Opinion
NO. 01-15-00876-CV
02-16-2017
KERRY D. JAMES, Appellant v. JASON PAUL MINTER D/B/A AUTO SNATCH, Appellee
On Appeal from the County Court at Law No. 1 Galveston County, Texas
Trial Court Case No. CV-0074291
MEMORANDUM OPINION
Appellant, Kerry D. James, challenges the county court's order dismissing for lack of jurisdiction his appeal from the justice court's take-nothing judgment entered against him on his claims for breach of contract and fraud against appellee, Jason Paul Minter, doing business as Auto Snatch. In two issues, James contends that the county court erred in dismissing his appeal without first giving him notice and an opportunity to cure the jurisdictional defect.
See TEX. R. CIV. P. 143a.
Although James frames his second issue as a complaint about the county court's denial of his motion for new trial, his argument in his brief reflects that he is actually complaining about the county court's dismissal of his appeal for lack of jurisdiction.
We affirm.
Background
James filed suit against Minter in the Justice Court of Galveston County, Precinct 8, Place 2, seeking repayment of loans that James had extended to Minter for certain automobiles. Minter answered, generally denying James's claims. After the justice court entered a take-nothing judgment against James, he appealed the justice court's judgment to the County Court at Law No. 1 in Galveston County for a trial de novo.
See TEX. R. CIV. P. 506.3 (appeal from judgment of justice court must be tried de novo in county court).
In the county court, James posted an appeal bond. On June 2, 2015, the county clerk sent notice to James that it had received the transcript of the proceedings from the justice court and had docketed the case. In its notice, the county clerk further stated:
Pursuant to Rule 143a of the Texas Rules of Civil Procedure, if the appellant fails to pay the costs on appeal from a judgment of a justice . . . court within twenty (20) days after being notified to do so by the county clerk, the appeal shall be deemed not perfected and the county clerk shall return all papers in said cause to the justice [court] having original jurisdiction and the justice [court] shall proceed as though no appeal had been attempted.After James did not pay the costs as directed, the county court, on July 1, 2015, signed an order dismissing his appeal. Also on July 1, 2015, the county clerk sent James notice of the county court's dismissal of his appeal.
Currently, the amount due from the appellant[] is two hundred forty-two and 00/100 ($242.00) dollars.
James then filed a Motion for New Trial, asserting that he had not timely paid the costs as directed by the county clerk due to inadvertence on the part of his counsel. Minter filed a Request to Dismiss for Lack of Jurisdiction and Response to the Motion for New Trial, arguing that the county court lacked jurisdiction to grant James a new trial because, in order to perfect his appeal, he was required to file an appeal bond and timely pay costs. James admitted that the county clerk, on June 2, 2015, sent him a notice of costs and informed him that the appeal would be dismissed if such costs were not timely paid. He further admitted that he did not timely pay the costs. Thus, Minter asserted that the county court did not err in dismissing James's appeal for lack of jurisdiction.
See TEX. R. CIV. P. 143a, 506.1.
See TEX. R. CIV. P. 143a.
At a hearing on James's motion for new trial and Minter's motion to dismiss the appeal for lack of jurisdiction, counsel for James stated that after she had received the county clerk's notice to pay costs, she wrote out a check. However, "by mistake or inadvertence or some reason, the check did not make it to the clerk's office prior to the case being dismissed" and sent back to the justice court. Counsel explained that she spoke with the county clerk on "the day that [the appeal] got dismissed and [she] found out about it" and immediately tendered the funds. However, the county clerk would not accept payment.
After the hearing, the county court granted Minter's motion and again signed an order dismissing James's appeal for lack of jurisdiction. The county court also denied James's motion for new trial.
Standard of Review
Subject matter jurisdiction is a legal question, which we review de novo. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). Accordingly, we review a county court's dismissal of an appeal from a justice court under a de novo standard. Laird v. Benton, 470 S.W.3d 572, 574 (Tex. App.—Houston [1st Dist.] 2015, no pet.).
Notice and Cure
In his first and second issues, James argues that the county court erred in dismissing his appeal for lack of jurisdiction because it did not first provide him with proper notice of its intent to dismiss the appeal and an opportunity to cure his failure to pay costs.
Texas Rule of Civil Procedure 506.1, which governs an appeal from a justice court to a county court, provides, in pertinent part, as follows:
(a) How Taken; Time. A party may appeal a judgment by filing a bond, making a cash deposit, or filing a sworn statement of inability to pay with the justice court within 21 days after the judgment is signed or the motion to reinstate, motion to set aside, or motion for new trial, if any, is denied.TEX. R. CIV. P. 506.1. Rule 143a, "Costs on Appeal to County Court," provides:
. . . .
