James Walker v. Craig Crowell ( 2009 )


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  •                                 NO. 12-09-00130-CV
    IN THE COURT OF APPEALS
    TWELFTH COURT OF APPEALS DISTRICT
    TYLER, TEXAS
    JAMES WALKER,                                     '   APPEAL FROM THE
    APPELLANT
    V.                                                '   COUNTY COURT AT LAW NO. 2
    CRAIG CROWELL,
    APPELLEE                                          '   OF SMITH COUNTY, TEXAS
    OPINION
    James Walker appeals from the county court at law’s order dismissing his appeal
    of a justice court judgment for lack of jurisdiction. In his sole issue, Walker asserts that
    the county court at law erred in concluding it did not have jurisdiction of his appeal. We
    affirm.
    BACKGROUND
    Craig Crowell filed suit against Walker in justice court, alleging that Walker was
    in default under the terms of a note held by Crowell. On May 27, 2008, the justice court
    signed a judgment in Crowell’s favor after a jury trial.
    Dissatisfied with the verdict and judgment, Walker attempted to appeal in the
    county court at law seeking a trial de novo. Specifically, on May 30, 2008, Walker filed
    a notice of appeal and an affidavit of inability to pay costs. Crowell contested Walker’s
    affidavit of inability to pay costs by filing a letter with the justice court on June 4, 2008.
    For reasons not apparent from the record, the justice court did not conduct a hearing on
    the contest until August 13, 2008, over two months later. At that hearing, the justice
    1
    court concluded that Walker had the ability to pay costs, rejected the affidavit, and denied
    the appeal.
    Walker did not appeal the justice court’s ruling on the affidavit. Instead, he
    attempted to file an appeal bond and an ―amended notice of appeal‖ on August 15, 2008.
    The justice court rejected that appeal bond as noncompliant on September 4, 2008, and
    Walker first received notice of that ruling on September 8, 2008. Walker filed a ―second
    amended notice of appeal‖ and appeal bond on September 9, 2008, which the justice
    court approved on September 10, 2008.
    In the county court at law, Crowell filed a motion to dismiss the appeal for lack of
    jurisdiction on January 8, 2009, which was granted after a hearing by an order signed on
    February 4, 2009. Walker timely filed a motion for new trial, which was denied. He then
    appealed to this court.
    DISMISSAL OF WALKER’S LAWSUIT FOR LACK OF JURISDICTION
    In his sole issue, Walker asserts the county court at law erred in concluding it did
    not have jurisdiction of his appeal. The county court at law held that Walker did not
    timely perfect his appeal because, since he filed his appeal bond after the justice court
    sustained the contest to his affidavit of inability to pay costs, he filed the appeal bond too
    late.
    Walker contends that once the justice court sustained Crowell’s contest to his
    affidavit, he could then start anew under the appeal bond procedure. In other words, he
    argues that once his attempt to perfect the appeal through an affidavit of inability to pay
    costs failed, his deadline for filing an appeal bond was extended.
    Crowell asserts that the appeal bond procedure and the affidavit procedure are
    mutually exclusive. That is, he claims a party complaining of a justice court judgment
    must choose a method of perfecting his appeal at the outset, by filing either an appeal
    bond or an affidavit of inability to pay the costs of appeal. Crowell argues that if an
    affidavit of inability to pay costs is successfully contested, the deadline for filing an
    appeal bond is not extended. Thus, the party who filed the affidavit cannot ever timely
    perfect an appeal by filing an appeal bond. Here, the appeal bond was approved 106 days
    after the justice court signed the judgment, which Crowell argues was too late.
    2
    Standard of Review
    Whether Walker timely filed his appeal bond and thereby conferred jurisdiction
    on the county court at law presents a legal question, which we review de novo. See
    Williams v. Schneiber, 
    148 S.W.3d 581
    , 583 (Tex. App.—Fort Worth 2004, no pet.). If
    the appeal bond is not timely filed, the county court is without jurisdiction to hear the
    appeal, and the appeal must be dismissed. 
    Id. Perfecting an
    Appeal from Justice Court
    An aggrieved party may appeal a justice court judgment to the county court. See
    TEX. CIV. PRAC. & REM. CODE ANN. § 51.001 (Vernon 2008). The result is a trial de
    novo. TEX. R. CIV. P. 574b. An appeal of a justice court judgment is perfected ―[w]hen
    the bond, or the affidavit in lieu thereof, provided for in the rules applicable to justice
    courts, has been filed and the previous requirements have been complied with . . . .‖ TEX.
    R. CIV. P. 573. Thus, an appellant from a justice court may perfect an appeal by filing an
    appeal bond or an affidavit of inability to pay costs, in lieu of an appeal bond. See TEX.
    R. CIV. P. 571, 572.
    An appellant who files an appeal bond must do so within ten days from the date
    that the judgment complained of is signed. TEX. R. CIV. P. 571. If the appeal bond is
    successfully challenged, the appellant must be provided five days, after notice, within
    which to correct defects or irregularities of procedure, either of form or substance. 
    Id. An appellant
    who is unable to pay the costs of the appeal must file his affidavit of
