Opinion issued June 25, 2015




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-14-00714-CV
                           ———————————
                         DONALD LAIRD, Appellant
                                        V.
                         MONICA BENTON, Appellee


               On Appeal from County Civil Court at Law No. 4
                            Harris County, Texas
                       Trial Court Case No. 1007020


                                  OPINION

      Donald Laird challenges the county civil court at law’s order dismissing his

appeal to that court of a small claims court judgment rendered against him in favor

of Monica Benton. On appeal to this Court, the dispositive issue raised by Laird is

whether the county civil court at law (“county court”) erred when it dismissed
Laird’s appeal for lack of jurisdiction. Because we hold that it did, we reverse the

county court’s judgment and remand for further proceedings.

                                   Background

      In February 2011, Monica Benton filed suit in small claims court against

Donald Laird. Benton alleged that her dog, while being walked in the park, was

attacked by Laird’s dog. Benton claimed that Laird’s dog bit off part of her dog’s

ear. Benton sued Laird to recover veterinary costs for treating her dog and for the

cost of cleaning her dog’s blood from the car used to transport the dog for

treatment. Following a bench trial, the small claims court rendered judgment in

favor of Benton, awarding her $987.31 against Laird and “costs of court.”

      To appeal the small claims court judgment, Laird filed a “civil appeal bond”

in the county court on December 8, 2011. The bond was in the amount of $2,079,

which Laird deposited, in cash, with the court.

      By a letter dated January 3, 2013, Benton notified Laird that he had not

properly perfected Laird’s appeal because his bond did not list two sureties and

because the bond amount was insufficient.         Laird responded to the letter,

intimating that his cash bond did not require sureties and indicating that the bond

amount was sufficient because it was “twice the amount awarded” to Benton in the

judgment.




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      On February 17, 2013, Benton filed a motion to dismiss Laird’s appeal,

asserting that Laird’s appeal bond did not comply with the applicable rules of civil

procedure governing appeals from small claims court.          Specifically, Benton

claimed that Laird’s appeal bond was deficient because it did not list two sureties,

as required by the governing rule of civil procedure. Benton also asserted that

Laird had failed to post a bond in twice the amount of the judgment. Benton

pointed out that the judgment awarded her damages of $987.31 and court costs of

$104.00, totaling $1,091.31. Twice this sum was $2,182.62. Thus, according to

Benton, Laird’s $2,079.00 cash bond was deficient. On February 27, 2012, Laird

deposited an additional $104.00 in the registry of the county court to cover the

court costs awarded to Benton in the judgment.

      The county court denied Benton’s motion to dismiss the appeal on March 6,

2012. Over the next two years, the case was set and reset on the county court’s

jury docket. The county court ordered the parties to mediation in March 2014.

Mediation, however, was unsuccessful. Benton filed a motion requesting the

county court to reconsider her motion to dismiss the appeal. Benton re-urged her

arguments that the county court lacked jurisdiction over the appeal because Laird

had failed to properly perfect his appeal pursuant to the applicable rules of civil

procedure.




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      The county court reconsidered Benton’s motion to dismiss. On July 24,

2014, the court granted the motion, dismissing Laird’s county court appeal for lack

of jurisdiction. Laird now appeals to this Court.

                     Appellate Jurisdiction of County Court

A.    Standard of Review

      Subject matter jurisdiction is a legal question, which we review de novo.

Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Mayhew

v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). Accordingly, we review

a county court’s dismissal of an appeal to that court under a de novo standard of

review. See Reel v. Ruiz, No. 01–12–00046–CV, 2013 WL 4508057, at *1 (Tex.

App.—Houston [1st Dist.] Aug. 22, 2013, no pet.) (mem. op.).

B.    Analysis

      This case originated in small claims court. At that time, appeals from small

claims court were pursued “in the manner provided by law for appeal from justice

court to county court.” 1 Act of May 17, 1985, 69th Leg., R.S. ch. 480, § 1, sec.

28.052(b), 1985 TEX. GEN. LAWS 1720, 1816, repealed by Act of June 29, 2011,


1
      In 2011, the Texas Legislature passed legislation abolishing small claims courts,
      effective May 1, 2013. See Act of June 29, 2011, 82nd Leg., 1st C.S., ch. 3,
      § 5.06, 2011 TEX. GEN. LAWS 5206, 5225. The Legislature decided that, after the
      effective date, justice courts would handle small claims cases. 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. 201)).


