NO CV. In The Court of Appeals 5th District Dallas, Texas. MEADOWS SERVICE CORPORATION, Appellee Defendant Below

Transcription

1 NO CV In The Court of Appeals 5th District Dallas, Texas ROBERT LITOFF, Appellant Plaintiff Below V. MEADOWS SERVICE CORPORATION, Appellee Defendant Below Appeal of Judgment in Cause No. CC From the County Court at Law No. 5 Dallas County, Texas Honorable Mark Greenberg, Presiding Judge APPELLANT ROBERT LITOFF S ORIGINAL BRIEF ON APPEAL Respectfully submitted, /s/ Bryan L. Sample Bryan L. Sample State Bar No LAW OFFICES OF BRYAN L. SAMPLE, PC Preston Road Suite 150 Dallas, Texas (214) (214) /fax ATTORNEY FOR APPELLANT ROBERT LITOFF

2 SECTION NO. I: TABLE OF CONTENTS SECTION NO. SECTION TITLE PAGE I. TABLE OF CONTENTS i II. III. IV. TABLE OF PROPER AND NECESSARY PARTIES iii TABLE OF AUTHORITIES iv STATEMENT REGARDING ORAL ARGUMENT v V. DESIGNATION OF THE RECORD 2 VI. STATEMENT OF THE NATURE OF THE CASE 3 VII. STATEMENT OF POINTS OF ERROR 4 VIII. STATEMENT OF FACTS 4 IX. BRIEF OF ARGUMENT 5 X. POINT OF ERROR ONE(Restated) 5 The County Court erred in dismissing the appeal from Justice Court based on non-compliance with Rule 571, Tex.R.Civ.P. A. Argument and Authorities 5 XI. POINT OF ERROR TWO (Restated) 6 The County Court did not have Jurisdiction to inquire into the sufficiency of the sureties under Rule 571, Tex.R.Civ.P. A. Argument and Authorities 6 XII. CONCLUSION AND PRAYER FOR RELIEF 7 XIII. CERTIFICATE OF SERVICE 8 i.

3 APPENDIX OF TRAP 38.1 Materials EXHIBIT A TRIAL COURT JUDGMENT ii.

4 SECTION NO. II: TABLE OF PROPER AND NECESSARY PARTIES Pursuant to the Texas Rules of Appellate Procedure, the Appellant hereby offers a list of the proper and necessary parties to this cause of action. Those interested parties are listed immediately below. Tex. R. App. Proc. 74 (Vernon 1994). APPELLANT PLAINTIFF BELOW MR. ROBERT LITOFF APPELLANT S TRIAL COUNSEL Bryan L. Sample Law Offices of Bryan L. Sample, PC Preston Road Suite 150 Dallas, Texas APPELLEE DEFENDANT BELOW MEADOWS SERVICE CORPORATION APPELLEE S TRIAL COUNSEL Mr. John H. Carney One Meadows Building 5005 Greenville Avenue, Suite 200 Denton, Texas iii.

5 SECTION NO. III: TABLE OF AUTHORITIES STATUTE AND CASE PRECEDENT PAGE A.J. s Wrecker Service v. Orozco 68 S.W.3d 45,48 (Tex.App. Dallas-2001).. 5 In re Garza, 990 S.W.2d 372,374 (Tex.App.-Corpus Christi 1999) 5 Villalon v. Bank One, 176 S.W.3d, 66,70 (Tex.App.-Houston[1 st. Dist.] 1994) 6 Walker v. Blue Water Garden Apartments, 776 S.W.2d, 578 (Tex. 1989) 6 Hall v. McKee, 179 S.W.2d, 590,593 (Tex.App.-Fort Worth 1944) 6 iv.

6 SECTION NO. IV. STATEMENT REGARDING ORAL ARGUMENT Pursuant to the Texas Rules of Appellate Procedure, the Appellate respectfully defers to the Court of the necessity for oral argument in this case. Should the Court desire oral argument, the appellant will respectfully comply with the Court order if there exists significant questions of law that may be elucidated with greater clarity through oral argument. Tex. R. App. Proc. 75 (Vernon Supp. 1996) v.

