Gerry Reel v. Norwood J. Ruiz ( 2013 )

Opinion issued August 22, 2013
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-12-00046-CV
———————————
GERRY REEL, Appellant
V.
NORWOOD J. RUIZ, Appellee
On Appeal from the County Court at Law No. 1
Galveston County, Texas
Trial Court Case No. CV-0065974
MEMORANDUM OPINION
Appellant Gerry Reel appealed a justice court judgment to the Galveston
County Court at Law No. 1. Because his appeal bond was filed more than ten days
after the date of the judgment, see TEX. R. CIV. P. 571, the county court at law
dismissed Reel’s appeal for want of jurisdiction. Reel appeals this dismissal,
arguing that he did not receive timely notice of the justice court’s entry of
judgment and his appeal bond was filed within five days of receiving notice of the
judgment. We affirm.
Background
Ruiz sued Reel and James Smith for damage to his house caused by Reel’s
boat during Hurricane Ike. Smith had sold the boat to Reel, but he never
transferred the title. The justice court originally signed a judgment against Smith.
The attorney representing Smith, who also represented Reel, filed a bill of review
which was heard on July 7, 2011. The court asked Smith and Reel’s attorney to
draft a proposed judgment reflecting a take-nothing judgment against Smith and a
$10,000 judgment against Reel.
On August 16 and August 17, 2011, the court signed identical final
judgments in this case, awarding Ruiz a $10,000 judgment against Reel. Neither
Reel nor Ruiz received notice of judgment until August 30, 2011. 1 After receiving
notice of the justice court’s judgment, Reel attempted to file an appeal bond on
September 2, 2011,2 but the justice court was closed, and he filed it the following
1
As only 13 days had passed since the signing of the judgment, Reel could not
invoke Rule 306a(4) to alter the applicable time periods to run from the receipt of
actual notice.
2
As 16 days had passed, even if Reel had perfected his appeal on September 2, he
could not benefit from an implied motion to extend time pursuant to Rule 26.3 of
2
Tuesday, September 6, 2011. This was more than 10 days after the final judgment
was signed in the trial court, but for purposes of the rules of civil procedure it was
within five days of Reel’s receipt of the judgment. See TEX. R. CIV. P. 4.
Ruiz filed a motion to dismiss the appeal in the county court, arguing that
the appeal bond was both untimely and deficient in that it did not name Reel, but
instead it named his co-defendant as to whom a take-nothing judgment was
rendered. Reel argued that the appeal should not be dismissed for want of
jurisdiction because his failure to file an appeal bond before September 6 was an
error of “form or substance” as contemplated by Rule 571 of the Texas Rules of
Civil Procedure, which provides would-be appellants with five days to cure
deficiencies after notice. See TEX. R. CIV. P. 571. The county court rejected that
argument and, because the appeal bond was considered untimely filed, dismissed
the appeal for want of jurisdiction.
At the conclusion of the hearing on the motion to dismiss, Reel’s counsel
stated, “I will appeal this and then I’ll go back to there and get a bill of review.”
the Texas Rules of Appellate Procedure. See Verburgt v. Dorner, 959 S.W.2d
615, 617 (Tex. 1997).
3
The only issue before us is the timely filed direct appeal from the county court at
law’s dismissal for want of jurisdiction.3
Analysis
Subject matter jurisdiction is a legal question, and we therefore review a
dismissal for want of jurisdiction under a de novo standard of review. Dept. of
Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Mayhew v. Town
of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998); Litoff v. Meadows Serv. Corp.,
352 S.W.3d 894, 896 (Tex. App.—Dallas 2011, no pet.).
Rule 571 of the Texas Rules of Civil Procedure provides that a party
appealing a justice court’s judgment has 10 days from the date a judgment is
signed to file an appeal bond or affidavit in lieu thereof. TEX. R. CIV. P. 571. The
filing of a bond or an affidavit in compliance with Rule 571 perfects the appeal
from the justice court to the county court. TEX. R. CIV. P. 573. “If the appeal bond
is not timely filed, the county court is without jurisdiction to hear the appeal and
the appeal should be dismissed for lack of jurisdiction.” Searcy v. Sagullo, 915
S.W.2d 595, 597 (Tex. App.—Houston [14th Dist.] 1996, no writ); accord Litoff,
352 S.W.3d at 896; Ashley Furniture Indus. Inc. v. Law Office of David Pierce,
311 S.W.3d 595, 598 (Tex. App.—El Paso 2010, no pet.).
3
Ruiz did not file a brief in this court. On April 23, 2013, one of his relatives
informed the court that he had passed away. We will proceed to adjudicate the
appeal as if all parties were alive. See TEX. R. APP. P. 7.1.
