law-appeals-from-JP-and-Small-Claims-Court

law-appeal-from-JP-court | TRCP 571 | perfection of appeal from justice court trial de novo in county court |
requirement for bond | small claims courts appeals |

RULES GOVERNING APPEAL FROM JP COURT

To perfect an appeal from justice court to county court, an appellant must: (1) file an appeal bond as required
by Rule 571 or file an affidavit of inability to pay under Rule 572; and (2) pay to the county clerk, within twenty
days after being notified by the county clerk to do so, the costs on appeal as required by Rule 143a. Tex.R.Civ.
P. 571; Watkins, 286 S.W.3d at 60, citing Almahrabi v. Booe, 868 S.W.2d 8, 10 (Tex.App.--El Paso 1993, no
writ). Rule 573 provides that an appeal is perfected when the bond has been filed and all requirements of Rule
571 have been satisfied. Tex.R.Civ.P. 573. To comply with Rule 571, an appellant must file an appeal bond
with the justice of the peace in an amount equal to twice the amount of the judgment within ten days from the
date the judgment is signed. Tex.R.Civ.P. 571.
      If an appeal contains defects or irregularities in procedure, either of form or substance, the appeal shall
not be dismissed without allowing an appellant five days after notice within which to correct or amend
the defective appeal. Tex.R.Civ.P. 571. Rule 571 does not provide for any specific type of notice. Watkins,
286 S.W.3d at 62, citing Heldt v. 12811 El Sendereo Trust # 0415022, No. 04-04-00615-CV, 2005 WL
1458234 at *1 (Tex.App.--San Antonio June 22, 2005, pet. denied)(mem. op. not designated for publication).
The notice must conform to due process which is met if the notice prescribed affords the party a fair
opportunity to appear and defend its interests. Watkins, 286 S.W.3d at 62; In re A.Y., 16 S.W.3d 387, 388 (Tex.
App.--El Paso 2000, no pet.). Compliance with each requirement of Rule 571 is jurisdictional. See
Almahrabi, 868 S.W.2d at 10. If one of the prerequisites is not met, and the defect is not corrected within five
days of notice, the county court lacks jurisdiction to hear the appeal and it must be dismissed. See William v.
Schneiber, 148 S.W.3d 581, 583 (Tex.App.--Fort Worth 2004, no pet.).

Perfection of an appeal to county court from a justice court for trial de novo vacates and
annuls the judgment of the justice court.

PROCEDURE FOR BRINGING APPEAL FROM JP COURT - NECESSITY OF POSTING BOND.
In order for jurisdiction to attach in a county court on an appeal from a justice court proceeding, the appealing
party must file an appeal bond with the justice of the justice court in an amount double the amount of the
judgment within 10 days after the judgment or order overruling a motion for new trial is signed. Tex. R. Civ. P.
571; see Meyers v. Bedford, 550 S.W.2d 359, 360 (Tex. Civ. App.--El Paso 1977, no writ) (stating that filing
appeal bond "is a prerequisite to the jurisdiction of the county court"). The appeal bond must be signed by "two
or more good and sufficient sureties" and must be approved by the justice of the justice court. Tex. R. Civ. P.
571. When the bond has been filed with the justice of the justice court, the appeal has been perfected. Tex. R.
Civ. P. 571, 573. Within five days following the filing of the appeal bond, the party appealing must give notice of
the filing of the bond to all parties who have not filed a bond, as provided in Rule 21a. Id.
Gundogan v. Woodgrove Condominium Assoc. (Tex.App.- Houston [1st Dist.] Jun. 18, 2009)(Op. By Keyes)
(suit for damages against Condo Assoc. re: maintainance, appeal from justice court to county court, no
appeals bond posted, appeal dismissed for lack of jurisdiction in county court DWOJ)
VACATE TC JUDGMENT AND DISMISS CASE: Opinion by Justice Keyes
Before Justices Jennings, Keyes and Higley
01-07-00876-CV Peter Kemal Gundogan v. Woodgrove Condominum
Appeal from County Civil Court at Law No 1 of Harris County
Trial Court Judge: Hon. R. Jack Cagle

