Reverse and Remand and Opinion Filed June 27, 2018




                                         S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-17-00491-CV

                                MULATU YILMA, Appellant
                                          V.
                               SHIMELES TAMENE, Appellee

                       On Appeal from the County Court at Law No. 4
                                   Collin County, Texas
                           Trial Court Cause No. 004-00183-2017

                             MEMORANDUM OPINION
                          Before Justices Francis, Brown, and Stoddart
                                   Opinion by Justice Francis
       Mulatu Yilma appeals a county court at law order dismissing his appeal for want of

jurisdiction. In two issues, Yilma contends the county court erred because the evidence did not

support the court’s finding that he failed to properly perfect his appeal. We reverse the county

court’s order of dismissal and remand the cause for further proceedings.

       The record in this case and unchallenged findings of fact show that Shimeles Tamene filed

suit against Yilma in justice court in Collin County seeking monetary damages based on an

insurance coverage dispute. Both parties represented themselves pro se. The justice court rendered

judgment against Yilma in the amount of $4,117.26. The judgment was signed on October 3, 2016

and provided Yilma twenty-one days to satisfy the judgment or appeal the ruling to the county

court at law.
        On October 24, 2016, Yilma filed his notice of appeal and appeal bond. The justice court

file contains a copy of a letter addressed to Yilma from the county clerk dated November 1, 2016,

stating his appeal had been received. The letter further states that, under rule 143a of the Texas

Rules of Civil Procedure, Yilma was required to pay $307 in filing and processing fees within

twenty days or his appeal would be returned to the justice court. The letter was addressed to a

Plano, Texas address Yilma provided in his original answer.

        The justice court file also contains a copy of a letter from the county clerk to Yilma dated

November 30, 2016. This letter states the time for payment of the filing fees had passed and the

case was being returned to the justice court to proceed as though no appeal had been attempted.

The letter again uses the Plano address. Yilma asserts he did not receive either of these letters and

that he orally informed the justice court at the time he filed his notice of appeal his home address

had changed.

        A handwritten note showing a new address for Yilma in Allen, Texas was marked filed in

the justice court on January 3, 2017. Although no new notice of appeal or appeal bond appears in

the record, the justice court’s “Register of Actions” shows that, on January 9, the October 3

judgment was again appealed to the county court at law. The record contains a letter from the

county clerk to Yilma dated January 11, 2017, stating again that he was required to pay $307 within

twenty days or his appeal would be returned. Unlike the November 1 letter, this notice was

addressed to Yilma’s Allen address and is accompanied by a receipt showing it was sent by

certified mail.

        Yilma paid the required fees on January 24 and counsel for Yilma first appeared on

February 15. The appeal was set for de novo review and trial before the court on February 23. An

oral motion for continuance was granted and trial was reset for April 6.




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       On April 4, Tamene, who was now also represented by counsel, filed a motion to dismiss

the appeal for lack of jurisdiction. The motion was heard two days later during the April 6 trial

setting. Tamene argued the appeal was untimely because Yilma failed to pay the required fees

within twenty days of the November notice letter. Tamene submitted as evidence a copy of the

justice court’s judgment, a copy of the November 30 letter stating the original appeal was returned

to the justice court, and printouts of the “Register of Actions” for both the justice and county courts.

       Yilma responded to the motion stating his appeal was timely because he did not receive a

notice to pay fees until January 2017 and he paid the amount requested within twenty days of the

date of the notice. Yilma submitted an affidavit saying he never received any letters from the

county clerk before the January 11 notice letter and the Plano address was not his “address of

service.”

       The county court granted Tamene’s motion to dismiss the same day. In its findings of fact

and conclusions of law, the court stated Yilma failed to provide physical evidence that he submitted

a change of address to the justice court before January 3, 2017, and “a search of the Texas Secretary

of State website for [Yilma’s] company lists the President of the company at the address [Yilma]

originally supplied the Justice Court.” In addition, although the issue was not raised in Tamene’s

motion to dismiss, the county court concluded the amount of the bond Yilma filed was insufficient

to perfect his appeal because it did not equal twice the amount of the judgment.

       Yilma filed a motion for new trial arguing Tamene provided no evidence the November 1

notice letter was ever mailed or that Yilma had actual notice. Yilma also submitted what he

claimed was a “screen capture of the Justice of Peace Court clerk’s system” purportedly showing

Yilma’s address was updated to the new Allen address on October 24, 2016. With respect to the

sufficiency of his bond, Yilma argued the county court erred in dismissing his case without

allowing him to present argument on the issue or an opportunity to cure. Yilma further contended

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the bond was sufficient and had been approved by the justice court. The county court denied the

motion for new trial and Yilma brought this appeal.

       In his first issue, Yilma contends the trial court erred in dismissing his appeal because

Tamene presented no affirmative evidence the November notice letter was ever mailed to him to

contradict his testimony that he never received it. We recognize there is a split of authority on

whether a de novo standard of review or an abuse of discretion standard applies to our review of a

dismissal order under rule 143a. See Pichini v. Fed. Nat’l Mortg. Ass’n, No. 01-17-00519-CV,

2018 WL 2246269, at *1 (Tex. App.—Houston [1st Dist.] May 17, 2018, no pet. h.) (de novo);

Martin v. Fed. Nat’l Mortg. Ass’n, No. 04-15-00233-CV, 2016 WL 1588517, at *2 (Tex. App.—

San Antonio April 10, 2016, no pet.) (mem. op.) (de novo); Morin v. Boecker, 122 S.W.3d 911,

913 (Tex. App.—Corpus Christi 2003, no pet.) (abuse of discretion). The result here is the same

regardless of which standard is applied.

