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
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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.
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