                 NUMBER 13-12-00198-CV

                   COURT OF APPEALS

            THIRTEENTH DISTRICT OF TEXAS

              CORPUS CHRISTI - EDINBURG


ROBERT M. MARKHAM
AND ALL OTHER OCCUPANTS,                            Appellants,

                              v.

DEUTSCHE BANK NATIONAL TRUST
COMPANY, AS TRUSTEE, IN TRUST FOR
THE REGISTERED HOLDERS OF ARGENT
SECURITIES INC., ASSET-BACKED
PASS-THROUGH CERTIFICATES, SERIES 2006-W5,              Appellee.


         On appeal from the County Court at Law No. 5
                  of Hidalgo County, Texas.


                 MEMORANDUM OPINION

         Before Justices Garza, Benavides, and Perkes
           Memorandum Opinion by Justice Perkes
        Appellant, Robert M. Markham,1 appeals the trial court’s judgment denying him a

trial de novo in his appeal from justice court and purporting to “confirm” the justice court’s

judgment in favor of appellee, Deutsche Bank National Trust Company, as Trustee, in

Trust for the Registered Holders of Argent Securities Inc., Asset-Backed Pass-Through

Certificates, Series 2006-W5 (“Deutsche Bank”). We reverse and remand for a trial de

novo.

                    I. FACTUAL AND PROCEDURAL BACKGROUND2

        Deutsche Bank filed a forcible-detainer petition against Markham in the Court of

the Justice of the Peace, Precinct Two, Place One, of Hidalgo County, Texas, seeking to

evict Markham from the property located at 307 Highland Drive, McAllen, Texas 78501

(“the property”).      On October 18, 2011, the justice court entered a judgment for

possession in favor of Deutsche Bank.

        On October 24, 2011, Markham appealed the justice court’s judgment, transferring

the matter to the Hidalgo County Clerk’s Office, which then assigned the matter to the trial

court (County Court at Law Number Five). Markham thereafter filed a motion for trial de

novo.3 On January 13, 2012, the trial court denied Markham’s motion for trial de novo.

Deustsche Bank then filed a “motion to clarify” the trial court’s denial of trial de novo. In

its motion, Deutsche Bank asked the trial court to enter judgment confirming the justice

court’s order awarding it possession. The trial court set the matter for hearing and on
        1
          “Robert M. Markham and All Other Occupants” were named as defendants in the lawsuit and are
appellants on appeal. Hereinafter, we collectively refer to appellants as “Markham.”
        2
          Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons for
it. See TEX. R. APP. P. 47.4.
        3
         The record also shows that Deutsche Bank filed a motion for final summary judgment, but the
record does not contain any order granting or denying the motion for summary judgment.
                                                     2
February 27, 2012, signed a judgment titled “Order Denying Trial De Novo and Affirming

Trial Court Judgment” in which it again denied Markham a trial de novo and also

purported to confirm the justice court’s order.

          The text of the trial court’s judgment reads as follows:

                  On January 9, 2012, came on for trial de novo on the merits of this
          proceeding, appealed from Cause No. C-1101-11-21, in the Justice of the
          Peace Court, Precinct 2-1 of Hidalgo County, Texas, between Plaintiff,
          DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE, IN
          TRUST FOR THE REGISTERED HOLDER OF ARGENT SECURITIES
          INC., ASSET-BACKED PASS-THROUGH CERTIFICATES, SERIES
          2006-W5 (“Plaintiff”), and Defendant, ROBERT MARKHAM AND ALL
          OTHER OCCUPANTS (“Defendant”). The parties appeared through their
          counsel of record and after the Court found that it had jurisdiction to hear
          this cause, the Court denied Defendant’s appeal for a trial de novo on the
          merits, after which time the Court confirmed the trial court’s judgment for the
          Plaintiff. It is therefore

