Karl L. Dahlstrom, et al. v. Brazos County, et al.--Appeal from 361st District Court of Brazos County

IN THE

TENTH COURT OF APPEALS

No. 10-97-004-CV

KARL L. DAHLSTROM, ET AL.,

Appellants

v.

BRAZOS COUNTY, ET AL.,

Appellees

From the 361st District Court

Brazos County, Texas

Trial Court # 43,470-361

MEMORANDUM OPINION

In a petition filed May 3, 1996, Brazos County and the City of Bryan sued Karl Dahlstrom for $3,146.23 in delinquent "taxes, penalties, and interest" that Dahlstrom allegedly owed for real property he owns in Brazos County. The Bryan Independent School District and the Brazos County Education District were impleaded in the lawsuit so that they could assert their claims, if any, to the monies Dahlstrom allegedly owed. On June 5, the Bryan Independent School District and the "Successor in Interest to the Brazos County Independent School District" filed an original plea in intervention and a cross-claim, contending that Dahlstrom owed them $6,958.64 in taxes, penalties, interest, and attorneys' fees from the property at issue. On August 8, the United States of America filed an answer to the original petition, admitting as was alleged that it possessed a tax lien on Dahlstrom's Brazos County property.

On November 8, 1996, the trial court signed a default judgment in the amount of $13,282.04 in favor of Brazos County, the City of Bryan, the Bryan Independent School District, and the Brazos County Education District. On December 6 Dahlstrom filed a pro se notice of appeal.

Perfection of an appeal is required to invoke our jurisdiction. Welch v. McDougal, 876 S.W.2d 218, 220-22 (Tex. App. Amarillo 1994, writ denied); El Paso Sharky's Billiard Parlor, Inc. v. Amparan, 831 S.W.2d 3, 5 (Tex. App. El Paso 1992, writ denied). Because Dahlstrom is not exempt from paying the costs on appeal, he is required to file either a cost bond, a cash deposit, or an affidavit of inability to pay costs to perfect this appeal. Tex. Civ. Prac. & Rem. Code Ann. 6.01-6.03 (Vernon 1986 & Supp. 1997); Tex. R. App. P. 40(a)(1), (a)(3); White v. Schiwetz, 793 S.W.2d 278, 279 (Tex. App. Corpus Christi 1990, no writ). A notice of appeal generally is not a proper instrument by which one may perfect an appeal. See id.

On January 2, 1997, we notified Dahlstrom by letter that his appeal did not appear to be properly perfected and that he would have fifteen days to show sufficient grounds for continuing the appeal. In a letter postmarked January 23, 1997, Dahlstrom enclosed what apparently is a photocopy of a receipt from the Brazos County District Clerk issued to Dahlstrom to represent that he paid a $1,000 cash deposit in lieu of appeal bond on January 23, 1997. On January 29 we informed Dahlstrom that his letter was insufficient to demonstrate that his appeal had been timely perfected. We have received no further correspondence from him.

Rule of Appellate Procedure 41(a)(1) provides, in relevant part, "When security for costs on appeal is required, the bond or affidavit in lieu thereof shall be filed with the clerk within thirty days after the judgment is signed, or, within ninety days after the judgment is signed if a timely motion for new trial has been filed by any party[.]" Tex. R. App. P. 41(a)(1). There is no indication in the record tendered to this court that Dahlstrom filed a motion for new trial or any other instrument that might have extended the appellate timetable. Dahlstrom's perfection instrument, pursuant to Rule 41(a)(1), was thus due on December 9, 1996.

We doubt whether we could consider the January 23, 1997, receipt that allegedly demonstrates that Dahlstrom paid a cash deposit in lieu of bond on that date. See Tex. R. App. P. 51(a) (indicating that the perfection instrument should be contained in the transcript). Nevertheless, assuming that we could consider the January 23 receipt, Dahlstrom's cash deposit in lieu of bond was filed over six weeks too late. Therefore, Dahlstrom's January 23 correspondence fails to demonstrate that his appeal was properly perfected. See id.; Davies v. Massey, 561 S.W.2d 799, 800 (Tex. 1978); El Paso Sharky's v. Amparan, 831 S.W.2d 3, 5 (Tex. App. El Paso 1992, writ denied); McDonald v. Newmyer, 775 S.W.2d 652, 653 (Tex. App. Houston [1st Dist.] 1989, writ denied).

Dahlstrom's notice of appeal filed on December 6 was filed within the thirty-day perfection period. As indicated above, however, a notice of appeal is an ineffective perfection instrument. But, because Dahlstrom's notice of appeal was a bona fide effort to invoke our jurisdiction, we have jurisdiction to allow him the opportunity to properly perfect his appeal. Linwood v. NCNB Texas, 885 S.W.2d 102, 103 (Tex. 1994). In our January 2 letter correspondence with Dahlstrom we informed him that his appeal did not appear to be perfected. See Tex. R. App. P. 60(a)(2). Apparently in response to this letter, Dahlstrom attempted to perfect his appeal by filing a cash deposit in lieu of bond on January 23.

Dahlstrom's efforts, however, were untimely. In our January 2 letter, we allowed him fifteen days to amend the record. Dahlstrom did not mail proof of his cash deposit in lieu of bond, again assuming that we could consider the January 23 receipt from the Brazos County District Clerk, until January 23, twenty-one days after our letter was sent. See Tex. R. Civ. P. 5. //

We notified Dahlstrom that the transcript did not demonstrate that his appeal had been duly perfected. Tex. R. App. P. 56(a), 60(a)(2). Even though given the opportunity to cure the defect, he has failed to properly perfect this appeal. Id. 40(a)(1), 83. Thus, the transcript does not show that this court has jurisdiction and "after notice it [has] not [been] amended." Id. 56(a).

Therefore, we dismiss this cause for want of jurisdiction. Id.

PER CURIAM

Before Chief Justice Davis,

Justice Cummings and

Justice Vance

Dismissed for want of jurisdiction

Opinion delivered and filed February 26, 1997

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