A.J.'s Wrecker Serv. Of Dallas v. Orozcov

• Decision Date: 15 March 2001
• Docket Number: No. 05-99-01948-CV.,05-99-01948-CV.
• Citation: 68 S.W.3d 45
• Parties: A.J.'S WRECKER SERVICE OF DALLAS, INC., Appellant, v. The Honorable Diana OROZCO, Appellee.
• Court: Texas Court of Appeals

68 S.W.3d 45

A.J.'S WRECKER SERVICE OF DALLAS, INC., Appellant, v. The Honorable Diana OROZCO, Appellee.

No. 05-99-01948-CV.

Court of Appeals of Texas, Dallas.

March 15, 2001.

Rehearing Overruled April 27, 2001.

Byron Kevin Henry, McCreary & Association, P.L.L.C., Frisco, James C. Mosser, James C. Mosser Inc., Dallas, for appellant.

Grant Hugh Brenna, Asst. Dist. Atty., Dallas, for appellee.

Before MORRIS, JAMES, and FITZGERALD, JJ.

OPINION

JAMES, Justice.

A.J.'s Wrecker Service of Dallas, Inc. (A.J.'s) brings this appeal from the denial by the trial court of its petition for writ of mandamus to order the Honorable Diana Orozco (Judge Orozco) to approve A.J.'s appeal bond and forward the record to the county court. A.J.'s brings four points of error contending the trial court abused its discretion by determining: A.J.'s appeal was not perfected; approval of appeal bonds by justices of the peace is discretionary; and the bond requirements imposed by Judge Orozco did not violate the Texas Constitution. A.J.'s also contends the trial court erred by determining Judge Orozco did not abuse her discretion by the requirements she imposed on sureties. For the reasons set forth below, we affirm the judgment of the trial court.

Background

Felipe Iturbe brought suit against A.J.'s in the Justice of the Peace Court, Precinct 6, Place 1 on March 8, 1999, Judge Orozco presiding. The jury found for Iturbe and judgment was rendered against A.J.'s for $1900 plus court costs. A.J.'s attempted to file an appeal bond the next day. Its bond form contained the signatures of two sureties who shared the same post office box address as A.J.'s and who agreed to be liable for $3862 if a decision was rendered against A.J.'s on appeal. Judge Orozco's clerk refused to accept the appeal bond, apparently because it was not an original copy and failed to contain an oath of surety as required by Judge Orozco. On March 12, 1999, A.J.'s sent the justice court a letter informing the court that an oath of surety is not required by the rules of civil procedure and therefore its appeal bond was sufficient. The justice court responded in a letter dated March 12, 1999 (but not postmarked until March 17, 1999) explaining the requirements needed for sureties, requesting an oath of surety, and giving A.J.'s five days from the date of its letter to correct the defects. A.J.'s did not receive the letter until March 18, 1999. A.J.'s then responded to the justice court by letter dated March 19, 1999. Although A.J.'s did complain that the timing of the letter precluded it from correcting any defects within the time limit imposed,¹ A.J.'s did not attempt to correct the bond, request an extension of time, or call the justice court for clarification of the time limit allowed. Furthermore, A.J.'s informed the court that there were no defects in its bond and requested the court forward the record to the county court.

On April 1, 1999, A.J.'s filed a petition for writ of mandamus claiming Judge Orozco abused her discretion by requiring an oath of surety to perfect an appeal and by not giving A.J.'s sufficient amount of time to correct any defects. On October 8, 1999, the county court found Judge Orozco did not abuse her discretion and denied A.J.'s petition for writ of mandamus. A.J.'s now appeals the county court's order denying its petition.

Perfection of Appeal

In A.J.'s first point of error, it contends the trial court abused its discretion by determining its appeal from the justice court was not perfected. The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). That the trial court decided an issue differently than would this reviewing Court does not necessarily demonstrate an abuse of discretion, nor does a mere error in judgment amount to such an abuse. Id.

A.J.'s argues that once an appeal bond was filed pursuant to rule of civil procedure 571, A.J.'s appeal was perfected and nothing further was needed to perfect the appeal. However, A.J.'s ignores the plain language of rule 571 which states that the bond itself must be approved by the justice prior to being filed.² Rule 571 requires that the bond be filed "with two or more good and sufficient sureties, to be approved by the justice." Clearly this discretionary requirement is necessary for perfection of the appeal.