7 NO CV In The Court of Appeals 5th District Dallas, Texas ROBERT LITOFF, Appellant Plaintiff Below MEADOWS SERVICE CORPORATION, Appellee Defendant Below V. Appeal of Judgment in Cause No. CC From the County Court at Law No. 5 Dallas County, Texas Honorable Mark Greenberg, Presiding Judge APPELLANT ROBERT LITOFF S ORIGINAL BRIEF ON APPEAL TO THE HONORABLE JUSTICES OF THE FIFTH DISTRICT COURT OF APPEALS IN AND FOR THE STATE OF TEXAS: COMES NOW, ROBERT LITOFF (hereinafter Appellant ), by and through his attorney of record, Bryan L. Sample submits this, his Appellant s Original Brief on Appeal. Appellant respectfully requests this Court reverse the judgment granted in the trial court rendered in favor of Meadows Service Corporation, Appellee. This appeal is from the County Court at Law No. 5, Honorable Mark Greenberg in Dallas, Texas.

8 For clarity, Appellant ROBERT LITOFF will be hereinafter referred to as ROBERT LITOFF and Appellee Meadows Service Corporation will be referred to as MEADOWS. SECTION NO. V: DESIGNATION OF THE RECORD The record consists of one yellow-backed Clerk s Record filed with the Court on October 22, There is no Statement of Facts as no trial was held. Appellant ROBERT LITOFF refers to these documents as follows: TRIAL COURT TRANSCRIPT OF RECORD (TR.-P. )

9 SECTION NO. VI: STATEMENT OF THE NATURE OF THE CASE AND RESULT OF THE CASE This case arises from a case filed by MEADOWS on behalf of JOHN H. CARNEY for collection of attorney fees incurred in a probate dispute in Dallas County. This case was initially filed in Justice Court in Precinct 3, Place 2 of Dallas County and resulted in a verdict in Plaintiff s favor, from which ROBERT LITTOFF timely filed a notice of appeal on March 23, MEADOWS filed a motion to dismiss on April 5, 2010 complaining that ROBERT LITOFF s appeal bond filed in the Justice Court was inadequate. ROBERT LITOFF timely filed his amended appeal bond which was approved by the Justice Court. MEADOWS subsequently filed a second motion to dismiss, alleging that ROBERT LITOFF S appeal bonds were still inadequate. After a hearing before Judge Greenberg, ROBERT LITOFF S appeal from Justice Court was dismissed. ROBERT LITOFF appeals the decision of the County Court at Law based on two points of error.

10 SECTION NO. VII: STATEMENT OF POINTS OF ERROR: POINT OF ERROR ONE The County Court erred in dismissing the appeal from Justice Court based on non-compliance with Rule 571, Tex.R.Civ.P POINT OF ERROR TWO The County Court did not have Jurisdiction to inquire into the sufficiency of the sureties under Rule 571, Tex.R.Civ.P. SECTION VIII: STATEMENT OF FACTS On March 10, 2010, MEADOWS won a judgment against ROBERT LITOFF in the Justice Court for Precinct 3, Place 2 of Dallas County, Texas (TR.P. 30). ROBERT LITOFF timely filed his appeal March 15, 2010 (TR.P ). MEADOWS filed its motion to dismiss appeal on April 5, 2010, alleging that the appeal bonds filed on ROBERT LITOFF S behalf were deficient (TR.P ). On May 10, 2010, an order was entered by the Court finding that the appeal bonds were deficient and ROBERT LITOFF subsequently filed amended appeal bonds on May 14, 2010 which were filed by and approved by the Justice Court (TR.P ). Subsequent to the filing of the amended appeal bonds, MEADOWS filed a second motion to dismiss alleging that ROBERT LITOFF S bonds were still deficient (TR.P ).

11 A hearing was held on MEADOWS motion on June 18, 2010 and the Court dismissed ROBERT LITOFF S appeal by order dated June 24, 2010 based on failure to comply with Rule 571 Tex.R.Civ.P. (TR.P. 129). ROBERT LITOFF filed a Motion to Reconsider and/or for New Trial on July 9, 2010 (TR.P ), which was denied by the Court on August 27, ROBERT LITOFF timely filed his Notice of Appeal on September 22, 2010 (TR.P. 3-4) SECTION NO. IX: BRIEF OF ARGUMENT SECTION NO. X: POINT OF ERROR ONE (Restated) The County Court erred in dismissing the appeal from Justice Court based on non-compliance with Rule 571, Tex.R.Civ.P. A. ARGUMENT AND AUTHORITIES FOR POINT OF ERROR ONE 1. The Justice of the Peace approved the appeal bonds The County Court at Law found that ROBERT LITOFF failed to comply with Rule 571, Tex.R.Civ.P. (TR.P. 129). Rule 571 states clearly that an appeal is perfected when the appeal bond has been filed with the Justice Court. Whether the appeal bond is sufficient is within the discretion of the Justice of the Peace. A.J. s Wrecker Service of Dallas, Inc. v. Orozco, 68 S.W.2d 3d 45, 48 (Tex.App.- Dallas 2001). Once the Justice Court has approved the appeal bond, the Justice Court judgment is annulled and the burden to obtain a new judgment shifts to the appellee. In re Garza, 990 S.W.2d 372, 374 (Tex.App.-Corpus Christi 1999). ROBERT LITOFF complied with Rule 571, initially filing an appeal bond with the