When the appeal has been perfected, the justice of the justice court "shall immediately make out a true and
correct copy of all the entries" on his docket sheet and certify the copy. Tex. R. Civ. P. 574; see Advance
Imports, Inc. v. Gibson Products Co., Inc. of Sherman, 533 S.W.2d 168, 170 (Tex. Civ. App.--Dallas 1976, no
writ). He must send the transcript, consisting of the certified docket sheet, a certified copy of the bill of costs
from his fee book, and any original papers in the cause to the clerk of the county court having jurisdiction. Tex.
R. Civ. P. 574. If the appeal bond is not timely filed with the justice court, the county court is without jurisdiction
to hear the appeal, and the appeal should be dismissed for lack of jurisdiction. Williams v Schneiber, 148 S.W.
3d 581, 583 (Tex. App.--Fort Worth 2004, no pet.); Searcy v. Sagullo, 915 S.W.2d 595, 597 (Tex. App.--
Houston [14th Dist.] 1996, no pet.).

Lack of Appeal Bond

The record in this case contains no transcript from the justice court nor any indication that Woodgrove ever
posted the bond required by Rule 571 to trigger the justice court's duty to certify the docket sheet and bill of
costs and to send these, with all original papers in the case, to the county court. Rather, Woodgrove's posting
of a cash deposit with the county treasurer three weeks after filing its appeal is affirmative evidence that
Woodgrove did not file the appeal bond required by Rule 571 with the justice court within 10 days after the
justice court's rendition of judgment in favor of Gundogan, as required by Rule 571 to perfect its appeal. See
Tex. R. Civ. P. 571. Moreover, even if Woodgrove had timely filed its cash bond in the justice court, instead of
untimely filing it in the county court, when a deposit of cash as security for an appeal has not been authorized
by statute, such a deposit does not constitute sufficient compliance with the statute that requires a bond to be
given. See Tex. R. Civ. P. 571; Ringgold v. Graham, et al., 13 S.W.2d 355, 356 (Tex. Comm'n App. 1929)
(approval of bond by justice of justice court can only be allowed upon filing of such bond as statute requires;
approval of any other bond is "unauthorized and of no effect."); Ringgold, 13 S.W.2d at 356; see also Hervey,
253 S.W.2d at 703 ("The security to be given by one appealing from the judgment of a justice court is
prescribed by [ Rule] 571, which prescribes that a bond shall be made and that this shall be signed by 'two or
more good and sufficient sureties.' It does not authorize a deposit of money to be made in lieu of these
sureties, and we have found no other Rule so providing. The defendants' bond was therefore defective.").

Without the filing of a proper appeal bond by Woodgrove in the justice court within 10 days of the judgment in
that court, and without the approval of the bond by the justice court, and without the subsequent transmittal by
the justice court to the county court of the documents required by Rule 574, the county court lacked jurisdiction
over the appeal from the justice court judgment. See Williams, 148 S.W.3d at 583; Searcy, 915 S.W.2d at 597;
Meyers, 550 S.W.2d at 360; see also Stephen v. Neal, No. 01-98-1214-CV, 1999 WL 517139 (Tex. App.--
Houston [1st Dist.] 1999, pet. denied) (mem. op., not designated for publication). When the county court lacks
jurisdiction, the reviewing court must reverse the judgment of the county court and remand the case to the
county court with orders to dismiss the cause for lack of jurisdiction. See Meyers, 550 S.W.2d at 359-60;
Headstream, 129 S.W.2d at 1156. As the primary duty to perfect the appeal rests upon Woodgrove, the
appellant in the county court, costs are taxed against that party. See Ringgold, 13 S.W.2d at 356.
Conclusion
We vacate the judgment of the county court and dismiss the case for lack of jurisdiction. (1)

