Howard Kim v. Tok Bong Yi ( 2005 )

Dismissed and Memorandum Opinion filed September 29, 2005

Dismissed and Memorandum Opinion filed September 29, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00569-CV

______________________

HOWARD KIM, Appellant

V.

TOK BONG YI, Appellee

On Appeal from the County Civil Court at Law No. 1

Harris County, Texas

Trial Court Cause No. 800,210

M E M O R A N D U M   O P I N I O N

This appeal stems from a case initially filed in Harris County Small Claims Court, Precinct 5, Position 2, as cause number SC52C0177833.  The small claims court entered summary judgment against Appellant, Howard Kim, and denied his request for a new trial.  Subsequently, he appealed to Harris County Civil Court at Law No. 1, which also entered summary judgment against him.  In two points of error, Kim now seeks a reversal of the county court=s decision.  However, we must dismiss his appeal for lack jurisdiction.^[1]

The judgment of a small claims court is appealable to a county court or county court at law.  Tex. Gov=t Code Ann. ' 28.052(a) (Vernon 2004).  The county court is to treat the case as a de novo appeal.  Id. ' 28.053(b).  However, A[j]udgment of the county court or county court at law on the appeal is final.@  Id. ' 28.053(d) (emphasis added); see also Lederman v. Rowe, 3 S.W.3d 254, 256 (Tex. App.CWaco 1999, no pet.) (AThere is no appeal to the court of appeals from a judgment of the county court or county court at law after a trial de novo appeal from a small claims court.@); Davis v. Covert, 983 S.W.2d 301, 302 (Tex. App.CHouston [1st Dist.] 1998, pet. dism=d w.o.j.) (A[T]here is no appeal to the court of appeals from a judgment of the county court on an appeal from the small claims court.@).  As the First Court of Appeals explained in Davis, A[t]he word >final= as used in section 28.053(d) needs no definition. It means that there is no further appeal beyond the county court or county court at law.@ 983 S.W.2d at 302 (emphasis added).^[2]  In this case, the county court was reviewing the decision of the small claims court on appeal.  Therefore, the county court=s disposition was final, and we are without jurisdiction to entertain appellant=s appeal.

Accordingly, we dismiss the appeal for want of jurisdiction.

/s/      J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed September 29, 2005.

Panel consists of Justices Yates, Anderson, and Hudson.

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^[1]  Although neither party addressed this issue, it is our responsibility to raise the issue sua sponte, particularly when our jurisdiction is lacking.  See Tex. Ass=n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444B45 (Tex. 1993).

^[2]  See also Tumlinson v. Gutierrez, 55 S.W.3d 673, 674 (Tex. App.CCorpus Christi 2001, no pet.) (A[T]he majority of courts of appeal, [have] held that no appeal lies from a final judgment of a county court or county court at law following a de novo appeal from small claims court.@); Oropeza v. Valdez, 53 S.W.3d 410, 411B12 (Tex. App.CSan Antonio 2001, no pet.) (A[A]n appellate court is without jurisdiction to consider such an appeal.@); The Woodlands Plumbing Co. v. Rodgers, 47 S.W.3d 146, 149 (Tex. App.CTexarkana 2001, pet. denied) (A[W]e join our sister courts in holding that Section 28.053(d) of the Government Code deprives this Court of jurisdiction over an appeal from the final judgment of a county court at law following a de novo appeal from a small claims court.@).