Opinion
No. 05-15-00237-CV
03-09-2016
JAY SANDON COOPER AND TERESA WARD COOPER, Appellants v. THE STATE OF TEXAS: COLLIN COUNTY DISTRICT ATTORNEY GREG WILLIS, CITY OF PLANO, TEXAS, THOMAS MUELENBECK, MARK ISRAELSON, BRUCE GLASSCOCK, SCOTT NEUMEYER, GREGORY RUSHIN, PETE GABRIEL, DOUGLAS ANGLE, RICHARD PEREZ, COURTNEY PERO, EARNEST OLDHAM, GLENN KALETTA, EDDIE DELEON, JOSEPH CLAGGETT, JENNIFER DAY, JAMAL MURRAY, PAUL MCNULTY, AND CHAD BEOUGHER, ALL INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES, Appellees
On Appeal from the 416th Judicial District Court Collin County, Texas
Trial Court Cause No. 416-00043-2014
MEMORANDUM OPINION
Before Justices Francis, Lang-Miers, and Myers
Opinion by Justice Francis
Jay Sandon Cooper and Teresa Ward Cooper, proceeding pro se, sued appellees and filed an affidavit of inability to pay costs. The trial court sustained the district clerk's contest to the affidavit and ordered appellants to pay the costs incurred to date or face dismissal. When appellants did not pay, the trial court dismissed their lawsuit.
In six issues, appellants generally argue (1) the district clerk's contest was void, (2) the trial court erred by denying their motion to show authority, and (3) the trial court erred in sustaining the contest and dismissing their lawsuit. Having reviewed the record, we conclude appellants' issues are without merit and affirm the trial court's order of dismissal.
Appellants sued Collin County District Attorney Greg Willis, the City of Plano, and various city officials and employees for malicious prosecution, conspiracy to commit malicious prosecution, and invasion of privacy. Appellants alleged appellees unlawfully prosecuted them for criminal code violations and unlawfully searched their vehicle and home. Along with their petition, appellants filed an affidavit of indigency under Texas Rule of Civil Procedure 145, asserting they were unable to pay court costs. That same day, the district clerk filed a motion to contest appellants' indigency and requested a hearing. An "Indigency Flow Sheet" showed the affidavit was reviewed, appellants' income was 194% of the federal poverty level, and appellants were determined "NOT ELIGIBLE" for indigency status.
Nine days later, attorney Robert J. Davis made an appearance in the case and notified appellants of the date of the contest hearing. At the hearing, Davis announced he was there on "behalf of the district clerk" and had been retained to represent the District Attorney, who had not yet been served. During Mrs. Cooper's testimony, the trial court learned of a potential bankruptcy issue and recessed the case until that issue could be resolved. The case ultimately resumed five months later after appellants' bankruptcy was dismissed. After both appellants testified, the trial court noted their "discretionary disposable income" was just under $500 a month. And, while the court said it did not believe appellants were "wealthy" or had "an abundance of discretionary income," it questioned why appellants could not afford $283 in court costs. As the court stated, "It's a question of whether or not you can afford to pay. In other words, could money be spent towards court costs instead of another choice that's being made."
The following day, the trial court signed an order sustaining the contest. In the order, the trial court found the contest was "timely filed and heard" and "should be sustained for the reason that [appellants] have failed to sustain their burden of proof of indigency as required by TEX. R. CIV. P. 145." Additionally, the trial court ordered that appellants could not proceed without paying all applicable costs and fees, ordered them to pay such costs, and gave them ten days to pay the costs incurred to date or the suit would be dismissed without further notice.
Appellants did not pay the costs. Instead, they appealed the interlocutory ruling to this Court, which dismissed the appeal for lack of jurisdiction. See Cooper v. State of Tex., No. 05-14-01054-CV, 2014 WL 5449055, at *1 (Tex. App.—Dallas Oct. 28, 2014, no pet.) (mem. op.) The case then returned to the trial court, where it was dismissed three weeks later for appellants' failure to pay costs. This appeal ensued.