No second appeal from eviction appeal to county court involving nonresidential property
Schuring v. Kingwood Horsemen's Association (Tex.App.- Houston [1st Dist.] Jul. 23, 2009)(Bland)
(no jurisdiction over further appeal from eviction appeal to county court from JP court involving nonresidential
premises, here horse stall)
DISMISS APPEAL: Opinion by Justice Bland
Before Justices Keyes, Hanks and Bland
01-08-00760-CV Thomas G. Schuring, Rose Schuring v. Kingwood Horsemen's Association
Appeal from County Civil Court at Law No 2 of Harris County
Trial Court Judge: Hon. Jacqueline Lucci Smith

Court of Appeals changes its mind on disposition of appeal from dismissal of appeal, citing
different fact re: timeliness Salmeron v. T-Mobile West Corp. (Tex.App.- Houston [1st Dist.] Apr. 24, 2008)
(Subst. op. by Jennings) (county court's dismissal of appeal from JP court was error)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice
Jennings
Before Chief Justice Radack, Justices Jennings and Bland
01-07-00532-CV Stella Salmeron v. T-Mobile West Corporation
Appeal from County Civil Court at Law No 2 of Harris County
Trial Court Judge: Hon. Jacqueline Lucci Smith
Salmeron filed her appeal bond eight days after the justice of the peace court signed its judgment. Accordingly,
we hold that the county civil court at law erred in dismissing Salmeron's appeal for lack of jurisdiction.
Sa lmeron v. T-Mobile West Corp. (Tex.App.- Houston [14th Dist.] Feb. 19, 2009)(Yates) (appeal from JP court)
AFFIRMED: Opinion by Justice Brock Yates
Before Justices Brock Yates, Seymore and Boyce
14-07-00524-CV Carlos Salmeron v. T-Mobile West Corporation
Appeal from County Civil Court at Law No 1 of Harris County
Trial Court Judge: R. Jack Cagle

Appeal from JP Court was not timely - Dismissal affirmed
Salmeron v. T-Mobile No. 01-07-00532-CV (Tex.App.- Houston [1st Dist.] Jan. 24, 2008)(Jennings)
(county court jurisdiction, JP court appeal, timeliness)
AFFIRMED: Opinion by Justice Brock Yates
Before Justices Brock Yates, Seymore and Boyce
14-07-00524-CV Carlos Salmeron v. T-Mobile West Corporation
Appeal from County Civil Court at Law No 1 of Harris County
Trial Court Judge: R. Jack Cagle
AFFIRM TC JUDGMENT: Opinion by Justice Jennings
Before Chief Justice Radack, Justices Jennings and Bland
Stella Salmeron v. T-Mobile West Corporation
Appeal from Co Civil Ct at Law No 2 of Harris County (Hon. Jacqueline Lucci Smith)
Salmeron filed her appeal bond 14 days after the justice of the peace court signed its judgment. Accordingly,
we hold that the county court at law did not err in dismissing Salmeron's appeal for lack of jurisdiction

Effect of perfection of appeal from JP court judgment
“[P]erfection of an appeal to county court from a justice court for trial de novo vacates and annuls the judgment
of the justice court.” Villalon v. Bank One, 176 S.W.3d 66, 69–70 (Tex. App.—Houston [1st Dist.] 2004, pet.
denied); see also Tex. R. Civ. P. 574b; In re Garza, 990 S.W.2d 372, 374 (Tex. App.—Corpus Christi 1999,
orig. proceeding); Richard v. Taylor, 886 S.W.2d 848, 851 (Tex. App.—Beaumont 1994, writ denied).
Additionally, a defendant waives any defect in service by filing an answer. See Tex. R. Civ. P. 121 (“An answer
shall constitute an appearance of the defendant so as to dispense with the necessity for the issuance or
service of citation upon him.”); Burrow v. Arce, 997 S.W.2d 229, 246 (Tex. 1999) (“The filing of an answer
dispenses with the necessity of service of citation.”); Dawson-Austin v. Austin, 968 S.W.2d 319, 322 (Tex.
1998); In re $475,001.16, 96 S.W.3d 625, 628–29 (Tex. App.—Houston [1st Dist.] 2002, no pet.).
Whitmire v. Greenridge Place Apartments (Tex.App.- Houston [1st Dist.] Oct. 4, 2007)(Bland)(forcible detainer)
Here, Whitmire appealed the default judgment of the justice court and answered Greenridge’s petition in the
county court. Whitmire’s appeal and answer to Greenridge’s petition constitutes an appearance, and he
therefore waived any complaint regarding defects in service of process. See Tex. R. Civ. P. 121; Burrow, 997
S.W.2d at 246; Dawson-Austin, 968 S.W.2d at 322; In re $475,001.16, 96 S.W.3d at 628–29.

