Thursday, July 3, 2008

First appeal from Small Claims Court is also last appeal

Judgments rendered by small claims court may be appealed to county court, but that court's final judgment is indeed final. Because no further appeal to a court of appeals is authorized, the attempted appeal is dismissed for want of jurisdiction.

Dadi v. Atlas Rehab Group, Inc.
(Tex.App.- Houston [1st Dist.] July 3, 2008)(Alcala)(no further appeal from de novo review of small claims court judgment in county court)
Opinion by Justice Elsa Alcala

Panel composition: Before Justices Nuchia, Alcala and Hanks
01-06-00922-CV Roghiyeh Dadi v. Atlas Rehab Group, Inc.
Appeal from County Civil Court at Law No 3 of Harris County (Judge Bradshaw-Hull)



Dadi asserts that this Court has jurisdiction to consider the appeal. An appeal from a small claims court final judgment is to the county court or county court at law. Tex. Gov't Code Ann. § 28.052(a) (Vernon Supp. 2007). The county court or county court at law hears the appeal de novo, and judgment on the appeal is final. Id. at § 28.053(b), (d) (Vernon 2004).

The word "final" as used in section 28.053(d) means that there is no further appeal to any other court. Sultan v. Mathew, 178 S.W.3d 747, 749-50 (Tex. 2005); Davis v. Covert, 983 S.W.2d 301, 302 (Tex. App.--Houston [1st Dist.] 1998, pet. dism'd w.o.j.) (en banc).

Here, Dadi is appealing a final judgment from a county court at law on an appeal from a judgment from a small claims court. We hold that courts of appeals do not have jurisdiction over judgments of county courts or county courts at law following a de novo appeal from small claims court.

We dismiss this appeal for lack of jurisdiction.

Wednesday, July 2, 2008

Caveat Counsel: Oral Motion for Continuance Won't Do

Consequences of noncompliance with rules of procedure can be dire. Motion for Continuance must be in wrting and sworn. Error must be preserved for appellate review. Court of Appeals here enforces requirements in a termination of parental rights appeal:

In his sole issue, Orosco asserts that the trial court abused its discretion when it did not grant his oral motions for continuance. We conclude that Orosco failed to preserve error for appellate review.

A motion for continuance shall not be granted except for sufficient cause supported by an affidavit, consent of the parties, or by operation of law. Tex. R. Civ. P. 251; In the Interest of B.S.W., No. 14-04-00496-CV, 2004 WL 2964015, at *4 (Tex. App.- Houston [14th Dist.] Dec. 23, 2004, no pet.) (mem. op.).

Both of Orosco's motions for continuance were oral, and the record does not contain a written motion for continuance or an affidavit. The record also does not reflect that the parties consented to a continuance, nor does Orosco assert that a continuance should have been granted by operation of law.

Because Orosco did not comply with Rule 251, the trial court did not abuse its discretion by failing to grant a continuance. See In the Interest of B.S.W., 2004 WL 2994015, at *4; Ohlhausen v. Thompson, 704 S.W.2d 434, 436B37 (Tex. App.- Houston [14th Dist.] 1986, no writ).

In addition, Orosco failed to preserve error under Texas Rule of Appellate Procedure 33.1, which generally requires a party complaining on appeal to have obtained an adverse ruling on the appellate complaint in the trial court. See Tex. R. App. P. 33.1(a). The appellate record reflects that the trial court did not rule on Orosco's motions for continuance, either expressly or implicitly. Orosco did not request the trial court to rule on these oral motions, nor did he object to any alleged refusal of the trial court to rule on them. See Clarke v. Hunter's Glen Comty. Ass'n, No. 14-03-00971-CV, 2004 WL 1313294, at *1 (Tex. App.- Houston [14th Dist.] June 15, 2004, no pet.) (mem. op.). By failing to do so, Orosco waived the complaint. See id.

The Texas Supreme Court has ruled that a person in Orosco's position does not have an absolute right to be present at trial. See In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003). Orosco's counsel did not preserve error regarding Orosco's request for a continuance.

In addition, Orosco does not argue or brief on appeal, and the record does not reflect, that had he been present at trial, the trial court's judgment probably would have been different.Because Orosco failed to preserve error on the only issue he asserts on appeal, we affirm the trial court's judgment.

In the Interest of TDN (Tex.App.- Houston [14th Dist] June 26, 2008)(Frost)(termination of parental rights, denial of oral motion for continuance) Concurring Opinion by Justice Seymore

Jailed Parents' Access to Court in Termination Suits

Justice Seymore writes separately in termination appeal to express concern about denying jail inmates access to court in proceedings to terminate their rights.

Inmate at issue in case waived procedural rights by counsel's failure to object and preserve error for appeal. Bench warrant was issued for final hearing, but could not be executed because inmate had been transferred. Oral motion for trial continuance to allow inmate to appear at a later date held insufficient.


I concur with majority's conclusion that Orosco failed to preserve error for appellate review. However, I do not lightly join in a disposition upholding the trial court's order terminating parental rights.

Accordingly, I write separately to address implicit denial of Orosco's access to the court while incarcerated.

It is my considered opinion that our courts should exercise great caution to protect the rights of the incarcerated when conducting a civil proceeding that involves termination of parental rights. Litigants should not be denied access to the courts simply because they are incarcerated. In re Z.L.T., 124 S.W.3d 163, 165-166 (Tex. 2003).

