Robert Markham v. Deutsche Bank National Trust Company
This text of Robert Markham v. Deutsche Bank National Trust Company (Robert Markham v. Deutsche Bank National Trust Company) 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.
Opinion
NUMBER 13-12-00198-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
ROBERT M. MARKHAM AND ALL OTHER OCCUPANTS, Appellants,
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE, IN TRUST FOR THE REGISTERED HOLDERS OF ARGENT SECURITIES INC., ASSET-BACKED PASS-THROUGH CERTIFICATES, SERIES 2006-W5, Appellee.
On appeal from the County Court at Law No. 5 of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Benavides, and Perkes Memorandum Opinion by Justice Perkes Appellant, Robert M. Markham,1 appeals the trial court’s judgment denying him a
trial de novo in his appeal from justice court and purporting to “confirm” the justice court’s
judgment in favor of appellee, Deutsche Bank National Trust Company, as Trustee, in
Trust for the Registered Holders of Argent Securities Inc., Asset-Backed Pass-Through
Certificates, Series 2006-W5 (“Deutsche Bank”). We reverse and remand for a trial de
novo.
I. FACTUAL AND PROCEDURAL BACKGROUND2
Deutsche Bank filed a forcible-detainer petition against Markham in the Court of
the Justice of the Peace, Precinct Two, Place One, of Hidalgo County, Texas, seeking to
evict Markham from the property located at 307 Highland Drive, McAllen, Texas 78501
(“the property”). On October 18, 2011, the justice court entered a judgment for
possession in favor of Deutsche Bank.
On October 24, 2011, Markham appealed the justice court’s judgment, transferring
the matter to the Hidalgo County Clerk’s Office, which then assigned the matter to the trial
court (County Court at Law Number Five). Markham thereafter filed a motion for trial de
novo.3 On January 13, 2012, the trial court denied Markham’s motion for trial de novo.
Deustsche Bank then filed a “motion to clarify” the trial court’s denial of trial de novo. In
its motion, Deutsche Bank asked the trial court to enter judgment confirming the justice
court’s order awarding it possession. The trial court set the matter for hearing and on 1 “Robert M. Markham and All Other Occupants” were named as defendants in the lawsuit and are appellants on appeal. Hereinafter, we collectively refer to appellants as “Markham.” 2 Because this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons for it. See TEX. R. APP. P. 47.4. 3 The record also shows that Deutsche Bank filed a motion for final summary judgment, but the record does not contain any order granting or denying the motion for summary judgment. 2 February 27, 2012, signed a judgment titled “Order Denying Trial De Novo and Affirming
Trial Court Judgment” in which it again denied Markham a trial de novo and also
purported to confirm the justice court’s order.
The text of the trial court’s judgment reads as follows:
On January 9, 2012, came on for trial de novo on the merits of this proceeding, appealed from Cause No. C-1101-11-21, in the Justice of the Peace Court, Precinct 2-1 of Hidalgo County, Texas, between Plaintiff, DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE, IN TRUST FOR THE REGISTERED HOLDER OF ARGENT SECURITIES INC., ASSET-BACKED PASS-THROUGH CERTIFICATES, SERIES 2006-W5 (“Plaintiff”), and Defendant, ROBERT MARKHAM AND ALL OTHER OCCUPANTS (“Defendant”). The parties appeared through their counsel of record and after the Court found that it had jurisdiction to hear this cause, the Court denied Defendant’s appeal for a trial de novo on the merits, after which time the Court confirmed the trial court’s judgment for the Plaintiff. It is therefore
ORDERED, ADJUDGED and DECREED that the trial court judgment, namely the judgment entered by Hidalgo County Justice of the Peace Court Precinct 2, Place 1, on October 18, 2011 in case number C-1101-11-21, is confirmed and fully enforceable. To wit: DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE, IN TRUST FOR THE REGISTERED HOLDER OF ARGENT SECURITIES INC., ASSET-BACKED PASS-THROUGH CERTIFICATES, SERIES 2006-W5 does have and recover of the Defendant possession of the following described premises: 307 Highland Drive, McAllen, TX 78501 A/K/A 307 West Highland Avenue, McAllen, TX 78501 more particularly described as LOT THREE (3), UNIT ONE (1), DIXON SUBDIVISION NO. 1, AN ADDITION TO THE CITY OF MCALLEN, HILDALGO COUNTY, TEXAS, AS PER MAP OR PLAT THEREOF RECORDED IN VOLUME 17, PAGE 59, MAP RECORDS, HIDALGO COUNTY, TEXAS.
This appeal followed.4
II. ISSUES PRESENTED
Markham presents four issues for review:
4 Deutsche Bank’s counsel informed this Court that Deutsche Bank elected not to file a brief in this appeal. 3 (1) A perfected appeal from a justice court requires a trial de novo.
(2) A trial de novo is the only means by which a defendant can obtain relief from judgment.
(3) Appellate rights are zealously guarded by Texas Courts once granted.
(4) The denial of a right of trial de novo is legal error, contrary to due process and course of law, and violates the Texas Open Courts Doctrine.
III. ANALYSIS
By his first issue, Markham argues he was entitled to trial de novo in county court
and because his appeal to county court annulled the justice court’s judgment, the trial
court could not confirm or enter judgment on the justice court’s judgment. We agree.
Whether Markham was entitled to trial de novo once he perfected his appeal to the
county court presents a legal question which we review de novo. See Mayhew v. Town
of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998); see also Salmeron v. T-Mobile W. Corp.,
No. 01-07-00532-CV, 2008 WL 1828616, at *1 (Tex. App.—Houston [1st Dist.] Apr. 24,
2008) (mem. op.). In Villalon v. Bank One, the First Court of Appeals succinctly
explained the rule of law that is determinative of this case:
[I]t is well-settled that perfection of an appeal to county court from a justice court for trial de novo vacates and annuls the judgment of the justice court. Once a county court acquires jurisdiction by perfection of an appeal from justice court, the rules of procedure permit only that the county court try the case de novo or dismiss it if it is not prosecuted. A county court cannot affirm or reverse the judgment of the justice court nor can it remand the cause to the justice court.
176 S.W.3d 66, 69–70 (Tex. App.—Houston [1st Dist.] 2004, no pet.). In In re Garza,
this Court explained that, once a justice court’s judgment is annulled by perfection of
appeal to the county court, the burden is on the appellee in the county court to obtain a
new judgment. 990 S.W.2d 372, 374 (Tex. App.—Corpus Christi 1999) (orig. 4 proceeding). While In re Garza was decided under Texas Rule of Civil Procedure 574b,
which was repealed effective August 31, 2013 and no longer applies to pending cases
unless justice so requires, see Misc. Docket No. 13-9049 (Tex. April 15, 2013), both Rule
574b and the new rule 506.3 provide for trial “de novo in the county court” when an appeal
from justice court is perfected. See TEX. R. CIV. P. 574b (West 2013) (“The cause shall
be tried de novo in the county or district court; and judgment shall be rendered.”); see also
TEX. R. CIV. P. 506.3 (“The case must be tried de novo in the county court. A trial de novo
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