Venue ruling in JP Court reviewed de novo on appeal in county court
Cramer v. State Farm Mutual Auto Ins. Co. (Tex.App.- Houston [1st Dist.] Nov. 6, 2008)(Jennings)
(denial of motion to transfer venue re determined de novo by county court on appeal)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Jennings
Before Justices Jennings, Hanks and Bland)
01-08-00270-CV Daniel Cramer and Saejin Cramer v. State Farm Mutual Automobile Insurance Company
Appeal from County Court at Law No 1 of McLennan County
Trial Court Judge: Hon. Mike Freeman

Supersedeas Bond in Appeal from Justice of the Peace (JP) Court to County Court

In his fourth issue, Whitmire contends the county court abused its discretion in setting the supersedeas bond
at $10,000.[2]

A. Excessive Bond

Whitmire first contends that the $10,000 supersedeas bond is unreasonably high. Greenridge responds that
the amount of the supersedeas bond is proper because the Texas Property Code expressly permits a trial
court to consider the value of rent likely to accrue during the appeal of a forcible detainer case in setting the
amount of a supersedeas bond. See Tex. Prop. Code Ann. § 24.007 (Vernon 2000). We note that Whitmire
has remained in possession of the property since the judgment was signed on July 13, 2006.

We review the trial court’s rulings concerning the amount and type of bond required and the sufficiency of the
sureties under an abuse of discretion standard. See Tex. R. App. P. 24.4; Miller v. Kennedy & Minshew, Prof’l
Corp., 80 S.W.3d 161, 165 (Tex. App.—Fort Worth 2002, no pet.). The test for whether a trial court abused its
discretion is whether the court acted arbitrarily or unreasonably in light of all the circumstances of the case.
McDaniel v. Yarbrough, 898 S.W.2d 251,

253 (Tex. 1995); Lewis v. W. Waste Indus., 950 S.W.2d 407, 410 (Tex. App.—Houston [1st Dist.] 1997, no writ).

Texas Property Code section 24.007 provides:

A judgment of a county court may not under any circumstances be stayed pending appeal unless, within 10
days of the signing of the judgment, the appellant files a supersedeas bond in an amount set by the county
court. In setting the supersedeas bond the county court shall provide protection for the appellee to the same
extent as in any other appeal, taking into consideration the value of rents likely to accrue during appeal,
damages which may occur as a result of the stay during appeal, and other damages or amounts as the court
may deem appropriate.

Tex. Prop. Code Ann. § 24.007. Texas Rule of Appellate Procedure 24.2 provides:

When the judgment is for the recovery of an interest in real or personal property, the trial court will determine
the type of security that the judgment debtor must post. The amount of that security must be at least:

(A) the value of the property interest’s rent or revenue, if the property interest is real; or

(B) the value of the property interest on the date when the court rendered judgment, if the property interest is
personal.

Tex. R. App. P. 24.2(a)(2).

