Opinion
No. 05-19-01337-CV
03-06-2020
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
JUDGMENT
On Appeal from the County Court at Law No. 2, Dallas County, Texas
Trial Court Cause No. CC-19-06148-B.
Opinion delivered by Justice 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.