Kim Cox v. Keith Simmonds ( 2015 )

NUMBER 13-14-00304-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
KIM COX, Appellant,
v.
KEITH SIMMONDS, Appellee.
On appeal from the County Court of
DeWitt County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Garza
Memorandum Opinion by Justice Garza
In this restricted appeal, appellant Kim Cox, a surety on the appeal bond in this
case, contends: (1) the trial court lacked jurisdiction to issue an “Order Granting Motion
for Judgment” four-and-a-half months after it granted a default judgment in favor of
appellee Keith Simmonds; and (2) Cox’s liability was limited by the terms of the bond and
the trial court erred in awarding judgment against him in excess of the bond’s limitations.
We dismiss for lack of jurisdiction.
I. BACKGROUND
Simmonds sued his employer, Jordan Oilfield Services (“Jordan”), for unpaid
wages and related expenses. On July 29, 2013, because Jordan did not appear, a DeWitt
County justice court granted a default judgment in favor of Simmonds in the amount of
$4,547.23. Jordan appealed to the county court and filed an appeal bond in the amount
of $9,094.46 with Jordan as principal and Cox, Jordan’s attorney, as surety. See TEX. R.
CIV. P. 506.1 (requiring a defendant to file bond in an amount equal to twice the amount
of judgment to appeal justice court judgment). The bond acknowledged that Jordan and
Cox were “jointly and severally bound” in the amount of the bond.
On November 13, 2013, on appeal to a bench trial in the county court, Simmonds
appeared and testified as to the amount he was owed in unpaid wages and unreimbursed
expenditures. Again, Jordan did not appear. Simmonds presented receipts in support of
his testimony. The county court awarded default judgment in Simmonds’s favor in the
amount of $4,547.23. It ordered the damages to be awarded out of the appeal bond. The
county court noted that, based on the language in the appeal bond, Cox was jointly and
severally liable for the damages and that Simmonds “may have a cause of action to
collect.” That same day, November 13, 2013, the trial court signed a default judgment
awarding Simmonds $4,547.23 plus five percent interest and costs against Jordan, but
not Cox.
Over four months later, on March 31, 2014, Simmonds, represented by counsel,
filed a “Motion for Judgment” in the county court. The motion noted that: (1) the county
court had awarded Simmonds a default judgment against Jordan on November 13, 2013;
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and (2) Simmonds sent notice and demand for payment to Jordan and Cox on March 4,
2014, but neither responded. The motion requested the trial court to order recovery from
Jordan for “all costs expended, including interest and reasonable attorney’s fees,” and to
order recovery from Cox on the appeal bond up to the full amount of the bond. Without
a hearing, the trial court signed an order granting the motion for judgment on April 3,
2014. The court ordered that Simmonds recover from Jordan and Cox $4,547.23, plus
$133.30 in pre-judgment interest, $750.00 in attorney’s fees, and five percent post-
judgment interest. On May 23, 2014, Cox filed his notice of appeal.
II. STANDARD OF REVIEW AND APPLICABLE LAW
Whether a trial court has subject-matter jurisdiction is a question of law that we
review de novo. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 502 (Tex. 2010); Tex.
Comm'n on Envtl. Quality v. Bonser-Lain, 438 S.W.3d 887, 891 (Tex. App.—Austin 2014,
no pet.). Here, whether the county court had jurisdiction to grant Simmonds’s motion for
judgment over four months after it granted him a default judgment is a question of law
that we review de novo. See Fernandez, 315 S.W.3d at 502.
A restricted appeal is a direct attack on a default judgment. Eguia v. Eguia, 367
S.W.3d 455, 458 (Tex. App.—Corpus Christi 2012, no pet.). To succeed in a restricted
appeal, an appellant must establish that: (1) it filed the notice of restricted appeal within
six months after the final judgment is signed; (2) it was a party to the underlying lawsuit;
(3) it did not participate in the hearing that resulted in the judgment complained of and did
not file any post-judgment motions or requests for findings of fact and conclusions of law;
and (4) the error complained of is apparent on the face of the record. Id.
