Affirmed and Corrected Memorandum Opinion filed July 20, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-03-01205-CV
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JONATHAN LAWSON, Appellant
V.
FELIX CARRANZA, Appellee
On Appeal from the County Court at Law
Walker County, Texas
Trial Court Cause No. 6016
C O R R E C T E D M E M O R A N D U M O P I N I O N
On June 10, 2004, we issued a memorandum opinion in this case. On our own motion, we now withdraw that opinion and issue the following corrected memorandum opinion in its place. In this appeal, appellant Jonathan Lawson seeks to overturn the county court at law=s dismissal of his appeal from a justice court judgment because the county court had no jurisdiction to hear the appeal. In response, appellee Felix Carranza requests that we sanction Lawson for filing a frivolous appeal. We affirm the judgment of the court below, but we deny Carranza=s request for sanctions.
Procedural Background
In April of 2002, Lawson filed suit against Carranza in justice court, seeking $3000.00 for breach of a contract involving concrete work. Carranza answered, and the matter was set for trial on July 16, 2002. Lawson, however, did not appear. Counsel for Carranza prepared a judgment, which the trial judge signed on July 18, 2002. On July 26, 2002, Lawson filed a motion for new trial.[1] After the trial judge recused himself and the matter was transferred to another judge, the motion for new trial was set for hearing on August 15, 2002. The trial judge signed an order denying the motion for new trial that same day. On August 23, 2002, Lawson filed an appeal bond.
Lawson requested and received a pretrial conference setting in the county court at law for July 29, 2003, but did not appear on that date. Carranza appeared and orally moved to dismiss the case for lack of jurisdiction. The county court granted the motion, signing an order to that effect on July 30, 2003. This appeal followed.
Lawson=s Appeal
In his first issue, Lawson contends the county court erred in ruling on Carranza=s oral motion to dismiss for lack of jurisdiction because he did not receive service of any motion or three days notice of a hearing on the motion as provided in Texas Rules of Civil Procedure 21 and 21a. In his second issue, Lawson contends that his appeal was timely and therefore the trial court erred in dismissing his appeal for lack of jurisdiction. Because the second issue is dispositive, we begin there.
Lawson contends that his appeal was timely filed because Texas Rule of Civil Procedure 571 provides that the requirements for filing an appeal from a justice court are satisfied when the appealing party files a bond with the justice court within ten days from the date a judgment or order overruling a motion for new trial is signed. See Tex. R. Civ. P. 571 (AThe party appealing, his agent or attorney, shall within ten days from the date a judgment or order overruling motion for new trial is signed, file with the justice a bond . . . .@). Lawson contends that his appeal is timely because the order overruling his motion for new trial was signed August 15, and he filed his appeal bond on August 23, within ten days from the date the order was signed.[2]
Lawson is mistaken. In fact, Lawson has committed a fatal blunder by relying upon Rule 571 to the exclusion of other rules that apply and to the exclusion of the controlling case law. Texas Rules of Civil Procedure 566 through 570 govern new trials in the justice court. Rules 571 through 574b govern appeals from the justice court. Rule 567 provides, in relevant part, AThe justice, within ten days after rendition of a judgment in any suit tried before him, may grant a new trial therein on motion in writing showing that justice has not been done in the trial of the cause.@ See Tex. R. Civ. P. 567. In Searcy v. Sagullo, this Court held that the filing of a motion for new trial does not enlarge the time period for filing an appeal bond. See 915 S.W.2d 595, 596 (Tex. App.CHouston [14th Dist.] 1996, no writ). Therefore, if the justice court does not act on the motion for new trial within the ten-day period, the motion is overruled by operation of law on the tenth day after the rendition of judgment. Id. at 597. Because Rule 571 provides an additional ten-day period in which to file an appeal bond, when a party files a motion for new trial, that party has a maximum of twenty days to file an appeal bond. Id.
Lawson=s motion for new trial, which was filed July 26, was overruled by operation of law no later than July 28, 2002.[3] See id. at 596B97. Twenty days after judgment was rendered was August 7Cten days after Lawson=s motion for new trial was overruled by operation of law. The justice court=s attempt to deny the motion for new trial on August 15 had no effect on this timetable. Therefore, Lawson=s appeal bond, filed August 23, was untimely. See id. Because the appeal bond was not timely filed, the county court at law was without jurisdiction to hear the appeal. Id. at 597.
We therefore overrule Lawson=s second issue and affirm the judgment of the trial court. Because of our disposition of this issue, we need not address Lawson=s first issue.
Carranza=s Request for Sanctions
Carranza contends Lawson=s appeal is frivolous because even a cursory review of the law would have revealed the Searcy court=s resolution of any ambiguity in the rules. See Tex. R. App. P. 45 (AIf the court of appeals determines that an appeal is frivolous, it mayCon motion of any party or on its own initiative, after notice and a reasonable opportunity for responseCaward each prevailing party just damages.@). Sanctions are warranted, he argues, because Ano reasonable attorney could conclude that this Court would ignore the applicable rules and overrule itself.@ Carranza also complains that Lawson=s Apattern of vexatious lethargy@ in repeatedly failing to appear in court and requiring Carranza to respond to an appeal that is Awoefully inadequate and wholly lacking in authority@ has done nothing but harass him and cost him needless legal fees. As a sanction, Carranza asks that we award him his attorney=s fees for having to answer Lawson=s appeal.
We have reviewed the record and carefully considered Carranza=s arguments; nevertheless, we decline to impose sanctions. We therefore deny Carranza=s request for sanctions.
/s/ Wanda McKee Fowler
Justice
Judgment rendered and Corrected Memorandum Opinion filed July 20, 2004.
Panel consists of Justices Fowler, Edelman, and Seymore.
[1] The motion is in the form of a letter dated July 25, 2002, which Lawson contends is the day he filed it, but there is no evidence that it was mailed on that day. It is file-stamped Areceived@ by the justice of the peace on the 26th. In any event, whether the filing date is the 25th or the 26th does not affect our analysis.
[2] Lawson also statesCin a cursory fashion without argument or authorityCthat his appeal bond was taken and approved without anyone claiming that the bond was too late. However, the lack of jurisdiction is fundamental error and may be raised for the first time on appeal. See Mapco, Inc. v. Carter, 817 S.W.2d 686, 687 (Tex. 1991). Moreover, jurisdiction cannot be conferred by consent, waiver or estoppel. See Fed. Underwriters Exch. v. Pugh, 174 S.W.2d 598, 600 (Tex. 1943); Tourneau Houston, Inc. v. Harris County Appraisal Dist., 24 S.W.3d 907, 910 (Tex. App.CHouston [1st Dist.] 2000, no pet.).
[3] Rule 567 provides that the new trial period begins when judgment is rendered rather than when the judgment is signed. See Searcy, 915 S.W.2d at 596 n.2. Carranza contends the justice court rendered its judgment on July 16, 2002, when Lawson failed to appear. We have no hearing from that proceeding, so we do not know if the court in fact rendered judgment that day. However, the record does include a letter from Carranza=s attorney to the court, dated the same day, indicating that the attorney was enclosing a proposed judgment for the justice=s signature; this is some indication that the justice rendered judgment on the 16th. However, the judgment, signed July 18, 2002, prefaces its holdings with the following language: AThe Court has considered the pleadings and official records on file in this cause, the evidence, and the parties= arguments, and the Court renders the following judgment . . . .@ This language implies the court rendered his decision the same day it signed the order. We therefore use the later date in our calculations.