Kyle Schubert v. APTCO Shell

• Court: Court of Appeals of Texas
• Decided: February 1, 2017
• Docket: 05-16-01129-CV
• Status: Published

Opinion

VACATE and DISMISS; and Opinion Filed February 1, 2017.

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-16-01129-CV

KYLE SCHUBERT, Appellant

V.

APTCO SHELL, Appellee

On Appeal from the County Court at Law No. 5 Dallas County, Texas Trial Court Cause No. CC-16-04359-E

MEMORANDUM OPINION Before Justices Lang-Miers, Myers, and Boatright Opinion by Justice Lang-Miers This is an appeal from a judgment in an eviction suit. On APTCO Shell’s petition, the

justice court awarded APTCO Shell possession of an apartment Kyle Schubert occupied and a

monetary judgment. Schubert appealed by filing a statement of inability to pay six days after the

justice court signed its judgment. Although the statement of inability to pay was due within five

days after the judgment, the county court at law conducted a trial de novo. See TEX. R. CIV. P.

510.9(a), (f), 510.10(c); Williams v. Schneiber, 148 S.W.3d 581, 583 (Tex. App.—Fort Worth

2004, no pet.) (county court lacks jurisdiction over untimely-filed appeal bond from justice

court). Like the justice court, the county court awarded APTCO Shell possession of the

apartment and a monetary judgment. Schubert timely appealed from that judgment. However, because our jurisdiction over the merits of a case extends no further than that of the court from

which the appeal is taken, and it appeared Schubert had not timely appealed from justice court to

county court, we questioned whether we had jurisdiction over this appeal and requested the

parties brief this issue. See Dallas Cty. Appraisal Dist. v. Funds Recovery, Inc., 887 S.W.2d 465,

468 (Tex. App.—Dallas 1994, writ denied). Although more than ten days have passed since we

requested the briefing, we have received no response. Because nothing in the record

demonstrates Schubert timely appealed from justice court, the county court lacked jurisdiction

over the case and we also lack jurisdiction. See id. Accordingly, we vacate the county court’s

judgment and dismiss the cause. See id.

/Elizabeth Lang-Miers/ ELIZABETH LANG-MIERS JUSTICE

161129F.P05

–2– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

KYLE SCHUBERT, Appellant On Appeal from the County Court at Law No. 5, Dallas County, Texas No. 05-16-01129-CV V. Trial Court Cause No. CC-16-04359-E. Opinion delivered by Justice Lang-Miers. APTCO SHELL, Appellee Justices Myers and Boatright participating.

In accordance with this Court’s opinion of this date, we VACATE the judgment of County Court at Law No. 4 and DISMISS the case.

Judgment entered this 1st day of February , 2017.

–3–