Melawer v. Tipton (Tex.App.- Houston [14th Dist.] Oct. 29, 2009)(Sullivan)
(attempted appeal arises from a
lawsuit originally filed in small claims court; dismissed for lack of appellate
jurisdiction under law in effect at the time precluding appeal of such case)
DISMISSED-WANT OF JURISDICTION: Opinion by
Justice Sullivan     
Before Chief Justice Hedges, Justices Seymore and Sullivan   
14-08-00721-CV  Abraham Melawer v. Robert S. Tipton    
Appeal from County Court of Shelby County
Trial Court Judge: Judge Shelby County

MEMORANDUM OPINION

This attempted appeal arises from a lawsuit originally filed in small claims court[1] in Shelby
County.  The justice of the peace rendered a judgment against appellant, Abraham Melawer,
which he then appealed to the county court for a trial de novo.  See Tex. Gov’t Code Ann. § 28.053
(b) (Vernon 2004 & Supp. 2009).  The county court judge likewise found in favor of appellee,
Robert S. Tipton, and entered a judgment against Melawer.  Appellant responded by filing this
appeal complaining of the county court’s judgment.

However, under section 28.053(d) of the Texas Government Code, we lack jurisdiction to
consider the merits of Melawer’s appeal because this case was originally filed in small claims
court.  See Sultan v. Mathew, 178 S.W.3d 747, 749–50 (Tex. 2005) (“[W]e conclude that by
declaring in section 28.053(d) that the ‘judgment of the county court or county court at law is final,’
the Legislature intended to prohibit appeals to the courts of appeals.”).[2]  

Accordingly, we must dismiss this appeal for want of jurisdiction.[3]  See id. at 752–53.
   
/s/        
Kent C. Sullivan

Justice

Panel consists of Chief Justice Hedges, and Justices Seymore and Sullivan.

[1]  We note that some of the documents filed by Melawer contain the caption, “IN THE JUSTICE COURT
OF SHELBY COUNTY, TEXAS.”  See Tex. Gov’t Code Ann. §§ 28.002–.003 (Vernon 2004 & Supp. 2009)
(providing for concurrent jurisdiction between small claims court and justice court, and specifying that a
justice of the peace also sits as the judge in small claims court).  However, the caption of the lawsuit
petition filed by appellee, Robert S. Tipton, reads “Small Claims – Statement of Claim” and is followed by
the notation “TEX. GOV’T CODE ANN. 28.012.”  Section 28.012 provides the form for a small-claims
petition, and Tipton’s Statement of Claim closely tracks that requisite form.  See id. § 28.012(b) (Vernon
2004).  The citation also commanded Melawer to appear “before the Small Claims Court” and was signed
by the Shelby County Justice of the Peace in his capacity as judge of the small claims court.  Further, the
record does not indicate that the case was transferred from the small claims court to the justice court.  
Thus, notwithstanding Melawer’s suggestion to the contrary in his trial-court pleadings, we conclude this
case was filed in small claims court.  See Lister v. Walters, 247 S.W.3d 381, 383 (Tex. App.—Texarkana
2008, no pet.).

[2]  After this case was filed, the Texas Legislature amended the Government Code to confer jurisdiction
on an appellate court to review a county court’s judgment following a de novo appeal from small claims
court.  See Act of June 1, 2009, 81st Leg., R.S., ch. 1351, § 9, 2009 Tex. Sess. Law Serv. 4271, 4273
(Vernon) (to be codified at Tex. Gov’t Code Ann. § 28.053(d)).  However, the Legislature expressly limited
the scope of that amendment to apply only to actions filed after September 1, 2009.  See id. §§ 14, 15,
2009 Tex. Sess. Law. Serv. at 4280–81.  Therefore, this case, which was filed before the effective date of
the amendment, is still governed by the previous version of section 28.053(d) discussed in Sultan.  See id.
§ 14, 2009 Tex. Sess. Law Serv. at 4280.

[3]  On September 23, 2009, we notified the parties of our intent to dismiss this appeal pursuant to Sultan
but invited them to demonstrate our jurisdiction to consider the merits of this case.  See Tex. R. App. P.
42.3.  In response, appellant suggested we assume some sort of “case-by-case” jurisdiction when
warranted by the facts.  However, as an intermediate court of appeals, we are not free to simply disregard
the Texas Supreme Court’s clear pronouncement that we cannot review the merits of this appeal.  See
Sultan, 178 S.W.3d at 752–53; In re K.M.S., 91 S.W.3d 331, 331 (Tex. 2002).