Failure to timely pay fee in county court from appeal from JP court kills the appeal, as a jurisdictional matter under amended rule, Houston COA holds in further appeal from County Court

Pichini v. Federal National Mortgage Ass'n aka FANNIE MAE, NO. 01-17-00519-CV (Tex.App. - Houston [1st Dist.] May 17, 2018)(dismissal by county court of attempted appeal from justice court affirmed)

Comment: Another quirk in the Texas judicial system. Appeals from JP courts have different deadlines and different requirements from appeals from county courts and district courts to the courts of appeals,  and - as illustrated here -- some of the differences have very harsh consequences because they are characterized as jurisdictional, leaving no room for discretion or cure.   

Opinion issued May 17, 2018

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-17-00519-CV

———————————

PETER Q. PICHINI, JR., Appellant

V.

FEDERAL NATIONAL MORTGAGE ASSOCIATION A/K/A FANNIE

MAE, Appellee

On Appeal from County Court at Law No. 2

Williamson County, Texas

Trial Court Case No. 17-0634-CC2

OPINION 

PETER Q. PICHINI, JR., Appellant,
v.
FEDERAL NATIONAL MORTGAGE ASSOCIATION A/K/A FANNIE MAE, Appellee.

No. 01-17-00519-CV.

Court of Appeals of Texas, First District, Houston.

Opinion issued May 17, 2018.

Paul A. Hoefker, for Federal National Mortgage Association, a/k/a Fannie Mae, its Successors and/or Assigns, Appellee.

William B. Gammon, for Peter Q. Pichini, Junior, Appellant.

On Appeal from County Court at Law No. 2, Williamson County, Texas, Trial Court Case No. 17-0634-CC2.

Panel consists of Justices Keyes, Brown, and Lloyd.

OPINION

RUSSELL LLOYD, Justice.

Appellant Peter Q. Pichini, Jr. challenges the county court's order dismissing his appeal from the justice court's judgment entered in favor of appellee, Federal National Mortgage Association, in its forcible detainer action. 

In his sole issue, Pichini contends that the county court erred in dismissing his appeal because his failure to timely pay the filing fee did not affect the court's jurisdiction.^[1] 

We affirm.

Background

On April 6, 2017, Federal National Mortgage Association a/k/a Fannie Mae ("Fannie Mae") filed its original petition for forcible detainer in the Justice Court of Williamson County, Precinct Three, seeking to evict Pichini from the property located at 1725 Cactus Mound Drive, in Leander, Texas. On April 18, 2017, the justice court rendered judgment in favor of Fannie Mae.

On April 21, 2017, Pichini posted an appeal bond in the county court. On April 26, 2017, the county clerk sent notice to Pichini's attorney that it had received the transcript of the proceedings from the justice court and advised him that the filing fee "must be paid within 20 days upon receipt of this letter or the case will be returned to the JP Court No. 3." The record reflects that the letter was delivered on April 28, 2017. Thus, the filing fee was due no later than May 18, 2017.

After Pichini did not pay the fee as directed, the county court found that he had failed to perfect his appeal and dismissed the appeal on May 19, 2017. Pichini filed a motion to reinstate his appeal. The county court denied the motion on June 19, 2017.

Standard of Review

Subject matter jurisdiction is a legal question which we review de novo. See Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). Accordingly, we review a county court's dismissal of an appeal from a justice court under a de novo standard. See Laird v. Benton, 470 S.W.3d 572, 574 (Tex. App.-Houston [1st Dist.] 2015, no pet.).

Discussion

In his sole issue, Pichini argues that the county court erred in dismissing his appeal because his failure to timely pay the filing fee did not affect the court's jurisdiction.

Texas Rule of Civil Procedure 506.1, which governs an appeal from a justice court to a county court, provides, in relevant part, as follows:

(a) How Taken; Time. A party may appeal a judgment by filing a bond, making a cash deposit, or filing a Statement of Inability to Afford Payment of Court Costs with the justice court within 21 days after the judgment is signed or the motion to reinstate, motion to set aside, or motion for new trial, if any, is denied.

. . . .

(h) Appeal Perfected. An appeal is perfected when a bond, cash deposit, or Statement of Inability to Afford Payment of Court Costs is filed in accordance with this rule.

(i) Costs. The appellant must pay the costs on appeal to a county court in accordance with Rule 143a.

