Marcus Desmond Pleasant v. State ( 2008 )

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

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No. 06-07-00130-CR ______________________________



MARCUS DESMOND PLEASANT, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 124th Judicial District Court Gregg County, Texas Trial Court No. 34153-B

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Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

   Marcus Desmond Pleasant, appellant, has filed with this Court a motion to dismiss his appeal. The motion is signed by Pleasant and his counsel in compliance with Rule 42.2(a) of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 42.2(a). As authorized by Rule 42.2, we grant the motion. See Tex. R. App. P. 42.2.

Accordingly, we dismiss the appeal.

Jack Carter

Justice

Date Submitted: February 19, 2008

Date Decided: February 20, 2008

Do Not Publish

(1) it filed notice of the restricted appeal within six months after the judgment was signed; (2) it was a party to the underlying lawsuit; (3) it did not participate in the hearing that resulted in the judgment complained of and did not timely file any postjudgment motions or requests for findings of fact and conclusions of law; and (4) error is apparent on the face of the record." Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004); see also Tex. R. App. P. 26.1(c), 30.

On the first requirement, Haywood filed his notice of appeal within six months of judgment. ⁽¹⁾ On the second and third requirements, Haywood was a party to the suit below, did not participate in any manner in the proceedings resulting in the judgment against him, and filed no post-judgment motions. On the fourth requirement, Haywood raises four errors apparent on the face of the record: lack of subject-matter jurisdiction, lack of personal jurisdiction over Haywood, judgment that is not supported by the pleadings, and legal insufficiency of evidence supporting attorney's fees.

Subject-Matter Jurisdiction

Whether a court has subject-matter jurisdiction is an issue of law which is reviewed de novo. Tex. Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 646 (Tex. 2004); Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). This Court has held that a district court has no jurisdiction over civil matters where the amount in controversy is $200.00 or less. See Tex. Const. art. V, §§ 8, 19; Arteaga v. Jackson, 994 S.W.2d 342 (Tex. App.--Texarkana 1999, pet. denied); cf. Sultan v. Mathew, 178 S.W.3d 747, 756 n.24 (Tex. 2005) (Hecht, J., dissenting) (noting split in courts of appeals over whether constitutional jurisdictional minimum amount in controversy is $200.01 or $500.00); Peek v. Equip. Serv. Co., 779 S.W.2d 802, 803-04 n.4 (Tex. 1989) (noting that legislative and constitutional changes raise question as to actual jurisdictional minimum). But see Chapa v. Spivey, 999 S.W.2d 833, 835-36 (Tex. App.--Tyler 1999, no pet.) (holding jurisdictional minimum is still $500.00).

"The plaintiff's allegations in the petition of the amount in controversy control for jurisdictional purposes . . . ." Miranda, 133 S.W.3d at 224 n.4; see also Richardson v. First Nat'l Life Ins. Co., 419 S.W.2d 836 (Tex. 1967). Hudson & Keyse's petition expressly sought, on an account and debt of zero dollars, the district court's judgment of zero dollars, plus prejudgment interest of twenty percent of zero dollars, which is zero dollars. This totals zero dollars and is below the district court's jurisdictional minimum amount in controversy.

Nonetheless, Hudson & Keyse also sought attorney's fees of over $400.00. "In determining the amount in controversy for jurisdictional purposes, attorney's fees that properly are a part of the matter in controversy are taken into consideration, . . . but insupportable allegations of entitlement to attorney's fees are not to be considered." Barnes v. Bituminous Cas. Corp., 495 S.W.2d 5, 9 (Tex. Civ. App.--Amarillo 1973, writ ref'd n.r.e.) (citations omitted). Indeed, claimed attorney's fees to which petitioner is not entitled "are a mere surplusage, without foundation in law and add nothing to the statement of the plaintiff's purported cause of action." Provident Ins. Co. v. Browning, 157 S.W.2d 971, 972 (Tex. Civ. App.--Eastland 1941, no writ).

A party is entitled to recover attorney's fees under Tex. Civ. Prac. & Rem. Code Ann. § 38.001 (Vernon 1997). To recover fees under Section 38.001, "a party must (1) prevail on a cause of action for which attorney's fees are recoverable, and (2) recover damages." Green Int'l, Inc. v. Solis, 951 S.W.2d 384, 390 (Tex. 1997). Because Hudson & Keyse pled the right to recover no damages, they pled themselves out of the right to recover attorney's fees on those damages. ⁽²⁾ Cf. Peek, 779 S.W.2d at 804.

We find that the district court lacked subject-matter jurisdiction because of Hudson & Keyse's failure to plead the minimum amount in controversy. This error is apparent on the face of the record and entitles Haywood to his restricted appeal. We further find that, because it is clear that the court rendering the judgment had no jurisdiction, the judgment is void. See Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990) (orig. proceeding) (per curiam). Because the issue of subject-matter jurisdiction is dispositive, we need not address the remaining alleged errors Haywood raises.

We vacate the trial court's judgment and dismiss the case.

Jack Carter

Justice

Date Submitted: April 4, 2007

Date Decided: April 20, 2007

1. The district court judgment states it was signed "24 day of March, 2006," which would make the notice of restricted appeal due before September 24, 2006. Haywood's appeal was filed September 22, 2006. We parenthetically note that the date of judgment may contain an error--i.e., it states March, but may be May. The judgment is based on an affidavit filed May 23, 2006; the judgment itself was filed May 25, 2006; and the docket indicates it was entered May 24, 2006. Nonetheless, Haywood's notice of appeal is timely under either date.

2. Moreover, even if the $489.96 in attorney's fees claimed in the petition were sufficient to give the district court jurisdiction, Hudson & Keyse later alleged facts that showed an entitlement to no fee whatsoever. In the affidavit submitted in support of the fees, Hudson & Keyse's attorney stated that the reasonable fee for services in this matter would be "15% of the principal amount due." Fifteen percent of zero due is zero.