Opinion issued December 5, 2013




                                   In The

                            Court of Appeals
                                  For The

                        First District of Texas
                        ————————————
                            NO. 01-13-00250-CV
                          ———————————
           A-1 AUTO BODY AND PAINT SHOP, LLC, Appellant
                                     V.
                   MARGARET MCQUIGGAN, Appellee



              On Appeal from County Civil Court at Law No. 1
                           Harris County, Texas
                      Trial Court Case No. 1022350



                                OPINION

     Margaret McQuiggan obtained a judgment in small claims court against A-1

Auto Body and Paint Shop, LLC for $8,672.25. A-1 Auto filed an application for

writ of certiorari in the county civil court at law to challenge the judgment.
McQuiggan moved to dismiss the application, and the county court at law granted

the motion. A-1 Auto now appeals to this Court, presenting two issues.

       We affirm.

                              Background Summary

       McQuiggan sued A-1 Auto in small claims court for damages relating to

auto body work that A-1 Auto had performed on McQuiggan’s car. Following a

trial, the small claims court rendered judgment on October 1, 2012, awarding

McQuiggan $8,672.25 against A-1 Auto. The judgment also set A-1 Auto’s appeal

bond at $17,345.00.

       A-1 Auto filed a motion for new trial, which was denied by the trial court.

On October 12, 2012, the court notified A-1 Auto that it had 10 days—until

October 22, 2012—to post a bond and to file an appeal in the county civil court at

law.

       On October 31, 2012, A-1 Auto filed its “Application for Writ of Certiorari”

in the county civil court at law. In the writ application, A-1 Auto denied that it was

liable to McQuiggan for damage to her automobile and complained that “no

admissible evidence” was presented by McQuiggan at trial to support her

allegations.

       A-1 Auto stated that no witnesses appeared on its behalf at trial because its

“witness was in the process of returning to Houston from a trip to Israel.” For that

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reason, A-1 Auto’s attorney had requested a continuance of the trial, which the

small claims court had denied. A-1 Auto stated that its attorney had appeared at

trial for the purpose of cross-examining McQuiggan’s witnesses.

      McQuiggan filed a motion to dismiss A-1 Auto’s application for writ of

certiorari. McQuiggan pointed out that A-1 Auto had not filed a sufficient bond in

the small claims court within 10 days of the denial of its motion for new trial. She

asserted that the Rules of Civil Procedure required the filing of the bond to perfect

A-1 Auto’s appeal in the county court.

      The county civil court at law granted McQuiggan’s motion to dismiss A-1

Auto’s application for writ of certiorari.    A-1 Auto then filed a “Motion to

Reinstate and Reconsider,” asserting that the motion to dismiss should have been

denied. It claimed that McQuiggan’s dismissal argument was incorrectly “directed

at the process for appeal from a judgment in Small Claims Court and totally

disregards the alternate process for obtaining a trial de novo in the county court by

writ of certiorari.” In other words, A-1 Auto pointed out that it was not appealing

the small claims court judgment; rather, it was seeking to remove the case to

county court by writ of certiorari. A-1 Auto asserted that the rules of procedure

relied on by McQuiggan did not govern an action seeking a writ of certiorari.

      McQuiggan responded to A-1 Auto’s motion. She asserted that the county

court did not have jurisdiction to consider A-1 Auto’s application for writ of

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certiorari. In so doing, McQuiggan acknowledged that Texas statutes permit a

party to seek relief from the judgment of a justice court in two ways: (1) by

appealing the judgment or (2) by seeking removal of the action to county court by

writ of certiorari. However, McQuiggan asserted that Texas law permits a party to

seek relief from a small claims court judgment only by appealing to the county

court. She claimed that no statute authorized a party to seek relief in county court

from a small claims court judgment by way of writ of certiorari.

      The county civil court at law denied A-1 Auto’s motion to reconsider and

signed another order granting McQuiggan’s motion to dismiss A-1 Auto’s

application for writ of certiorari. A-1 Auto filed a motion for new trial, which was

overruled by operation of law. This appeal followed in which A-1 Auto presents

two issues.