TEX. R. CIV. P. 506.1. Rule 143a, entitled "Costs on Appeal to County Court," provides:

If the appellant fails to pay the costs on appeal from a judgment of a [justice court] within twenty (20) days after being notified to do so by the county clerk, the appeal shall be deemed not perfected and the county clerk shall return all papers in said cause to the [justice court] having original jurisdiction and the [justice court] shall proceed as though no appeal had been attempted.

TEX. R. CIV. P. 143a. Thus, to perfect an appeal to a county court from a justice court, an appellant must (1) file an appeal bond, cash deposit in lieu of a bond, or a sworn statement of inability to pay, and (2) pay to the county clerk, within twenty days after being notified to do so by the county clerk, the costs of appeal. TEX. R. CIV. P. 143a, 506.1; James v. Minter, No. 01-15-00876-CV, 2017 WL 631836, at *2 (Tex. App.-Houston [1st Dist.] Feb. 16, 2017, no pet.) (mem. op.). Compliance with both requirements is jurisdictional. James, 2017 WL 631836, at *2; Watkins v. Debusk, 286 S.W.3d 58, 60 (Tex. App.-El Paso 2009, no pet.); see also Martin v. Fed. Nat'l Mortg. Ass'n, No. 04-15-00233-CV, 2016 WL 1588517, at *2 (Tex. App.-San Antonio Apr. 20, 2016, no pet.) (mem. op.) ("The payment of costs after receipt of the county clerk's notice is a jurisdictional requirement").

Here, Pichini does not dispute that he failed to timely pay the filing fee in the county court. Rather, he argues that he perfected his appeal when he filed an appeal bond with the justice court and deposited funds into the registry of the court, and that his failure to pay the filing fee before the expiration of twenty days did not affect the jurisdiction of the court. His argument is without merit. As previously noted, the plain language of rule 143a mandates that, upon the expiration of the twenty-day period, Pichini's appeal be "deemed not perfected." TEX. R. CIV. P. 143a ("If the appellant fails to pay the costs on appeal from a judgment of a [justice court] within twenty (20) days after being notified to so by the county clerk, the appeal shall be deemed not perfected. . . ."); James, 2017 WL 631836 at *4; see also McGaughy v. Lamm, No. 03-99-00643-CV, 2000 WL 147649, at *2 (Tex. App.-Austin Feb. 10, 2000, no pet.) (not designated for publication) ("Rule 143a mandates that [the defendant's] appeal be `deemed not perfected'").^[2] Because Pichini did not pay the filing fee before expiration of the twenty-day period, the county court did not err in deeming Pichini's appeal not perfected and dismissing his appeal. Accordingly, we overrule his issue.

Conclusion

We affirm the county court's order dismissing Pichini's appeal.

[1] Pursuant to its docket equalization authority, the Supreme Court of Texas transferred this appeal from the Court of Appeals for the Third District of Texas to this Court. See Misc. Docket No. 17-9035, Transfer of Cases from Courts of Appeals (Tex. Mar. 28, 2017); see also TEX. GOV'T CODE ANN. § 73.001 (West 2013) (authorizing transfer of cases).

[2] In support of his argument, Pichini relies on Advance Imports, Inc. v. Gibson Products Co., Inc., 533 S.W.2d 168, 170 (Tex. Civ. App.-Dallas 1976, no writ) ("[W]e hold that failure to pay the [filing] fee does not affect the jurisdiction of the county court."). However, as that court noted, "[t]he trial court's order of dismissal was entered before the effective date of Tex. R. Civ. P. 143a. . . ." Id. at 171 n.1.

Judgment signed after expiration of plenary power is void, subject to vacature if appealed

SEVERANCE MADE SANCTIONS ORDER FINAL 

SUBSEQUENT SUMMARY JUDGMENT FOUND VOID 

Offord v. West Houston Trees, Ltd. No. 14-16-00532-CV (Tex.App.- Houston [14th Dist.] April 19, 2018) (trial court judgment vacated for lack of jurisdiction, rather than reversed and rendered).

Order Vacated and Memorandum Opinion filed April 19, 2018.

In The

Fourteenth Court of Appeals

NO. 14-16-00532-CV

DIANA G. OFFORD AND DIOGU KALU DIOGU II, Appellants

V.

WEST HOUSTON TREES, LTD., Appellee

On Appeal from the County Court at Law No. 2

Fort Bend County, Texas

Trial Court Cause No. 16-CPR-028846

M E M O R A N D U M      O P I N I O N

DIANA G. OFFORD AND DIOGU KALU DIOGU II, Appellants,
v.
WEST HOUSTON TREES, LTD., Appellee.

