      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-04-00454-CV




                                  Ruben Rodriguez, Appellant


                                                 v.


                                     Dennis Seider, Appellee




         FROM THE COUNTY COURT AT LAW NO. 2 OF TOM GREEN COUNTY
        NO. 04C161-L2, HONORABLE PENNY ANNE ROBERTS, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Appellant Ruben Rodriguez challenges the dismissal of his appeal of a justice court

judgment. He contends that he properly perfected his appeal, that he was only required to appeal one

of the two written “judgments” of the justice court, that the county court at law erred by dismissing

his appeal, and that the county court at law failed to give him proper notice and an opportunity to

correct and amend his appeal prior to the dismissal. Because Rodriguez failed to raise a viable cause

of action in the county court of law, we affirm the order dismissing the appeal.
                                         BACKGROUND

               Rodriguez sued Seider in justice court, and Seider answered and filed a counterclaim.

Although the details of the parties’ dispute are not clear from the record,1 a bench trial was held and

the justice court entered judgment in favor of Rodriguez on his claim against Seider and in favor of

Seider in his counterclaim against Rodriguez. Rodriguez was awarded $675 plus interest. Seider

was awarded $534 and $250 in attorney’s fees plus interest. Thus, after the offset, Rodriguez owed

Seider $109 plus interest. The justice court’s decision in each claim was expressed in a separate

document. Both documents are dated March 31, 2004, and bear the same cause number.

               Rodriguez filed a notice of appeal and posted an appeal bond. He then filed a

pleading in the county court at law reasserting his defense to Seider’s counterclaim. Rodriguez did

not reassert the claims on which he prevailed in the justice court. In response, Seider filed a motion

to dismiss contending that Rodriguez was improperly seeking a partial appeal. Rodriguez replied

that the justice court issued two separate judgments and that he only sought to appeal the judgment

against him. After a hearing, the county court at law dismissed the case. Rodriguez filed this appeal.


                                           DISCUSSION

               We will address all of Rodriguez’s issues in our determination of whether the county

court at law erred by dismissing Rodriguez’s appeal. This case involves the relatively unfamiliar

subject of an appeal for trial de novo from a justice court judgment. Our decision is grounded in old,

but unassailable Texas law.


       1
         The record reflects that the dispute concerned transactions between Rodriguez and Seider
involving an exchange of cash, four aluminum wheels, a .22 caliber pistol, and an elderly horse.

                                                  2
Final Judgment

                We will first discuss what constitutes the justice court’s final judgment in light of

Rodriguez’s contention that he only appealed the judgment on Seider’s counterclaim. An appeal of

a justice court judgment is tried de novo in the county court at law or the district court. Tex. R. Civ.

P. 574b. When an appeal is perfected, the entire judgment of the justice court is annulled. In re

Garza, 990 S.W.2d 372, 374 (Tex. App.—Corpus Christi 1999, no pet.); see Roberts v. McCamant,

8 S.W. 543, 543-44 (Tex. 1888). Although the justice court expressed its judgment in two written

documents, there can be only one final judgment. See Tex. R. Civ. P. 301. The law does not require

a final judgment to be in any particular form; rather the order is construed in light of its language and

the record in the case. Lehman v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Here, the two

documents bear the same cause number, together resolve all of the issues in the case, and are signed

on the same date. Both claims were heard by the justice court in the same trial, and nothing in the

record indicates that the trial court severed Seider’s counterclaim from the suit. Therefore, we hold

that the two judgments of the justice court must be read together as one final judgment, and that

Rodriguez’s appeal annulled the entire judgment. See Garza, 990 S.W.2d at 374. Rodriguez’s

appeal for trial de novo was, by definition, an appeal of both his original claim and Seider’s

counterclaim.


Dismissal

                We next determine whether the county court at law abused its discretion by

dismissing Rodriguez’s appeal. We review a trial court’s ruling on a motion to dismiss for an abuse

of discretion. Muecke v. Hallstead, 25 S.W.3d 221, 224 (Tex. App.—San Antonio 2000, no pet.).

                                                   3
A trial court abuses its discretion if it fails to correctly analyze or apply the law. Id.; see Walker v.

Packer, 827 S.W.2d 833, 840 (Tex. 1992). Sieder’s motion to dismiss was general in nature and

merely stated that Rodriguez’s attempt to appeal only the portion of the judgment in favor of Seider

was “not permitted by the Rules of Civil Procedure and the law.”

