Opinion
No. 10-17-00228-CV No. 10-17-00244-CV
10-18-2017
ULLJA KUNTZE, Appellant v. SANDRA COWAN, Appellee And EX PARTE ULLJA KUNTZE
From the 21st District Court Burleson County, Texas
Trial Court No. 26,129
Original Proceeding
ORDER QUESTIONING COURT'S JURISDICTION IN APPEAL AND STAYING ORIGINAL PROCEEDING
OVERVIEW
This order relates to two proceedings, a direct appeal and an original proceeding. The direct appeal is Kuntze v. Cowan, 10-17-00228-CV, and the original proceeding is Ex parte Kuntze, 10-17-00244-CV (Kuntze 1). We find it necessary to set out some of the procedural history of these proceedings and two other proceedings which involve some of the same parties. This is necessary to understand the complexity of the issues and that there will be multiple steps in the process of resolving these proceedings. This is also necessary because it is important to be clear about and understand the procedural differences between the two different sets of proceedings.
BACKGROUND
Cowan sued Kuntze in an effort to collect on a judgment that, based on the information currently before us, is in excess of $1,000,000. The trial court rendered a judgment in favor of Cowan, ordering Kuntze to turnover a home to Cowan. In this appeal, Kuntze appeals the trial court's turnover order. The original proceeding is a motion filed pursuant to Rule 145(g) of the Texas Rules of Civil Procedure regarding the determination by the trial court as to whether Kuntze could afford to pay court cost. TEX. R. CIV. P. 145(g).
The turnover order was signed on March 27, 2017. A motion for rehearing was filed. Kuntze's notice of appeal was filed on June 29, 2017. The trial court clerk forwarded the notice of appeal to this Court and the direct appeal was docketed as Kuntze v. Cowan, 10-17-00228-CV. When the notice of appeal was filed in this Court without the payment of fees, a standard letter addressing the unpaid filing fees was sent to Kuntze by this Court's Clerk.
In response to the letter from the Clerk of this Court regarding the unpaid filing fees, Kuntze filed a document entitled "Defendant's Motion for Declaration of Indigency" on July 25, 2017 in the district court proceeding. Attached to the motion was an affidavit of indigence. In addition to filing the motion to determine indigence, Kuntze also filed a setting request. On the setting request, Kuntze marked "Ruling Without Hearing" as the type of setting requested. The trial court obliged and ruled on the motion within a few hours of it having been filed.
The Court's order "finds and declares that Ullja Kuntze is not indigent." The trial court's order was signed on July 25, 2017. On July 27, 2017, Kuntze filed a second notice of appeal which indicated her desire to appeal the July 25, 2017 determination that she was not indigent. The next day, on July 28, 2017, Kuntze presented "Appellant Ullja Kuntze's Motion to Challenge Trial Court Order and Motion to Stay and Motion for Sanctions" to the Clerk of this Court. It was filed as an original proceeding. Ex parte Kuntze, 10-17-00244-CV (Kuntze 1).
We will address at a future date the nature of this original proceeding.
THE OTHER PROCEEDINGS
In another proceeding involving some of the same parties, a different procedural posture developed. In that proceeding, Kuntze sued Cowan and William E. Fason. At the time the suit was filed, on April 10, 2017, Kuntze also filed an affidavit of indigence and the trial court signed an order, which stated: "It is hereby declared that Ullja Kuntze is indigent. Filing court fees are waived for Ullja Kuntze for the above styled case." That trial court proceeding was dismissed on June 26, 2017. Kuntze's notice of appeal was filed on June 29, 2017. The trial court clerk forwarded the notice of appeal to this Court and the direct appeal was docketed as Kuntze v. Cowan and Fason, 10-17-00225-CV. In Kuntze v. Cowan and Fason the Clerk of this Court sent a filing-fee-due letter. Kuntze responded by filing a motion to determine her indigence in the trial court. Attached to the motion was a second affidavit of indigence, the first having been filed on the date the suit was filed.
Ultimately, rather than a formal order, the trial court made only a docket entry which states: "Review of case & Ms. Kuntze's E Mail. Ms. Kuntze is not indigent." Kuntze filed a second notice of appeal identifying that determination as what she wanted to appeal. Kuntze then presented "Appellant Ullja Kuntze's Motion to Challenge Trial Court Order and Motion to Stay and Motion for Sanctions" to the Clerk of this Court. It was filed as an original proceeding. Ex parte Kuntze, 10-17-00245-CV (Kuntze 2).
For a more complete discussion of the facts and orders related to these other proceedings see Kuntze v. Cowan and Fason and Ex parte Kuntze, Nos. 10-17-00225-CV and 10-17-00245-CV (Tex. App.—Waco Oct. 18, 2017, order).
THE RULES
Our first task will be to sort out what we have, what lies ahead, and how to proceed in a timely and efficient manner in these two proceedings, one being the direct appeal and the other being the original proceeding. To do this, we must primarily review two rules of procedure and determine how they should be applied in these proceedings. The rules are Texas Rule of Civil Procedure 145 and Texas Rule of Appellate Procedure 20.1. Both of these rules have been rewritten relatively recently and there is very little case law to provide the parties and this Court guidance.
