Chandler Smith v. Providence on the Park

Opinion

DISMISS and Opinion Filed March 6, 2020

S In The

Court of Appeals

Fifth District of Texas at Dallas No. 05-19-01337-CV

CHANDLER SMITH, Appellant V.

PROVIDENCE ON THE PARK, Appellee

On Appeal from the County Court at Law No. 2 Dallas County, Texas

Trial Court Cause No. CC-19-06148-B

MEMORANDUM OPINION

Before Justices Schenck, Osborne, and Reichek Opinion by Justice Osborne This is an appeal from the trial court’s judgment of eviction awarding appellee

possession of certain property, delinquent rent, attorney’s fees, and costs. Asserting appellant has abandoned the property, appellee has moved, in part, to dismiss the appeal as moot. Appellant has not filed a response.

The issue in an eviction suit is the right to actual possession of the premises, and, under the Texas Property Code, the prevailing party is entitled to an award of attorney’s fees and costs of court. See TEX. PROP. CODE ANN. § 24.006; Rice v.

Pinney, 51 S.W.3d 705, 709 (Tex. App.—Dallas 2001, no pet.). A landlord may also recover unpaid rent should he prevail. See TEX. PROP. CODE ANN. § 24.0051.

Because appellant is no longer in possession of the property, the issue of possession is moot. Although appellant no longer being in possession of the property does not moot the issues of delinquent rent, attorney’s fees, and costs, appellee has seemingly waived its claim for damages by moving to dismiss the appeal. Cf. Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 642 (Tex. 2005) (case not moot although underlying claim moot where prevailing party continued to seek award of attorney’s fees and expenses).

Accordingly, as no live controversy between the parties remains, we grant the motion and dismiss the appeal.

/Leslie Osborne/

LESLIE OSBORNE

JUSTICE

191337F.P05

3

S

Court of Appeals

Fifth District of Texas at Dallas JUDGMENT

CHANDLER SMITH, Appellant On Appeal from the County Court at Law No. 2, Dallas County, Texas No. 05-19-01337-CV V. Trial Court Cause No. CC-19-06148-

B.

PROVIDENCE ON THE PARK, Opinion delivered by Justice Appellee Osborne, Justices Schenck and Reichek participating.

In accordance with this Court’s opinion of this date, we DISMISS the appeal.

Judgment entered March 6, 2020.