      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-10-00107-CV



                                Peyton Yates Freiman, Appellant

                                                 v.

                             Aames Capital Corporation, Appellee


               FROM COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY
       NO. C-1-CV-09-008510, HONORABLE ERIC M. SHEPPERD, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Peyton Yates Freiman appeals an order dismissing his cause of action. Aames Capital

Corporation (“ACC”) filed a forcible-detainer action in justice of the peace court to take possession

of real property owned by Freiman. Freiman alleges that he did not learn of the forcible-detainer

action until after the presiding justice, who had been appointed for a temporary term, see Tex. Gov’t

Code Ann. § 27.055 (West Supp. 2010), entered a default judgment in ACC’s favor. Freiman

subsequently “intervened” in the action and sought to appeal the judgment. The justice ordered

Freiman to post the requisite appeal bond, see Tex. R. Civ. P. 749, and Freiman filed a pauper’s

affidavit stating that he could not afford to do so. See id. R. 749a. The justice disapproved

Freiman’s pauper’s affidavit. See id. Freiman attempted to appeal that disapproval to the county

court at law. See id. The county court at law held a hearing at which Freiman admitted he had not

served notice of his appeal on ACC in compliance with Texas Rule of Civil Procedure 21.
Accordingly, the judge terminated the hearing and told Freiman that he could reset the hearing after

complying with Rule 21.

                Months passed without Freiman resetting the hearing. ACC eventually moved to

dismiss Freiman’s appeal. Freiman moved for a continuance, alleging that he had been unable to

reset the hearing because he had been out of the State. The court held a hearing on ACC’s and

Freiman’s motions. Freiman did not attend. The court subsequently denied Freiman’s motion for

a continuance and granted ACC’s motion to dismiss. Freiman then filed this appeal.

                Freiman raises a single issue: he argues that the justice of the peace who ruled in

ACC’s favor was not statutorily qualified to sit, so all orders issued in this case are void. We hold

that Freiman has waived this argument. He did not make the argument in the county court at law.

See Tex. R. App. P. 33.1(a) (as prerequisite to presenting complaint for appellate review, appellant

must raise complaint in trial court); Sweetwater Austin Props., L.L.C. v. SOS Alliance, Inc.,

299 S.W.3d 879, 890 (Tex. App.—Austin 2009, pet. denied) (statutory basis for recusal of judge can

be waived by failing to assert it as point of error).1 Nor does he support the argument with apposite

authorities. See Fredonia State Bank v. General Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994)

(appellate court has discretion to waive point of error due to inadequate briefing).2

        1
          Freiman claims that whether the justice was statutorily disqualified from sitting is an issue
that affects the subject-matter jurisdiction of the lower courts, so he can raise it for the first time on
appeal. We disagree. See Sweetwater Austin Props., L.L.C. v. SOS Alliance, Inc., 299 S.W.3d 879,
889-90 (Tex. App.—Austin 2009, pet. denied) (statutory qualifications of judges do not implicate
subject-matter jurisdiction).
        2
         Freiman does cite two cases, but neither actually relates to the issue at hand. See Denmon
v. Atlas Leasing, L.L.C., 285 S.W.3d 591 (Tex. App.—Dallas 2009, no pet.); York Division,
Borg-Warner Corp. v. Security Sav. & Loan Ass’n, 485 S.W.2d 327 (Tex. Civ. App.—Houston [1st
Dist.] 1972, writ ref’d n.r.e.).

                                                    2
                Inexplicably, Freiman does not argue that the county court at law should not have

dismissed his appeal. Instead, he bases his brief entirely on the argument that the justice of the peace

who entered judgment against him was statutorily disqualified from sitting. Even if Freiman is right

about that matter—indeed, even if the justice’s statutory disqualification prejudiced Freiman

egregiously—Freiman could have rendered it completely moot by complying with the rules of civil

procedure and obtaining a trial de novo in the county court at law. See Tex. R. Civ. P. 749a. Having

failed to avail himself of that right, he cannot complain for the first time in this court. We affirm the

order dismissing the cause.



                                                __________________________________________

                                                David Puryear, Justice

Before Chief Justice Jones, Justices Puryear and Pemberton

Affirmed

Filed: August 11, 2011




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