The "General Rule" of the current version of Rule 145 provides:
(a) General Rule. A party who files a Statement of Inability to Afford Payment of Court Costs cannot be required to pay costs except by order of the court as provided by this rule. After the Statement is filed, the clerk must docket the case, issue citation, and provide any other service that is ordinarily provided to a party. The Statement must either be sworn to before a notary or made under penalty of perjury. In this rule, "declarant" means the party filing the Statement.TEX. R. CIV. P. 145(a).
It will be noted that, based upon the services mentioned, such as docketing the case and issuing citation, the second sentence of the rule seems to contemplate that this declaration would be filed at, or soon after, the time the case is initiated in the trial court. The rule does not specifically address the procedure or timing that a defendant, such as Kuntze in this proceedings, is to utilize in the event of an adverse judgment which the defendant seeks to appeal.
In the BACKGROUND section above we used the term "affidavit of indigence" because that is the title of the document Kuntze signed and filed. But the rule refers to the document as a "Statement of Inability to Afford Payment of Court Cost." The Supreme Court of Texas was required by the amended rule to promulgate the form to be used. See TEX. R. CIV. P. 145(b). But only very limited defects in a form that is actually used by a party will allow a trial court clerk to refuse to file the form. TEX. R. CIV. P. 145(d). Moreover, while we may refer to a "determination of indigence," this is technically a misnomer under the amended rule. Pursuant to the rule, the "declarant" is the person filing the Statement, TEX. R. CIV. P. 145(a), and the issue is not whether the person is "indigent," as courts have historically determined, but rather the issue is whether the "declarant" cannot afford to pay court cost. TEX. R. CIV. P. 145(e). These changes to the rule suggest more than a change in semantics.
DISCUSSION
The procedure used by the parties and the trial court is not the procedure described by the applicable rules. But because Rule 145 is the only rule to address how a party may proceed in the trial court, and to some extent on appeal, without the payment of trial court cost, which is defined to include the cost of the appellate record, see TEX. R. CIV. P. 145(c), we must use Rule 145 and apply it in this circumstance. Additionally, as Rule 20.1 is the rule that provides the procedure regarding whether a person will be required to pay filing fees for civil appeals, it is the rule that we must use to resolve that question, as and when the time comes for that determination. See TEX. R. APP. P. 20.1.
QUESTION OUR JURISDICTION
However, in this case, we must first question whether we have jurisdiction in the direct appeal of the turnover order. We do this first because if we do not have jurisdiction to review the judgment on the merits, the original proceeding challenging the trial court's ruling on the determination of inability to pay court cost will be moot.
Accordingly, pursuant to Rules 42.3 and 44.3 of the Texas Rules of Appellate Procedure, this case is subject to dismissal because it appears that the notice of appeal is untimely. See TEX. R. APP. P. 26.1. The judgment about which Kuntze complains was signed on March 27, 2017. It appears from the documents before us that a motion for new trial was timely filed. Thus, Kuntze's notice of appeal was due by June 26, 2017. See TEX. R. APP. P. 26.1(a). It was not filed until June 29, 2017.
A motion for extension of time to file the notice of appeal is necessarily implied if the notice of appeal is filed within 15 days of the date the notice is due; but Kuntze must still supply a reasonable explanation for the late filing of the notice of appeal. See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). Therefore, the Court will dismiss this appeal unless, within 14 days from the date of this Order, a response from Kuntze is filed showing grounds for continuing the appeal. Failure to respond as requested will also result in the dismissal of this appeal without further notification for failure to comply with this Order from the Court. TEX. R. APP. P. 42.3(c). Cowan may also respond within the same time frame.
ORDER STAYING ORIGINAL PROCEEDING
Second, because we have determined Kuntze invoked our jurisdiction in the original proceeding by filing the motion to review the trial court's determination of her ability to pay court cost, but because we cannot proceed to conduct our review in that original proceeding without jurisdiction of the direct appeal, we will stay the original proceeding until we resolve the jurisdictional issue in the direct appeal.
Accordingly it is ORDERED that the original proceeding, Ex parte Kuntze, 10-17-00244-CV (Kuntze 1), is hereby STAYED until further order of this Court.
ORDER REGARDING NON-PAYMENT OF APPELLATE COURT COST IN ORIGINAL PROCEEDING
It is further ORDERED that pursuant to Rule 145(g)(1), Kuntze, the declarant, is not required to pay any filing fees related to the original proceeding, Ex parte Kuntze, 10-17-00244-CV (Kuntze 1). See TEX. R. CIV. P. 145(g)(1) ("The declarant is not required to pay any filing fees related to the motion in the court of appeals.").
FUTURE STEPS
If it is determined that we have jurisdiction of the direct appeal, we will take the next step necessary in the original proceeding, which will be to obtain the record necessary to conduct that review and, if necessary, stay the direct appeal until review of the original proceeding is completed.
It is so ordered.
PER CURIAM Before Chief Justice Gray, Justice Davis, and Justice Scoggins
Order issued and filed October 18, 2017