Reverse and Remand; Opinion Filed July 24, 2013.




                                            In The
                                      Court of Appeals
                               Fifth District of Texas at Dallas

                                      No. 05-12-00292-CV

                           RODNEY R. ELKINS & CO., Appellant
                                         V.
                             UNO IMMANIVONG, Appellee

                       On Appeal from the County Court at Law No. 3
                                   Dallas County, Texas
                           Trial Court Cause No. CC-11-5262-C

                                           OPINION
                             Before Justices Lang, Myers, and Evans
                                    Opinion by Justice Evans
       This is an appeal from a county court order dismissing Rodney R. Elkins & Co.’s lawsuit

against Uno Immanivong for lack of subject matter jurisdiction. Appellant contends the county

court, sitting in its appellate capacity, had jurisdiction over the case because the amount in

controversy did not exceed $10,000 when the action was filed in the justice of the peace court.

Appellant also complains he was denied the opportunity to be heard on the motion to dismiss

before it was granted by the court.   We conclude that the county court erred in dismissing the

suit because the amount of damages specifically pleaded in the justice court were within its

jurisdictional limits and there was no evidence the allegations were fraudulently made to confer

jurisdiction. Accordingly, we reverse the dismissal order and remand the cause to the county

court for further proceedings consistent with this opinion.
       Appellant sued appellee in justice court to recover $8,416.26 in unpaid legal fees,

interest, and necessary attorney’s fees in an unspecified amount. The justice court granted

appellant’s motion for summary judgment and rendered a final judgment in its favor for

$13,550.27. Appellee appealed the judgment to the county court. Appellee then filed a motion

in county court to dismiss the suit for lack of jurisdiction arguing that when appellant filed its

original petition in justice court, it was clear the amount of attorney’s fees would be over

$1,583.74 and, thus, the amount in controversy exceeded the justice court’s $10,000

jurisdictional limit. The county court granted appellee’s motion to dismiss after a hearing at

which appellant did not appear; it appeared one and one-half hours later. The court later denied

appellant’s motion to set aside the dismissal order. This appeal ensued.

       Whether a court has subject matter jurisdiction is a question of law that we review de

novo. See Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004) (plea to

the jurisdiction); U. Lawrence Boze’ & Assoc., P.C. v. Harris Cnty. Appraisal Dist., 368 S.W.3d

17, 23 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (motion to dismiss for lack of subject

matter jurisdiction). Where, as here, the jurisdictional challenge is based on the amount in

controversy, the plaintiff’s pleadings are generally determinative unless the defendant

specifically alleges and proves the amount was pleaded merely as a sham for the purpose of

wrongfully obtaining jurisdiction or can readily establish that the amount in controversy does not

fall within the court’s jurisdictional limits. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547,

554–55 (Tex. 2000); Hoffman v. Cleburne Bldg. & Loan Ass’n, 22 S.W.154, 155 (Tex. 1893);

Delk v. City of Dallas, 560 S.W.2d 519, 520 (Tex. App.—Texarkana 1977, no writ). When the

petition does not affirmatively demonstrate the absence of jurisdiction, the petition should be

liberally construed in favor of jurisdiction. Garza v. Chavarria, 155 S.W.3d 252, 255 (Tex.

App.—El Paso 2004, no pet.). Moreover, if the original petition is within the jurisdictional

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limits, but an amendment increases the amount in controversy above the court’s jurisdictional

limits, the court continues to have jurisdiction if the additional amount accrued because of the

passage of time. Continental Coffee Products Co. v. Cazarez, 937 S.W.2d 444, 449 (Tex. 1996).

        Pursuant to statute, the justice court has original jurisdiction of civil matters in which

exclusive jurisdiction is not in the district or county court and in which the amount in

controversy is not more than $10,000 exclusive of interest.                   TEX. GOV’T CODE ANN.

