Nancy S. Morrison v. Sheriff Wesley Crites, Deputy D.B. Marcolesco ( 2015 )

ACCEPTED
07-14-00317-CV
SEVENTH COURT OF APPEALS
AMARILLO, TEXAS
1/21/2015 4:20:18 PM
Vivian Long, Clerk
P.O. Box 469
401 Main Street Leslie Standerfer Phone: 806-826-2042
Wheeler, Texas 79096 County Attorney Fax: 806-826-0717
FILED IN
7th COURT OF APPEALS
AMARILLO, TEXAS
January 20, 2015 1/21/2015 4:20:18 PM
VIVIAN LONG
Vivian Long, Clerk CLERK
Court of Appeals
Seventh District of Texas
PO Box 9540
Amarillo, TX 79105-9540
RE: Case Number: 07-14-00317-CV
Trial Court Case Number: 7-14-1963-CV
Nancy S. Morrison v. Sheriff Wesley Crites, Deputy D.B. Marcolesco
Dear Ms. Long,
Wheeler County respectfully submits this letter brief and attached affidavit regarding the
affidavit and brief filed by Appellant Nancy M. Morrison regarding the perfection of appeal from
Justice Court to County Court and the subsequent jurisdiction of this court. As explained
below, Appellant failed to timely perfect her appeal from justice court to county court, and has
instead attempted to cloak a suit against Wheeler County officials as an appeal from Justice
Court.
A. Facts Regarding Appellant’s Suit in Justice Court. Appellee does not dispute that
Appellant properly filed a small claims suit in Justice Court, Precinct 1, Wheeler County against
Defendant Sandy Castillo. Appellant was awarded a Default Judgment in said suit on
December 4, 2013. Neither party filed any motions that would extend appellate deadlines.
Appellant sought a thirty-day Writ of Execution in January, and after filing a Writ of Execution
and much dispute as to the propriety of the execution of said Writ, on March 31, 2014, Appellant
filed a Notice of Appeal with the Justice Court. The Appellant did not perfect the appeal by
Email: leslie.standerfer@co.wheeler.tx.us
filing a bond, cash deposit, or affidavit of inability to pay costs, nor did she make a request,
either written or oral, for bond amount.
Appellant subsequently filed a “Motion to Recover Full Amount of Judgment” on
Wheeler County Justice Court Precinct 1 on April 7, 2014. The Court issued a ruling denying
Plaintiff’s Motion on April 7, 2014. A copy of the ruling, titled “Answer to Plaintiff’s Motion,”
is attached to both Appellant’s Brief and Affidavit as Exhibit “A”. Appellant subsequently
filed another Notice of Appeal, and again, the Appellant did not perfect the appeal by bond, cash
deposit, or affidavit of inability to pay costs.
B. Appellant’s Appeal was not Properly Perfected. Appellant filed two separate Notices
of Appeal, neither of which were perfected by bond, cash deposit, or filing a sworn statement of
inability to pay. Tex. R. Civ. P. 506.1. In Meyers v. Belford, 550 S.W.2d 359 (Tex. Civ. App.
–El Paso 1977, no writ), the El Paso Court of Appeals dismissed Plaintiff-Appellant’s appeal for
Appellant’s failure to file an appeal bond with Justice Court. In Litoff v. Meadows Service
Corp., 352 S.W.3d 894, 897 (Tex.App. Dallas 2011, no pet), the court makes clear that only
compliance with requirements of rule governing appeal bonds will perfect appeal of a Justice
Court’s judgment to County Court.
Appellant selectively mentions one Notice of Appeal filed on April 14, 2014, however,
she makes no mention of the Notice of Appeal she filed but failed to perfect on March 31, 2014.
Seven days later, on April 7, 2014, the Appellant filed a “Motion to Recover Full Amount of
Judgment”. The Court denied said Motion in an order signed the same day but file-marked
April 14, 2014. Appellant, in asserting her claim that she was denied the right to Appeal by
both her brief and affidavit, is misrepresenting to this Court that the Order signed by Judge
Brown on April 7, 2014 and file-marked April 14, 2014 is in response to the Notice of Appeal
she filed on April 14, 2014.
C. Appellant’s Appeal Untimely. The Default Judgment in this matter was issued
December 4, 2013. A party may file a Motion to Set Aside, Motion to Reinstate, or Motion for
new trial no later than 14 days after the Judgment is signed. Tex. R. Civ. P. 505.3. In this
case, neither party filed a Motion that would extend the Justice Court’s plenary power beyond
twenty-one days. Tex. R. Civ. P. 507.1. The Court’s plenary power in this matter ended
December 26, 2013. While Appellant filed the Writ of Execution in a timely manner, any
Orders issued by the court regarding this suit after December 26, 2013 should be void. Carrera
v. Marsh, 847 S.W.2d 337 (Tex. App. El Paso, 1993).
D. Summary. For the reasons stated above, we feel the Court’s initial review of the appeal
and concerns were correct, and that this Appeal should be dismissed for want of jurisdiction.
Sincerely,
Leslie Standerfer
Leslie Standerfer
Wheeler County Attorney
THE STATE OF TEXAS §
COUNTY OF WHEELER §
AFFIDAVIT OF DEEDEE REEVES
Before me, the undersigned notary, on this day personally appeared DeeDee Reeves, the
affiant, a person whose identity is known to me. After I administered an oath to affiant, affiant
testified:
1. "My name is DeeDee Reeves. I am over 18 years of age, of sound mind, and capable of
making this affidavit. The facts stated in this affidavit are within my personal knowledge and are
true and correct.
2. "I am presently employed as Clerk of the Justice Court, Precinct One, Wheeler County
Texas, and was so employed throughout 2013 and 2014.
3. "I am personally familiar with Nancy Morrison Nottingham.
4. "As clerk, I am responsible for the file-marking and clerical act of filing any suits and
subsequent motions that are filed in Justice Court, Precinct One, Wheeler County.
5. "I personally received a Notice of Appeal from Nancy Morrison filed March 31, 2014,
and I file-marked said copy.
6. "I personally received a document styled "Motion to Recover Full Amount of Judgment
file-marked April 7, 2014 by Judge Brown.
7. "I personally received an Order from Judge Brown titled "Answer to Plaintiff's Motion"
dated April 7, 2014. I file-marked it on April 14, 2014.
6. "I personally received a Notice of Appeal from Nancy Morrison filed April 14, 2014, and
I file-marked said copy the same date, upon receipt.
7. "Upon filing said Notices of Appeal, Nancy Morrison did not file a bond, did not pay a
cash deposit, and did not file an Affidavit of Inability to Pay Costs. Furthermore, Ms. Morrison
AFFIDAVIT OF DeeDee Reeves- Pagel of 2
did not inquire as to the amount of an appeal bond."
FURTHER AFFIANT SAITH NOT.
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DeeDee Reeves, Affian
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SUBSCRIBED AND SWORN TO BEFORE me by the said Affiant, DeeDee Reeves, on
this the (3j day ofJflU.l2f ,2015.
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Notary ublic,o
AFFIDAVIT OF DeeDee Reeves- Page2 of 2
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was served upon all
parties of record by Certified Mail, Return Receipt Requested, in accordance with the
Texas Rules of Civil Procedure on January 21, 2015.
Leslie Standerfer
Leslie Standerfer
Nancy S. Morrison
PO Box 1134
Wheeler, TX 79096