                    Dismissal of Application for Writ of Certiorari

      In its second issue, A-1 Auto challenges the county civil court at law’s

dismissal of its application for writ of certiorari seeking review of the small claims

court judgment. The parties disagree whether—under the statutes in effect at the

time of the dismissal—a party could seek relief from a small claims court judgment

by writ of certiorari in the county civil court at law. McQuiggan asserts that, at

that time, only a party seeking relief from a judgment rendered by a justice court,

not a small claims court, was permitted to obtain relief by writ of certiorari in

                                          4
county court. She maintains that judgments rendered by a small claims court could

be challenged only by appeal to the county civil court at law and could not be

challenged by writ of certiorari. A-1 Auto takes the opposing position.

      As framed by the parties, the question to be answered is, at the time of the

application’s filing, did the county civil court at law have subject-matter

jurisdiction to consider A-1 Auto’s application for writ of certiorari, seeking relief

from the small claims court’s judgment. If it did not, then the county civil court at

law properly granted McQuiggan’s motion to dismiss.

A.    Standard of Review

      Whether a trial court has subject-matter jurisdiction is a question of law that

we review de novo. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d

217, 228 (Tex. 2004). Our analysis of whether A-1 Auto was permitted to obtain

relief from the small claims court judgment by way of writ of certiorari turns on a

question of statutory construction. A question of statutory construction is a legal

one, which we also review de novo. See City of San Antonio v. City of Boerne, 111

S.W.3d 22, 25 (Tex. 2003); see Entergy Gulf States, Inc. v. Summers, 282 S.W.3d

433, 437 (Tex. 2009).

      When construing statutes, we ascertain and give effect to the legislature’s

intent. Entergy, 282 S.W.3d at 437. We give effect to legislative intent by looking

first and foremost at the statutory text, reading the words and phrases in context

                                          5
and construing them according to the rules of grammar and common usage. See id.;

Lexington Ins. Co. v. Strayhorn, 209 S.W.3d 83, 85 (Tex. 2006); see also TEX.

GOV’T CODE ANN. § 311.011 (Vernon 2013). We discern legislative intent from

the plain meaning of the words chosen. See Entergy, 282 S.W.3d at 437. This

general rule applies unless enforcing the plain language of the statute as written

would produce absurd results. Id. We recognize that the words the legislature

chooses should be the surest guide to legislative intent. See id.

B.    Law & Analysis

      The law governing small claims court cases recently underwent statutory

evolution.   In 2011, the Texas Legislature passed legislation abolishing small

claims courts, effective May 1, 2013. 1 The Legislature decided that, after the

effective date, justice courts would handle small claims cases.2 Before that time,

and at all times relevant to this case, both the Legislature and the courts treated

small claims courts and justice courts as separate and distinct tribunals. See Sultan

v. Matthew, 178 S.W.3d 747, 752 (Tex. 2005) (recognizing distinction between

small claims courts and justice courts in context of determining whether a party


1
      See Act of June 29, 2011, 82d Leg., 1st C.S., ch. 3, § 5.06, 2011 TEX. GEN. LAWS
      5206, 5225.
2
      See Act of June 29, 2011, 82d Leg., 1st C.S., ch. 3, §§ 5.02, 5.06, 2011 TEX. GEN.
      LAWS 5206, 5224–25 (current version at TEX. GOV’T CODE ANN. § 27.060
      (Vernon Supp. 2013)).

                                          6
could appeal judgment from county court at law following a de novo appeal from a

small claims court). 3

      Now repealed Chapter 28 of the Government Code governed small claims

courts at the time the small claims court rendered final judgment in this case.4

Former section 28.001 required, “In each county, there is a court of inferior

jurisdiction known as the small claims court.”5 Section 28.002 provided, “Each

justice of the peace sits as judge of the small claims court and exercises the

jurisdiction provided by this chapter.” 6 Each small claims court had jurisdiction

