa rding the rig ht of immediate possession to Capital Fa rm. W h i l e t h e order also awa rds Capital Fa

rm its

rea sonable a

nd nece ssary

attorney ’s fe es, this Court has held that section 24.007 bars an appe al of the i ssue of attorney ’s fees when the fee award is conting ent on t he issue of posse ssion. See W est Anderson Plaza v. Fey

znia , 876 S.W .2d 528, 537 (Tex. App.—Austin 1994, no writ) (holding that wher e landlord’s rig ht to rec over fee s was based on ent i t l em en t to possession, tenant could not challeng e fee awa

rd on appea l). But cf. Carl s o n ’s Hill Country Bev erage, L.C. v. W estinghouse Road Joint Venture , 957 S.W .2d 951, 955 n.6 (Tex. App.—Austin 1997, no pet.) (holding that appea l of fee awa

rd was not ba

rre d by section 24.007 beca use appellant’ s asser

tion that amount of

awa rd was beyond court’s jurisdictional limit s did not depend on issue of possession). Her e, there is no indication that Salvag io seeks to appea l the fee awa rd for any rea son not conting ent on the rig ht of possession. As previously noted, Salvag io did not respond to Fa rm Credit’s motion to dismiss

. I n light of the fore g oing, we g rant Fa rm Credit’s motion and dismiss this appea l for want of jurisdiction.

Despite being notified of his opportunity to fi l e a re s p o n se to Fa rm Credit’s motion to 1 dismiss , Salvag io has not filed a response or otherwise disputed the contention that the proper ty at issue is not being use d solely for r esidential purpose s.

2___________________________________________ Diane M. H enson, Jus tice Be fore Chief J ustice Jones, J ustices Patterson and H enson Dismissed on Appellee’ s Motion Filed: Nove mber 12, 2010

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