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Sherrod v. Rogers

Court of Appeals of Texas, Eleventh District

May 4, 2017

JIMMY SHERROD, Appellant
v.
GARY ROGERS, Appellee

         On Appeal from the County Court Glasscock County, Texas Trial Court Cause No. 23

          Panel consists of: Wright, C.J., Willson, J., and Bailey, J.

          MEMORANDUM OPINION

          JOHN M. BAILEY JUSTICE

         This is an appeal of an order from the county court of Glasscock County dismissing Jimmy Sherrod's appeal from the justice court's judgment entered against him in his eviction suit against Gary Rogers. The county court dismissed Sherrod's appeal on the basis that he did not file an appeal bond sufficient to invoke the county court's jurisdiction to consider his appeal of the eviction proceeding. In a single issue, Sherrod contends that the county court erred in dismissing his appeal on the basis that he did not sufficiently invoke the county court's jurisdiction. We reverse and remand.

         Background Facts

         Sherrod owns commercial property in Glasscock County. Rogers occupied the commercial property under a lease agreement with Sherrod. Sherrod filed an eviction suit against Rogers in the justice court of Glasscock County seeking to evict Rogers from the commercial property. The justice court entered a "take nothing" final judgment against Sherrod on November 21, 2016. The justice court also awarded Rogers $10, 000 for attorney's fees against Sherrod and set the amount of the appeal bond at $10, 000.

         Relying on Rule 506.1(b) of the Texas Rules of Civil Procedure, Sherrod sent an appeal bond in the amount of $500 on November 28, 2016, to the justice court.[1]See Tex. R. Civ. P. 506.1(b). On November 29, 2016, Sherrod sent an amended appeal bond of $10, 000. Rogers subsequently filed a motion to dismiss for want of jurisdiction, arguing that the county court lacked jurisdiction because Sherrod did not timely file an appeal bond in the required amount. On January 17, 2017, the county court granted Rogers's motion to dismiss.

         Analysis

         We note at the outset that Section 24.007 of the Texas Property Code provides that the final judgment of a county court in an eviction suit may not be appealed on the issue of possession unless the premises in question are being used for residential purposes only. See Tex. Prop. Code Ann. § 24.007 (West Supp. 2016). Although this appeal involves commercial property, this statute does not preclude this appeal because the appeal does not concern the issue of possession but, rather, the jurisdiction of the county court to consider Sherrod's appeal from the justice court.

         Subject-matter jurisdiction is a legal question, which we review de novo. Tex. Dep't 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). Accordingly, we review a county court's dismissal of an appeal from a justice court under a de novo standard. Laird v. Benton, 470 S.W.3d 572, 574 (Tex. App.-Houston [1st Dist.] 2015, no pet.).

         "Eviction cases are governed by Rules 500-507 and 510 of Part V of the Rules of Civil Procedure. To the extent of any conflict between Rule 510 and the rest of Part V, Rule 510 applies." Tex.R.Civ.P. 500.3(d). Rule 510.9 provides the requirements and deadlines for filing an appeal bond in an eviction case. See Tex. R. Civ. P. 510.9. To perfect an appeal from a justice court to a county court, the appealing party must file an appeal bond or a statement of inability to pay within five days after the judgment of the justice court is signed. See Tex. R. Civ. P. 510.9(a), (f).

         The parties agree that Sherrod timely filed an appeal bond. However, Sherrod's appeal bond was defective because the justice court set the appeal bond at $10, 000 and Sherrod filed an appeal bond of only $500. Sherrod attempted to remedy the defect by filing an appeal bond of $10, 000 the following day. The county court did not permit Sherrod to remedy the defective appeal bond and dismissed his appeal for want of jurisdiction after considering Rogers's motion to dismiss.

         Sherrod argues that his timely filed, but defective, appeal bond was sufficient to invoke the jurisdiction of the county court. We agree. In Walker v. Blue Water Garden Apartments, 776 S.W.2d 578 (Tex. 1989), the Texas Supreme Court addressed the sufficiency of a defective appellate instrument in the context of an eviction suit. The court stated:

We have consistently held with respect to all such methods of perfecting appeal that the factor which determines whether jurisdiction has been conferred on the appellate court is not the form or substance of the bond, certificate or affidavit, but whether the instrument "was filed in a ...

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