12 Justice Court and, upon notification that said bond was insufficient, filing an amended appeal bond which was approved by the Justice of the Peace. (TR.P ). Any additional requirements or limitations on the appeal are within the discretion of the Justice Court. A.J. s Wrecker Service of Dallas, Inc. v. Orozco, 68 S.W.2d 3d 45, 48 (Tex.App.- Dallas 2001). The Justice of the Peace, in exercising her discretion, did not require additional documentation or support before accepting the appeal bonds. Thus, Rule 571 was satisfied and the appeal was properly perfected and the County Court was obligated to hear the case on the merits. SECTION NO. XI: POINT OF ERROR TWO (Restated) The County Court did not have Jurisdiction to inquire into the sufficiency of the sureties under Rule 571, Tex.R.Civ.P. Appellant argues that once perfected, the County Court lacks jurisdiction to inquire into the sufficiency of the sureties. 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 is not prosecuted. Villalon v. Bank One, 176 S.W.3d, 66, 70 citing, Hall v. McKee, 179 S.W.2d, 590,593 (Tex.App.- Ft. Worth 1944, no writ). There is no authority to justify a finding that the sureties are insufficient by conducting an inquiry into their financial ability to satisfy a judgment that they have not been ordered to pay. We have consistently held with respect to all methods of perfecting appeal that the factor which determines whether jurisdiction has been conferred on the appellate court is not the form or substance of the bond, certificate, or affidavit, but whether the instrument was filed in a bona fide attempt to invoke appellate court jurisdiction. Walker v. Blue Water Garden Apartments, 776 S.W.2d 578 (Tex. 1989). In fact, in this case, ROBERT LITOFF was given the opportunity to cure a legitimate

13 defect in the amount of the bond, which was corrected by amendment pursuant to the requirements of Rule 571 (T.R.P ). The Motion to Dismiss filed by MEADOWS, which was granted by the trial court, relied entirely on the argument that the sureties on the appeal bonds lacked the financial ability to satisfy the underlying judgment in the event that a judgment would be granted. (TR.P ). A dismissal based on such an allegation is clearly beyond the scope of Rule 571. There is no authority that authorizes the Court on a de novo appeal from Justice Court to attack the sufficiency of the sureties or to inquire into the financial wherewithal of the sureties prior to hearing the facts of the appeal. Such an inquiry could result in two complete evidentiary hearings for any appeal from Justice Court. The first to determine if the sureties, who are not parties to the underlying action, are really in a position to satisfy a potential judgment against the principal, and the second, the actual issue that is being appealed from Justice Court for de novo review. Such a burdensome result on the justice system is not the intent behind Rule 571, Tex.R.Civ.P. and is clearly not supported by any other statute or any case law. SECTION NO. XII: CONCLUSION AND PRAYER WHEREFORE, the Appellant, ROBERT LITOFF respectfully prays that this Court reverse the Judgment in this cause and remand to the trial Court for a hearing on the merits for the reasons set out in the foregoing points of error and that he have such other and further relief to which he is or may show himself to be entitled to under the laws and Constitution of this State and the Constitution of the United States.

14 Respectfully submitted, /s/ Bryan L. Sample Bryan L. Sample State Bar No LAW OFFICES OF BRYAN L. SAMPLE, PC Preston Road, Suite 150 Dallas, Texas Telephone: (214) Facsimile: (214) ATTORNEY FOR APPELLANT ROBERT LITOFF CERTIFICATE OF SERVICE The undersigned hereby certifies that he is familiar with the Texas Rules of Civil Procedure governing the proper and correct procedure for the service of legal papers and documents. The undersigned hereby certifies that a true and correct copy of the foregoing document entitled APPELLANT ROBERT LITOFF S ORIGINAL BRIEF ON APPEAL was duly properly served upon all proper and necessary parties to this cause of action. The undersigned hereby certifies that service was effectuated in the following manner and by the following means. A true and correct copy of the foregoing was served by certified mail, return receipt requested, upon counsel for Appellee, as listed below on this the day of March, Mr. John H. Carney One Meadows Building 5005 Greenville Avenue, Suite 200 Dallas, Texas /s/ Bryan L. Sample Bryan L. Sample