Erica Caballero v. Kiran Adhikari

Opinion

DISMISS; Opinion Filed February 27, 2020

In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-01345-CV

ERICA CABALLERO, Appellant V. KIRAN ADHIKARI, Appellee

On Appeal from the County Court at Law No. 4 Collin County, Texas Trial Court Cause No. 004-02481-2019

MEMORANDUM OPINION Before Justices Partida-Kipness, Nowell, and Evans Opinion by Justice Nowell Appellee has moved to dismiss as moot this appeal from the trial court’s judgment of

eviction awarding appellee possession of certain property and attorney’s fees. Appellee asserts

“the controversy between the parties ended when the Appellant was forcibly removed (set out)

from The Property” in November and asks he be awarded damages under Texas Rule of Appellate

Procedure 45 concerning frivolous appeals. See TEX. R. APP. P. 45; Exxon Mobil Corp. v.

Rincones, 520 S.W.3d 572, 586 (Tex. 2017) (case becomes moot if controversy between parties

ceases to exist at any stage, including appeal). 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. See TEX.

PROP. CODE ANN. § 24.006; Rice v. Pinney, 51 S.W.3d 705, 709 (Tex. App.—Dallas 2001, no pet.). Because appellant is no longer in possession of the property, the issue of possession is moot.

Although the issue of attorney’s fees is not mooted by appellant no longer being in possession of

the property, appellee has seemingly waived his claim for attorney’s fees 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 to

the extent we dismiss the appeal. We deny the request for damages.

/Erin A. Nowell/ ERIN A. NOWELL JUSTICE

191345F.P05

–2– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

ERICA CABALLERO, Appellant On Appeal from the County Court at Law No. 4, Collin County, Texas No. 05-19-01345-CV V. Trial Court Cause No. 004-02481-2019. Opinion delivered by Justice Nowell, KIRAN ADHIKARI, Appellee Justices Partida-Kipness and Evans participating.

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

Judgment entered this 27th day of February, 2020.

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