                                    NO. 07-10-0493-CV

                               IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL D

                                    JANUARY 26, 2011

                           ______________________________


                                  IN RE: LUIS AGUILAR,

                                           Relator

                         _________________________________

                               ORIGINAL PROCEEDING
                          _______________________________

Before QUINN, C.J.. and CAMPBELL and PIRTLE, JJ.


                                  DISSENTING OPINION


       The majority finds that Relator, Luis Aguilar, has an adequate remedy at law

through appeal and, accordingly, denies his request for either a writ of mandamus or a

writ of prohibition. I respectfully disagree.


       In the Justice of the Peace Court in and for Potter County, Texas, Relator sued

the Real Party in Interest, Dutcher's Auto Collision Repair, L.L.C., for breach of contract

concerning repairs to his vehicle. On May 12, 2010, following a bench trial on the

merits, the Justice of the Peace Court rendered judgment disposing of both the
Relator's claims and the Real Party in Interest's counterclaims. On May 24, 2010, the

court signed an order granting Plaintiff's motion for new trial. Subsequently, on June 10,

2010, the court signed a written judgment memorializing its original judgment of May 12.

The Real Party in Interest then appealed the case to the Potter County Court at Law No.

2 by the filing of an appeal bond on June 21, 2010. On November 8, 2010, the Potter

County Court at Law No. 2 entered an order remanding the case to the Justice of the

Peace Court for a trial on the merits. Relator now seeks to have this Court direct the

Potter County Court at Law No. 2 to vacate its order of November 8 or prohibit that court

from remanding this case to the Justice of the Peace Court for a retrial.


                                        Analysis


      In order to be entitled to relief by writ of mandamus or writ of prohibition, a relator

must meet two requirements: one is to show that the trial court clearly abused its

discretion, and the other is to show that it has no adequate remedy by appeal. In re

Ford Motor Co., 988 S.W.2d 714, 718 (Tex. 1998) (orig. proceeding); Walker v. Packer,

827 S.W.2d 833, 840-44 (Tex. 1992) (orig. proceeding).           "An appellate remedy is

'adequate' when any benefits to mandamus review are outweighed by the detriments."

In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004) (orig. proceeding).


      An aggrieved party may appeal a justice court judgment to the county court. See

Tex. Civ. Prac. & Rem. Code Ann. § 51.001 (West 2008). The result is a trial de novo.

Tex. R. Civ. P. 574b. An appeal of a justice court judgment is perfected "[w]hen the


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bond, . . . , provided for in the rules applicable to justice courts, has been filed and the

previous requirements have been complied with . . . ." Tex. R. Civ. P. 573. The appeal

bond must be filed within ten days after the date the judgment in question is signed.

Tex. R. Civ. P. 571. In computing the ten day period prescribed by Rule 571 for the

filing of an appeal bond, when the last day of the period is a Sunday, the period runs

until the end of the next day which is not a Saturday, Sunday, or legal holiday. Tex. R.

Civ. P. 4.


       Thus, for the Real Party in Interest in this case to appeal the June 10 judgment of

the Justice of the Peace Court, it was required to file an appeal bond by June 20.

Because June 20, 2010, was a Sunday, the appeal bond filed on June 21 was timely.

The timely filing of the appeal bond had the effect of vesting the Potter County Court at

Law No. 2 with jurisdiction to conduct a trial de novo. Because the Potter County Court

at Law did not have jurisdiction to remand the case to the justice court, much less

appear to authorize a retrial, it abused its discretion by attempting to do so.


       In this situation, appellate review is inadequate because the benefits of

mandamus and/or prohibition greatly outweigh the detriments. This is so because (1) a

county court's jurisdiction, as invoked by an "appeal" from a justice court, does not

include the authority to review the propriety of the justice court's ruling and to "remand"

this case for a trial on the merits, Tex. Civ. Prac. & Rem. Code Ann. § 51.001 (West

2008), Tex. R. Civ. P. 574b; (2) even if the case were remanded and retried, either party



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would still be entitled to trial de novo before the same county court simply by perfecting

another "appeal" following the same procedures, resulting in a duplication of

proceedings and the waste of valuable judicial time and resources; (3) remanding a

cause to justice court for retrial effectively establishes a circulative procedure whereby a

case could never reach a judgment which is ultimately final and appealable to this

Court; and (4) the granting of mandamus or prohibition relief will not result in any, or at

most, negligible detriment to the parties.


                                       Conclusion


       Because I find that the Potter County Court at Law abused its discretion in

remanding this case to the justice court for retrial, and because I find that Relator has

no adequate remedy at law, I would conditionally grant Relator's petition for writ of

mandamus and/or writ of prohibition based on the refusal of the Potter County Court at

Law to vacate its order of November 8, 2010, and proceed appropriately to a

determination of the merits of the pending action after the remand is vacated.




                                                  Patrick A. Pirtle
                                                      Justice




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