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

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-14-00317-CV
NANCY SUE MORRISON, APPELLANT
V.
SHERIFF WESLEY CRITES AND
DEPUTY D.B. MARCOLESCO, APPELLEES
On Appeal from the County Court
Wheeler County, Texas
Trial Court No. 1963, Honorable Jerry Dan Hefley, Presiding
July 28, 2015
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Appearing pro se, appellant Nancy Sue Morrison challenges an order of the
county court dismissing her appeal of an order of the justice court. On our own motion
we conclude we lack subject matter jurisdiction to review the merits of her challenge.
We will vacate the county court’s order and dismiss the attempted appeal.
Background
On December 4, 2013, Morrison obtained a default judgment in justice court
against Sandy Castillo for $1,819.30. Neither party appealed the judgment to county
court. The justice of the peace issued a writ of execution on January 8, 2014,
returnable in thirty days. Morrison apparently filed an instrument in the justice court on
March 19, 2014, complaining of the execution procedure. Following a March 26, 2014
hearing, the justice of the peace granted Morrison a “refund” of $150 and a “new
properly executed writ of execution in the amount of $150.00. If [Morrison] so chooses
to file.”
On April 7, 2014, Morrison then filed in the justice court a pleading entitled
“motion to recover full amount of judgment.” Citing Civil Practice and Remedies Code
sections 34.064 and 34.065,1 she alleged the actions and inactions of appellees
1
In her attempt to recover the full amount of the judgment, Morrison mistakenly
relied on the former versions of sections 34.064 and 34.065, which provided:
34.064 Improper Return of Writ. If an officer neglects or refuses to return
a writ of execution as required by law or makes a false return on a writ of
execution, the officer and his sureties are liable to the person entitled to
receive the money collected on the execution for the full amount of the
debt, plus interest and costs. The total amount is recoverable on motion of
the plaintiff filed with the court that issued the writ, following five days’
notice.
34.065 Failure to Levy or Sell. If an officer fails or refuses to levy on or sell
property subject to execution and the levy or sale could have taken place,
the officer and his sureties are liable to the party entitled to receive the
money collected on execution for the full amount of the debt, plus interest
and costs. The total amount is recoverable on motion of the party filed with
the court that issued the writ, following five days’ notice to the officer and
his sureties.
2
Wheeler County Sheriff Wes Crites and a deputy, D.B. Marcolesco, prevented her from
recovering the full amount of her judgment against Castillo. She prayed for recovery of
this amount from the sheriff and deputy. In other filings, Morrison also mentions
recovery from the officers’ sureties. The motion was denied by order of the justice
court.
On April 7, Morrison filed a notice of appeal in the justice court challenging the
denial of her motion. She filed the same instrument in the county court on April 17. It is
undisputed that Morrison did not, and has not, properly perfected an appeal from justice
court to county court in the manner required by rule. 2 In July 2014, Sheriff Crites and
deputy Marcolesco moved the county court to dismiss Morrison’s case against them.
____________________________
The Legislature rewrote these sections in 2007 effective for duties performed
after September 1, 2007. See Act of May 17, 2007, 80th Leg., R.S, ch. 421, §§ 4, 8, 9,
2007 Tex. Gen. Laws, 750, 751, 753 (current version at TEX. CIV. PRAC. & REM. CODE
ANN. §§ 34.064 & 34.065 (West 2015)). In their current form, these sections apply to
Morrison’s case. Under section 34.064 an officer who refuses to amend or file a return
of writ may be subject to an order of contempt and fine ranging from $10 to $100 under
Civil Practice and Remedies Code section 7.001(b). TEX. CIV. PRAC. & REM. CODE ANN.
§ 7.001(b) (West Supp. 2014) & § 34.064(c) (West 2015). Morrison did not seek an
order of contempt, but as noted, argued for recovery of the full amount of judgment.
