A.V.A. Services, Inc. v. Parts Industries Corp.

949 S.W.2d 852, 1997 Tex. App. LEXIS 3890, 1997 WL 413840

• Court: Court of Appeals of Texas
• Decided: July 24, 1997
• Docket: 09-95-370 CV
• Status: Published

Opinions

OPINION

HILL, Justice (Assigned).

A.V.A. Services, Inc. appeals a judgment in this forcible entry and detainer action that Parts Industries Corp. have possession of the commercial premises that was the subject of this suit, as well as a judgment against it for $6,000.00, the amount of its appeal bond from the justice court to County Court at Law Number One of Jefferson County. A.V.A. contends in three points of error that the trial court erred: (1) in awarding Parts Industries a monetary judgment equal to the amount of the appeal bond set by the justice court and in ordering forfeiture of that bond; (2) in denying its motion to quash the forcible detainer proceedings; (3) in rendering judgment in favor of Parts Industries because at the time it brought suit against A.V.A. it was a foreign corporation that had transacted business in Texas without a certificate of authority. Parts Industries contends that this Court does not have jurisdiction over the appeal of the judgment in this case due to the provisions of Section 24.007 of the Texas Property Code.

We dismiss this appeal as to points of error numbers two and three because this Court has no jurisdiction over those points that relate to that portion of the trial court’s judgment awarding possession to Parts Industries since the lease in question was a commercial lease. We overrule point of error number one and affirm the judgment because no error is shown where the judgment forfeits the full amount of the appeal bond in the absence of a formal award of damages since the trial court may afford such damages in foi’cible entry and detainer cases through the forfeiture of the bond. We also note that a claim that the judgment is not supported by the pleadings may not be raised for the first time on appeal. In the absence of a statement of facts, we are unable to determine whether this issue was previously presented to the trial court so as to that issue nothing is preserved for review.

We will first consider Parts Industries’ claim that this Court does not have jurisdiction over this appeal due to the provisions of Section 24.007 of the Texas Property Code. Among other things, that section provides that a final judgment of a county court in a forcible entry and detainer suit or a forcible detainer suit may not be appealed on the issue of possession unless the premises in question are being used for residential purposes only. Tex. Prop.Code Ann. § 24.007 (Vernon Supp.1997). In this ease the premises are commercial. Consequently, this Court does not have jurisdiction of the appeal as it relates to the issue of possession. However, a portion of the judgment relates to costs that were awarded below, as well as the forfeiture of the appeal bond. This Court does have jurisdiction of this appeal as it relates to issues other than possession.

A.V.A. contends in point of error number two that the trial court erred by denying its motion to quash the forcible detainer proceedings. A.V.A.’s motion was based upon its contention that there was no landlord-tenant relationship between it and Parts Industries. Such an issue may not be raised in this appeal because it is a question of possession, the issue concerning which this Court does not have jurisdiction. See Academy Corp. v. Sunwest N.O.P., Inc., 853 S.W.2d 833, 834 (Tex.App. — Houston [14th Dist.] 1993, writ denied). We dismiss this appeal as to point of error number two.

A.V.A. urges in point of error number three that the trial court erred in rendering judgment in favor of Parts Industries because at the time it brought suit it was a foreign corporation that had transacted business in Texas without a certificate of authority. Inasmuch as the judgment rendered was one of possession, A.V.A.’s assertion that the trial court erred in rendering that judgment is a question of possession, over which, as we have stated, this Court does not have jurisdiction. We dismiss this appeal as to point of error number three.

A.V.A. contends in point of error number one that the trial court erred in awarding Parts Industries a monetary judgment equal to the amount of the appeal bond set by the justice court and in ordering the complete forfeiture of the bond. Since this point of error does not concern the issue of possession of the premises, we hold that this Court has jurisdiction to determine this point of error.

When A.V.A. appealed this cause from the justice court to the county court at law, it executed an appeal bond in the amount of $6,000.00 for the purpose of securing any costs and damages that might be adjudged against it. The county court at law’s judgment awards possession of the premises to Parts Industries, awards no damages against A.V.A., and charges costs of court to A.V.A. The costs of court at the county court at law were $159.00. The judgment also forfeited the appeal bond and granted Parts Industries judgment against A.V.A. for the full amount of the appeal bond.

Under the authority of Rule 752 of the Texas Rules of Civil Procedure, the trial court may award damages for the prevailing party and award recovery up to the full amount of the appeal bond to cover damages and costs. Consequently, where, as here, there is no statement of facts, no error is shown where the full amount of the bond is forfeited even though the judgment otherwise awards no damages, since it is presumed that the trial court was awarding such damages by means of the bond forfeiture. See Bobbitt v. Womble, 708 S.W.2d 558, 561 (Tex.App. — Houston [1st Dist.] 1986, no writ).

A.V.A. insists that the trial court could not forfeit the appeal bond to cover any damages to Parts Industries because Parts Industries’ pleading did not seek damages. We agree with the general rule, cited by A.V.A., that the trial court’s judgment must ordinarily conform to the pleadings. See Cunningham v. Parkdale Bank, 660 S.W.2d 810, 812 (Tex.1983); Texaco, Inc. v. Wolfe, 601 S.W.2d 737, 741 (Tex.Civ.App. — Houston [1st Dist.] 1980, writ ref'd n.r.e.). However, in this case we have no statement of facts. Therefore, there is no showing that A.V.A. received a trial court determination as to the absence of pleading to support the judgment. It may not raise this issue for the first time on appeal. Roth v. Law, 579 S.W.2d 949, 958 (Tex.Civ.App. — Corpus Christi 1979, writ ref'd n.r.e.); Tex.R.App. P. 52(a). Consequently, as to this issue, nothing is preserved for review. We overrule point of error number one.

The appeal is dismissed as to points of error numbers two and three. Inasmuch as we have overruled point of error number one, the only remaining point of error, the judgment is affirmed.

AFFIRMED.