COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00313-CV
LESLIE CLINT SLAY APPELLANT
V.
NATIONSTAR MORTGAGE, L.L.C. APPELLEE
F/K/A CENTEX HOME EQUITY
COMPANY, L.L.C.
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FROM COUNTY COURT AT LAW NO. 2 OF PARKER COUNTY
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MEMORANDUM OPINION1
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Leslie Clint Slay appeals the dismissal of his appeal to the county court
from a justice of the peace’s grant of possession to Nationstar Mortgage, L.L.C.
f/k/a Centex Home Equity Company, L.L.C. (Nationstar). We will affirm the
dismissal.
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See Tex. R. App. P. 47.4.
Background Facts
In August 2010, Nationstar filed a petition for forcible detainer against Slay
in a justice of the peace court. The justice court granted possession of the
premises to Nationstar. The justice court’s order also stated that an appeal bond
“[should] be set in the amount of $10,000; and that [Slay should] pay to
[Nationstar] rent in the amount of $650 per month[] during the pendency of any
appeal of this cause.”
On September 13, 2010, Slay filed an appeal bond in the amount of
$1,950, which the justice court approved. On June 10, 2011, Nationstar filed a
motion to dismiss the appeal on the grounds that the appeal had not been
perfected because Slay posted an inadequate bond and failed to pay rent to
Nationstar as required by the justice court’s order. Slay did not file a response.
On June 13, 2011, the county court sent the parties a notice of intent to
dismiss, and said, “Court records indicate that this case is eligible for dismissal
for want of prosecution because it has been pending since 09/24/10 and is not
set for trial.” The county court set a docket call for July 7, 2011, and warned the
parties that the case “[would] be called in open court and ordered dismissed
unless affirmative action by motion or disposition to maintain said suit[] [was]
taken and [was] shown of record by the time of the docket call.” The notice also
stated, “Where the parties desire to maintain said cause, notice of such desire
shall be made by motion and shall be delivered to the Court no later than one
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week prior to above date to Presiding Judge Ben Akers.” Neither party filed a
motion or otherwise responded to the court’s notice.
On June 30, 2011, prior to the dismissal docket call, the county court
dismissed the suit for failure to perfect an appeal because “Slay [had] failed to
post an appeal bond in an adequate amount.” Slay then filed this appeal.
Standard of Review
Whether a trial court has subject matter jurisdiction to decide a case is a
question of law. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226
(Tex. 2004). We review a dismissal predicated on a deficient appeal bond under
a de novo standard. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928
(Tex. 1998); Litoff v. Meadows Serv. Corp., 352 S.W.3d 894, 896 (Tex. App.—
Dallas 2011, no pet.).
Discussion
In his first point, Slay argues that his appeal to the county court was
perfected when the justice court approved the bond in the amount of $1,950.
Slay cites to Wetsel v. Fort Worth Brake, Clutch & Equip., Inc., 780 S.W.2d 952,
953 (Tex. App.—Fort Worth 1989, no writ), for the proposition that the “essential
elements” of a valid appeal are the timely filing of an appeal bond and its
approval by the justice of the peace court. Wetsel cites to rule of civil procedure
749, which states, in part,
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Either party may appeal from a final judgment in such case, to
the county court of the county in which the judgment is rendered by
filing with the justice within five days after the judgment is signed, a
bond to be approved by said justice, and payable to the adverse
party, conditioned that he will prosecute his appeal with effect, or
pay all costs and damages which may be adjudged against him.
Tex. R. Civ. P. 749. Neither rule 749 nor Wetsel state that any amount of bond
will perfect an appeal as long as the amount is approved by the justice court.
The judgment of possession set the bond at $10,000, and Slay only paid $1,950.
Slay’s bond was therefore defective. The justice court’s approval of a bond does
not affect its validity. See Harrill v. AJ’s Wrecker Serv., No. 05-99-00475-CV,
2000 WL 199376, at *1 (Tex. App.—Dallas Feb. 22, 2000, no pet.) (not
designated for publication); see also Litoff, 352 S.W.3d at 897 (holding that
appeal from a justice court was properly dismissed when the appeal bond did not
meet the requirements of the rules of civil procedure, despite the bond’s approval
by the justice court); Ashley Furniture Indus. Inc. v. Law Office of David Pierce,
311 S.W.3d 595, 598 (Tex. App.—El Paso 2010, no pet.) (same). We overrule
Slay’s first point.
In his second point, Slay argues that he was not afforded an opportunity to
amend the bond. Rule of procedure 571 requires the courts to give the appellant
“five days after notice within which to correct or amend” the bond. Tex. R. Civ. P.
571. Rule 571 does not provide for any specific type of notice, but notice must,
in the very least, conform to due process. Rowe v. Watkins, 340 S.W.3d 860,
863 (Tex. App.—El Paso 2011, no pet.); Ashley Furniture, 311 S.W.3d at 598.
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Due process is met if the notice affords the party a fair opportunity to appear and
defend his interests. Rowe, 340 S.W.3d at 863. Nationstar filed its motion to
dismiss, in which it complained of the inadequate bond, on June 10, 2011. The
motion also noted that Nationstar faxed a copy of the motion to Slay’s attorney
on June 9, 2011. The county court did not dismiss the appeal until June 30,
2011, well over five days after Slay received notice of the defect. Thus, Slay was
afforded an opportunity to amend his bond, and he failed to do so. See id.
(noting that appellant received notice of defective bond by faxed letter); Watkins
v. Debusk, 286 S.W.3d 58, 62 (Tex. App.—El Paso 2009, no pet.) (noting that
appellant received notice of defective bond when appellee filed a motion to
dismiss). We overrule his second point.
In his third point, Slay argues that the county court erred by dismissing the
appeal before a hearing could be held. The county court notified the parties that
it would conduct a hearing on July 7, 2011, because the appeal was “eligible for
dismissal for want of prosecution because it [had] been pending since 09/24/10
and [was] not set for trial.” The hearing was not for Nationstar’s motion to
dismiss. Nationstar’s motion sought dismissal on jurisdictional grounds, which
may be raised at any time and which a court is obligated to ascertain. See In re
United Servs. Auto. Ass’n, 307 S.W.3d 299, 306 (Tex. 2010) (orig. proceeding).
The county court correctly concluded that it had not obtained jurisdiction over the
appeal. Thus, it was unnecessary to hold a hearing on any other grounds for
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dismissal. The county court did not err in dismissing the case on jurisdictional
grounds before a hearing on want of prosecution. We overrule Slay’s third point.
Conclusion
Having overruled all of Slay’s points on appeal, we affirm the judgment of
the county court.
LEE GABRIEL
JUSTICE
PANEL: DAUPHINOT, GARDNER, and GABRIEL, JJ.
DELIVERED: March 1, 2012
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