A.J.'s also contends that even if its bond was insufficient because it failed to contain oaths of sureties, rule 571 allows five days to correct defects. It contends Judge Orozco failed to provide adequate time for it to correct procedural defects. The justice court's letter dated March 12, 1999 was not postmarked until March 17, 1999. The letter stated that A.J.'s had five days from the date of the letter to file oaths of sureties. A.J.'s did not receive the letter until March 18, 1999, one day past the five-day extension to make corrections. However, rule 571 states that a party has five days after receiving notice to correct defects. Tex.R.Civ.P. 571 (emphasis added). A.J.'s actually had until March 23, 1999 to correct the defects. A.J.'s did not attempt to correct the defects within five days after receiving notice, nor did it contact the justice court and either ask for an extension of time to comply or request clarification of its due date. Instead, on March 19, 1999, A.J.'s sent the justice court a letter informing the court that there were no defects in its bond, its appeal was perfected and therefore the justice court should approve the bond and send the case to the county court.

A.J.'s did inform the court that it was impossible to comply with the letter it had received which provided notice of its bond defects; however, it did not ask for an extension or clarification — it instructed the court to approve the bond and forward the case to the county court. Because A.J.'s bond was not approved by the justice court, the trial court did not abuse its discretion by determining the appeal from the justice court was not perfected when A.J.'s attempted to file its bond. Furthermore, A.J.'s was allowed, under rule 571, five days from receiving notice in which to correct defects; it failed to do so, therefore it has waived any complaint on appeal regarding lack of time to correct.

We cannot conclude the county court acted without any guiding principles or rules; we therefore overrule A.J.'s first point of error.

Discretionary Approval

In A.J.'s second point of error, it contends the trial court abused its discretion by determining that approval of appeal bonds by justices of the peace is discretionary rather than ministerial. A.J.'s contends the subsequent duties of the justice court after A.J.'s proffered its bond were ministerial and therefore mandamus is appropriate.

A writ of mandamus will issue to compel a public official to perform a ministerial act. Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex.1991). An act is ministerial when the law clearly spells out the duty to be performed by the official with sufficient certainty that nothing is left to the exercise of discretion. Id. Furthermore, a writ of mandamus will not issue to compel a public official to perform an act which involves an exercise of discretion. However, this rule is not without exception—a writ of mandamus may issue in a proper case to correct a clear abuse of discretion by a public official. Id.

A.J.'s argues that once its appeal bond was filed in compliance with rule 571, any further duties of the justice court were clearly ministerial, and therefore mandamus may issue. However, A.J.'s bond was not in compliance with rule 571, and its bond was therefore not "filed." The plain language of rule 571 requires the bond be "approved" by the justice prior to being filed. This is clearly a discretionary act, and A.J.'s bond was not approved by the justice.

A.J.'s attempts to analogize rule 571 to various legislative and court requirements for bonds. For example, A.J.'s claims that rule of civil procedure 749 is very similar to rule 571 and because substantial rather than strict compliance is required with rule 749, the same should be true of compliance with rule 571. However, rule 749 pertains to forcible entry and detainer suits. Furthermore, rule 749 requires "substantial compliance;" rule 571 requires the rule be "complied with." A.J.'s cites to several cases in support of its proposition, none of which are on point nor applicable to our case.³ Rule 571 clearly provides for approval of the bond by the justice. Therefore, the trial court did not abuse its discretion in finding the approval of an appeal bond pursuant to rule 571 to be discretionary. We overrule A.J.'s second point of error.

Requirements for Oath of Surety

In A.J.'s third point of error, it contends the trial court erred by finding that Judge Orozco did not abuse her discretion by her surety requirements for an appeal bond. The question for this Court is whether the trial court erred in deciding the justice court's decision was not unreasonable or arbitrary. A.J.'s contends Judge's Orozco's surety requirements⁴ were an abuse of discretion. A.J.'s argues that rule 571 does not list as requirements those requisites in Judge Orozco's required oath of surety. However, as we...