                 ORDERED, ADJUDGED and DECREED that the trial court
          judgment, namely the judgment entered by Hidalgo County Justice of the
          Peace Court Precinct 2, Place 1, on October 18, 2011 in case number
          C-1101-11-21, is confirmed and fully enforceable. To wit: DEUTSCHE
          BANK NATIONAL TRUST COMPANY, AS TRUSTEE, IN TRUST FOR
          THE REGISTERED HOLDER OF ARGENT SECURITIES INC.,
          ASSET-BACKED PASS-THROUGH CERTIFICATES, SERIES 2006-W5
          does have and recover of the Defendant possession of the following
          described premises: 307 Highland Drive, McAllen, TX 78501 A/K/A 307
          West Highland Avenue, McAllen, TX 78501 more particularly described as
          LOT THREE (3), UNIT ONE (1), DIXON SUBDIVISION NO. 1, AN
          ADDITION TO THE CITY OF MCALLEN, HILDALGO COUNTY, TEXAS,
          AS PER MAP OR PLAT THEREOF RECORDED IN VOLUME 17, PAGE
          59, MAP RECORDS, HIDALGO COUNTY, TEXAS.

This appeal followed.4

                                             II. ISSUES PRESENTED

          Markham presents four issues for review:


          4
              Deutsche Bank’s counsel informed this Court that Deutsche Bank elected not to file a brief in this
appeal.
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   (1) A perfected appeal from a justice court requires a trial de novo.

   (2) A trial de novo is the only means by which a defendant can obtain relief from
       judgment.

   (3) Appellate rights are zealously guarded by Texas Courts once granted.

   (4) The denial of a right of trial de novo is legal error, contrary to due process and
       course of law, and violates the Texas Open Courts Doctrine.

                                      III. ANALYSIS

       By his first issue, Markham argues he was entitled to trial de novo in county court

and because his appeal to county court annulled the justice court’s judgment, the trial

court could not confirm or enter judgment on the justice court’s judgment. We agree.

       Whether Markham was entitled to trial de novo once he perfected his appeal to the

county court presents a legal question which we review de novo. See Mayhew v. Town

of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998); see also Salmeron v. T-Mobile W. Corp.,

No. 01-07-00532-CV, 2008 WL 1828616, at *1 (Tex. App.—Houston [1st Dist.] Apr. 24,

2008) (mem. op.).      In Villalon v. Bank One, the First Court of Appeals succinctly

explained the rule of law that is determinative of this case:

       [I]t is well-settled that perfection of an appeal to county court from a justice
       court for trial de novo vacates and annuls the judgment of the justice
       court. Once a county court acquires jurisdiction by perfection of an appeal
       from justice court, the rules of procedure permit only that the county court
       try the case de novo or dismiss it if it is not prosecuted. A county court
       cannot affirm or reverse the judgment of the justice court nor can it remand
       the cause to the justice court.

176 S.W.3d 66, 69–70 (Tex. App.—Houston [1st Dist.] 2004, no pet.). In In re Garza,

this Court explained that, once a justice court’s judgment is annulled by perfection of

appeal to the county court, the burden is on the appellee in the county court to obtain a

new judgment.       990 S.W.2d 372, 374 (Tex. App.—Corpus Christi 1999) (orig.
                                              4
proceeding). While In re Garza was decided under Texas Rule of Civil Procedure 574b,

which was repealed effective August 31, 2013 and no longer applies to pending cases

unless justice so requires, see Misc. Docket No. 13-9049 (Tex. April 15, 2013), both Rule

574b and the new rule 506.3 provide for trial “de novo in the county court” when an appeal

from justice court is perfected. See TEX. R. CIV. P. 574b (West 2013) (“The cause shall

be tried de novo in the county or district court; and judgment shall be rendered.”); see also

TEX. R. CIV. P. 506.3 (“The case must be tried de novo in the county court. A trial de novo

is a new trial in which the entire case is presented as if there had been no previous trial.”).

       Because Markham was entitled to trial de novo in the county court, the trial court

erred as a matter of law by denying him a trial de novo and entering judgment that

purported to confirm the justice court’s judgment. See In re Garza, 990 S.W.2d at 374;

see also TEX. R. CIV. P. 506.3. We sustain Markham’s first issue on appeal.                 As

Markham’s first issue is dispositive, we need not reach his remaining issues on appeal.

See TEX. R. APP. P. 47.4.

                                        IV. CONCLUSION

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

de novo. See TEX. R. APP. P. 43.2(d).

                                                   GREGORY T. PERKES
                                                   Justice

Delivered and filed the
3rd day of October, 2013.




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