       To perfect an appeal to a county court from justice court, an appellant must (1) file an

appeal bond, cash deposit in lieu of bond, or a sworn affidavit of inability to pay, and (2) pay to

the county clerk, within twenty days of being notified by the clerk to do so, the costs of appeal.

See TEX. R. CIV. P. 143a, 506.1; Pichini, 2018 WL 2246269, at *2. Compliance with both

requirements is jurisdictional. See Pichini, 2018 WL 2246269, at *2. But where the appellant

testifies he did not receive the clerk’s notice to pay costs, and the record does not establish notice

by the clerk was sent in compliance with Texas Rule of Civil Procedure 21a, it is error to dismiss

the appeal for failure to comply with the second requirement. See Martin, 2016 WL 1588517, at

*3; Morin, 122 S.W.3d at 916.

       Although notice properly sent under rule 21a raises a presumption the notice was received,

we cannot presume that notice was properly sent. See Mathis v. Lockwood, 166 S.W.3d 743, 745

(Tex. 2005). When a party asserts notice was not sent, service must be proved according to the

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rule. Id. Proof of service under rule 21a may be done through a certificate of service signed by a

party or an attorney of record, an officer’s return, or the affidavit of any other person showing

service of notice. TEX. R. CIV. P. 21a(e). Absent one of these forms of proof, no presumption

arises that notice was received. See Mathis, 166 S.W.3d at 745.

       In this case, Yilma challenged whether the November notice letter was sent to him and

Tamene provided no evidence that it was. The record shows only that a copy of the letter was

received by the justice court and was contained in its file. Evidence the letter was received by

others is not proof of service on Yilma under rule 21a. See Ashworth v. Broska, 274 S.W.3d 324,

330 (Tex. App.—Houston [14th Dist.] 2008, no pet.). Tamene could have obtained – but did not

– testimony from the county clerk, or some other witness with knowledge, to prove the notice was

mailed to Yilma or to speak to the procedures for mailing 143a notices. Id. Although the fact the

justice court received a copy of the notice may suggest Yilma’s notice was also mailed, it equally

supports the inference it was not. Id. at 331. Because none of the prerequisites of prima facie

proof under rule 21a were met, no presumption of receipt could be applied and there was no

evidence to contradict Yilma’s testimony that he did not receive the November notice letter. See

Munoz v. Rivera, 225 S.W.3d 23, 27 (Tex. App.—El Paso 2005, no pet.). Even if the county court

judge did not believe Yilma’s testimony, affirmative evidence service occurred would still be

lacking. See Mathis, 166 S.W.3d at 745.

       The county court relied heavily on the fact the record appeared to show the Plano address

listed in the November notice letter was a valid address for Yilma at that time. Without any proof

under rule 21a that the notice letter was sent, however, the issue of whether the letter listed a valid

address for Yilma is irrelevant.

       The record contains no affirmative evidence to show Yilma received actual or constructive

notice to pay appellate costs before the January 11 notice letter. Yilma paid the required costs

                                                 –5–
within twenty days of the date of that letter. Accordingly, we conclude the county court erred in

granting Tamene’s motion to dismiss for want of jurisdiction on the ground that it was untimely.

See Martin, 2016 WL 1588517, at *3; Morin, 122 S.W.3d at 916. We resolve Yilma’s first issue

in his favor.

        In his second issue, Yilma contends the trial court erred in concluding the amount of his

bond was insufficient to perfect his appeal. Under rule 506.1, a defendant must file a bond in an

amount equal to twice the amount of the judgment. See Tex. R. Civ. P. 506.1(b). When

determining the bond amount, only the damages awarded in the judgment are included in the

calculation. See Laird v. Benton, 470 S.W.3d 572, 577 (Tex. App.—Houston [1st Dist.] 2015, no

pet.). In this case, the justice court judgment awarded Tamene $4,021.26 in damages. Yilma

posted a bond in the amount of $8,042.52 – exactly twice the amount of the damages. The bond

was, therefore, sufficient to perfect the appeal. Even if the bond had been deficient, Yilma would

have been entitled to notice and the opportunity to cure the defect before having his appeal

dismissed. See Tex. R. Civ. P. 506.1(g). We resolve Yilma’s second issue in his favor.

        Based on the foregoing, we reverse the trial court’s order of dismissal and remand the cause

to the county court for further proceedings.




                                                   /Molly Francis/
                                                   MOLLY FRANCIS
                                                   JUSTICE



170491F.P05




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                                          S
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                         JUDGMENT

 MULATU YILMA, Appellant                              On Appeal from the County Court at Law
                                                      No. 4, Collin County, Texas
 No. 05-17-00491-CV           V.                      Trial Court Cause No. 004-00183-2017.
                                                      Opinion delivered by Justice Francis.
 SHIMELES TAMENE, Appellee                            Justices Brown and Stoddart participating.

        In accordance with this Court’s opinion of this date, the order of the trial court dismissing
appellant MULATU YILMA’S appeal is REVERSED and this cause is REMANDED for
further proceedings consistent with this opinion.

       It is ORDERED that appellant MULATU YILMA recover his costs of this appeal from
appellee SHIMELES TAMENE.


Judgment entered June 27, 2018.




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