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Yilma v. Tamene

Court of Appeals of Texas, Fifth District, Dallas

June 27, 2018

MULATU YILMA, Appellant
v.
SHIMELES TAMENE, Appellee

          On Appeal from the County Court at Law No. 4 Collin County, Texas Trial Court Cause No. 004-00183-2017

          Before Justices Francis, Brown, and Stoddart

          MEMORANDUM OPINION

          MOLLY FRANCIS JUSTICE

         Mulatu Yilma appeals a county court at law order dismissing his appeal for want of jurisdiction. In two issues, Yilma contends the county court erred because the evidence did not support the court's finding that he failed to properly perfect his appeal. We reverse the county court's order of dismissal and remand the cause for further proceedings.

         The record in this case and unchallenged findings of fact show that Shimeles Tamene filed suit against Yilma in justice court in Collin County seeking monetary damages based on an insurance coverage dispute. Both parties represented themselves pro se. The justice court rendered judgment against Yilma in the amount of $4, 117.26. The judgment was signed on October 3, 2016 and provided Yilma twenty-one days to satisfy the judgment or appeal the ruling to the county court at law.

         On October 24, 2016, Yilma filed his notice of appeal and appeal bond. The justice court file contains a copy of a letter addressed to Yilma from the county clerk dated November 1, 2016, stating his appeal had been received. The letter further states that, under rule 143a of the Texas Rules of Civil Procedure, Yilma was required to pay $307 in filing and processing fees within twenty days or his appeal would be returned to the justice court. The letter was addressed to a Plano, Texas address Yilma provided in his original answer.

         The justice court file also contains a copy of a letter from the county clerk to Yilma dated November 30, 2016. This letter states the time for payment of the filing fees had passed and the case was being returned to the justice court to proceed as though no appeal had been attempted. The letter again uses the Plano address. Yilma asserts he did not receive either of these letters and that he orally informed the justice court at the time he filed his notice of appeal his home address had changed.

         A handwritten note showing a new address for Yilma in Allen, Texas was marked filed in the justice court on January 3, 2017. Although no new notice of appeal or appeal bond appears in the record, the justice court's "Register of Actions" shows that, on January 9, the October 3 judgment was again appealed to the county court at law. The record contains a letter from the county clerk to Yilma dated January 11, 2017, stating again that he was required to pay $307 within twenty days or his appeal would be returned. Unlike the November 1 letter, this notice was addressed to Yilma's Allen address and is accompanied by a receipt showing it was sent by certified mail.

         Yilma paid the required fees on January 24 and counsel for Yilma first appeared on February 15. The appeal was set for de novo review and trial before the court on February 23. An oral motion for continuance was granted and trial was reset for April 6.

         On April 4, Tamene, who was now also represented by counsel, filed a motion to dismiss the appeal for lack of jurisdiction. The motion was heard two days later during the April 6 trial setting. Tamene argued the appeal was untimely because Yilma failed to pay the required fees within twenty days of the November notice letter. Tamene submitted as evidence a copy of the justice court's judgment, a copy of the November 30 letter stating the original appeal was returned to the justice court, and printouts of the "Register of Actions" for both the justice and county courts.

         Yilma responded to the motion stating his appeal was timely because he did not receive a notice to pay fees until January 2017 and he paid the amount requested within twenty days of the date of the notice. Yilma submitted an affidavit saying he never received any letters from the county clerk before the January 11 notice letter and the Plano address was not his "address of service."

         The county court granted Tamene's motion to dismiss the same day. In its findings of fact and conclusions of law, the court stated Yilma failed to provide physical evidence that he submitted a change of address to the justice court before January 3, 2017, and "a search of the Texas Secretary of State website for [Yilma's] company lists the President of the company at the address [Yilma] originally supplied the Justice Court." In addition, although the issue was not raised in Tamene's motion to dismiss, the county court concluded the amount of the bond Yilma filed was insufficient to perfect his appeal because it did not equal twice the amount of the judgment.

         Yilma filed a motion for new trial arguing Tamene provided no evidence the November 1 notice letter was ever mailed or that Yilma had actual notice. Yilma also submitted what he claimed was a "screen capture of the Justice of Peace Court clerk's system" purportedly showing Yilma's address was updated to the new Allen address on October 24, 2016. With respect to the sufficiency of his bond, Yilma argued the county court erred in dismissing his case without allowing him to present argument on the issue or an opportunity to cure. Yilma further contended the bond was sufficient and had been approved by the justice court. The county court denied the motion for new trial and Yilma brought this appeal.

         In his first issue, Yilma contends the trial court erred in dismissing his appeal because Tamene presented no affirmative evidence the November notice letter was ever mailed to him to contradict his testimony that he never received it. We recognize there is a split of authority on whether a de novo standard of review or an abuse of discretion standard applies to our review of a dismissal order under rule 143a. See Pichini v. Fed. Nat'l Mortg. Ass'n, No. 01-17-00519-CV, 2018 WL 2246269, at *1 (Tex. App.-Houston [1st Dist.] May 17, 2018, no pet. h.) (de novo); Martin v. Fed. Nat'l Mortg. Ass'n, No. 04-15-00233-CV, 2016 WL 1588517, at *2 (Tex. App.- San Antonio April 10, 2016, no pet.) ...


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