We begin with appellants' issues regarding their rule 145 affidavit. Texas Rule of Civil Procedure 145 governs the procedures to establish a party's indigence in the trial court. TEX. R. APP. P. 145. The rule allows a party unable to afford costs to file an affidavit. A party "unable to afford costs" is defined as a person presently receiving a government entitlement based on indigency or any other person who has no ability to pay costs. TEX. R. CIV. P. 145(a). The affidavit must contain complete information as to the party's identity, nature and amount of governmental entitlement income, nature and amount of employment income, other income (interest, dividends, etc.), spouse's income if available to the party, property owned (other than homestead), cash or checking account, dependents, debts, and monthly expenses. TEX. R. APP. P. 145(b).
The rule permits the defendant or the clerk to contest the affidavit, provided it is not accompanied by an IOLTA certificate. TEX. R. CIV. P. 145(d). If the court finds at the first regular hearing in the course of the action that the party is able to afford costs, the party must pay the costs of the action. Id. Reasons for such a finding must be contained in an order. Id.
In their first issue, appellants argue rule 145 requires "the clerk" to file the contest, and because a deputy clerk signed the contest here, it is void. Appellants are incorrect. The district clerk may appoint deputy clerks who may perform, in the name of the district clerk, all official acts of the office of district clerk. See TEX. GOV'T CODE ANN. § 51.309(a) (West 2013). The Clerk's Motion to Contest Affidavit of Indigency was made by Andrea Stroh Thompson, District Clerk, and signed by a deputy district clerk. We conclude the deputy district clerk was authorized to sign the motion; therefore, the motion was effective to contest appellants' affidavit. We overrule the first issue.
In issues three through six, argued together, appellants challenge the trial court's ruling on the contest, the subsequent dismissal of their suit, and the exclusion of evidence.
We review a trial court's decision to sustain a contest to an affidavit of indigence for an abuse of discretion, asking whether the court's decision was arbitrary or unreasonable or made without reference to any guiding rules or principles. Few v. Few, 271 S.W.3d 341, 345 (Tex. App.—El Paso 2008, pet. denied). When the affidavit is contested, as here, the burden is on the applicant to prove indigence by a preponderance of the evidence. Higgins v. Randall Cty. Sheriff's Office, 257 S.W.3d 684, 686 (Tex. 2008). "The test for determining indigence is straightforward: 'Does the record as a whole show by a preponderance of the evidence that the applicant would be unable to pay the costs, or a part thereof, or give security therefor, if he really wanted to and made a good-faith effort to do so?'" Id. (quoting Pinchback v. Hockless, 139 Tex. 536, 539, 164 S.W.2d 19, 20 (1942)).
In their affidavit, appellants claimed monthly income of $2,508 and ownership of the following property: an undivided one-fourth interest in .96 acre of land in Caldwell County, valued at $250 with $76,736 in judgment liens; 5.12 acres in Lamar County owned by Mrs. Cooper, valued at $500; and a 2001 Dodge Ram 1500, valued at $500. They identified monthly expenses of $2,887, which included $400 for "copies, mail" and $284 for a Westlaw subscription. Although appellants listed amounts for rent or home-mortgage payment and property insurance, those amounts were not included in the total expenses because appellants were not making the payments. Appellants also acknowledged they are plaintiffs in several lawsuits in both state and federal courts, to the extent "the Court might consider lawsuits an 'asset.'"
At the initial hearing, Mrs. Cooper testified that on the date the suit was filed, she had $5 "on hand" and knew of no cash that her husband had. She said she had severe asthma and allergies but could not afford to go to her doctor or to pay for medicine. Nevertheless, she explained the affidavit's stated expense for "copies, mail" involved two lawsuits she and her husband are prosecuting, one suit for wrongful death and one appeal of her wrongful termination suit against the City of Dallas. She said the night before the hearing, they had spent "almost every penny" they had making copies and shipping documents. Mrs. Cooper also explained she and her husband maintain a Westlaw subscription because they do "tons of research" and cannot afford an attorney.