4
Rule 571 also provides that an “appeal shall not be dismissed for defects or
irregularities in procedure, either of form or substance, without allowing appellant
five days after notice within which to correct or amend same.” TEX. R. CIV. P.
571. Although the rule requires notice to start the clock for correcting or amending
a defect or irregularity, it does not provide for any specific type of notice. Ashley
Furniture, 311 S.W.3d at 599. However, the case law suggests that this rule is
used when some timely but otherwise deficient bona fide attempt has been made to
invoke appellate jurisdiction in the county court. See, e.g., Watkins v. Debusk, 286
S.W.3d 58, 60–62 (Tex. App.—El Paso 2009, no pet.) (appellant timely filed of
notice of appeal and insufficient appeal bond and had five days to cure deficiency
in amount of appeal bond after notice by way of adversary’s plea to the
jurisdiction); Ashley Furniture, 311 S.W.3d at 598 (appellant timely filed notice of
appeal and insufficient appeal bond and had five days to cure deficiency after
notice by way of adversary’s motion to dismiss); Rowe v. Watkins, 340 S.W.3d
860, 863 (Tex. App.—El Paso 2011, no pet.) (appellant timely filed appeal bond
that was defective for lack of listing sureties, and appellant had five days from
receipt of letter from adversary identifying deficiency to cure it); A.J.’s Wrecker
Serv. of Dallas, Inc. v. Orozco., 68 S.W.3d 45, 48 (Tex. App.—Dallas 2001, orig.
proceeding) (appellant filed appeal bond that was deficient in that it lacked oaths of
sureties and was not approved by the justice before filing, and appellant failed to
5
correct defects within five days from notice provided by letter from the court). In
each of these cases, the notice informed the appellant of the specific defect, such as
an insufficient bond.
Reel argues that Rule 571’s provision for correcting a defect of form or
substance should apply in this case to allow for him to pursue an untimely appeal
because he did not have notice of the judgment. He contends that the notice he
received of the trial court’s judgment is equivalent to notice of a deficiency as
contemplated by Rule 571, and because he filed his appeal bond within five days
of receiving notice of the trial court’s judgment, the county court had jurisdiction
over his appeal. 4 He urges the court to liberally construe the rules of procedure to
reach this outcome. See Verburgt v. Dorner, 959 S.W.2d 615, 616–17 (Tex. 1997)
(holding that a motion for extension of time is implied when a party makes a good
faith, but untimely, attempt to appeal within the time period in which he would be
entitled to move for an extension of the filing deadline). Even Verburgt did not
indefinitely extend the time for a party to file an appeal, rather “the correction must
be made within the specified deadline provided in the statute.” Watkins, 286
S.W.3d at 61. Rule 571 provides for an extension of time of five days after notice
of “defects or irregularities in procedure, either of form or substance.” TEX. R.
CIV. P. 571. Reel never received a notice of defects or irregularities in procedure;
4
See TEX. R. CIV. P. 4 (“Saturdays, Sundays and legal holidays shall not be counted
for any purpose in any time period of five days or less in these rules . . . .”).
6
he received an untimely notice of the justice court’s judgment. Nothing in the
judgment specifically informed him of any correctable defect or irregularity in his
attempt to appeal, because he had made no attempt to appeal. Moreover, Reel’s
argument would permit an indefinite extension of the time to perfect an appeal, a
result that would be inconsistent with Verburgt’s express reliance on the 15-day
period for extending time for a notice of appeal as an outer limit. See Verburgt,
959 S.W.2d at 617. Therefore, we conclude that the notice of judgment was not a
notice as contemplated by Rule 571, and we decline Reel’s invitation to construe
the rule more liberally than its language permits.
Because Reel’s appeal bond was filed more than ten days after judgment, we
conclude that the county court at law lacked jurisdiction, and we hold that it did
not err by dismissing the appeal.
Conclusion
We affirm the judgment of the county court at law.
Michael Massengale
Justice
Panel consists of Chief Justice Radack and Justices Sharp and Massengale.
Justice Sharp, concurring in the judgment only.
7