Mary Edmiston v. Wells Fargo Bank, NA ( 2010 )

NO. 12-09-00244-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
MARY EDMISTON, ' APPEAL FROM THE
APPELLANT
V. ' COUNTY COURT AT LAW OF
WELLS FARGO BANK, N.A., ' CHEROKEE COUNTY, TEXAS
APPELLEE
MEMORANDUM OPINION
Mary Edmiston appeals from the order of the county court at law dismissing her
appeal from a default judgment in a forcible detainer action. Wells Fargo Bank, N.A.
confesses error through a motion requesting remand. We reverse the trial court’s
dismissal order and remand for further proceedings.
BACKGROUND
Wells Fargo Bank, N.A. filed a forcible detainer action in the justice of the peace
court, precinct number 3, position 1, of Cherokee County, Texas, alleging the bank
owned property that certain individuals, including Edmiston, were occupying. The bank
alleged further that it had purchased the property at a nonjudicial foreclosure sale, and
had made written demand for the occupants to vacate the premises. However, the
occupants refused to vacate. Ultimately, the justice court signed a default judgment
awarding the bank possession of the property.
Edmiston and another occupant attempted to appeal the default judgment to the
county court at law by filing notices of appeal and pauper’s affidavits. The bank did not
contest either affidavit. The county court at law, sua sponte and without a hearing, found
that “all affidavits concerning indigency filed by the Defendant do not comply with
TRCP 145.” The court further found that “the Defendant[s] failed to comply with
TRCP 143a.” Consequently, the court dismissed the appeals and ordered the court clerk
to “return all papers in this Cause to the Justice Court having original jurisdiction and
said Court shall proceed as though no appeal had been attempted.” Edmiston appeals the
dismissal order.
DISCUSSION
Edmiston argues in her sole issue that the trial court erroneously concluded Texas
Rules of Civil Procedure 143a and 145 apply to pauper’s affidavits filed in an appeal
from a judgment in a forcible detainer action. We agree.
Texas Rule of Civil Procedure 749a prescribes the procedure for filing a pauper’s
affidavit in a forcible detainer action. As pertinent here, the rule provides as follows:
A pauper’s affidavit will be considered approved upon one of the following
occurrences: (1) the pauper’s affidavit is not contested by any party; (2) the pauper’s
affidavit is contested by the other party and upon a hearing the justice determines that the
pauper’s affidavit is approved; or (3) upon a hearing by the justice disapproving of the
pauper’s affidavit the appellant appeals to the county judge who then, after a hearing,
approves the pauper’s affidavit.
TEX. R. CIV. P. 749a. In this case, Edmiston filed a pauper’s affidavit in which she stated
that she was unemployed, had no assets other than a small amount of cash, and had
various monthly expenses, which she listed. The bank did not contest the affidavit.
Therefore, under the plain language of the rule, Edmiston’s pauper’s affidavit is
considered approved and she is entitled to proceed with her appeal without payment of
costs. See id. Accordingly, the trial court erred in disapproving Edmiston’s pauper’s
affidavit and dismissing the appeal. We sustain Edmiston’s sole issue.
CONCLUSION
The bank filed a motion informing this court that it “has found no authority
indicating that the pauper’s affidavit in this case must be controlled by anything other
than Rule 749a of the Texas Rules of Civil Procedure.” The bank further states that it did
not contest Edmiston’s pauper’s affidavit and agrees that the affidavit must be considered
approved. Therefore, it requests, in the interest of expedience, that this case be remanded
to the county court at law for a speedy trial on the merits. We grant the bank’s motion.
Having sustained Edmiston’s sole issue and granted the bank’s motion, we reverse the
order of the county court at law dismissing Edmiston’s appeal and remand the case to the
county court at law for further proceedings consistent with this opinion.
Texas Rule of Appellate Procedure 39.8 requires the clerk of this court to provide
the parties a specified form of notice at least twenty-one days before argument or
submission without argument. See TEX. R. APP. P. 39.8. To expedite a decision, rule of
appellate procedure 2 authorizes a court on its own initiative to suspend the operation of a
rule in a particular case. TEX. R. APP. P. 2. The bank has requested immediate relief.
Therefore, on our own initiative, we have applied rule 2 and submitted the case without
the notice required by rule 39.8.
BRIAN HOYLE
Justice
Opinion delivered February 10, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(PUBLISH)