Opinion
No. 01-07-00876-CV
Opinion issued June 18, 2009.
On Appeal from the County Civil Court at Law No. 1, Harris County, Texas, Trial Court Cause No. 890,214.
Panel consists of Justices JENNINGS, KEYES, and HIGLEY.
MEMORANDUM OPINION
Appellant, Peter Kemal Gundogan ("Gundogan"), appeals a take-nothing judgment denying legal damages in a suit against Woodgrove Condominium Association ("Woodgrove") involving damages to his real property. In eleven issues, Gundogan argues that the trial court erred in (1) finding that appellant refused to timely respond to discovery requests; (2) requesting evidence of appellant's claim beyond that presented to the justice court; (3) dismissing his suit due to appellant's lack of English proficiency and lack of legal representation; (4) making its final judgment on "mere technicalities"; (5) failing to find Woodgrove responsible for the proper maintenance of the pipes in appellant's residence; (6) failing to find Woodgrove negligent in not taking appropriate measures to prevent the failure of the pipes in his residence; (7) failing to find Woodgrove derelict in ignoring appellant's emergency call; (8) failing to find Woodgrove negligent in making repairs to the pipes after a previous pipe failure; (9) failing to determine whether the original amount of money awarded to appellant by the justice court was sufficient to cover the damages, based on current market prices; (10) failing to determine whether Woodgrove was liable for the emotional stress and inconvenience of appellant's living in a residence damaged by flooding due to Woodgrove's failure to repair the pipes in the residence; and (11) failing to assess punitive damages for Woodgrove's dereliction of duties due to its failure to repair the pipes in appellant's residence.
We vacate the trial court's judgment and dismiss the cause for lack of jurisdiction.
Background
On November 10, 2006, Gundogan filed a small claims suit in the Harris County Justice Court, Precinct Five, Place One, against Woodgrove on a negligence claim. Gundogan alleged that Woodgrove failed to properly maintain the pipes in Gundogan's residence, resulting in $3700 in damages to Gundogan's residence. Gundogan won a $2,500 justice court judgment against Woodgrove on an unknown date. The judgment is not included in the appellate record.
On April 12, 2007, Woodgrove appealed the justice court judgment to Harris County Civil Court at Law, No. 1. On May 4, 2007, Woodgrove deposited $5,000 in cash to the Harris County Treasurer in lieu of a justice court appeal bond to secure the county court's jurisdiction over the appeal. None of the original papers from the justice court were included in the record on appeal.
The trial court convened a bench trial on Woodgrove's appeal on September 24, 2007. Following a hearing, the trial court granted Woodgrove a take-nothing judgment. Gundogan filed an appeal to this Court on October 9, 2007 and requested transmittal of the clerk's record. The record on appeal does not contain a certified, true, and correct copy of all entries made on the justice court's docket. Nor does it contain a certified copy of the fee costs taken from the justice court's fee book. Nor does it contain any of the original papers in the cause. Nor does it contain a notice of the filing of an appeal bond or give any indication that an appeal bond was filed within 10 days of the judgment in the justice court. Nor does it contain the justice court's judgment.
Jurisdiction
We first address our own and the trial court's jurisdiction. A court always has jurisdiction to determine its own jurisdiction. Houston Municipal Employees Pension Sys.v. Ferrell, 248 S.W.3d 151, 158 (Tex. 2007); Stephens v. City of Houston, 260 S.W.3d 163, 167 (Tex.App.-Houston [1st Dist.] 2008, no pet.). When a trial court learns that it lacks jurisdiction to hear a cause, the court must dismiss the cause and refrain from rendering a judgment on the merits. Fort Bend County v. Martin-Simon, 177 S.W.3d 479, 485 (Tex.App. 2005, no pet.).
