Opinion issued May 30, 2019




                                        In The

                                Court of Appeals
                                       For The

                           First District of Texas
                             ————————————
                                NO. 01-18-01086-CV
                             ———————————
                  IN THE INTEREST OF C. B. & M. B., Children



                    On Appeal from the 315th District Court
                             Harris County, Texas
                      Trial Court Cause No. 2018-04586J

                           MEMORANDUM OPINION
      Appellant, the Texas Department of Family and Protective Services, has filed

an unopposed motion for voluntary dismissal of its appeal. See TEX. R. APP. P.

10.1(a)(5), 10.3(a)(2), 42.1(a)(1). Appellees do not oppose the motion, but instead

have filed their own “Motion for Judgment, Award of Costs, and for Immediate

Issuance of Mandate.” Appellees request that this Court enter a judgment of

dismissal that assesses all costs against appellant, securing in appellees the relief to
which they are entitled to in the trial court’s amended order for sanctions, and to

issue the mandate immediately. See TEX. R. APP. P. 18.1(c), 42.1(a)(1), (d).

      Appellant filed a response in opposition contending that, because the amended

order only allows appellees to recover $20,000 each in appellate attorney’s fees if

they “successfully defend the trial court order in the Court of Appeals,” appellees did

not successfully defend that order because appellant moved to dismiss before any

briefs had been filed. Thus, appellant requests dismissal of this appeal without

awarding appellees their appellate attorney’s fees. See Keith v. Keith, 221 S.W.3d

156, 169 (Tex. App.—Houston [1st Dist.] 2006, no pet.). No other party has filed a

notice of appeal and no opinion has issued. See TEX. R. APP. P. 42.1(a)(1), (c).

      We deny appellees’ motion, in part, with respect to awarding appellees their

appellate attorney’s fees because they did not successfully defend the amended order

on the merits given that appellant moved to dismiss before any briefs had been filed

or any opinion had issued. See WWW.Urban.Inc v. Drummond, 508 S.W.3d 657,

666 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (noting that prevailing party is

party “who successfully prosecutes the action or successfully defends against it,

prevailing on the main issue, even though not to the extent of its original contention,”

because “[d]etermination of whether a party is the prevailing or successful party is

based upon success on the merits, and not on whether damages were awarded.”)

(internal quotation marks and citations omitted). We grant appellees’ motion, in

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part, with respect to taxing appellate costs against appellant that are assessed by the

Clerk of this Court, and with respect to expediting the mandate.

      Accordingly, we grant appellant’s motion, dismiss the appeal, direct the Clerk

of this Court to issue the mandate simultaneously with the judgment, and order that

appellate costs are to be taxed against appellant. See TEX. R. APP. P. 18.1(c),

42.1(a)(1), (d), 43.2(f).

                                   PER CURIAM
Panel consists of Chief Justice Radack and Justices Higley and Hightower.




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