concurrent with the justice court for claims that did not exceed $10,000. 7



3
      We note that in 2009, the Legislature amended former Government Code section
      28.053, giving courts of appeal jurisdiction—from September 1, 2009 until the
      effective date of the section’s repeal on May 1, 2013—to consider appeals
      originating in small claims court. See Act of May 17, 1985, 69th Leg., R.S.,
      ch. 480, § 1, 1985 TEX. GEN. LAWS 1720, 1814–17, amended by Act of June 1,
      2009, 81st Leg., R.S., ch. 1351, §§ 9, 14, 15, 2009 Tex. Gen. Laws 4273, 4274,
      4282, repealed by Act of June 29, 2011, 82d Leg., 1st C.S., ch. 3, §§ 5.06, 5.09,
      2011 TEX. GEN. LAWS 5206, 5225.
4
      See id.
5
      See Act of May 17, 1985, 69th Leg., R.S., ch. 480, § 1, sec. 28.001, 1985 TEX.
      GEN. LAWS 1720, 1815 (repealed 2011).
6
      See Act of May 17, 1985, 69th Leg., R.S., ch. 480, § 1, sec. 28.002, 1985 TEX.
      GEN. LAWS 1720, 1815 (repealed 2011).
7
      See Act of May 17, 1985, 69th Leg., R.S., ch. 480, § 1, sec. 28.003, 1985 TEX.
      GEN. LAWS 1720, 1815, amended by, Act of May 16, 2007, 80th Leg., R.S.,
      ch. 383, § 3, 2007 TEX. GEN. LAWS 685, 686 (repealed 2011).

                                          7
      Chapter 28 also contained provisions prescribing the manner in which small

claims court suits would be filed, tried, and resolved.8 With respect to appeals,

former Government Code section 28.052(a) permitted the party to appeal a final

small claims court judgment to the county court or to the county court at law. 9 The

county courts and county courts at law were required “[to] dispose of small claims

appeals with all convenient speed.” 10 Trial on appeal of the small claims court’s

judgment was de novo.11 Section 28.052(b) specified that an appeal from small

claims court would be “in the manner provided by law for appeal from justice

court to county court.” 12

      Civil Practice and Remedies Code section 51.001, “Appeal From Justice

Court to County or District Court,” authorizes the appeal of a final judgment “[i]n

a case tried in justice court.” See TEX. CIV. PRAC. & REM. CODE ANN. § 51.001(a)

(Vernon 2008). In addition to the right of appeal specified in section 51.001, Civil

8
      See Act of May 17, 1985, 69th Leg., R.S., ch. 480, § 1, 1985 TEX. GEN. LAWS
      1720, 1815 (repealed 2011).
9
      See Act of May 17, 1985, 69th Leg., R.S., ch. 480, § 1, sec. 28.052(a), 1985 TEX.
      GEN. LAWS 1720, 1815–17 (repealed 2011).
10
      See Act of May 17, 1985, 69th Leg., R.S., ch. 480, § 1, sec. 28.053, 1985 TEX.
      GEN. LAWS 1720, 1816 (repealed 2011).
11
      See id.
12
      See Act of May 17, 1985, 69th Leg., R.S. ch. 480. § 1, sec. 28.052(b), 1985 TEX.
      GEN. LAWS 1720, 1816 (repealed 2011).

                                          8
Practice and Remedies Code section 51.002, “Certiorari From Justice Court,”

provides, “After final judgment in a case tried in justice court in which the

judgment or amount in controversy exceeds $250, exclusive of costs, a person may

remove the case from the justice court to the county court by writ of certiorari.”

See id. § 51.002(a) (Vernon 2008).

      Here, A-1 Auto asserts that, under the statutes in effect at the time, “a final

judgment from a small claims court may be appealed directly or by writ of

certiorari.” In support of this assertion, A-1 Auto cites former Government Code

section 28.052(b), which specified that an appeal from small claims court would be

“in the manner provided by law for appeal from justice court to county court.”13

(Emphasis added.) A-1 Auto appears to take the position that a writ of certiorari is

a type of appeal, and, therefore, former Government Code section 28.052(b)

permitted A-1 Auto to pursue a writ of certiorari to challenge the small claims

court judgment. 14




13
      See id.
14
      Even if it had intended to seek review of the small claims court’s judgment by
      appeal, instead of by certiorari, A-1 Auto’s argument would be unavailing. A-1
      Auto did not file an adequate bond in a timely manner to perfect an appeal as
      required by former Rules of Civil Procedure 571, 572, and 573. See Texas Rules
      of Civil Procedure–Rules Effective September 1, 1941: An Historical Project,
      Rules 571, 572, 573, http://www.stcl.edu/library/TexasRulesProject/Main
      Index.htm (accessed Nov. 22, 2013).
                                         9
      Contrary to A-1 Auto’s position, it is well-established that “[t]he remedy by

certiorari is independent of the one by appeal, and additional thereto.” Westwood

Shores Country Club v. Hendrickson, 395 S.W.3d 298, 303 (Tex. App.—Tyler

2013, no pet.) (citing Crawford v. Siglar, 470 S.W.2d 915, 917 (Tex. Civ. App.—

Texarkana 1971, writ ref’d n.r.e.)). Appeal from a justice court and certiorari are

cumulative remedies. Id.

