Yusuf Sultan D/B/A U.S. Carpet and Floors v. Mathew, Savio ( 2003 )

Dismissed and Opinion filed April 3, 2003

Dismissed and Opinion filed April 3, 2003.

In The

Fourteenth Court of Appeals

____________

NO. 14-02-01254-CV

____________

YUSUF SULTAN D/B/A U. S. CARPET AND FLOORS, Appellant

V.

SAVIO MATHEW, Appellee

On Appeal from the County Civil Court at Law No. 2

Harris County, Texas

Trial Court Cause No. 767,190

M E M O R A N D U M   O P I N I O N

This is an attempted appeal from a judgment signed August 16, 2002.  On March 1, 2001, Savio Mathew, appellee, filed suit against Yusuf Sultan d/b/a U.S. Carpet and Floors, appellant.  The suit was filed in the Small Claims Court of Precinct 5, Place 1 of Harris County.  In his petition, Mathew alleged Sultan owed him $4,000.00 for damage caused  by Sultan=s company when it installed a laminated floor in Mathew=s home.  After trial, the judge of the small claims court found in favor of Mathew and awarded him $4,000.00, court costs, and interest. 

Dissatisfied, Sultan filed a de novo appeal in the County Civil Court at Law No. 2. The cause was set for trial and a notice was sent to Sultan; however, Sultan claims he never received the notice because it was incorrectly addressed.  Specifically, Sultan claims, the notice did not contain the d/b/a entity of AU.S. Carpet & Floors@ and used the incorrect suite number.  Because he allegedly did not receive notice of the trial setting, Sultan failed to appear.  On August 16, 2002, after noting Sultan=s failure to appear, the trial court entered a final judgment in favor of Mathew and awarded him $4,485.77, court costs, and interest.  Sultan filed a notice of appeal in this Court. 

On December 10, 2002, notification was transmitted to all parties of the Court=s intent to dismiss the appeal for want of jurisdiction.  See Tex. R. App. P. 42.3(a).  Following this Court=s granting of an extension, Sultan filed a response on January 28, 2003; however, this Court found the response failed to demonstrate that this Court has jurisdiction to entertain the appeal.  Accordingly, on February 6, 2003, this Court issued an opinion dismissing appellant=s appeal for want of jurisdiction. On February 21, 2003, appellant filed a motion for rehearing complaining that this Court=s notice of intent to dismiss incorrectly stated the grounds upon which the Court was considering dismissing the appeal.  Appellant asked that we grant the motion for rehearing, withdraw the opinion, and allow appellant an opportunity to argue and brief the issues for which the appeal was originally dismissed.  We found appellant=s motion meritorious.  By order dated March 13, 2003, this Court granted appellant=s motion for rehearing and ordered (1) our opinion of February 6, 2003, withdrawn, (2) the judgment of February 6, 2003, vacated, and (3) the appeal reinstated.

In that same order, however, we notified the parties that on April 1, 2003, the Court would again consider dismissal of the appeal on its own motion for want of jurisdiction.  See Tex. Gov=t Code Ann. ' 28.053(b) (Vernon 1988); Davis v. Covert, 983 S.W.2d 301, 302 (Tex. App.CHouston [1st Dist.] 1998, pet. dism=d w.o.j.).  We stated the appeal would be dismissed unless appellant filed a motion to retain on or before March 24, 2003, showing meritorious grounds for continuing the appeal. On March 26, 2003, appellant filed a motion to retain.  We have reviewed the motion and again find it fails to demonstrate that this Court has jurisdiction to entertain the appeal. 

An appeal from a small claims court judgment is to a county court in a de novo proceeding.  Tex. Gov=t Code Ann. ' 28.053(b) (Vernon 1988).  AJudgment of the county court or county court at law on the appeal is final.@ Id. ' 28.053(d).  Before 1998, the courts uniformly held that a judgment from a county court in a de novo appeal from a small claims court could be appealed to the court of appeals.  See, e.g., Galil Moving & Storage, Inc. v. McGregor, 928 S.W.2d 172, 173 (Tex. App.CSan Antonio 1996, no writ). In 1998, however, the First Court of Appeals held there is no appeal to the court of appeals from a judgment of the county court after a trial de novo appeal from the small claims court.  Davis v. Covert, 983 S.W.2d 301, 302 (Tex. App.CHouston [1st Dist.] 1998, pet. dism=d w.o.j.) (en banc).  In Davis, the court reasoned that the term Afinal,@ as used in section 28.053(d), means no further appeal is permitted.  Id.  Although the court recognized that section 51.012 of the Texas Civil Practice and Remedies Code gives a court of appeals jurisdiction over cases in which the amount in controversy exceeds $100.00, the court held the specific provisions of section 28.053(d) control over the more general provisions of section 51.012.^[1]  Id. at 303. 

The interpretation by the First Court of Appeals in Davis has been followed by the Second, Fourth, Fifth, Sixth, Seventh, Tenth, Thirteenth, and Fourteenth Courts of Appeals. See Tumlinson v. Gutierrez, 55 S.W.3d 673, 674 (Tex. App.CCorpus Christi 2001, no pet.); Oropeza v. Valdez, 53 S.W.3d 410, 412 (Tex. App.CSan Antonio 2001, no pet.); The Woodlands Plumbing Co., Inc. v. Rodgers, 47 S.W.3d 146, 149 (Tex. App.CTexarkana 2001, pet. denied); A-Rocket Moving & Storage v. Gardner, No. 14-99-01380-CV, 2001 WL 333447, *1 (Tex. App.CHouston [14th Dist.] April 5, 2001, no pet.) (not designated for publication); Howell Aviation Servs. v. Aerial Ads, Inc., 29 S.W.2d 321, 323-24 (Tex. App.CDallas 2000, no pet.); Townsend v. Accidental Injury Treatment Ctr., No. 07-99-0073-CV, 2000 WL 157900, *1 (Tex. App.CAmarillo February 9, 2000, no pet.) (not designated for publication); Lederman v. Rowe, 3 S.W.3d 254, 255 (Tex. App.CWaco 1999, no pet.); Gaskill v. Sneaky Enterps., Inc., 997 S.W.2d 296, 297 (Tex. App.CFort Worth 1999, pet. denied).  As in A-Rocket Moving, we agree and hold there is no further appeal from a county court judgment after an appeal through trial de novo of a small claims court judgment.  It is the legislature that has the power to determine the jurisdiction of the court. Woodlands Plumbing, 47 S.W.3d at 149 (citing Davis, 983 S.W.2d at 303).  The legislature has the power to limit the right of appeal.  Id. (citing Seale v. McCallum, 116 Tex. 662, 287 S.W. 45, 47 (1926)).  The Texas Legislature could not have been more clear when it stated that such an appeal in the county court is Afinal.@ Gaskill, 997 S.W.2d at 297. 

Accordingly, the appeal is ordered dismissed.

PER CURIAM

Judgment rendered and Opinion filed April 3, 2003.

Panel consists of Justices Yates, Hudson, and Frost.

---

^[1]              Section 51.012 states:  AIn a civil case in which the judgment or amount in controversy exceeds $100, exclusive of interest and costs, a person may take an appeal or writ of error to the court of appeals from a final judgment of the district or county court.@  Tex. Civ. Prac. & Rem. Code Ann. ' 51.012 (Vernon 1997).