Opinion
No. 04-04-00615-CV
Delivered and Filed: June 22, 2005.
Appeal from the County Court at Law No. 3, Bexar County, Texas, Trial Court No. 293806, Honorable David Rodriguez, Judge Presiding.
Affirmed.
Sitting: Karen ANGELINI, Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
This is an appeal from an order of dismissal entered in county court for failure to file a proper appeal bond in an appeal from the justice court. We affirm the judgment of the trial court.
Factual and Procedural Background
12811 El Sendero Trust #0415022 ("the trust") filed a complaint for forcible detainer against Michael James Heldt in the justice court. The justice court granted summary judgment in favor of the trust in the amount of $3,300 plus $1,000 in attorney's fees. Heldt appealed to the county court. Heldt filed an appeal bond, attempting to comply with Texas Rule of Civil Procedure 571. On July 12, 2004, the trust filed a motion to dismiss, contending that Heldt's bond was insufficient in that it "is not made payable to [the trust] and is in the amount of $4300.00 which is less than the statutory amount required." The docket sheet in the clerk's record contains a notation that the motion to dismiss was heard on July 16, 2004, and that the trial court gave Heldt five days to file another bond in the amount of $10,000. No formal written order, however, was entered. On August 4, 2004, the trust filed a second motion to dismiss, contending that although the trial court had ordered Heldt to file another bond within five days of the July 16, 2004 hearing, Heldt had not complied. Indeed, the record indicates that Heldt had not filed another bond. A second hearing was held on August 12, 2004, and the trial court entered an order dismissing the cause with prejudice.
Rule 571 provides in pertinent part:
The party appealing . . . shall within ten days from the date a judgment or order overruling motion for new trial is signed, file with the justice a bond, with two or more good and sufficient sureties, to be approved by the justice, in double the amount of the judgment, payable to the appellee, conditioned that appellant shall prosecute his appeal to effect, and shall pay off and satisfy the judgment which may be rendered against him on appeal. . . . The appeal shall not be dismissed for defects or irregularities in procedure, either of form or substance, without allowing appellant five days after notice within which to correct or amend same.
Tex. R. Civ. P. 571.
Discussion
Heldt brings four issues on appeal. His first two issues address the merits of the underlying case; however, because this case was dismissed due to an insufficient bond under Rule 571, the merits of the case are not before us on appeal.
Heldt's third and fourth issues address dismissal for insufficiency of the bond. First, Heldt contends that the notice of defects or irregularities in procedure required by Rule 571 must be in a written order. Heldt cites no authority for this argument nor have we found any. Rule 571 provides that an "appeal shall not be dismissed for defects or irregularities in procedure, either of form or substance, without allowing appellant five days after notice within which to correct or amend same." Tex. R. Civ. P. 571. Thus, the rule only requires notice, but does not prescribe how that notice is to be given. At the earliest, Heldt received notice that his bond was insufficient when the trust filed the first motion to dismiss on July 12, 2004. He also received notice at the first dismissal hearing when the trial court orally ordered Heldt to post another bond and when the second motion to dismiss was filed. Despite having more than five days to post a proper bond, he failed to do so. Therefore, the trial court did not err in dismissing the appeal due to an insufficient bond.
Secondly, Heldt contends that he was excused from filing another bond because the trial court ordered a bond in the amount of $10,000 which exceeds the amount required by Rule 571. Indeed, Rule 571 requires a bond "in double the amount of the judgment." Tex. R. Civ. P. 571. The justice court judgment in this case was in the amount of $3,300 plus $1,000 for attorney's fees. Thus, double the amount of the judgment is $8,600. Regardless of the trial court's order, however, Heldt initially failed to file an adequate bond, he received notice that his bond was insufficient, and he still failed to correct the inadequacy. He can not complain of the trial court's order when he did nothing to attempt to file a sufficient bond. Under these circumstances, the trial court did not err in granting the motion to dismiss, and we overrule Heldt's issues on appeal.
The trust's motion to dismiss was also based on Heldt's failure to make the bond payable to the trust as required by Rule 571. Heldt never addressed this inadequacy in the trial court or on appeal.
In its cross-issue, the trust requests $5,000 in attorney's fees for having to defend a frivolous appeal. Texas Rule of Appellate Procedure 45 allows an appellate court, after a determination that an appeal is frivolous, to award the prevailing party "just damages." Tex.R.App.P. 45. Courts have typically awarded attorney's fees as proven by testimony or affidavit. See, e.g., Smith v. Marshal B. Brown, P.C., 51 S.W.3d 376, 382 (Tex.App.-Houston [1st Dist.] 2001, pet denied) (awarding appellees $5,000 in attorney's fees which were proven by affidavit); Mid-Continent Cas. Co. v. Safe Tire Disposal Corp., 2 S.W.3d 393, 397 (Tex.App.-San Antonio 1999, no pet.) (awarding appellee $5,000 in attorney's fees that it proved it would incur if an appeal were filed); Tex. State Taekwondo Ass'n v. Lone Star State Taekwondo Ass'n, No. 08-01-00403-CV, 2002 WL 1874852, at *3 (Tex.App.-El Paso 2002, no pet.) (not designated for publication) (noting that although Rule 45 does not provide method for proving damages in appellate court, proof by affidavit is proper to establish amount of attorney's fees). Although the trust has requested $5,000 in attorney's fees, it has not included proof by way of affidavit or any other manner. We decline to award attorney's fees based on unsworn statements in a brief. We overrule the trust's cross-issue.
Conclusion
We overrule Heldt's issues on appeal, overrule the trust's cross-issue, and affirm the trial court's judgment.