§ 27.031(a)(1) (West Supp. 2012). When a case originally filed in justice court is appealed to the

county court, the county court’s appellate jurisdiction is restricted to the jurisdictional limits of

the justice court, because a county court has no jurisdiction over the appeal unless the justice

court had jurisdiction. Crumpton v. Stevens, 936 S.W.2d 473, 476 (Tex. App.—Fort Worth

1996, no writ); see Childress Oil Co. v. Wood, 111 Tex. 165, 166, 230 S.W. 143 (1921) (“If the

Justice Court is without jurisdiction there can be no jurisdiction in the County Court. While the

case is tried de novo in the County Court, its power is not original. The case is there only in

virtue of the appeal. With this true, its power to determine it on the appeal cannot exist if the

original tribunal had no power to consider it.”).

        In this case, appellant’s pleadings in the justice court sought damages in the amount of

$8,416.26 plus interest and “reasonable and necessary attorney fees.”1 There is nothing in the

record to indicate that appellant specifically pleaded an amount that was outside the

jurisdictional amount of the justice court and, therefore, the appellate jurisdiction of the county

court. In fact, at least one court has held that when a plaintiff pleads damages in an amount that

is within the jurisdictional limit plus reasonable attorney’s fees in an unspecified amount, the

court has jurisdiction. See Whitley v. Morning, 814 S.W.2d 537, 538 (Tex. App.—Tyler 1991,


    1
       The amount of interest is expressly excluded for purposes of calculating the amount of controversy for
jurisdictional purposes. TEX. GOV’T CODE ANN. § 27.031(a)(1).


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no writ) (pleading seeking $4,500 in damages plus “reasonable attorney’s fees” did not exceed

court’s jurisdictional limit of $5,000).

       On appeal and in the court below, appellee has argued it was “unrealistic and

disingenuous” for appellant to presume the attorney’s fees in this case would be limited to

$1,583.74—the difference between the $10,000 jurisdiction limit and $8,419.26 in actual

damages pleaded, exclusive of interest. There is nothing in the record indicating the amount of

attorney’s fees that had accrued at the time the petition was filed. Appellee contends, however,

there was too much legal work to do to complete the case for $1,583.74. But appellee has cited

no case, and we have found none, that would require plaintiff to estimate the amount of future

attorney’s fees required to bring the case to conclusion for purposes of calculating the amount in

controversy. As appellant points out, such an estimate depends on many factors including

whether the defendant answers the petition. In fact, the pleading of attorney’s fees on appeal to

county court in an amount greater than original jurisdiction does not deprive the county court of

jurisdiction. See Crumpton, 936 S.W.2d at 477. Such fees are considered additional damages as

a result of the passage of time. Id.

       Because appellee failed to prove appellant’s pleading allegations as to the amount in

controversy were merely a sham for the purpose of wrongfully obtaining jurisdiction or that the

amount in controversy did not fall within the court’s jurisdictional limits when filed, the county

court erred in granting appellee’s motion to dismiss for lack of jurisdiction.




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       Our resolution of appellant’s first issue makes it unnecessary to address its second issue.

We reverse the dismissal order and remand the cause to the county court for further proceedings

consistent with this opinion.




120292F.P05



                                                    /David Evans/
                                                    DAVID EVANS
                                                    JUSTICE




                                              –5–
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                         JUDGMENT

RODNEY R. ELKINS & CO., Appellant                     On Appeal from the County Court at Law
                                                      No. 3, Dallas County, Texas
No. 05-12-00292-CV          V.                        Trial Court Cause No. CC-11-5262-C.
                                                      Opinion delivered by Justice Evans,
UNO IMMANIVONG, Appellee                              Justices Lang and Myers participating.

        In accordance with this Court’s opinion of this date, the trial court’s order dismissing this
case for lack of jurisdiction is REVERSED and this cause is REMANDED to the trial court for
further proceedings consistent with the opinion.
        It is ORDERED that appellant Rodney R. Elkins & Co. recover its costs of this appeal
from appellee Uno Immanivong.


Judgment entered this 24th day of July, 2013.




                                                      /David Evans/
                                                      DAVID EVANS
                                                      JUSTICE




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