      As McQuiggan points out, the very nature of these two remedies reveals that

they are separate and distinct avenues to obtain relief from a justice court

judgment. The writ of certiorari, as used to correct the proceedings of inferior

tribunals, is not a writ of right; rather, it issues only on special cause shown to the

court to which application is made. See Ramsey v. Morris, 578 S.W.2d 809, 811

(Tex. Civ. App.—Houston [1st Dist.] 1979, writ dism’d).            The application is

addressed to the discretionary powers of the court. See Clark v. Hutton, 28 Tex.

123, 1866 WL 3980, at *3 (1866).

      The writ of certiorari was known to the common law before statutes

authorizing its use were enacted. Ramsey, 578 S.W.2d at 811. Under the common

law, a court is vested with judicial discretion to grant or to refuse a request to issue

a writ of certiorari as justice may require. See id. Only when the error is manifest

and substantial injury has been sustained should the writ be allowed. Id. The court

will not award a writ when the errors complained of are merely informal and

                                          10
technical, or when, although there is error in fact, substantial justice has been done

and no appreciable injury has resulted to the complaining party. Id.

      The Rules of Civil Procedure—in effect at the time of the rendition of the

small claims judgment in this case—provided that a writ of certiorari would not be

granted unless the application was supported by an affidavit of sufficient cause to

support issuance of the writ. See TEX. R. CIV. P. 577, 578 (repealed 2013). 15 To

constitute a sufficient cause, the facts stated had to show either that the justice of

the peace lacked jurisdiction over the suit, or that injustice was done to the

applicant by the final determination of the suit or proceeding, and that such

injustice was not caused by his own inexcusable neglect. See TEX. R. CIV. P. 578

(repealed 2013). 16 Only when the applicant had shown its entitlement to writ of




15
      See Texas Rules of Civil Procedure–Rules Effective September 1, 1941: An
      Historical Project, Rules 577, 578, http://www.stcl.edu/library/TexasRules
      Project/MainIndex.htm (accessed Nov. 22, 2013). The 2011 legislation abolishing
      small claims court, and providing that justice courts would handle small claims
      cases, also required the Supreme Court of Texas to promulgate rules of procedure
      in accordance with those changes. See The Supreme Court of Texas, Final
      Approval of Rules for Justice Court Cases, Misc. Docket No. 13–9049 (Apr. 15,
      2013; eff. Aug. 31, 2013). In conjunction with promulgating the new rules, the
      supreme court repealed the rules of procedure that had governed practice in justice
      courts before the effective date of the legislation. See id.; see also TEX. R. CIV. P.
      500–591 (repealed 2013).
16
      See Texas Rules of Civil Procedure–Rules Effective September 1, 1941: An
      Historical Project, Rule 578, http://www.stcl.edu/library/TexasRules Project/Main
      Index.htm (accessed Nov. 22, 2013).

                                           11
certiorari would the case be removed to county court for a trial de novo. See TEX.

CIV. PRAC. & REM. CODE ANN. § 51.002; TEX. R. CIV. P. 591 (repealed 2013). 17

       In contrast, a party’s entitlement to an appeal from justice court is a matter

of right, provided that the appealing party adheres to the appropriate jurisdictional

and procedural requirements. To prosecute its appeal, a party was required—under

the law in effect at time the small claims court rendered judgment—to “perfect” its

appeal from the justice court by filing a bond within ten days of the signing of the

judgment or by filing an affidavit of inability within five days of the signing of the

judgment. See TEX. R. CIV. P. 571, 572, 573 (repealed 2013). 18 After an appeal

was perfected, a county court at law had no discretion to deny an appeal from the

justice court; rather, after the appeal was procedurally perfected, the county court