                Rodriguez first contends that county court at law should not have dismissed his appeal

because he properly perfected his appeal by posting a bond in double the amount of the judgment

on Seider’s counterclaim and having that bond approved and filed by the justice court. In order to

resolve this issue, we must determine how a plaintiff may perfect an appeal from a justice court

judgment in favor of a defendant’s counterclaim. A party seeking to perfect an appeal from a justice

court judgment must post an appeal bond and have that bond approved by the justice court and filed.

Tex. R. Civ. P. 571; Edwards v. Morton, 46 S.W. 792, 794 (Tex. 1898) (notice of appeal not

required). Rule 571 provides that a defendant who seeks to appeal a judgment in favor of the

plaintiff must post a bond in double the amount of the judgment payable to the appellee. Tex. R.

Civ. P. 571.

                As explained above, Rodriguez’s appeal of the judgment in favor of Seider also

annulled the judgment Rodriguez obtained against Seider. However, we cannot conclude that

Rodriguez, as a counter-defendant must post an additional bond in order to re-litigate the claim that

he won in the justice court. See Edwards, 46 S.W. at 794 (a party not required to give bond to secure

a debt payable to himself). Rather, the total judgment in favor of Seider, when offset by the

judgment in favor of Rodriguez, was $109. As such, the statute requires Rodriguez only to post a

bond in an amount double that judgment. See Tex. R. Civ. P. 571. Rodriguez posted a bond in an



                                                   4
amount well exceeding double the amount of the net judgment against him. This bond served to

perfect appeal of the entire justice court judgment; it would have been an abuse of discretion to

dismiss his appeal based on his failure to post an adequate appeal bond.

               Rodriguez also argues that the dismissal was improper because he was not required

to reassert the claim that he prevailed on in the justice court and, alternatively, that he should have

been given notice and an opportunity to amend his pleadings prior to dismissal. As we discussed

above, Rodriguez’s appeal for a trial de novo annulled the entire judgment of the justice court. See

Garza, 990 S.W.2d at 374. It was incumbent upon Rodriguez to reassert his claims against Seider

in order to obtain a new judgment. See id. The judgment in favor of Seider was similarly annulled,

and there was no need for Rodriguez to defend that claim unless it was affirmatively raised by Seider

in the county court at law. Thus, the only claim Rodriguez could have pleaded was his original cause

of action.

               Rodriguez argues that he should have been given the opportunity to amend his appeal

prior to the dismissal. He cites the provision of rule 571 that an appeal “shall not be dismissed for

defects or irregularities in procedure, either of form or substance, without allowing appellant five

days after notice within to correct.” Tex. R. Civ. P. 571. However, rule 571’s notice provision

applies to defects in the appeal bond, not defects in the pleadings in the county court at law. By only

pleading an answer to a counterclaim that had not yet been raised on appeal, Rodriguez raised no

viable cause of action in the county court at law. A pleading that raises no viable cause of action is

subject to dismissal without the opportunity to amend. See Slentz v. American Airlines, Inc., 817

S.W.2d 366, 360 (Tex. App.—Austin 1991, writ denied) (pleading that raises no viable cause of



                                                  5
action cannot be cured and dismissal without opportunity to amend is appropriate). Because

Rodriguez’s pleadings raised no viable cause of action, we affirm the trial court’s order dismissing

the appeal.


                                          CONCLUSION

               Rodriguez properly perfected his appeal to the county court at law. By perfecting his

appeal, Rodriguez annulled the entire judgment of the justice court. He then failed to plead a viable

cause of action. Accordingly, the county court at law properly granted Seider’s motion to dismiss.2

We affirm the order of the county court at law.




                                               __________________________________________

                                               Bea Ann Smith, Justice

Before Chief Justice Law, Justices B. A. Smith and Pemberton

Affirmed

Filed: March 31, 2005




        2
           We note that the dismissal of Rodriguez’s appeal for failure to state a viable cause does not
result in the reinstatement of the justice court’s judgment. See Roberts v. McCamant, 8 S.W. 543,
543-44 (Tex. 1888); In re Garza, 990 S.W.2d 372, 374 (Tex. App.—Corpus Christi 1999, no pet.)
(“Any dismissal by the trial court after the appeal is perfected is a dismissal of the entire cause of
action and leaves the matter standing as if no suit had been filed.”); Advance Imports, Inc. v. Gibson
Prods Co., 533 S.W.2d 168, 170-71 (Tex. App.—Dallas 1976, no writ). As such, the dismissal of
Rodriguez’s appeal shall have no effect on his ability to again file suit regarding this matter. See
Harter v. Curry, 105 S.W. 988, 989 (Tex. 1907).

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