No. 14-16-00532-CV.

Court of Appeals of Texas, Fourteenth District, Houston.

Memorandum Opinion filed April 19, 2018.

Russell C. Jones, for West Houston Trees, LTD, Appellee.

Diogu K. Diogu, II, for Diana G. Offord and Diogu Kalu Diogu II, Appellant.

On Appeal from the County Court at Law No. 2, Trial Court Cause No. 16-CPR-028846, Fort Bend County, Texas.

Order Vacated.

Panel consists of Justices Boyce, Jamison, and Busby.

MEMORANDUM OPINION

J. BRETT BUSBY, Justice.

Appellant Diogu Kalu Diogu II represented appellant Diana G. Offord in an heirship proceeding initiated by Offord. The trial court sanctioned both Diogu and Offord for their conduct in the heirship proceeding. The trial court severed the sanctions award into a separate cause and then granted a summary judgment motion filed by appellee, West Houston Trees, Ltd. in the severed case.

Because there were no issues of fact or law remaining on the issue of sanctions once the trial court signed the severance order, we conclude that the severance order made the sanctions award a final judgment. We further conclude that because the trial court's summary judgment was signed after the trial court's plenary power over the severed case had expired, the order is void and must be vacated.

BACKGROUND

Offord's father, Winter Gordon, Sr., died in late 2011. Offord, represented by Diogu, initiated an heirship proceeding in early 2012. West Houston Trees appeared in the heirship proceeding, arguing that an administration of Gordon's estate was necessary. During the ensuing proceedings, the trial court sanctioned Offord and Diogu, jointly and severally, a total of $35,000 payable to West Houston Trees. The sanctions were imposed for filing frivolous pleadings under section 10.001 of the Civil Practice and Remedies Code and Rule 13 of the Texas Rules of Civil Procedure, as well as for violations of Rules 21, 21a, 21b and 215.2(b) of the Texas Rules of Civil Procedure. The sanctions order was signed on June 23, 2013. The probate of Gordon's estate continued after the trial court levied the sanctions against appellants.

West Houston Trees moved to sever the sanctions order two years later. West Houston Trees argued it had "an independent cause of action to collect the sanctions and attorney's fees previously awarded by the Court." Our record does not contain a live pleading requesting enforcement, however. The probate court granted the motion on January 11, 2016, thereby severing the sanctions order into a separate cause number.^[1]West Houston Trees subsequently filed in the severed case an amended petition, requesting only judgment on the sanctions, and a motion for summary judgment, arguing that there was "no genuine issue of material fact as to any element of sanctions." The trial court granted the motion on April 4, 2016. Diogu filed a motion for new trial on April 28, 2016, which the probate court denied on June 29, 2016. This appeal followed.

ANALYSIS

Before we reach appellants' issues on appeal, we must first address their motion to dismiss. As part of their motion, appellants argue that we should dismiss their own appeal because the trial court's plenary power had expired before it signed the final summary judgment.^[2]

With certain exceptions not applicable here, a trial court loses plenary power over a case thirty days after it signs a final judgment. See Tex. R. Civ. P. 329b(d); Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 310 (Tex. 2000). When a trial court issues an order outside of its plenary power, the order is void. In re Southwestern Bell Tel. Co.,35 S.W.3d 602, 605 (Tex. 2000); B.Z.B., Inc. v. Clark, 273 S.W.3d 899, 904 (Tex. App.-Houston [14th Dist.] 2008, no pet.). A void order is a nullity and has no effect. State ex rel. Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995).

This Court has previously recognized that a final judgment is not determined by its form, but by its language and the record on appeal. B.Z.B., Inc., 273 S.W.3d at 902. To be final, a judgment or order either must state clearly and unequivocally that it disposes of all claims and parties, or it must dispose of every pending claim and party regardless of its language. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001). An order "can be final and appealable when it should not be." Id. at 204. Additionally, "the language of an order or judgment cannot make it interlocutory when, in fact, on the record, it is a final disposition of the case." Id. at 200.