III. DISCUSSION
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A. Jurisdiction
By his first issue, appellant contends that the trial court had no jurisdiction to enter
the April 3, 2014 judgment—which included him as a party liable for the judgment and
awarded attorney’s fees—because the trial court’s plenary power had expired. Generally,
a trial court may correct or revise its judgment only during the period of its plenary power,
which expires thirty days after the judgment is signed unless a motion extending the trial
court's plenary power has been filed. See TEX. R. CIV. P. 329b; Smalley v. Smalley, 436
S.W.3d 801, 806 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
Appellee responds that the trial court had jurisdiction to amend its judgment after
the expiration of its plenary power because amending the judgment to add appellant’s
liability as surety was a ministerial act that the court could perform, citing Whitmire v.
Greenridge Place Apartments, 333 S.W.3d 255, 261 (Tex. App.—Houston [1st Dist.]
2010, pet. dism’d). In Whitmire, the First Court of Appeals held that it had jurisdiction to
amend its judgment, after the expiration of its plenary power, to render judgment against
the sureties on a supersedeas bond. Id. The Whitmire Court cited Texas Rule of
Appellate Procedure 43.5, which provides that, when an appellate court affirms a trial
court’s judgment in a civil case, it “must render judgment against the sureties on the
appellant’s supersedeas bond, if any, for the performance of the judgment and for any
costs taxed against the appellant.” TEX. R. APP. P. 43.5. Moreover, rule 24.3 of the rules
of appellate procedure, pertaining to supersedeas bonds, provides, “Even after the trial
court's plenary power expires, the trial court has continuing jurisdiction to . . . order the
amount and type of security and decide the sufficiency of the sureties.” TEX. R. APP. P.
24.3(a)(1); see Whitmire, 333 S.W.3d at 260; In re M.V.G., 285 S.W.3d 573, 575 (Tex.
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App.—Waco 2009) (order abating appeal) (per curiam) (“And if the judgment is
superseded, the trial court nevertheless retains ‘continuing jurisdiction’ to evaluate the
adequacy of the security required to supersede the judgment.”); Miller v. Kennedy &
Minshew, Prof'l Corp., 80 S.W.3d 161, 164 (Tex. App.—Fort Worth 2002, no pet.) (holding
that trial court possesses authority after the expiration of its plenary power to review the
sufficiency of sureties on a supersedeas bond). Thus, if the bond in the present case was
a supersedeas bond, the trial court had continuing jurisdiction to review the amount of the
bond and the sufficiency of the sureties. See TEX. R. APP. P. 24.3(a)(1).
However, the bond at issue in this case was not a supersedeas bond, but an
appeal bond filed pursuant to rule of civil procedure 506.1. See TEX. R. CIV. P. 506.1.1
To perfect an appeal from a justice court to a county court, an appellant must file an
appeal bond, a cash deposit in the amount required of the bond, or a statement of inability
to pay. Id. at R. 506.1(a), (c), (d). A defendant (here, appellant) must file a bond in an
amount equal to twice the amount of the judgment. Id. at R. 506.1(b). The bond must
be: (1) “supported by a surety or sureties approved by the judge”; (2) “payable to the
appellee”; and (3) “conditioned on the appellant’s prosecution of its appeal to effect and
payment of any judgment and all costs rendered against it on appeal.” Id. “An appeal is
perfected when a bond, cash deposit, or statement of inability to pay is filed in accordance
1 We recognize that rules of civil procedure 500 through 510 were adopted effective August 31,
2013. See Final Approval of Rules for Justice Court Cases, Misc. Docket No. 13-9049 (Tex. April 15, 2013).
At the time the bond was executed on July 31, 2013, former rule of civil procedure 571 was in effect. See
TEX. R. CIV. P. 571 (1962, repealed Aug. 31, 2013). However, the new rules, including rule 506.1, govern
“cases filed on or after August 31,2013, and cases pending on August 31, 2013.” See Final Approval of
Rules for Justice Court Cases, Misc. Docket No. 13-9049 (Tex. April 15, 2013). Appellant’s appeal was
perfected by the filing of the appeal bond; therefore, the case remained pending in the county court on
August 31, 2013. Accordingly, we apply current rule of civil procedure 506.1.
