Jesse F. Reece, Sr. v. Fountaingate Apartments ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-357-CV
JESSE F. REECE, SR. APPELLANT
V.
FOUNTAINGATE APARTMENTS APPELLEE
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FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY
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MEMORANDUM OPINION 1
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In this forcible entry and detainer proceeding, Appellant Jesse F. Reece,
Sr., pro se, appeals the district court’s order dismissing for want of jurisdiction
his appeal from the justice court. We likewise dismiss for want of jurisdiction.
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… See T EX. R. A PP. P. 47.4.
Background
On May 15, 2007, Appellee Fountaingate Apartments instituted eviction
proceedings against Reece, its tenant, in a justice court in Wichita County. On
May 29, 2007, after a hearing on the merits, the justice court rendered
judgment granting Fountaingate possession of the premises in question and
unpaid rent of $151.57.
On June 4, Reece filed a declaration of inability to pay costs under rule
of civil procedure 749(a). See T EX. R. C IV. P. 749(a). Fountaingate filed an
objection to Reece’s declaration. On June 11, after a hearing on the merits, the
justice court disapproved Reece’s declaration of inability to pay costs and
ordered him to deposit with the court a cash bond or surety bond payable to
Fountaingate in the amount of $948 and to pay a transcript fee of $10. Reece
appealed the justice court’s order to the county court, and after another hearing
on the merits, the county court also disapproved his affidavit of inability to pay
costs on July 2.
Reece filed an appeal bond on July 6, but the purported bond was not
approved by the justice court as required by rule 749 and was signed only by
Reece, not any surety. See T EX. R. C IV. P. 749. His appeal was filed in the
89th District Court of Wichita County. Reece filed a purported oath of surety
on July 13, in which he listed himself as his own surety.
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Fountaingate filed a motion to dismiss the appeal because Reece’s
defective appeal bond failed to confer jurisdiction on the district court. The
district court dismissed the appeal on September 7. Reece perfected an appeal
to this court on October 4.
Discussion
In his first issue, Reece argues that “[t]he circumstantial evidence is
factually insufficient” to support the district court’s dismissal of his appeal.
Rule 749 provides that a party may appeal a justice court judgment in a forcible
entry and detainer case by filing with the justice, within five days after the
judgment is signed, a bond to be approved by said justice and payable to the
adverse party. T EX. R. C IV. P. 749. Rule 750 sets out the form for the appeal
bond authorized by rule 749, and the form calls for execution of the bond by
the principal and a surety. T EX. R. C IV. P. 750. A bond filed under rule 749
must substantially comply with the form set out in rule 750. Pharis v. Culver,
677 S.W.2d 168, 170 (Tex. App.—Houston [1st Dist.] 1984, no writ). The
failure to timely file a bond in accordance with rule 749 deprives the reviewing
court of jurisdiction. Wetsel v. Fort Worth Brake, Clutch & Equip. Inc., 780
S.W.2d 952, 953–54 (Tex. App.—Fort Worth 1989, no writ).
Reeces’s purported appeal bond did not list any surety and was not
executed by a surety as required by rule 750. In his “oath of surety,” he listed
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himself as the purported surety. To allow a judgment debtor to serve as his
own surety would defeat the purpose of an appeal bond, which is to guarantee
the payment of judgment damages, costs, and attorney’s fees in the event of
an unsuccessful appeal by the judgment debtor. See T EX. R. C IV. P. 752. The
undisputed record shows that Reece failed to file a bond that substantially met
the requirements of rule 750; therefore, the evidence was factually sufficient
to support the district court’s dismissal of his appeal.
In the latter part of his first issue and in his second issue, Reece argues
that when an appeal bond is defective, the court should allow the bond to be
amended rather than dismiss the appeal. In Pharis, the first court of appeals,
citing former rules of procedure 430 and 363a,2 held that a county court may
permit a party to amend a defective bond upon a timely request. 677 S.W.2d
at 170 (quoting Woods Exploration & Producing Co. v. Arkla Equip. Co., 528
S.W.2d 568, 570 (Tex. 1975)). Reece made no such request in the district
court.
Moreover, to preserve a complaint for our review, a party must have
presented to the trial court a timely request, objection, or motion that states the
specific grounds for the desired ruling, if they are not apparent from the context
2
… Former rules 430 and 363a concerned appeal bonds in civil appeals,
a subject now covered by rule of appellate procedure 24. T EX. R. A PP. P. 24.
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of the request, objection, or motion. T EX. R. A PP. P. 33.1(a); see also T EX. R.
E VID. 103(a)(1). If a party fails to do this, error is not preserved, and the
complaint is waived. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op.
on reh’g). Again, Reece did not request an opportunity to amend the defective
bond in the trial court; thus, he waived his complaint concerning the trial
court’s refusal to allow him to do so. See T EX. R. A PP. P. 33.1(a). We overrule
his first and second issues.
The gravamen of Reece’s third issue is unclear, but he appears to argue
that he should be allowed to serve as his own surety. For the reasons stated
above, we overrule his third issue.
In his fourth issue, Reece apparently argues that the justice court erred
by issuing a writ of possession after the district court dismissed his appeal.
Part of this argument relates back to his first through third issues; essentially,
Reece argues that the justice court erred by issuing a writ of possession
because his bond was sufficient to perfect an appeal to the district court and
supercede the justice court’s judgment. Having overruled his first through third
issues, we likewise overrule this part of his fourth issue for the same reasons.
In the remainder of his fourth issue, he apparently argues that the writ of
possession violated rule 755 because the subject premises were his principal
residence. Rule 755 provides that a writ of possession shall not be suspended
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or superceded by an appeal from the justice court’s judgment unless the
premises in question are being used as the principal residence of a party. T EX.
R. C IV. P. 755. Because Reece’s defective bond did not perfect his appeal
under rule 749, he was not entitled to suspension of the justice court’s
judgment under rule 755. See id. Therefore, we overrule the remainder of his
fourth issue.
Conclusion
Having overruled all of Reece’s issues, we dismiss his appeal for want of
jurisdiction. See T EX. R. A PP. P. 43.2(f). We deny Fountaingate’s “Motion to
Dismiss for Failure to Prosecute” and its “Objection to Inclusion of Matters
Outside the Record in Appeal.”
ANNE GARDNER
JUSTICE
PANEL: CAYCE, C.J.; GARDNER and WALKER, JJ.
DELIVERED: August 26, 2008
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