Opinion
No. 09-08-00339-CV
Submitted on August 7, 2009.
Opinion Delivered August 31, 2009.
On Appeal from the County Court at Law No. 2, Montgomery County, Texas, Trial Cause No. 07-21,368.
Before McKEITHEN, C.J., KREGER and HORTON, JJ.
MEMORANDUM OPINION
H. John Lang appealed a summary judgment granted to Nathan Hoagland, d/b/a N H Material Construction Co. on deemed admissions. Because the case originated in small claims court, the judgment of the county court at law is final. Accordingly, we dismiss the appeal for want of jurisdiction.
Hoagland filed a "Plaintiff's Petition For Small Claims/Justice Civil." The claim is sworn and substantially in the form required by section 28.012 of the Texas Government Code. See Tex. Gov't Code Ann. § 28.012 (Vernon 2004). On April 19, 2007, the justice of the peace signed a judgment awarding Hoagland $2,533 in accordance with the jury's verdict. Lang appealed to the county court at law. Hoagland filed a motion for summary judgment based upon deemed admissions on Hoagland's claim for breach of contract. The trial court granted summary judgment that awarded Hoagland $2,409.12 plus $1,872.63 in attorney fees. Appearing through counsel for the first time, Lang filed a motion for new trial and a motion to strike the deemed admissions. The trial court denied Lang's motion for new trial and Lang filed notice of appeal to this court. In two appellate issues, Lang contends the trial court erred in failing to strike the deemed admissions and erred in denying Lang's motion for new trial.
Small claims actions are governed by Chapter 28 of the Texas Government Code. See Tex. Gov't Code Ann. §§ 28.001-.055 (Vernon 2004 Supp. 2008). The justice of the peace sits as judge of the small claims court. Id. § 28.002. The small claims court has jurisdiction concurrent with the justice court. Id. § 28.003(a) (Vernon Supp. 2008). To institute an action in small claims court, the claimant must file a sworn statement of the claim. § 28.012. A party is entitled to a jury trial. § 28.035. If the amount in controversy exceeds $250, a dissatisfied party may appeal to the county court at law. § 28.052(a) (Vernon Supp. 2008). After trial de novo, the judgment of the county court at law on the appeal is final. § 28.053(d). Courts of appeals lack appellate jurisdiction over cases originally filed in small claims court. Sultan v. Mathew, 178 S.W.3d 747, 748 (Tex. 2005); see also Woodlands Plumbing Co. v. Rodgers, 47 S.W.3d 146, 148 (Tex. App.-Texarkana 2001, pet denied). In a small claims case, the final judgment of the county court at law is not appealable. Sultan, 178 S.W.3d at 751.
The 2009 amendment to section 28.053 of the Government Code is prospective only and does not apply to this case, which commenced before September 1, 2009. See Act of June 1, 2009, 81st Leg., R.S., ch. 1351, §§ 9, 14, 2009 Tex. Gen. Laws ___ (Tex. S.B. 408, to become effective Sept. 1, 2009).
Although the original petition filed with the justice of the peace is called a "Petition For Small Claims," we note that several documents refer to the "Justice Court, Precinct Two" without mention of the small claims court. This case is similar to Lister v. Walters, where the plaintiff filed a substantially compliant section 28.012 form in small claims court. Lister v. Walters, 247 S.W.3d 381 (Tex. App.-Texarkana 2008, no pet.). After appeal de novo to the county court at law, the plaintiff appealed to the court of appeals. Id. at 382-83. Several documents in the clerk's record contained the caption for the justice court rather than the small claims court. Id. at 383. Noting that the plaintiff filed a small claims petition and the record did not contain an order transferring the case from the small claims court to the justice court, the appellate court concluded that the case was filed in small claims court and dismissed the appeal. Id. Here, the plaintiff filed a small claims petition and there is nothing in the record establishing that the case was transferred to the justice court before judgment. See generally Tex. Gov't Code Ann. § 74.121 (Vernon 2005); Tex. R. Civ. P. 527, 531. Because the case originated as a small claims case filed pursuant to Chapter 28 of the Texas Government Code, section 28.053 applies. We dismiss the appeal for want of jurisdiction.
APPEAL DISMISSED.