(g) No Dismissal of Appeal Without Opportunity for Correction. An appeal must not be dismissed for defects or irregularities in procedure, either of form or substance, without allowing the appellant, after 7 days' notice from the court, the opportunity to correct such defect.
(h) An appeal is perfected when a bond, cash deposit, or Statement of Inability to Afford Payment of Court Costs is filed in accordance with this rule.
(i) The appellant must pay the costs on appeal to a county court in accordance with Rule 143a.
If the appellant fails to pay the costs on appeal from a judgment of a [justice court] within twenty (20) days after being notified to so by the county clerk, the appeal shall be deemed not perfected and the county clerk shall return all papers in said cause to the [justice court] having
original jurisdiction and the [justice court] shall proceed as though no appeal had been attempted.TEX. R. CIV. P. 143a. Thus, to perfect an appeal to a county court from a justice court, an appellant must:
(1) file an appeal bond, cash deposit in lieu of a bond, or a sworn statement of inability to pay; andTEX. R. CIV. P. 143a, 506.1; Watkins v. Debusk, 286 S.W.3d 58, 60 (Tex. App.—El Paso 2009, no pet.). Compliance with both requirements is jurisdictional. Watkins, 286 S.W.3d at 60; see also Martin v. Fed. Nat'l Mort. Ass'n, No. 04-15-00233-CV, 2016 WL 1588517, at *2 (Tex. App.—San Antonio Apr. 20, 2016, no pet.) (mem. op.); Frazin v. Sauty, No. 05-12-00137-CV, 2014 WL 3828210, at *3 (Tex. App.—Dallas Aug. 5, 2014, no pet.) (mem. op.); Miller v. Henderson, No. 06-12-00093-CV, 2013 WL 656852, at *2 (Tex. App.—Texarkana Feb. 21, 2013, pet. denied) (mem. op.).
(2) pay to the county clerk, within twenty days after being notified to do so by the county clerk, the costs of appeal.
Here, the parties do not dispute that James timely complied with rule 506.1 by filing an appeal bond in the county court. See TEX. R. CIV. P. 506.1(a). Further, James does not dispute that the county clerk, by letter dated June 2, 2015, notified him to pay the costs within twenty days or his appeal would be dismissed, and he admits that he did not timely pay such costs. See TEX. R. CIV. P. 143a. However, he argues that the county court erred in dismissing his appeal based on his failure to timely pay costs because it did not, upon the expiration of the twenty-day notice period in rule 143a, also give him notice under rule 506.1(g). James does not direct us to any authority supporting his assertion that prior to dismissal of an appeal for the failure to timely pay costs under rule 143a, an appellant is entitled to notice and opportunity to cure under both rules 143a and 506.1(g).
When we construe rules of procedure, we apply the same rules of construction that govern the interpretation of statutes. Ford Motor Co. v. Garcia, 363 S.W.3d 573, 579 (Tex. 2012); In re Christus Spohn Hosp. Kleberg, 222 S.W.3d 434, 437 (Tex. 2007); Huston v. U.S. Bank Nat'l Ass'n, 359 S.W.3d 679, 681 (Tex. App.—Houston [1st Dist.] 2011, no pet.). The construction of procedural rules is a legal question and is subject to de novo review. In re Christus Spohn Hosp. Kleberg, 222 S.W.3d at 437; State v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002). Our primary objective is to give effect to the drafter's intent, which we discern from the plain and common meaning of the rule's words. See State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006). Thus, we first look to the plain language of the rule and construe it according to its plain or literal meaning. Ford Motor Co., 363 S.W.3d at 579; In re Christus Spohn Hosp. Kleberg, 222 S.W.3d at 437. We read the rule as a whole to ascertain its intent. Huston, 359 S.W.3d at 681. If the language of the rule is unambiguous, we interpret it according to its plain meaning, consistent with other provisions in the rules. TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439, 441 (Tex. 2011).
Rule 506.1 provides requirements and deadlines for the filing of an appeal bond, cash deposit in lieu of a bond, or sworn statement of inability to pay. See TEX. R. CIV. P. 506.1(a)-(e). Specifically, subsection (g) prohibits the dismissal of an appeal for "defects or irregularities in procedure, either in form or substance, without allowing the appellant, after 7 days' notice from the court, the opportunity to correct such defect," and it provides the sole mechanism for notice and an opportunity to cure any defects in the filing of an appeal bond. TEX. R. CIV. P. 506.1(g). Although rule 506.1 also requires that costs be paid, it directs that they be paid "in accordance with rule 143a." TEX. R. CIV. P. at 143a, 506.1(i). Rule 143a has its own notice and cure provisions, which require a county clerk to give an appellant twenty days' notice to pay costs before the appeal "shall be deemed not perfected." TEX. R. CIV. P. 143a.