The record contains evidence that Whitmire intended to occupy the apartment during the appeal of this case
and no evidence that Whitmire has vacated the apartment. Both leases admitted at trial require Whitmire to
pay rent of $850 per month for the apartment. The Texas Property Code and the Rules of Appellate
Procedure both required the county court to consider the value of rents likely to accrue during the appeal in
setting the amount of the supersedeas bond. See Tex. Prop. Code Ann. § 24.007; Tex. R. App. P. 24.2(a)(2).
Whitmire did not seek to reduce the bond based on his net worth, or produce evidence of his net worth in
connection with seeking a reduction in the bond. Accordingly, we find that the county court acted within its
discretion in setting the supersedeas bond at $10,000.[3] See McCartney v. Cal. Mortgage Serv., 951 S.W.2d
549, 550 (Tex. App.—El Paso 1997, no pet.) (holding that trial court did not abuse its discretion in setting
supersedeas bond at $19,000 considering value of rents accrued during appeal).

B. County Court’s Registry

Whitmire also contends that the county court abused its discretion in setting the supersedeas bond at $10,000
because the court’s registry contained over $4000 cash paid by Whitmire in accordance with Texas Rule of
Civil Procedure 749b. See Tex. R. Civ. P. 749b. Greenridge responds that the trial count properly
disregarded the cash in its registry in setting the amount of the supersedeas bond because the cash in the
registry was for past rents that had already accrued by the time the court set the supersedeas bond.
Whitmire v. Greenridge Place Apartments (Tex.App.- Houston [1st Dist.] Oct. 4, 2007)(Bland)(forcible detainer)

In a forcible detainer case, either party may appeal the justice court’s judgment to the county court by filing an
appeal bond or a pauper’s affidavit. Tex. R. Civ. P. 749, 749a. In a nonpayment of rent forcible detainer case,
a tenant who has appealed by filing a pauper’s affidavit pursuant to Rule 749a is entitled to remain in
possession of the premises during the pendency of the appeal to the county court if the tenant follows the
procedures set out in Rule 749b. Tex. R. Civ. P. 749b. According to Rule 749b, the tenant must first pay one
rental period’s rent into the justice court’s registry within five days of filing the pauper’s affidavit. Tex. R. Civ. P.
749b(1). Second, during the appellate process, as the rent becomes due under the rental agreement, the
tenant must pay the rent into the county court’s registry within five days of the date rent is due under the terms
of the rental agreement. Tex. R. Civ. P. 749b(2). If the tenant fails to timely pay the rent into the county court’
s registry, the landlord may file a notice of default in the county court. Tex. R. Civ. P. 749b(3). If the landlord
shows that the tenant defaulted under the rule, the court must issue a writ of restitution. Id.

The procedures set forth in Rule 749b are designed to protect a landlord during the pendency of a forcible
detainer appeal from the justice court to the county court. See Tex. R. Civ. P. 749, 749a, 749b; Kennedy v.
Highland Hills Apartments, 905 S.W.2d 325, 327 (Tex. App.—Dallas 1995, no writ); Triple T Inns of Tex., Inc. v.
Roberts, 800 S.W.2d 681, 682–83 (Tex. App.—Amarillo 1990, writ denied). In contrast, Texas Property Code
section 24.007 protects a landlord during the pendency of a forcible detainer appeal from the county court to
the court of appeals. See Tex. Prop. Code Ann. § 24.007.

The county court, therefore, did not abuse its discretion in not deducting the cash paid by Whitmire into its
registry in setting the amount of the supersedeas bond because the cash in the registry was for past rents that
had accrued at the time the court set the supersedeas bond. See id.; Tex. R. Civ. P. 749, 749a, 749b.

Dadi v. Atlas Rehab Group, Inc. (Tex.App.- Houston [1st Dist.] July 3, 2008)(Alcala)
(no further appeal from de novo review of small claims court judgment in county court)
DISMISS APPEAL: Opinion by Justice Alcala
Before Justices Nuchia, Alcala and Hanks
01-06-00922-CV Roghiyeh Dadi v. Atlas Rehab Group, Inc.
Appeal from Co unty Civil C our t at Law No 3 of Harris County (Judge Bradshaw-Hull)

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