When a suit is severed, two or more independent lawsuits result, and each is resolved by its own final appealable judgment. Beckham Grp., P.C. v. Snyder, 315 S.W.3d 244, 245 (Tex. App.-Dallas 2010, no pet.). In general, a judgment or order becomes final upon severance if it disposes of all of the claims and parties in the severed action, unless the order of severance indicates that further proceedings are to be had in that action. See A-Affordable Ins. Agency, Inc. v. AEA Ins. Agency, Inc., No. 14-09-00879-CV, 2010 WL 2103967, at *1 (Tex. App.-Houston [14th Dist.] 2010, no pet.) (per curiam) (mem. op.); Panatrol Corp. v. Emerson Elec. Co., 147 S.W.3d 518, 521 (Tex. App.-San Antonio 2004, pet. denied); Tanner v. Karnavas, 86 S.W.3d 737, 743 (Tex. App.-Dallas 2002, pet. denied).

In the present case, the order of severance provides, in pertinent part: "IT IS ORDERED, that [West Houston Trees'] claim for payment of the award of sanctions is hereby severed from this cause, . . . and is to be styled West Houston Trees, Ltd. vs. Diana Offord and Diogu K. Diogu, II." The order of severance does not indicate that further proceedings remained to be had on the sanctions award.

We conclude that no issues of law or fact remained to be resolved on the sanctions levied against appellants once the trial court signed the severance order. Because appellants did not file a notice of appeal or a motion extending the trial court's plenary power, the January 11, 2016 severance order made the sanctions award final, and the trial court's plenary power expired thirty days later. See Scott & White Mem'l Hosp. v. Schexnider, 940 S.W.2d 594, 596 (Tex. 1996).^[3]

The trial court's plenary power having expired in February 2016, we agree with appellants that the trial court did not have jurisdiction to sign the April 4, 2016 summary judgment. As a result, the April 4, 2016 summary judgment is void. In re Southwestern Bell Tel. Co., 35 S.W.3d at 605; B.Z.B., Inc., 273 S.W.3d at 904. The remedy in this situation is not to dismiss the appeal as requested by appellants, but to declare the judgment void and vacate it. See B.Z.B., Inc., 273 S.W.3d at 903 ("It is settled law in Texas that, while it is not necessary to appeal from a void judgment, an appeal may be taken and the appellate court in such a proceeding may declare the judgment void."). We therefore grant appellants' motion to dismiss in part, declare the April 4, 2016 summary judgment order void, and vacate that order.^[4]

CONCLUSION

Because the trial court was without jurisdiction to grant summary judgment on April 4, 2016, that summary judgment order is declared void and is vacated.^[5]

[1] The probate court ordered the following items included in the severed case: (1) the motion for sanctions, (2) the transcript of the sanctions hearing, (3) the sanctions order, (4) the motion to sever, and (5) the order to sever.

[2] Appellants initially filed their motion to dismiss in May 2017 and it was taken with the case. Appellants filed a supplement to their motion in February 2018.

[3] We note that West Houston Trees filed its amended petition in the severed case on February 25, 2016. This petition had no effect because it was filed after the trial court's plenary power expired. In any event, the petition does not add a cause of action; it "requests judgment on the Order Imposing Sanctions." As explained above, West Houston Trees had already received that relief when the severance order made the sanctions order final.

[4] Because the deadline to challenge the merits of the trial court's sanctions and severance orders had expired long before the notice of appeal was filed in this case, we render no opinion on the propriety of the trial court's order severing its sanctions order from the underlying litigation in which the sanctions were levied and into a separate cause of action. See Alexander Dubose Jefferson & Townsend LLP v. Chevron Phillips Chem. Co., L.P.,No. 16-108, 2018 WL 1022475, at *3 (Tex. Feb. 23, 2018) (stating that a judgment's finality determines whether an appellant invoked a court's appellate jurisdiction by timely filing a notice of appeal).

[5] Appellants included in their supplemental motion to dismiss a request that we sanction appellee and its counsel $42,000. See Tex. R. App. P. 45 ("If the court of appeals determines that an appeal is frivolous, it may . . . award each prevailing party just damages."). Whether to grant sanctions for a frivolous appeal is a matter of discretion that an appellate court exercises with prudence and caution and only after careful deliberation in truly egregious circumstances. Goss v. Houston Cmty. Newspapers, 252 S.W.3d 652, 657 (Tex. App.-Houston [14th Dist.] 2008, no pet.). Assuming without deciding that Rule 45 authorizes an appellate court to sanction an appellee who did not file a cross-appeal, we exercise our discretion and deny appellants' request. See MEMC I, LLC v. Town of Double Oak, No. 02-12-00049-CV, 2013 WL 626977, at *2 (Tex. App.-Fort Worth Feb. 21, 2013, no pet.) (mem. op.).