in Carrillo v. Vera, the plaintiff filed an appeal bond, but failed to pay costs within twenty days of being notified to do so by the county clerk. No. 13-99-221-CV, 2000 WL 35729499, at *2 (Tex. App.—Corpus Christi Aug. 31, 2000, no pet.) (not designated for publication). The plaintiff argued that, in addition to notice under the costs provision (former rule 123a, the substantively-similar predecessor to rule 143a), he was also entitled to notice under the bond provision (rule 571, the predecessor to rule 506.1(g)). Id. at *3. The appellate court declined to apply both provisions. Id. Rather, it held that the county court did not err in dismissing the plaintiff's appeal for a defect in procedure without first giving him notice, as he asserted, because he had been given twenty days' notice to correct his failure to pay costs. Id.
In support of his argument that he was entitled to additional time to cure his failure to pay costs, James relies on Watkins. In Watkins, the issue presented was whether the plaintiff had failed to timely post an appeal bond, a question that fell squarely within the notice and cure provisions of rule 571 (the predecessor to rule 506.1(g)). 286 S.W.3d at 59. However, unlike in the instant case, however, there was no dispute that the plaintiff had timely paid the costs under rule 143a. Id. at 59-60.
The court in Watkins did observe that the rules of appellate procedure are to be liberally construed to protect a party's right to appeal. Id. at 61. And, generally, a court of appeals has jurisdiction over any appeal in which an appellant files an instrument in a bona fide attempt to invoke the appellate court's jurisdiction. Id. In regard to appeals from justice courts, the Texas Supreme Court has held that the "factor which determines whether jurisdiction has been conferred on the appellate court is not the form or substance of the bond, certificate or affidavit, but whether the instrument 'was filed in a bona fide attempt to invoke appellate court jurisdiction.'" Id. (quoting Walker v. Blue Water Garden Apts., 776 S.W.2d 578, 581 (Tex. 1989)). Thus, for example, when an affidavit of inability to pay an appeal bond is timely filed, but deficient, the affiant should be given a chance to cure the defect. Id. The court in Watkins noted, however, that "a bona fide attempt does not indefinitely extend the time in which parties may extend the time to appeal; the correction must be made within the specified deadline provided in the [rule]." Id. The deadline provided in former rule 571 was that any correction regarding an appeal bond must be made within five days after notice. Id. Because the plaintiff had filed his appeal bond within the requisite five-day period, the county court erred in dismissing his appeal. Id.
Here, again, the specified deadline provided by rule 143a is twenty days. See TEX. R. CIV. P. 143a. James does not dispute that the county clerk, by letter dated June 2, 2015, notified him to pay the costs within twenty days or his appeal would be dismissed. He admits that he did not pay the costs within the requisite twenty-day period. See id. And the plain language of rule 143a mandates that, upon the expiration of the twenty-day period, James's appeal be "deemed not perfected," as follows:
If the appellant fails to pay the costs on appeal from a judgment of a [justice court] within twenty (20) days after being notified to do so by the county clerk, the appeal shall be deemed not perfected and the county clerk shall return all papers in said cause to the [justice court] having original jurisdiction and the [justice court] shall proceed as though no appeal had been attempted.Id. (emphasis added); McGaughy v. Lamm, No. 03-99-00643-CV, 2000 WL 147649, at *2 (Tex. App.—Austin Feb. 10, 2000, no pet.) ("Rule 143a mandates that [the defendant's] appeal be 'deemed not perfected'") (not designated for publication); see also Combs, 340 S.W.3d at 439, 441 (we interpret language of rule according to plain meaning and consistent with other provisions of rules).
In sum, James was given notice of the county court's intent to dismiss his appeal and an opportunity to cure the defect. See TEX. R. CIV. P. 143a. And James has not demonstrated that the county court was required to give him a second notice and opportunity to cure prior to dismissing his appeal. See TEX. R. CIV. P. 506.1(g). Thus, we need not address the question of whether the county clerk complied with rule 21a in regard to notice under rule 506.1(g). See TEX. R. CIV. P. 21a (governing "required" notices).
We hold that the county court did not err in dismissing James's appeal for lack of jurisdiction.
We overrule James's first and second issues.
Conclusion
We affirm the county court's order dismissing James's appeal.
"We affirm a dismissal for want of jurisdiction because the trial court had jurisdiction to determine whether it had jurisdiction over the action—even though the trial court lacked jurisdiction over the action, the trial court's judgment on that issue is not void for lack of jurisdiction." Garcia v. Kubosh, 377 S.W.3d 89, 115 n.30 (Tex. App.—Houston [1st Dist.] 2012, no pet.).
Terry Jennings
Justice Panel consists of Justices Jennings, Keyes, and Brown.