Opinion issued July 23, 2009
In The
Court of Appeals
For The
First District of Texas
NO. 01-08-00760-CV
THOMAS SCHURING et ux., ROSE SCHURING, Appellants
V.
KINGWOOD HORSEMEN’S ASSOCIATION, Appellee
On Appeal from County Civil Court at Law No. 2
Harris County, Texas
Trial Court Cause No. 918,039
MEMORANDUM OPINION
In this suit over possession of a horse stall, Thomas and Rose Schuring appeal a judgment in favor of Kingwood Horsemen’s Association (Kingwood) awarding Kingwood possession of the stall, $1,000 in expenses, and $8,000 in attorney’s fees. On appeal, the Schurings’ complain that the trial court erred in granting Kingwood’s motion for summary judgment because (1) fact issues exist as to the Schurings’ rightful possession of the barn stall; and (2) they are not estopped from pursuit of possession of the stall because they failed to disclose it in their bankruptcy proceeding. Kingwood responds that we lack jurisdiction to hear this appeal, because, as this is a forcible entry and detainer suit, no appeal may lie from the county court’s award of possession. The Schurings cannot appeal a final judgment of a county court in an eviction suit concerning non-residential premises. We agree we lack jurisdiction, and therefore we dismiss the appeal.
Background
On May 27, 1994, the Schurings’ daughter, Theresa Schuring, leased Stall and Tack Room Number O, located in Barn Number 2, Trails End Stables, from Kingwood to house her horse, named Nageem. In 2003, the Schurings signed a lease modification which would add them as parties to the lease, but no representative of Kingwood ever signed it. Nageem died in July 2007, and the stall became vacant. In January 2008, Kingwood sent a letter to Theresa Schuring notifying her that her lease had terminated and Kingwood planned to release the stall. Accordingly, on March 1, 2008, Theresa removed her belongings from the stall. But, after Theresa moved out, the Schurings moved some of their items, and later a new horse, into the stall. After efforts to remove the Schurings’ possessions were unsuccessful, Kingwood notified them of its intent to evict them, by certified mail and a posting on the stall door.
After a hearing in the justice court, the justice of the peace signed a final judgment awarding Kingwood possession of the stall and tack room and its reasonable attorney’s fees. The Schurings appealed the decision to Harris County Court at Law, number two. Kingwood moved for summary judgment establishing its right to possession of the stall, which the trial court granted. The Schurings waived the right to proceed to trial on the issue of attorney’s fees. The county court awarded a final judgment to Kingwood for possession, expenses, and attorney’s fees. The Schurings do not appeal the award of attorney’s fees. Thus we do not address this issue.
Jurisdiction
Kingwood observes that, because final judgments of county courts in eviction cases concerning non-residential premises are not appealable, our Court lacks jurisdiction to consider the Schurings’ appeal. See Tex. Prop. Code Ann. § 24.007 (Vernon 2000) (“A 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”). A court must have jurisdiction before it can make a ruling in a case. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). Otherwise, it must be dismissed. Id. at 446. The Texas Constitution and the Legislature vest courts of appeals with jurisdiction over civil appeals from final judgments of district and county courts where the amount in controversy exceeds $100. Tex. Const. art. V, § 6(a); Tex. Civ. Prac. & Rem. Code Ann. § 51.012 (Vernon 2008); Tex. Gov’t Code Ann. § 22.220(a) (Vernon 2004); Volume Millwork, Inc. v. West Houston Airport Corp., 218 S.W.3d 722, 726 (Tex. App.—Houston [1st Dist.] 2006, pet. denied). The Legislature, however, has the power to limit the right of appeal. Volume Millwork, Inc., 218 S.W.3d 722 at 726 (citing Sultan v Mathew, 178 S.W.3d 747, 752 (Tex. 2005)).
The Government Code prohibits appeals to the court of appeals from final judgments of county courts or county courts at law if the claim originates in small claims court. Tex. Gov’t Code Ann. § 28.053(d) (Vernon 2004); Sultan v. Mathew, 178 S.W.3d 747, 750 (Tex. 2005). No similar restriction exists for cases that originate in justice court, as this one did. See Sultan v Mathew, 178 S.W.3d 747 at 752. The Property Code, however, restricts appeals from a final judgment of a county court in an eviction suit on the issue of possession, unless the premises are for residential use only. Tex. Prop. Code Ann. § 24.007 (Vernon 2000). It is undisputed that the Schurings did not use the stall and tack room as a residence. We therefore lack jurisdiction to hear their appeal. See Volume Millwork, Inc., 218 S.W.3d at 727.
Conclusion
We dismiss the Schurings’ appeal for want of jurisdiction. All pending motions are dismissed as moot.
Jane Bland
Justice
Panel consists of Justices Keyes, Hanks, and Bland.