### CAUSENO. 05-17-01450-CV THEODISTTHOMAS 

### Appellant § § § § § § § § INTHEFIFTH

vs. 

### COURTOFAPPEALS C & 

### C Residential Properties 

### Appellee DALLAS,TEXAS APPELLEE'SMOTIONTODISMISS FORFAILURE TO PROSECUTE Appellee asks the Court to either dismiss this appeal or affirm the trial court'sjudgmentand grant appelleejudgmentfor costs. I.

### PARTIES l. Appellant is Theodist Thomas. Appellee is C & 

### C Residential Properties. II. PROCEDURALBACKGROUND 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 ofl05 SouthwickDrive, CedarHill Texas 75104. ACCEPTED 05-17-01450-CV FIFTH COURT OF APPEALS

DALLAS, TEXAS 3/27/2018 2:23 PM LISA MATZ CLERK3. Appellant appealed the County Court'sjudgment on December 18,2017. 4. On December 19, 2017 the Court ofAppeals issued notice that
aproperAppellant'sDocketing Statementwas due. 5. On December 29, 2017 Appellant filed an unsigned and undatedDocketing 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 I0 days from the date ofthe letter. 7. A response to this letter was due February 22, 2018 orthe case
was subjectto being dismissed. 8. Appellant has not responded to this letter nor made arrangements tohave the clerk'srecord 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 ofprosecution or, in the alternative, to affirm the trial court's judgment if it finds that the Appellant has failed to prosecutethe case or ifthe appellanthas failed to comply with a notice from the clerkrequiring aresponse or other action within a specifiedtime. 11. Under the undisputed facts, the lack of action by Appellant justifies dismissal ofthis appeal or, in the alternative, affirming the trial court'sjudgment. 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 ofNew York Mellon, 315 S.W.3d 925, 927 (Tex.App.- Dallas 2010, no pet). The action known as a forcible detainer is intendedto be a speedy, simple, and inexpensive means to obtain possession. Id. at 926-27. 13. To further illustrate the simplistic and expedited manner ofthe
case before this Court, Texas Rule of Civil Procedure 510.12 states that
once the transcript from a forcible detainer appeal from thejustice courthas 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 amere eight days in forcible detainer appeals prevails over the general rule ofCivil Procedure 245 requiring at least 45 days' notice of trial. 

### Catlin v. Highpoint Village Apartments, 26 S.W.3d 737, 738-739 (Tex./ App.-FortWorth 2000, pet. Dismissed) 14. Actions for forcible detainer is by statute and case lawintended to be a simple proceedingconcerning one issue; and further, because ofit 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 entitledto precedence inthe 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 expeditednature ofactions 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. Dueto the nature ofthis cause ofaction; 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 reliefto which it may be entitled or is in the interest of justice
. Respectfully Submitted,

ravis Gray SBN24044965 

### o ChrisS.Ferguson SBN24069714 P.O. Box 815369 Dallas,Texas 75381 Phone: 972.247.0653 Fax: 972.247.0642 ATTORNEYS FORAPPELLEECERTIFICATE OF SERVICE I hereby certify that a copy ofthe foregoing Motion to Dismiss was served onAppellantby certified mail on March27, 2018

Date: March 27, 2018