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with this rule.” Id. at R. 506.1(h). When an appeal has been perfected from the justice
court, the case shall be tried de novo in the county court. Id. at R. 506.3.
Here, the bond, dated July 31, 2013 and titled “Appeal Bond,” stated:
Jordan Oilfield Services, Defendant, under the authority of Tex. R. App. P.
40 and 46, files this Bond to perfect the Appeal.[2]
The court signed the Final Judgment in this case on Monday, July 29, 2013,
in favor of Plaintiff, Keith Simmonds, and against Defendant, Jordan Oilfield
Services.
Jordan Oilfield Services, Defendant, desires to Appeal from this Judgment
to the County Court at Law.
The deadline for filing the Appeal Bond is Thursday, August 8, 2013.
Jordan Oilfield Services as Principal, and Kim Cox, as Surety, whose
address is 701 Ayers St., Corpus Christi, Texas, 78404, acknowledge they
are jointly and severally bound to pay the clerk of the court the sum of Nine
Thousand Ninety-Four Dollars and 46/100 ($9,094.46).
This bond is conditioned that Jordan Oilfield Services, Defendant[,] will
prosecute the appeal with effect and will pay all costs that have accrued in
the Justice of the Peace Court and the cost of the statement of facts and
transcript.
The amount of the bond, $9,094.46, is twice the amount of the judgment, as
prescribed by rule 506.1(b). Compliance with the requirements of rule 506.1 is
jurisdictional, and only compliance with the requirements of the rule will perfect the
appeal. See Litoff v. Meadows Serv. Corp., 352 S.W.3d 894, 896 (Tex. App.—Dallas
2011, no pet.); Rowe v. Watkins, 340 S.W.3d 860, 863 (Tex. App.—El Paso 2011, no
pet.); Ashley Furniture Indus., Inc. ex rel. RBLS, Inc. v. The Law Office of David Pierce,
311 S.W.3d 595, 598 (Tex. App.—El Paso 2010, no pet.) (all construing former rule of
civil procedure 571). If an appeal contains defects or irregularities in procedure, either of
2We note that neither Texas Rule of Appellate Procedure 40 nor 46 relates to the filing of a bond.
See TEX. R. APP. P. 40, 46.
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form or substance, the appeal shall not be dismissed without allowing the appellant, after
seven days’ notice from the court, an opportunity to correct such defect. TEX. R. CIV. P.
506.1(g). Here, the record does not reflect that appellant was notified, either by the court
or by appellee, of any insufficiency or defect in the bond. Accordingly, we conclude that
by filing the appeal bond, appellant perfected the appeal to the county court.
Thus, the county court had jurisdiction to grant the default judgment in appellee’s
favor on November 13, 2013. However, because the bond was an appeal bond filed
pursuant to rule 506.1 and not a supersedeas bond, we conclude that the supersedeas-
bond rules of appellate procedure—43.5 (applicable to a supersedeas bond and relied on
in Whitmire, 333 S.W.3d at 261) and 24.3 (providing for continuing jurisdiction to review
sufficiency of sureties in a supersedeas bond)—are not applicable. We therefore find that
the county court’s plenary power expired thirty days after the November 13, 2013
judgment, and that the county court lacked jurisdiction to grant the April 3, 2014 judgment.
Any judicial action taken after the trial court's plenary power expired is void. See State
ex. rel Latty v. Owens, 907 S.W.2d 484, 486 (Tex.1995); In re T.G., 68 S.W.3d 171, 177
(Tex. App.—Houston [1st Dist.] 2002, pet. denied). We sustain appellant’s first issue.
Because we lack jurisdiction, we need not address appellant’s second issue.3 See
TEX. R. APP. P. 47.1.
IV. CONCLUSION
Because the April 3, 2014 judgment is void, we dismiss for lack of jurisdiction.
DORI CONTRERAS GARZA,
Justice
3We note that appellee filed a “Motion for Partial Dismissal for Lack of Jurisdiction” in which he
argued that this Court lacked jurisdiction over Cox’s second issue. We deny appellee’s motion as moot.
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Delivered and filed the
5th day of February, 2015.
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