Theodist R. Thomas v. C & C Residental Properties ( 2018 )

ACCEPTED
05-17-01450-CV
FIFTH COURT OF APPEALS
DALLAS, TEXAS
3/27/2018 2:23 PM
LISA MATZ
CLERK
CAUSE NO. 05-17-01450-CV
THOMAS
THEODIST § FILED IN
5th COURT OF APPEALS
Appellant § IN THE FIFTH DALLAS, TEXAS
§ 03/27/2018 2:23:21 PM
§ LISA MATZ
Clerk
vs. § COURT OF APPEALS
§
C & C Residential Properties §
Appellee § DALLAS, TEXAS
APPELLEE'S MOTION TO DISMISS FOR FAILURE TO
PROSECUTE
Appellee asks the Court to either dismiss this appeal or affirm the trial
court's judgment and grant appellee judgment for costs.
I. PARTIES
l. Appellant is Theodist Thomas. Appellee is C & C Residential
Properties.
II. PROCEDURAL BACKGROUND
2. On December 15, 2017, a judgment was signed by the
Honorable Sally Montgomery awarding Appellee possession of the real
property located at 105 Southwick Drive Cedar Hill, Texas 75104 against.
Theodist Thomas And/Or All Occupants ofl 05 Southwick Drive, Cedar Hill
Texas 75104.
3. Appellant appealed the County Court's judgment on December
18,2017.
4. On December 19, 2017 the Court of Appeals issued notice that
a proper Appellant's Docketing Statement was due.
5. On December 29, 2017 Appellant filed an unsigned and
undated Docketing Statement.
6. On February 12, 2018 the Court issued notice that the Clerk's
Record has not been filed because Appellant has not paid or made
arrangements to pay the clerk's fee. The notice further stated that this must
be cured in I 0 days from the date of the letter.
7. A response to this letter was due February 22, 2018 or the case
was subject to being dismissed.
8. Appellant has not responded to this letter nor made
arrangements to have the clerk's record prepared or filed.
9. On February 15, 2018, this Court notified the parties that the
Court Reporter's record was overdue. Thirty days has passed since that
notification and the reporter's record has not been filed.
III. ARGUMENT & AUTHORITIES
10. Under Texas R. App. P. 42.3, this Court has authority to
dismiss this appeal for want of prosecution or, in the alternative, to affirm
the trial court's judgment if it finds that the Appellant has failed to
prosecute the case or if the appellant has failed to comply with a notice from
the clerk requiring a response or other action within a specified time.
11. Under the undisputed facts, the lack of action by Appellant
justifies dismissal of this appeal or, in the alternative, affirming the trial
court's judgment.
12. This is an appeal of a post-foreclosure forcible detainer case.
In a forcible detainer action, the only issue for the trial court to determine is
which party has the immediate right to possession of the property. See
Williams v. Bank of New York Mellon, 315 S.W.3d 925, 927 (Tex.App.-
Dallas 2010, no pet). The action known as a forcible detainer is intended to
be a speedy, simple, and inexpensive means to obtain possession. Id. at
926-27.
13. To further illustrate the simplistic and expedited manner of the
case before this Court, Texas Rule of Civil Procedure 510.12 states that
once the transcript from a forcible detainer appeal from the justice court has
been on file with the County Court (or District Court) for "eight full days",
the case is subject to trial at any time. This specific provision allowing a
trial setting after a mere eight days in forcible detainer appeals prevails over
the general rule of Civil Procedure 245 requiring at least 45 days' notice of
trial. Catlin v. Highpoint Village Apartments, 26 S.W.3d 737, 738-739
(Tex./ App.-Fort Worth 2000, pet. Dismissed)
14. Actions for forcible detainer is by statute and case law intended
to be a simple proceeding concerning one issue; and further, because of it so
simplistic in nature, it is a matter that is to proceed before the Court in an
expedited manner. Additional, pursuant to T.R.C.P. 510.10(c) eviction
matters are entitled to precedence in the County Court.
Appellant's failure to diligently prosecute this appeal is contrary to
the both the statutory provisions and case law on point regarding the
expedited nature of actions for forcible detainer.
15. Appellant's delay continues to economically injure Appellee as
Appellant continues to occupy the subject property while Appellee receives
no consideration for said occupancy and Appellee must also incur taxes,
msurance and other associated fees and costs with owning the subject
property.
IV. CONCLUSION
16. Due to the nature of this cause of action; Appellant's failure to
diligently prosecute this appeal; and due to the continuing economic injury
incurred by Appellee as a result of Appellant's lack of prosecution,
Appellee asks that this court dismiss this appeal or affirm the trial court's
judgment.
V. PRAYER
17. For these reasons, appellee asks the Court to grant this motion
and dismiss this appeal or, in the alternative, affirm the trial court's
judgment and grant Appellee such other and further relief to which it may
be entitled or is in the interest of justice.
Respectfully Submitted,
ravis Gray
SBN 24044965
o ChrisS. Ferguson
SBN 24069714
P.O. Box 815369
Dallas, Texas 75381
Phone: 972.247.0653
Fax: 972.247.0642
ATTORNEYS FOR APPELLEE
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Motion to Dismiss was
served on Appellant by certified mail on March 27, 2018
Date: March 27, 2018