Linda Frank v. Brittany Square Apartments

• Court: Court of Appeals of Texas
• Decided: December 15, 2009
• Docket: 14-09-00288-CV
• Status: Published

Opinion

Dismissed and Memorandum Opinion filed December 15, 2009.

In The

Fourteenth Court of Appeals

NO. 14-09-00288-CV

Linda Frank, Appellant

V.

Brittany Square Apartments, Appellee

On Appeal from the County Court at Law No. 4

Fort Bend County, Texas

Trial Court Cause No. 08-CCV-038247

MEMORANDUM  OPINION

            In this forcible detainer suit, the tenant appealed the judgment of the justice court to the county court at law.  She asserts that the county court upheld the justice court’s judgment and granted possession of the premises to the landlord, but she identifies no appealable order in the record.  We therefore dismiss this appeal for want of jurisdiction.

I.  Factual and Procedural Background

            Asserting non-payment of rent and other reasons that were not specified in the written complaint,[1] appellee Brittany Square Apartments (“Brittany Square”) filed suit for eviction and back rent against appellant Linda Frank on November 25, 2008 in the Justice Court of Fort Bend County, Precinct One, Place Two.  On December 16, 2008, the judge ruled in favor of Brittany Square Apartments for possession only.  The judgment also bears the handwritten note, “Bond Amount per Judge $300.00.”

            Frank timely appealed to Fort Bend County Court at Law No. 4 by filing a pauper’s affidavit and a notice of appeal.  The matter was set for a hearing to take place on March 16, 2009, and although the parties agree that the hearing took place as scheduled, no record was made.  On March 24, 2009, Frank filed a notice of her intent to appeal the judgment of the county court at law.

II.  Analysis

            In a civil appeal, we generally accept as true the representations made in an appellant’s statement of facts unless another party contradicts them.  Tex. R. App. P. 38.1(g).  Here, the appellant and appellee disagree as to whether the trial court issued any orders at all before Frank brought this appeal.  In her appellate brief, Frank states, “The case was appealed to county court and heard by Judge R.H. Bielstein who upheld the original order from Justice Court and an order was issued for possession and no back rent.”  According to Brittany Square, however, “[t]his is an appeal of a County Court Docket sheet entry. . . .  As a result of that docket sheet entry, no specific action was undertaken, [and] no Order or Judgment was signed or executed . . . .”  Brittany Square further asserts that Frank “file[d] a notice of appeal even though no Judgment o[r] Order had been signed.”

            We have found in the record no order such as Frank describes, although the record does contain an unsigned docket entry dated March 16, 2009 in which it is stated, “Appeal Denied.  15 days to vacate.”[2]  This is not, however, an appealable order.  See Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992) (explaining that appeals are available from final orders or judgments and from interlocutory orders as permitted by statute); Nelson v. Britt, 241 S.W.3d 672, 675 n.1 (Tex. App.—Dallas 2007, no pet.) (noting that a docket entry normally cannot show the existence of an order or judgment); Bryan v. Watumull, 230 S.W.3d 503, 507 n.2 (Tex. App.—Dallas 2007, pet. denied) (“The general rule is that a docket entry forms no part of the record which may be considered; it is a memorandum made for the clerk’s and the trial court’s convenience.”).  Because neither a final judgment nor an order subject to interlocutory review is at issue here, we dismiss this appeal for want of jurisdiction.[3]

                                                                        /s/        Adele Hedges

                                                                                    Chief Justice

Panel consists of Chief Justice Hedges and Justices Anderson and Boyce.

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[1] Unless specifically provided otherwise, pleadings in the justice courts are oral.  Tex. R. Civ. P. 525.

[2] This entry’s meaning is uncertain.  Regarding the first sentence in the docket entry, it should be noted that the trial court has no discretion to “deny” an appeal from a justice court’s judgment in a forcible detainer suit; once an appeal to the county court has been perfected, the case is tried de novo.  Tex. R. Civ. P. 751.  Here, Frank filed a pauper’s affidavit, and because Brittany Square did not timely contest her assertion of indigency, the facts as represented in her affidavit are conclusively presumed to be true.  See Tex. R. Civ. P. 749a.  Consequently, Frank was not required to file an appeal bond in order to perfect her appeal.  See Tex. R. Civ. P. 749c.  It is true that a litigant can attack some judgments of a justice court by applying for a writ of certiorari from the county court, and that an application for such a writ, unlike an appeal, can be denied.  See Clark v. Hutton, 28 Tex. 123, 1866 WL 3980, at *3 (1866) (“The writ of certiorari is not granted as a matter of right.  The application for it is addressed to the discretionary powers of the court . . . .”); Tex. R. Civ. P. 577, 578 (application for certiorari must be supported by an affidavit of sufficient cause).  But certiorari from a justice court is not available in cases of forcible entry and detainer.  Tex. Civ. Prac. & Rem. Code Ann. § 51.002(d) (Vernon 2008).  Such cases are reviewable only by appeal to the appropriate county or district court.  Id. § 51.001; Tex. R. Civ. P. 749; Chang v. Resolution Trust Corp., 814 S.W.2d 543, 544–45 (Tex. App.—Houston [1st Dist.] 1991, no writ).

            As to the second sentence in the docket entry, we point out that writs of possession are issued by the clerk of the county court according to the judgment rendered.  See Tex. R. Civ. P. 254.  This docket entry is not itself such a writ.

[3] In a post-submission brief, Frank asserts that her family was unlawfully evicted on August 17, 2009, see Tex. Prop. Code Ann. §§ 92.008–.009 (Vernon 2007), and prays that this court award her actual and punitive damages.  Frank’s wrongful-eviction claim, however, is not properly part of this appeal.  It appears instead to be an original claim that has not yet been litigated, see Tex. R. App. P. 33.1(a), and for which Frank relies on material that is not part of the record before us.