    inability to pay costs, in lieu of an appeal bond, within five days after the judgment
    complained of is signed. TEX. R. CIV. P. 572. The affidavit must state that the appellant
    is unable to pay the costs of appeal, in whole or in part. 
    Id. The nonappealing
    party may
    challenge the affidavit and the affiant’s indigency within five days after the appealing
    party files the affidavit. 
    Id. If the
    justice of the peace then denies the affidavit, and
    consequently the appeal, the appellant has five days after that ruling in which to appeal to
    the county court. 
    Id. In such
    an instance, the county court must hold a hearing within ten
    days and determine de novo whether the affidavit is sufficient. 
    Id. Although rule
    571
    allows an appellant five days to correct a defective appeal bond, rule 572 does not make
    3
    any provision for correcting a defective affidavit of inability to pay costs. Compare TEX.
    R. CIV. P. 571 with TEX. R. CIV. P. 572.
    In this case, Walker did not appeal the justice court’s rejection of his affidavit and
    denial of his appeal. Instead, he proceeded to file his appeal bond. According to rule
    571, Walker was required to file his appeal bond on or before June 6, 2008. However,
    the justice court’s rejection of his affidavit and denial of his appeal occurred seventy-
    eight days after his deadline for filing the appeal bond expired. Neither rule 571 nor rule
    572 addresses whether the deadline for filing an appeal bond is extended where, as here,
    that deadline expires before the justice court rejects the affidavit of inability to pay costs
    and denies the appeal.
    Moreover, we have been unable to locate any pertinent cases arising out of
    appeals from justice courts that address this issue. In the past, an appeal bond or affidavit
    of inability to pay costs in lieu of bond was required in ordinary appeals from district or
    county courts. See TEX. REV. CIV. STATS. ANN. arts. 2098-2100 (1911, repealed 1941);
    TEX. R. APP. P. 41 (1986, repealed 1997); see generally 49 Tex. B.J. 556 (1986); TEX. R.
    CIV. P. 356 (1981, repealed 1986); see generally 43 Tex. B.J. 767 (1980). Other Texas
    courts have recognized the scarcity of cases relating to perfection of appeals from justice
    to county court. Those courts have held that judicial opinions construing the ordinary
    appeal bond statutes govern disputes in justice court relating to appeal bonds and
    affidavits in lieu thereof. This is because the purpose of those statutes is the same and the
    language is similar to the justice court rules. See Tisdale v. F. Hannes & Co., 
    278 S.W. 324
    , 325 (Tex. Civ. App.—Austin 1925, no writ) (holding that cases interpreting statute
    on appeal bonds in ordinary appeals from district or county courts are controlling in
    justice court appeal bond cases); Hart v. Wilson, 
    156 S.W. 520
    , 521 (Tex. Civ. App.—
    Amarillo 1913, no writ) (same).1
    We agree with the reasoning in these cases. Based on the same reasoning, we rely
    on cases that construe later procedural rules (the successor rules of civil procedure to
    articles 2098–2100) relating to appeal bonds in ordinary appeals from district or county
    courts.
    1
    Although Tisdale and Hart predate the rules of civil and appellate procedure, no other authorities cast
    doubt on their continued applicability or validity. See also 6 Tex. Jur. 3d Appellate Review § 886 (2008).
    4
    Former Appeal Bond Rules in Appeals from District or County Courts
    The Texas Supreme Court has addressed whether, in an appeal from district court,
    the time for filing an appeal bond was extended by a delay in ruling on a contest to an
    affidavit of inability to pay costs. See King v. Payne, 
    156 Tex. 105
    , 110, 
    292 S.W.2d 331
    , 334 (1956).     When the court issued its opinion in King, Texas Rule of Civil
    Procedure 356 governed the requirements for perfecting an appeal. See TEX. R. CIV. P.
    354-356 (1956, repealed 1986). Like the current justice court rules, the version of rule
    356 in effect at that time was silent as to whether a failed affidavit of inability to pay
    costs extended the time within which to file an appeal bond if the time had expired under
    the express language of the rule. See 
    id. The facts
    in King are analogous to those presented in this case. In King, the
    appealing party filed an affidavit in lieu of appeal bond. 
    Id., 156 Tex.
    at 
    107, 292 S.W.2d at 332
    . The nonappealing party successfully challenged the affidavit. 
    Id. The appealing
    party then attempted to file an appeal bond after the deadline provided in rule 356. 
    Id., 156 Tex.
    at 
    109-10, 292 S.W.2d at 334-35
    . In deciding the issue, the supreme court held
    as follows:
    The appeal bond was filed too late to invoke appellate jurisdiction. . . .
    There is no provision or authority for extending the time within which
    to file a bond. Maples v. Service Mutual Ins. Co., Tex. Civ. App., 
    169 S.W.2d 500
    , writ dismissed. In De Miller v. Yzaguirre, Tex. Civ.
    App., 
    143 S.W.2d 425
    , in which this court refused a writ of error
    unconditionally, it is clearly held that delay in acting on a contest of an
    affidavit in lieu of bond does not operate to extend the time for the
    filing of bond. See also Brandon v. Tartt, Tex. Civ. App., 
    220 S.W.2d 672
    , no writ.
    