However, an inmate does not have the absolute right to appear in person in every court proceeding. Id. Trial courts should consider a number of factors when deciding whether to grant an inmate's request for a bench warrant, including:(1) the cost and inconvenience of transporting the prisoner to the courtroom;(2) the security risk the prisoner presents to the court and public;(3) whether the prisoner's claims are substantial;(4) whether the matter's resolution can reasonably be delayed until the prisoner's release;(5) whether the prisoner can and will offer admissible, noncumulative testimony that cannot be effectively presented by deposition, telephone, or some other means;(6) whether the prisoner's presence is important in judging his demeanor and credibility;(7) whether the trial is to the court or a jury; and(8) the prisoner's probability of success on the merits. Id.

Our rules place the burden on litigants to identify with sufficient specificity the grounds for the ruling they seek. Id. Since a prisoner has no absolute right to be present in a civil action, the prisoner requesting a bench warrant must justify the need for his presence. Id. Orosco argues that his appearance in court "would neither have hindered nor burdened the daily operations of the court." Orosco fails to address all of the above factors or point this court to portions of the record which might support an argument that the trial court violated his fundamental right to participate in proceedings which could result in termination of parental rights.

Accordingly, I concur with the majority's conclusion that the trial court did not abuse its discretion by refusing to grant Orosco's motion for continuance.

/s/ Charles W. Seymore


Judgment rendered and Majority and Concurring Memorandum Opinions filed June 26, 2008.Panel consists of Justices Fowler, Frost, and Seymore. (Frost, J., majority).

In the Interest of TDN, No. 14-07-00387-CV (Tex.App.- Houston [14th Dist] June 26, 2008)(Frost) (termination of parental rights, oral motion for continuance deficient, error not preserved)
Before Justices Fowler, Frost and Seymore
In the Interest of T.D.N.
Appeal from 313th District Court of Harris County
Concurring Opinion by Justice Seymore

Motion to split cost of appeal denied

Equal allocation of appellate costs was not agreed to by the parties, only dismissal. TRAP 42.1 addresses voluntary dismissal in civil cases and states that costs will be taxed against the appellant absent agreement of the parties. Tex. R. App. P. 42.1(d).

City of Houston v. Proler , No. 14-08-00110-CV (Tex.App.- Houston [14th Dist.] June 26, 2008) (per curiam) (agreed dismissal, motion to split costs denied in absence of agreement) Appeal from 234th District Court of Harris County Trial Court Judge: Reese Rondon


Because there is no agreement in this case, we deny appellant's request to split costs.

We grant appellant's motion to dismiss the appeal, we deny as moot appellee's motion to dismiss the appeal, and we order the appeal dismissed.

Mandamus in Disbarment Suit Denied

Court of Appeals says disbarred attorney has adequate remedy by appeal.

In Re George R. Neely
No. 14-08-00525-CV (Tex.App.- Houston [14th Dist.] June 26, 2008) (per curiam) (attorney discipline, mandamus denied in attorney disbarment case)
Panel: Before Chief Justice Hedges, Justices Fowler and Boyce
Full case style: In Re George R. Neely
Appeal from 164th District Court of Harris County
Judge: Jack H. Robison, assigned judge
Disposition: Petition for Mandamus denied


Neely has asked us to issue a writ of mandamus vacating the disbarment order against him. He has also filed a motion for emergency relief, asking that we issue mandamus on an emergency basis because he is lead counsel in a case scheduled to begin trial on June 30.

We conclude that relator has an adequate appellate remedy, and therefore deny his mandamus petition.

Mandamus will not issue where there is an adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 842 (Tex. 1992) (orig. proceeding). An appellate remedy is not inadequate merely because it may involve more delay than obtaining an extraordinary writ. Id. Instead, an appellate remedy may be inadequate where a party stands to permanently lose substantial rights. See Perry v. Del Rio, 66 S.W.3d 239, 257 (Tex. 2001) (orig. proceeding). We remain mindful that the benefits of mandamus review are easily lost by overuse. In re Prudential Ins. Co. of America, 148 S.W.3d 124, 138 (Tex. 2004) (orig. proceeding).Neely has not demonstrated that he is in danger of permanently losing substantial rights. See Perry, 66 S.W.3d at 257.

Neely has an adequate remedy at law to appeal the trial court's final judgment of disbarment. See, e.g., Risker v. Comm'n for Lawyer Discipline, 94 S.W.3d 625, 627 (Tex. App. - Houston [14th Dist.] 2002, pet. denied); Skelton v. Comm'n for Lawyer Discipline, 56 S.W.3d 687, 689 (Tex. App.- Houston [14th Dist.] 2001, no pet.). Mandamus relief is therefore unavailable. Walker, 827 S.W.2d at 842; see also In re Worldpeace, No. 14-04-00726-CV, 2004 WL 1797685, at *1 (Tex. App.- Houston [14th Dist.] 2004, orig. proceeding) (mem. op.).

Accordingly, we deny the petition for writ of mandamus, and further deny as moot relator's emergency motion to consider mandamus on an emergency basis.

Link to other June 2008 Decisions from the Fourteenth Court of Appeals