                                                                                 ACCEPTED
                                                                             03-15-00440-CV
                                                                                     6769033
                                                                  THIRD COURT OF APPEALS
                                                                             AUSTIN, TEXAS
                                                                         9/2/2015 3:34:23 PM
                                                                           JEFFREY D. KYLE
                                                                                      CLERK




                                                          FILED IN
                                                   3rd COURT OF APPEALS
                     CASE NO. 03-15-00440-CV           AUSTIN, TEXAS
                                                   9/2/2015 3:34:23 PM
                                                     JEFFREY D. KYLE
                                                           Clerk
                   IN THE COURT OF APPEALS
                   THIRD DISTRICT OF TEXAS
                        AUSTIN, TEXAS



           RAYMOND COX, JR., AND TAMESA COX, et al.
                         Appellants,

                              v.
                     GMAC MORTGAGE. LLC,
                           Appellee.


            Appeal from the County Court at Law Number Three
                   Bell County, Texas (Case No. 74,283)
__________________________________________________________________


    APPELLEE’S MOTION TO DISMISS APPEAL FOR LACK OF
                     JURISDICTION


                                        Respectfully submitted,


                                        /s/ Paul Hoefker
                                        By: Paul A. Hoefker
                                        Texas Bar No. 09772800
                                        ALDRIDGE PITE, LLP
                                        550 Westcott, Suite 560
                                        Houston, Texas 77007
                                        713-293-3618 phone
858-412-2773 fax
phoefker@aldridgepite.com
       APPELLEE’S MOTION TO DISMISS APPEAL FOR LACK OF
                        JURISDICTION


TO THE HONORABLE COURT OF APPEALS:

      Pursuant to Texas Rule of Appellate Procedure 42, Appellee GMAC

Mortgage, LLC, respectfully moves the Court to dismiss this appeal for lack of

jurisdiction.


                                      SUMMARY


This is an appeal from an eviction case tried in the County Court of Bell County,

Texas. The County Court ruled in favor of GMAC, the Appellee. The Appellants’

attempted appeal is untimely under the Texas Rules, and this appeal should be

dismissed for lack of jurisdiction.


                                  BACKGROUND


Appellee GMAC sued Appellants Raymond Cox, Jr., Tamesa Cox, and/or all

occupants of 2208 Bellmont, Temple Texas 76504, in an eviction action in the JP

Court of Bell County, seeking possession of the property. GMAC was successful

at the Justice Court stage, and the Coxes appealed to obtain a trial de novo in the

Bell County Court. After trial, the Bell County Court signed its Judgment in

GMAC’S favor on April 17, 2015. The Coxes attempted to file a Motion for New
Trial on May 17, 2015, (thirty days after the Judgment was signed), and they filed

a Notice of Appeal (to the Court of Appeals) on July 15, 2015.


                     ARGUMENTS AND AUTHORITIES


Under the new Rules governing cases in Justice Court, which took effect on

August 13, 2013, no Motion for New Trial is allowed in eviction cases, and the

Appellant’s case should be dismissed for want of jurisdiction. Tex. Rule Civ. Pro.

510.1, provides as follows regarding the Rules’ application to eviction cases:

      RULE 510.1. APPLICATION

      Rule 510 applies to a lawsuit to recover possession of real property under

      Chapter 24 of the Texas Property Code.

Rule 510.8 (e) provides, in relevant part as follows:

      RULE 510.8. JUDGMENT; WRIT; NO NEW TRIAL

      (e) No Motion For New Trial. No motion for new trial may be filed.

Therefore, under the express language of the new rules, no Motion for New Trial

may be filed in an eviction case.

Furthermore, the Fort Worth Court of Appeals’ ruling in the old 2008 Shaw v.

Shaw case cited by the Appellants in their purported Motion for New Trial has

been supplanted by the new Justice Court Rules, which expressly provide that no

motion for new trial may be filed.
Finally, the appeal is untimely. The Appellants did not attempt to appeal this case

until July 15, 2015--(89 days after the Bell County Court Judgment was signed).

The county court lost jurisdiction over the case after May 17, 2015. The appeal is

untimely and this case should be dismissed for want of jurisdiction.

                                     PRAYER


      WHEREFORE, PREMISES CONSIDERED, Appellee respectfully requests

that this Honorable Court grant this motion and dismiss this appeal for lack of

jurisdiction; that all costs should be borne by the Appellants; and for such other

and further relief to which Appellee may be justly entitled.


                                                    Respectfully submitted,


                                                    /s/ Paul Hoefker
                                                    By: Paul A. Hoefker
                                                    Texas Bar No. 09772800
                                                    ALDRIDGE PITE, LLP
                                                    550 Westcott, Suite 560
                                                    Houston, Texas 77007
                                                    713-293-3618 phone
                                                    858-412-2773 fax
                                                    phoefker@aldridgepite.com

                                                    ATTORNEY FOR APPELLEE
             CERTIFICATE OF COMPLIANCE WITH RULE 9


       Pursuant to Rule 9 of the Texas Rules of Appellate Procedure, I hereby
certify that the number of words in this document, as reflected by my WORD
software, is 724.
                                                  /s/ Paul Hoefker
                                                  Paul A. Hoefker


                     CERTIFICATE OF CONFERENCE

      I hereby certify that on July 20, 2015, and again on August 31, 2015, I
attempted to communicate with Mr. Michael Brinkley, Appellants’ counsel,
regarding this Motion. He is presumed to be opposed to this Motion to Dismiss
this Appeal.

                                                  /s/ Paul Hoefker
                                                  Paul A. Hoefker


                        CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing document has
been served in accordance with the Texas Rules of Appellate Procedure on August
31, 2015, to:

      Michael Brinkley, Appellants’ attorney, via fax at 888-511-0946.

                                                  /s/ Paul Hoefker
                                                  Paul A. Hoefker
