Case Information
*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 9/2/2015 3:34:23 PM JEFFREY D. KYLE Clerk THIRD COURT OF APPEALS 9/2/2015 3:34:23 PM JEFFREY D. KYLE AUSTIN, TEXAS 03-15-00440-CV *1 ACCEPTED [6769033] CLERK CASE NO. 03-15-00440-CV 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, By: Paul A. Hoefker Texas Bar No. 09772800 ALDRIDGE PITE, LLP 550 Westcott, Suite 560 Houston, Texas 77007 713-293-3618 phone *2 858-412-2773 fax phoefker@aldridgepite.com *3 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, 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.
Paul A. Hoefker