was required to conduct a trial de novo. See TEX. R. CIV. P. 574b (repealed

2013). 19

       As the Supreme Court of Texas stated in construing another statutory

scheme, “Texas courts have made the distinction between appeal and certiorari too

often and too long for us to regard them as synonymous.” Cluck v. Hester, 521

S.W.2d 845, 848 (Tex. 1975). We presume that the Legislature enacts statutes

17
       See id. at Rule 591.
18
       See id. at Rules 571, 572, 573.
19
       See id. at Rules 574b.

                                         12
with knowledge of the common law and court decisions. In re Hardwick, No. 01–

12–00362–CV, 2012 WL 3132670, at *5 (Tex. App.—Houston [1st Dist.] Aug. 2,

2012, orig. proceeding) (citing Phillips v. Beaber, 995 S.W.2d 655, 658 (Tex.

1999)). Thus, we presume that the legislature was familiar with the distinction

long made by Texas courts between appeal and certiorari when it enacted former

section 28.052(b).

      Given the divergent nature of the remedies and the different procedural

requirements for each, we conclude that the remedy of writ of certiorari is not an

“appeal” as contemplated in former Government Code section 28.052(b).20

Therefore, the county civil court at law had no subject-matter jurisdiction to

consider A-1 Auto’s challenge to the small claims court’s judgment by way of an

application for writ of certiorari. We hold that the county court at law properly

granted McQuiggan’s motion to dismiss A-1 Auto’s certiorari application.

20
      A-1 Auto cites Galil Moving & Storage, Inc. v. McGregor for its statement that
      “final judgment from the small claims court may be appealed, directly or by writ
      of certiorari, to the county court or county court at law for trial de novo.” 928
      S.W.2d 172, 173 (Tex. App.—San Antonio 1996, no writ). The statement was
      made by the court in the context of determining whether a party could seek a writ
      of error directly from the court of appeals rather than from the county court. See
      id. A-1 Auto also cites Centro Jurici de Instituto Tecnologico y Estudios
      Superiores de Monterrey v. Intertravel, Inc. in which the court reversed the county
      court’s dismissal of an application for writ of certiorari. 2 S.W.3d 446, 451 (Tex.
      App.—San Antonio 1999, no pet.). However, as in Galil Moving, absent from the
      court’s opinion was an analysis of whether the Legislature intended a county court
      at law to have jurisdiction to order the issuance of a writ of certiorari to a small
      claims court. In any event, we conclude that the best indicators of whether the
      county court at law had jurisdiction to consider A-1 Auto’s certiorari application
      are the applicable statutes and rules of procedure, as discussed above.
                                           13
       We overrule A-1 Auto’s second issue.

                                   Personal Jurisdiction

       In its first issue, A-1 Auto challenges the county court at law’s judgment

dismissing its certiorari application by claiming, “The judgment of the small

claims court is void for lack of jurisdiction.” A-1 Auto asserts that the small

claims court lacked personal jurisdiction over it because A-1 Auto’s corporate

witness was not able to be present at trial. 21 However, this assertion pertains to the

merits of A-1 Auto’s certiorari application, which the county court at law had no

jurisdiction to consider. Thus, we also cannot consider this issue. See Pearson v.

State, 315 S.W.2d 935, 938 (Tex. 1958) (holding that appellate court’s jurisdiction

over merits of a case extends no further than that of court from which the appeal is

taken). Moreover, we cannot hold that the county court at law erred by failing to

rule on an issue over which it had no jurisdiction. A-1 Auto will have to look to

other legal remedies to obtain the relief it seeks regarding its allegation that the

small claims judgment is void for lack of personal jurisdiction. See Davis v.

Covert, 983 S.W.2d 301, 303 (Tex. App.—Houston [1st Dist.] 1998, pet. dism’d

w.o.j.).




21
       We note that A-1 Auto has stated that its attorney appeared at trial and cross-
       examined McQuiggan’s witnesses.
                                          14
      We overrule A-1 Auto’s second issue.

                                         Conclusion

      We affirm the judgment of the county civil court at law dismissing A-1

Auto’s application for writ of certiorari.




                                                  Laura Carter Higley
                                                  Justice

Panel consists of Justices Keyes, Higley, and Massengale.




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