Opinion
No. 05-01-00480-CV.
Opinion Filed February 4, 2003.
Appeal from the County Court at Law Number Two, Dallas County, Texas, Trial Court Cause No. 00-13186-B.
MEMORANDUM OPINION
Appellant, Sandra Harris, appeals a county court's February 22, 2001 order conditionally granting a new trial on Harris paying appellee's, Melva Caldwell's, counsel $250 in attorney's fees. The county court's order conditionally granting a new trial merged within a final written judgment issued on August 15, 2002. See Campbell v. Kosarek, 44 S.W.3d 647, 649, 650 n. 1 (Tex.App.-Dallas 2001, pet. denied). Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. Rs. App. P. 47.2(a), 47.4. We reverse and remand.
In a justice court, Caldwell filed a forcible detainer suit against Harris. Tex. Prop. Code Ann. §§ 24.002, 24.004 (Vernon 2000). Harris did not answer, and the justice court granted Caldwell a default judgment on October 26, 2000. Thus, the justice court's plenary power to vacate the default judgment expired on November 6. Tex.R.Civ.P. 566.
To appeal the default judgment to a county court, Harris, acting pro se, filed a pauper's affidavit in the justice court on October 30, 2000. With the filing of a pauper's affidavit, Harris perfected her appeal to the county court. See id. Rule 749c. Caldwell had until November 4, 2000 to object to Harris's pauper's affidavit. Id. Rule 749a. However, Caldwell did not object to the affidavit until November 14, 2000. Due to Caldwell's objection, the justice court held a hearing on November 16, determined there was good cause, and told Harris that the default judgment would be vacated and the suit dismissed if she moved out by December 1, 2000. When Harris moved by December 1, the justice court dismissed Caldwell's suit on December 7, 2000, notwithstanding the fact its plenary power had expired approximately one month earlier.
When Harris perfected her appeal on October 30, 2000, the county court acquired jurisdiction over this case. See Haith v. Drake, 596 S.W.2d 194, 197 (Tex. Civ. App.-Houston [1st Dist.] 1980, writ ref'd n.r.e.). Thereafter, the county court set the case for trial on December 15, 2000. Harris never received notice of the trial setting because it was sent to Harris's old address after she had moved. Additionally, after Harris moved, Caldwell filed an amended petition in the county court on December 5. Harris never received the amended petition because it, like the trial setting notice, was sent to her old address.
Because Harris never received the trial setting notice or the amended petition, she did not appear for trial in county court on December 15. Due to Harris's nonappearance, the county court orally granted a default judgment for Caldwell. However, the county court did not reduce the default judgment to writing. Upon learning of the oral pronouncement of a default judgment, Harris, now represented by counsel, filed a motion to set aside the default judgment or, in the alternative, a motion for a new trial. On February 22, 2001, the county court denied the motion to set aside the default judgment, which had still not been reduced to writing, but conditionally granted Harris's motion for a new trial if she paid Caldwell's attorney $250 by March 23, 2001.
Harris did not pay the $250. Instead, on March 23, 2001 she filed a notice of appeal in this Court appealing the county court's conditioning of its order granting her motion for new trial on the payment of Caldwell's attorney fees. After this Court inquired as to whether the county court had entered a final written judgment, the court issued a written judgment on August 15, 2002. The county court's order conditionally granting Harris's motion for new trial merged within the final written judgment issued on August 15. See Campbell, 44 S.W.3d at 649, 650 n. 1.
Although Harris filed both her motion for new trial and her notice of appeal prior to the county court reducing the default judgment to a writing, we have jurisdiction over this appeal. See Tex. Rs. App. P. 27.1(a), 27.2; see also Tex.R.Civ.P. 306c; Johnson v. Tom Thumb Stores, Inc., 771 S.W.2d 582, 585-86 (Tex.App.-Dallas 1989, writ denied) (no rebuttal of presumption that premature motion for new trial is deemed filed on the date of, but subsequent to, the signing of the judgment when there is only one written judgment).
Unless a trial court abuses its discretion, we will not disturb a trial court's decision on whether to grant a new trial. Republic Ins. Co. v. Scott, 873 S.W.2d 381, 382 (Tex. 1994). Generally, a trial court does not abuse its discretion by conditionally granting a motion for new trial upon the payment of opposing counsel's attorney fees. Equitable Gen. Ins. Co. of Tex. v. Yates, 684 S.W.2d 669, 671 (Tex. 1984). Nonetheless, a trial court does abuse its discretion by imposing a monetary condition on granting a new trial when the movant had conclusively established her inability to pay. See id.
After five days, if not objected to, a pauper's affidavit is deemed conclusively true. Tex.R.Civ.P. 749a. As noted above, Harris filed a pauper's affidavit on October 30, and Caldwell did not object to the affidavit until November 14. Consequently, as of November 4, 2000, Harris's pauper's affidavit was deemed conclusively true, and she had conclusively established her inability to pay. See id. Thus, the county court abused its discretion by granting a new trial conditioned on Harris paying Caldwell's counsel $250 in attorney's fees. See Yates, 684 S.W.2d at 671.
Having concluded that the county court abused its discretion, we reverse the default judgment, vacate the order conditionally granting a new trial, and remand this case to the county court for a new trial.