Ashley Furniture Industries Inc. Ex Rel. RBLS Inc. v. Law Office of David Pierce

311 S.W.3d 595, 2010 Tex. App. LEXIS 752, 2010 WL 372108
CourtCourt of Appeals of Texas
DecidedFebruary 3, 2010
Docket08-08-00045-CV
StatusPublished
Cited by26 cases

This text of 311 S.W.3d 595 (Ashley Furniture Industries Inc. Ex Rel. RBLS Inc. v. Law Office of David Pierce) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ashley Furniture Industries Inc. Ex Rel. RBLS Inc. v. Law Office of David Pierce, 311 S.W.3d 595, 2010 Tex. App. LEXIS 752, 2010 WL 372108 (Tex. Ct. App. 2010).

Opinion

OPINION

ANN CRAWFORD McCLURE, Justice.

Ashley Furniture Industries Inc., by and through RBLS Inc., d/b/a Ashley Furniture Homestores, appeals from an order dismissing its appeal from justice court for failure to file a proper appeal bond. For the reasons that follow, we affirm.

FACTUAL SUMMARY

According to the pleadings filed in the justice court, the Law Office of David Pierce purchased a conference room table from Ashley in 2005. Less than a year later, Pierce noticed that the table had begun to crack and deteriorate. Ashley replaced the table, but the new table also began to crack. Pierce contacted Ashley again, but Ashley refused to cure or replace the defective table.

Pierce filed a statement of claim in the justice court alleging breach of contract and breach of warranty claims against Ashley. On November 5, 2007, the justice of the peace rendered judgment in favor of *597 Pierce, awarding damages in the amount of $1,462.92, together with reasonable attorney’s fees of $750, and court costs in the amount of $72, for a total judgment of $2,285.92. On November 9, Ashley filed a notice of appeal in the county court at law and contemporaneously filed an appeal bond in the amount of $2,285.92. The justice court approved the bond on November 15.

On November 19, Pierce filed a motion to dismiss, contending that Ashley failed to perfect its appeal because it did not post a sufficient bond within ten days from the date the judgment was signed. Pursuant to the Rules of Civil Procedure, the requisite bond should have been twice the amount of the original judgment— $4,571.84. See Tex.R.Civ.P. 571. Pierce served Ashley with its motion by facsimile the same day. Ashley responded that the county court had jurisdiction to entertain the appeal because the justice of the peace had approved the bond. The trial court granted Pierce’s motion and this appeal follows.

DEFECT IN THE APPEAL BOND

In its sole issue for review, Ashley contends the trial court abused its discretion by dismissing the appeal without allowing it time to correct or amend the bond. Pierce responds that the appeal should be dismissed because the issue is inadequately briefed. Alternatively, Pierce maintains that the trial court properly dismissed the appeal because Ashley failed to file an amended bond within the time parameters set forth in Rule 571.

Waiver of Appellate Review

We first consider Pierce’s argument that the appeal should be dismissed because Ashley waived error when it failed to cite to any relevant portion of the record to support its complaints. An appellant’s brief must contain a clear and concise argument for the contention made, with appropriate citations to authorities and to the record. Tex.R.App.P. 38.1(h); see Torres v. GSC Enterprises, Inc., 242 S.W.3d 553, 559 (Tex.App.-El Paso 2007, no pet.)(brief must contain clear and concise argument for contentions made, with appropriate citations to authorities and to the record); City of Midland v. Sullivan, 33 S.W.3d 1, 10 n. 6 (Tex.App.-El Paso 2000, pet. dism’d w.o.j.)(appellant failed to brief complaint and thus waived appellate review). An appellant waives error when it does not provide appropriate citations to authorities or to the record. In re 248 S.W.3d 753, 760 (Tex.App.-Fort Worth 2008, no pet.); Torres, 242 S.W.3d at 559. We construe the Rules of Appellate Procedure liberally, but an appellate court has no duty to search the record without sufficient guidance from an appellant to determine whether an assertion of reversible error is valid. In re M.J.G., 248 S.W.3d at 760; Dallas Independent School District v. Finían, 27 S.W.3d 220, 237 (Tex.App.-Dallas 2000, pet. denied). An appellate court has discretion to find an issue is waived due to inadequate briefing. Fredonia State Bank v. General American Life Ins. Co., 881 S.W.2d 279, 284 (Tex.1994).

Ashley’s brief provides only one reference to the clerk’s record and it is contained in a: “See Generally Court Clerk’s Record previously filed with the Court of Appeals.” Although Ashley cites various exhibits which are attached to its brief and appendix, these are not a part of the official appellate record and cannot be considered. Fox v. Wardy, 234 S.W.3d 30, 33 (Tex.App.-El Paso 2007, pet. dism.); see Tex.R.App.P. 34.1. Although Ashley has waived the sole issue for review, we will exercise our discretion to review the merits because the clerk’s record is relatively short.

*598 Dismissal of Appeal

Ashley first contends that the trial court abused its discretion by granting Pierce’s motion to dismiss based on a deficient bond without allowing Ashley time to amend. Secondly, it complains that the trial court never pronounced the bond defective so as to trigger the five-day amendment period under Rule 571.

Standard of Review

We first disagree with Ashley that we are to review the trial court’s judgment for an abuse of discretion. To the contrary, we review the dismissal predicated on a deficient appeal bond under a de novo standard. See Watkins v. Debusk, 286 S.W.3d 58 (Tex.App.-El Paso 2009, no pet.); see Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998). The existence of a trial court’s jurisdiction is a question of law. Watkins, 286 S.W.3d at 60. The sufficiency of the notice to invoke the five-day correction period is also a question of law which we review de novo. Id. at 62.

Applicable Law

To perfect an appeal from justice court to county court, an appellant must: (1) file an appeal bond as required by Rule 571 or file an affidavit of inability to pay under Rule 572; and (2) pay to the county clerk, within twenty days after being notified by the county clerk to do so, the costs on appeal as required by Rule 143a. Tex. R.Crv.P. 571; Watkins, 286 S.W.3d at 60, citing Almahrabi v. Booe, 868 S.W.2d 8,10 (Tex.App.-El Paso 1993, no writ). Rule 573 provides that an appeal is perfected when the bond has been filed and all requirements of Rule 571 have been satisfied. Tex.R.Civ.P. 573. To comply with Rule 571, an appellant must file an appeal bond with the justice of the peace in an amount equal to twice the amount of the judgment within ten days from the date the judgment is signed. Tex.R.Civ.P. 571.

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Bluebook (online)
311 S.W.3d 595, 2010 Tex. App. LEXIS 752, 2010 WL 372108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ashley-furniture-industries-inc-ex-rel-rbls-inc-v-law-office-of-david-texapp-2010.