
                                          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 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 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
