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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