                                           4
82nd Leg., 1st C.S., ch. 3, § 5.06, 2011 TEX. GEN. LAWS 5206, 5225. On April 15,

2013, the Supreme Court of Texas adopted new rules of civil procedure for justice

court cases, and it repealed the then-existing rules. See 76 Tex. B.J. 439, 440 (Tex.

2013). Benton points out that, when the small claims court rendered judgment in

this case, the new rules were not yet in effect and the now-repealed rules still

applied. See id. Indeed, the record shows that the small claims court signed its

judgment on November 29, 2011, and Laird filed his appeal bond on December 11,

2011. The new rules did not become effective until August 31, 2013. Id.

      For this reason, Benton asserts that we determine whether Laird properly

perfected his appeal to the county court by applying the now-repealed rules of civil

procedure. Specifically, she relies on former Rule of Civil Procedure 571, which

provided, in part, as follows:

      The party appealing, his agent or attorney, shall within ten days from
      the date a judgment or order overruling motion for new trial is signed,
      file with the justice a bond, with two or more good and sufficient
      sureties, to be approved by the justice, in double the amount of the
      judgment . . . .

TEX. R. CIV. P. 571, 53 Tex. B.J. 589, 605 (Tex. 1990, repealed 2013); see also

TEX. R. CIV. P. 573, 3 Tex. B.J. 519, 612 (Tex. 1940, repealed 2013) (providing

appeal is perfected when bond is filed and Rule 571 requirements are satisfied).

Benton claims, as she did in the county court, that Laird failed to satisfy the

requirements of now-repealed Rule 571. She avers that Laird’s bond was not



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“double the amount of the judgment.” Although it was double the amount of the

damages, the bond was not double the amount of the damages plus court costs

awarded in the judgment. Benton claims that the “amount of the judgment,”

referenced in former Rule 571, included not only the damages awarded, but also

included the court costs. Benton also asserts that Laird failed to comply with Rule

571 because his cash bond had not listed “two or more good and sufficient

sureties.” See TEX. R. CIV. P. 571 (repealed 2013).

      We disagree that repealed Rule 571 determines whether Laird properly

perfected his appeal to county court. Laird’s appeal remained pending when the

new justice court rules became effective on August 31, 2013. The county court did

not dismiss Laird’s appeal until July 24, 2014.

      In its order adopting the new justice court rules, the Supreme Court of Texas

ordered that the new rules “govern cases . . . pending on August 31, 2013, except

to the extent that in the opinion of the court their application in a case pending on

August 31, 2013, would not be feasible or would work injustice, in which event the

formerly applicable procedure applies.” 76 Tex. B.J. at 440. Here, the issue of

whether applying the new rules would not be feasible or would work an injustice

does not appear to have been determined by the county court. Thus, the county

court should have applied the new justice court rules when it reconsidered

Benton’s motion to dismiss Laird’s appeal. See Floyd v. Seward, 520 S.W.2d 873,



                                         6
875 (Tex. App.—El Paso 1975, no writ) (holding that, without first determining

that application of new statute was not feasible or would work an injustice, the trial

court was required to give effect to the new provision); Heid Bros. v. Smiley, 166

S.W.2d 181, 182 (Tex. Civ. App.—Texarkana 1942, writ ref’d w.o.m.) (“[T]here

must be a ruling of the trial court on the feasibility and justness of the application

of the [new] rule before the complaining party can raise the question on appeal.”).

We conclude that, because the appeal was pending in the county court when the

new justice court rules became effective, the new rules govern whether Laird

properly perfected his appeal to the county court.2 See Mohammed v. D. 1050 W.

Rankin, Inc., No. 01–13–00977–CV, 2014 WL 7335192, at *3 (Tex. App.—

Houston [1st Dist.] Dec. 23, 2014, no pet.) (applying newly-adopted rules because,

although justice court judgment had been signed before effective date of new rules,

appeal to county court from justice court was still pending in county court on

effective date of new rules of procedure).




2
      Benton cites A-1 Auto Body & Paint Shop, LLC v. McQuiggan, 418 S.W.3d 403,
      406 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) for the proposition that the
      repealed justice court rules apply. There, we applied the repealed justice court
      rules, mentioning that the former rules were in effect when the small claims court
      rendered judgment. Id. at 408. However, A-1 Auto Body is inapposite to the
      instant case. There, in contrast to this case, the new justice court rules were not in
      effect while the case was pending in county court. See id. at 404–05. Rather, the
      repealed rules remained in effect the entire time the case was pending in the
      county court. Id. at 406. Thus, the repealed justice court rules applied in that
      case.

