Milton Lindsey v. Kathryn Ramsey ( 2014 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-14-00001-CV
Milton Lindsey, Appellant
v.
Kathryn Ramsey, Appellee
FROM COUNTY COURT AT LAW NO. 1 OF TRAVIS COUNTY
NO. C-1-CV-12-012182, HONORABLE ERIC M. SHEPPERD, JUDGE PRESIDING
MEMORANDUM OPINION
Appellee Kathryn Ramsey filed a suit for forcible detainer against appellant
Milton Lindsey in justice court. On November 27, 2012, after a jury found in Ramsey’s favor,
the justice court signed a judgment awarding her possession of the property and damages. On
December 3, the Monday following five days from the date of the justice court’s judgment, Lindsey
filed a timely appeal bond, seeking to appeal to the county court. See former Tex. R. Civ. P. 749
(1988, repealed 2013).1 On December 17, the county court sent a “Notice of Appeal and Costs,”
stating that Lindsey had twenty days to pay his filing fees. See Tex. R. Civ. P. 143a (in appeal
from justice court, appellant must pay costs within twenty days “after being notified to do so by
1
The rules of civil procedure governing practice in the justice courts were amended in 2013,
effective August 31, 2013, and the new rules are to apply to cases pending on that date unless it
would be infeasible or unjust. See Tex. Sup. Ct. Misc. Docket No. 13-9049. Current rule 510.9
governs appeals from a justice court’s judgment in a forcible entry case and imposes the same five-
day deadline for filing a notice of appeal. See Tex. R. Civ. P. 510.9.
the county clerk” or appeal is “deemed not perfected and the county clerk shall return all papers
. . . to the justice of the peace having original jurisdiction,” who shall “proceed as though no
appeal had been attempted”). The notice was sent via certified mail and was signed for by someone
at Lindsey’s address on December 18.2 On January 7, 2013, because the filing fee had not been
tendered, the county clerk remanded the appeal to the justice court. The county clerk refused
Lindsey’s attempt to pay the filing fee on January 8. On February 7, Lindsey filed a motion to vacate
the remand and reinstate the case, arguing that his filing-fee deadline was January 9, twenty-three
days from the date the notice was mailed.3 See former Tex. R. Civ. P. 21a (if notice requiring action
within prescribed time is served by mail, “three days shall be added to the prescribed period”).4 The
county court held a hearing on October 3 and denied Lindsey’s motion. Lindsey filed a timely
request for findings of fact and conclusions of law and on December 31, 2013, filed a notice of
appeal from the county court’s October 3 order.
First, we believe that we lack jurisdiction for the same reasons we explained in
McGaughy v. Lamm, No. 03-99-00643-CV, 2000 WL 147649 (Tex. App.—Austin Feb. 10, 2000,
no pet.) (not designated for publication), a case Lindsey cites to support his contention that rule
2
Lindsey stated during a hearing that he himself did not receive the notice until December
20, but, even if relevant, that statement does not appear to have been made under oath.
3
Lindsey also filed a motion to vacate and reinstate in the justice court, which signed an
order on February 15, 2013, denying the motion and stating that it had issued a final judgment on
the jury’s verdict and that Lindsey had not perfected his appeal under rule 143a. Lindsey asks us to
take judicial notice of this order, which was attached to his brief but not made part of the clerk’s
record, and Ramsey does not dispute the order’s validity. Lindsey does not appear to have filed a
new notice of appeal in the county court following the justice court’s denial of his motion.
4
Rule 21a was amended in 2013, effective January 1, 2014. See Tex. Sup. Ct. Misc. Docket
13-9165. Current rule 21a includes the same three-day extension. See Tex. R. Civ. P. 21a(c).
2
329b, discussed briefly below, does not apply. McGaughy sought to appeal as an indigent from
the justice court’s judgment against him. Id. at *1. The justice court denied his motion to proceed
as a pauper, and McGaughy filed a notice of appeal with the county court. Id. The county court
ordered McGaughy to post an appeal bond and, when he did not do so, “the case was remanded to
the justice of the peace.” Id. McGaughy sought to appeal, but we dismissed for want of jurisdiction,
holding that the county court had not rendered an appealable order. Id. We observed that under
rule 143a, the county clerk returned all the papers in the case to the justice court, which was then
required to proceed as if no appeal had been attempted. Id.; see Tex. R. Civ. P. 143a. We held that
an appeal from the county court’s decision rejecting McGaughy’s attempt to appeal as an indigent
was not an authorized interlocutory appeal.5 McGaughy, 2000 WL 147649, at *1.
The county clerk remanded this case to the justice court on January 7, 2013. Under
the explanation provided in McGaughy, the county court did not sign an appealable judgment or
order when the case was remanded, and the county court lacked jurisdiction to enter its October 3
order. See id. Although Lindsey asserts that the county court’s October 3 order is final and appealable,
we have found no rule, statute, or case law that would give the county court jurisdiction to take any
action after the case was remanded, much less the authority to act nearly nine months after remand.
Further, even assuming the county court had somehow retained jurisdiction to act in
the case following remand, the trial court would have lost its plenary power to grant a new trial or
to vacate, modify, correct, or reform the judgment on February 6, thirty days after the case was
5
The justice-court record in McGaughy did not include a final judgment. McGaughy v.
Lamm, No. 03-99-00643-CV, 2000 WL 147649, *1 (Tex. App.—Austin Feb. 10, 2000, no pet.)
(not designated for publication).
3
remanded. See Tex. R. Civ. P. 329b(d); Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308,
310 (Tex. 2000). In this scenario, Lindsey’s motion to vacate the remand and reinstate the case,
filed thirty-one days later, would have been untimely and would have done nothing to extend the
court’s plenary power or the appellate timetables.6 See Tex. R. App. P. 26.1(a); Penny v. Shell Oil
Prods. Co., 363 S.W.3d 694, 697 (Tex. App.—Houston [1st Dist.] 2011, no pet.).
We therefore dismiss this appeal for lack of jurisdiction.
__________________________________________
David Puryear, Justice
Before Justices Puryear, Goodwin, and Field
Dismissed for Want of Jurisdiction
Filed: October 16, 2014
6
The timely filing of a motion “seeking a substantive change” to a judgment extends a
trial court’s jurisdiction “up to an additional seventy-five days.” Lane Bank Equip. Co. v. Smith S.
Equip., Inc., 10 S.W.3d 308, 310, 313-14 (Tex. 2000). Lindsey’s motion to vacate and reinstate
sought a substantive change in the remand action and should be viewed as a motion for new trial
or to modify, correct, or reform the remand. See id. at 313-14; In re Bokeloh, 21 S.W.3d 784, 787
(Tex. App.—Houston [14th Dist.] 2000, orig. proceeding) (“A timely and proper motion to reinstate
extends the trial court’s plenary power until thirty days after the motion is overruled either by a
written signed order or by operation of law.”). If it had been timely, the motion would have been
overruled as a matter of law on March 25, the first business day after seventy-five days from remand,
see Tex. R. Civ. P. 329b(c), making Lindsey’s notice of appeal due by April 8, ninety days after
remand, see Tex. R. App. P. 26.1(a).
4