    Id. Consequently, under
    King, an appeal bond could be filed after a failed affidavit of
    inability to pay costs on appeal, but only within the time expressly provided in the rule.
    
    Id. In 1981,
    the Texas Supreme Court amended rule 356. See TEX. R. CIV. P. 356(b)
    (1981), amended by order of June 10, 1980, eff. Jan. 1, 1981; see generally 43 Tex. B.J.
    767 (1980). Specifically, the supreme court added that ―[i]f a contest to an affidavit in
    lieu of bond is sustained, the time for filing the bond is extended until 10 days after the
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    contest is sustained….‖2 Tex. R. Civ. P. 356(b) (1981, repealed 1986). ―Prior to the
    inclusion of [this] sentence in…Rule [356(b),] an appellant was doomed if the contest to
    his affidavit was sustained after the deadline had passed for posting an appeal bond.‖
    Templo Ebenezer, Inc. v. Evangelical Assemblies, Inc., 
    734 S.W.2d 770
    , 772 (Tex.
    App.—Amarillo 1987, no writ).
    The Texas Supreme Court also amended rules 571 and 572 in 1981. TEX. R. CIV.
    P. 571, 572 (1981), amended by order of June 10, 1980, eff. Jan. 1, 1981; see generally
    43 Tex. B.J. 767 (1980). However, the automatic ten day extension provision was not
    added to rule 571 or 572. Therefore, the pre-1981 result under King still applies to
    justice court appeals.
    The Result
    As discussed above, the pertinent facts in the cases at hand are the same as those
    in King: an affidavit of inability was timely filed, but the justice court did not sustain the
    contest until after the deadline for filing an appeal bond had expired. Because we are
    constrained by the result in King, we conclude that Walker’s appeal bond was untimely
    filed and therefore his appeal was not timely perfected.
    The Texas Supreme Court has adopted the policy that the decisions of the courts
    of appeals should turn on substance rather than procedural technicality, and that the rules
    of civil and appellate procedure should be construed liberally in favor of preserving the
    right of appeal.        See Verburgt v. Dorner, 
    959 S.W.2d 615
    , 616-17 (Tex. 1997).
    However, the time for perfecting an appeal is not a mere procedural technicality. See
    Ballard v. Portnoy, 
    886 S.W.2d 445
    , 447 (Tex. App.—Houston [1st Dist.] 1994, no
    writ). It is jurisdictional. 
    Williams, 148 S.W.3d at 583
    . Although we are authorized to
    liberally construe the rules of procedure, we do not have the authority to construe a rule
    2
    The 1981 amendment was prior to the adoption of the Texas Rules of Appellate Procedure. The
    Texas Supreme Court adopted the Texas Rules of Appellate Procedure on September 1, 1986, thereby
    repealing the former appellate rules, which were found in Texas Rules of Civil Procedure 352-522. Texas
    Rule of Civil Procedure 356(b) then became part of Texas Rule of Appellate Procedure 41(a)(2), which in
    pertinent part, is identical to rule 356(b). TEX. R. APP. P. 41(a)(2) (1986, repealed 1997); see generally 49
    Tex. B.J. 556 (1986) (order of the Texas Supreme Court enacting the Texas Rules of Appellate Procedure).
    Rule 41(a)(2) was repealed in 1997 as part of the Texas Supreme Court’s overhaul of the rules.
    Specifically, in 1997, the court, as a general rule, dispensed with the need to file an appeal bond. In
    contrast to justice court appeals, all that is necessary now to perfect an appeal from district or county courts
    is a timely notice of appeal. Compare TEX. R. CIV. P. 571-573 with TEX. R. APP. P. 25.1(a); see generally
    60 Tex. B.J. 876 (1997).
    6
    of procedure so liberally as to enlarge our jurisdiction. 
    Ballard, 886 S.W.2d at 447
    .
    Accordingly, we overrule Walker’s sole issue.
    DISPOSITION
    We affirm the trial court’s judgment.
    JAMES T. WORTHEN
    Chief Justice
    Opinion delivered October 30, 2009.
    Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
    (PUBLISH)
    7
    

Document Info

Docket Number: 12-09-00130-CV

Filed Date: 10/30/2009

Precedential Status: Precedential

Modified Date: 9/11/2015