                                            7
      Newly-adopted Rule of Civil Procedure 506.1 governs appeals from justice

court to county court. That rule provides, in part, as follows:

      (a) How Taken; Time. A party may appeal a judgment by filing a
      bond, making a cash deposit, or filing a sworn statement of inability to
      pay with the justice court within 21 days after the judgment is signed
      or the motion to reinstate, motion to set aside, or motion for new trial,
      if any, is denied.


      (b) Amount of Bond; Sureties; Terms. A plaintiff must file a $500
      bond. A defendant must file a bond in an amount equal to twice the
      amount of the judgment. The bond must be supported by a surety or
      sureties approved by the judge. The bond must be payable to the
      appellee and must be conditioned on the appellant’s prosecution of its
      appeal to effect and payment of any judgment and all costs rendered
      against it on appeal.


      (c) Cash Deposit in Lieu of Bond. In lieu of filing a bond, an
      appellant may deposit with the clerk of the court cash in the amount
      required of the bond. The deposit must be payable to the appellee and
      must be conditioned on the appellant’s prosecution of its appeal to
      effect and payment of any judgment and all costs rendered against it
      on appeal.

TEX. R. CIV. P. 506.1.

      Here, Laird complied with Rule 506.1(c) by filing a cash deposit in lieu of a

bond in the amount required of the bond. As with repealed Rule 571, new Rule

506.1 requires the bond amount to be “an amount equal to twice the amount of the

judgment.” Id. Here, the judgment awarded Benton $987.31 in damages. Twice

that amount is $1,974.62. To appeal the judgment, Laird posted $2,079.00 in cash

with the court. Nonetheless, Benton asserts that Laird’s cash deposit was not equal


                                          8
to twice the “amount of the judgment” because it did not include twice the amount

of the $104.00 in court costs she was also awarded in the judgment.

      To support her position, Benton cites Ashley Furniture Indus., Inc. v. Law

Office of David Pierce, 311 S.W.3d 595 (Tex. App.—El Paso 2010, no pet.).

There, the court, in its factual summary of the case, calculated the amount of the

judgment, for purposes of posting an appeal bond, to include damages, attorneys’

fees, and court costs awarded in the judgment.       Id. at 596–97. Because the

appellant had not posted that amount, the court of appeals affirmed the county

court’s dismissal of the appeal. Id. at 598. However, in Ashley, whether court

costs should be included in the calculation of the bond amount was not

determinative of that case, was not an issue of contention, and was not the subject

of analysis in the opinion.

      In contrast, the Supreme Court of Texas squarely addressed the issue long

ago in Colorado Cnty. v. Delaney, 54 Tex. 280, 280–81 (1881).                There,

interpreting a predecessor statute to Rule 506.1, the court determined whether “the

appeal bond from the judgment of a justice of the peace should have been in

double the amount of the judgment for the debt only, or for both the debt and cost.”

Id. at 280. Determining what “double the amount of the judgment” meant, the

court held “the amount of the appeal bond in such cases, where judgment is

rendered for the plaintiff, was not intended to be double both the amount of the



                                         9
judgment recovered for the debt and also for the cost, but of the former only.” Id.

at 280–81.

      Accordingly, we conclude that Laird’s cash deposit of 2,079.00, which was

more than double the amount of damages awarded to Benton in the judgment, was

sufficient under Rule 506.1. See id. In addition, because he deposited cash in lieu

of a bond, Laird was not required, under Rule 506.1, to identify any sureties. 3 See

TEX. R. CIV. P. 506.1.

      We conclude that Laird properly perfected his appeal pursuant to Rule

506.1(c), which applied to Laird’s pending case in the county court. See id. We

hold that the county court erred when it dismissed Laird’s appeal.

      We sustain Laird’s issue in which he asserts that he properly perfected his

appeal to the county court.




3
      We note that the record reflects that Laird’s cash deposit was payable to Benton
      and was conditioned on the prosecution of his appeal “to effect and payment of
      any judgment and all costs rendered against it on appeal,” as required by Rule
      506.1(c). See TEX. R. CIV. P. 506.1(c).

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                                   Conclusion

      We reverse the trial court’s judgment and remand the case for further

proceedings.




                                             Laura Carter Higley
                                             Justice

Panel consists of Justices Jennings, Higley, and Huddle.




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