CAUSE NO. 05-17-01450-CV 

THEODIST THOMAS 

Appellant 

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IN THE FIFTH 

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. 

ACCEPTED

05-17-01450-CV

FIFTH COURT OF APPEALS

DALLAS, TEXAS

3/27/2018 2:23 PM

LISA MATZ

CLERK

 FILED IN 5th COURT OF APPEALS DALLAS, TEXAS 03/27/2018 2:23:21 PM LISA MATZ Clerk
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