In order for jurisdiction to attach in a county court on an appeal from a justice court proceeding, the appealing party must file an appeal bond with the justice of the justice court in an amount double the amount of the judgment within 10 days after the judgment or order overruling a motion for new trial is signed. Tex. R. Civ. P. 571; see Meyers v. Bedford, 550 S.W.2d 359, 360 (Tex.Civ.App.1977, no writ) (stating that filing appeal bond "is a prerequisite to the jurisdiction of the county court"). The appeal bond must be signed by "two or more good and sufficient sureties" and must be approved by the justice of the justice court. Tex. R. Civ. P. 571. When the bond has been filed with the justice of the justice court, the appeal has been perfected. Tex. R. Civ. P. 571, 573. Within five days following the filing of the appeal bond, the party appealing must give notice of the filing of the bond to all parties who have not filed a bond, as provided in Rule 21a. Id.
When the appeal has been perfected, the justice of the justice court "shall immediately make out a true and correct copy of all the entries" on his docket sheet and certify the copy. Tex. R. Civ. P. 574; see Advance Imports, Inc. v. Gibson Products Co., Inc. of Sherman, 533 S.W.2d 168, 170 (Tex.Civ.App. 1976, no writ). He must send the transcript, consisting of the certified docket sheet, a certified copy of the bill of costs from his fee book, and any original papers in the cause to the clerk of the county court having jurisdiction. Tex. R. Civ. P. 574. If the appeal bond is not timely filed with the justice court, the county court is without jurisdiction to hear the appeal, and the appeal should be dismissed for lack of jurisdiction. Williams v Schneiber, 148 S.W.3d 581, 583 (Tex.App.-Fort Worth 2004, no pet.); Searcy v. Sagullo, 915 S.W.2d 595, 597 (Tex.App. 1996, no pet.).
Lack of Appeal Bond
The record in this case contains no transcript from the justice court nor any indication that Woodgrove ever posted the bond required by Rule 571 to trigger the justice court's duty to certify the docket sheet and bill of costs and to send these, with all original papers in the case, to the county court. Rather, Woodgrove's posting of a cash deposit with the county treasurer three weeks after filing its appeal is affirmative evidence that Woodgrove did not file the appeal bond required by Rule 571 with the justice court within 10 days after the justice court's rendition of judgment in favor of Gundogan, as required by Rule 571 to perfect its appeal. See Tex. R. Civ. P. 571. Moreover, even if Woodgrove had timely filed its cash bond in the justice court, instead of untimely filing it in the county court, when a deposit of cash as security for an appeal has not been authorized by statute, such a deposit does not constitute sufficient compliance with the statute that requires a bond to be given. See Tex. R. Civ. P. 571; Ringgold v. Graham, et al., 13 S.W.2d 355, 356 (Tex. Comm'n App. 1929) (approval of bond by justice of justice court can only be allowed upon filing of such bond as statute requires; approval of any other bond is "unauthorized and of no effect."); Ringgold, 13 S.W.2d at 356; see also Hervey, 253 S.W.2d at 703 ("The security to be given by one appealing from the judgment of a justice court is prescribed by [ Rule] 571, which prescribes that a bond shall be made and that this shall be signed by `two or more good and sufficient sureties.' It does not authorize a deposit of money to be made in lieu of these sureties, and we have found no other Rule so providing. The defendants' bond was therefore defective.").
Without the filing of a proper appeal bond by Woodgrove in the justice court within 10 days of the judgment in that court, and without the approval of the bond by the justice court, and without the subsequent transmittal by the justice court to the county court of the documents required by Rule 574, the county court lacked jurisdiction over the appeal from the justice court judgment. See Williams, 148 S.W.3d at 583; Searcy, 915 S.W.2d at 597; Meyers, 550 S.W.2d at 360; see also Stephen v. Neal, No. 01-98-1214-CV, 1999 WL 517139 (Tex.App. 1999, pet. denied) (mem. op., not designated for publication). When the county court lacks jurisdiction, the reviewing court must reverse the judgment of the county court and remand the case to the county court with orders to dismiss the cause for lack of jurisdiction. See Meyers, 550 S.W.2d at 359-60; Headstream, 129 S.W.2d at 1156. As the primary duty to perfect the appeal rests upon Woodgrove, the appellant in the county court, costs are taxed against that party. See Ringgold, 13 S.W.2d at 356.
Conclusion
We vacate the judgment of the county court and dismiss the case for lack of jurisdiction.
The judgment of the justice court is reinstated.