Under current section 34.065, if an officer fails or refuses to levy on or sell property
subject to execution, and the judgment creditor seeking relief under the section proves
certain enumerated facts, the officer and his sureties are liable to the judgment creditor
only for actual damages suffered.
2
See TEX. R. CIV. P. 506.1(h) (“An appeal [from justice court to county court] is
perfected when a bond, cash deposit, or statement of inability to pay is filed in
accordance with this rule”). Because of our disposition, we do not consider the
jurisdictional question whether Morrison made a bona fide attempt to invoke the county
court’s jurisdiction. See Warwick Towers Council of Co-Owners ex. rel. St. Paul Fire &
Marine Ins. Co. v. Park Warwick, L.P., 244 S.W.3d 838, 839 (Tex. 2008) (per curiam)
(quoting Walker v. Blue Water Garden Apartments, 776 S.W.2d 578, 581 (Tex. 1989))
(“the factor which determines whether jurisdiction has been conferred on the appellate
court is not the form or substance of the bond, certificate or affidavit, but whether the
instrument was filed in a bona fide attempt to invoke appellate court jurisdiction”
(quotation marks omitted)).
3
The basis of their complaint was Morrison’s asserted failure to have them served with
citation. The motion was heard and granted by written order of the county judge.
Analysis
As noted, by seeking to recover by motion the full amount of her justice court
judgment from the sheriff and deputy, Morrison relied on a superseded statute, and
sought a post-judgment remedy not provided by current law. Claims for damages under
section 34.065 must be brought as a separate lawsuit. See TEX. CIV. PRAC. & REM.
CODE ANN. § 34.068(b) (West 2015) (a claim for damages under, inter alia, section
34.065 “shall be brought in the form of a lawsuit filed against the officer in the county in
which the officer holds office”); § 34.076 (subchapter D of chapter 34 “is exclusive
remedy for violations of an officer’s duties with regard to the execution and return of
writs”).
Statute also establishes which judgments of a justice court are appealable to
county court. TEX. CIV. PRAC. & REM. CODE ANN. § 51.001(a) (West 2015) (“In a case
tried in justice court in which the judgment or amount in controversy exceeds $250,
exclusive of costs, or in which the appeal is expressly provided by law, a party to a final
judgment may appeal to the county court”). The justice court’s denial of Morrison’s
motion was neither a final judgment nor an order made appealable by statute or rule.
Her motion, unauthorized by statute, was merely a post-judgment motion incident to the
writ of execution. “Neither a writ of execution nor an order incident to a writ of execution
is appealable.” Wolter v. Donaldson, 79 S.W.3d 160, 162 (Tex. App.—Texarkana 2002,
no pet.) (citing Schultz v. Fifth Judicial Dist. Ct. of Appeals, 810 S.W.2d 738, 740 (Tex.
4
1991), abrogated on other grounds by In re Sheshtawy, 154 S.W.3d 114 (Tex. 2004)
(per curiam)); see Fuller v. Harrell, 07-05-00322-CV, 2006 Tex. App. LEXIS 4263 (Tex.
App.—Amarillo May 17, 2006, no pet.) (mem. op.) (dismissing appeal for want of
jurisdiction when appellant failed to obtain an appealable order from justice court before
appealing to county court at law).
Accordingly, Morrison did not invoke the jurisdiction of the county court when she
attempted to appeal the justice court’s order. An appellate court considers the question
of its jurisdiction even if not challenged by a party. Univ. of Tex. Sw. Med. Ctr. at Dallas
v. Loutzenhiser, 140 S.W.3d 351, 358 (Tex. 2004), superseded by statute on other
grounds, TEX. GOV’T CODE ANN. § 311.034 (West 2013). Because the county court
lacked jurisdiction to consider Morrison’s attempted appeal, we vacate the order of the
county court and dismiss her attempted appeal. TEX. R. APP. P. 43.2(e); see State ex
rel. Kelly v. Baker, 580 S.W.2d 611, 612-13 (Tex. Civ. App.—Amarillo 1979, no writ).
James T. Campbell
Justice
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