When the case resumed some six months later, Mrs. Cooper said her responses in her affidavit would be the same as when the affidavit was executed. On cross-examination, however, she acknowledged selling the 5.12 acres in Lamar County since filing the affidavit. Although Mrs. Cooper had valued the land at $500 in the affidavit, she testified she received $3,800 in cash for the land. She also said "every single penny is gone" and was used to pay bills. She acknowledged receiving an insurance payment of about $4,000, which was used to buy a vehicle to replace one that was totaled. Mrs. Cooper testified they were "flat broke" and said she had been unsuccessful in finding employment. At that point, the trial court noted the reason the contest was filed was because appellants' income level was "almost twice what the normal federal poverty guidelines would show." Mrs. Cooper responded that their bills "take every penny" they have. She said she could not afford medical insurance, a new car, or groceries. She also said their home, which was valued at more than $173,000, had been in a "continuous state of foreclosure" for the previous eight years. She concluded her testimony by saying she could not afford to pay the filing fees on the day she filed the petition in this case.
In his testimony, Cooper confirmed he and his wife spend on average $400 monthly on copies and postage for their various lawsuits, although he said the amount varies from month to month. Nevertheless, like his wife, he testified he could not afford to pay the filing fee on the day he filed his petition.
Considering appellants' testimony and the record as a whole, we conclude it does not show appellants "would be unable to pay the costs, or a part thereof, if [they] really wanted to and made a good-faith effort to do so." See Higgins, 257 S.W.3d at 686. Although appellants testified they could not pay for food, insurance, or medical expenses, they also admitted they have dedicated almost $700 a month to expenses for other lawsuits. As the trial court noted, if appellants took out three items listed as expenses in their affidavit — $400 for copies and mail, $284 for a Westlaw subscription, and a $100 to the bankruptcy trustee (a payment no longer required since the bankruptcy has been dismissed) — appellants have discretionary income of just under $500. We conclude the trial court did not abuse its discretion in sustaining the contest.
In reaching this conclusion, we reject appellants' argument that because they were allowed to prosecute this appeal without paying costs under Texas Rule of Appellate Procedure 20.1, "the law of the case" requires us to likewise allow them to proceed in the trial court without paying costs.
Absent certain circumstances not relevant here, indigency is determined independently in the appellate court and the trial court. See TEX. R. APP. P. 20.1(c) (explaining that prior filing of affidavit in trial court under rule 145 does not meet requirements of rule 20.1). Consequently, an indigency determination in one forum is not determinative in another forum.
Moreover, the law of the case applies only to questions of law and does not apply to questions of fact. Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986). Whether appellants are indigent is a fact question, not a question of law; consequently, law of the case does not apply to the circumstances presented here. Finally, there was no merits-based determination of appellants' indigency on appeal; rather, our order allowing appellants to proceed without paying costs was based on procedural default, that is, the trial court's failure to timely conduct a hearing, sign an order extending the time to conduct a hearing, or sign an order sustaining the contest as required by rule 20.1 of the Texas Rules of Appellate Procedure, rendering the allegations in appellants' affidavit "deemed true." See TEX. R. APP. P. 20.1. This argument is therefore without merit.
Appellants next assert the trial court failed to set out specific findings in the order sustaining the contest. Nothing in the language of rule 145 requires a trial court to make specific factual findings when it finds a party is able to afford costs. Rather, the rule requires that "[r]easons for such a finding must be contained in an order." TEX. R. APP. P. 145(d). In its order, the trial court specifically found appellants' affidavit was "timely filed and heard" and "should be sustained for the reason that [appellants] have failed to sustain their burden of proof of indigency" required by rule 145. Consequently, the trial court provided its reason for sustaining the contest, which is all that is required by the rule.
Appellants also complain rule 145 does not provide for dismissal of a cause for nonpayment of fees. They argue the rule allows only one of two actions after a contest is sustained: "proceed on appeal, or proceed with the case upon leave of court" and allow deduction of costs from any judgment obtained by the affiant or assign costs to another party.
Rule 145 provides:
Except with leave of court, no further steps in the action will be taken by a party who is found able to afford costs until payment is made. If the party's action results in monetary award, and the court finds sufficient monetary award to reimburse costs, the party must pay the costs of the action. If the court finds that another party to the suit can pay the costs of the action, the other party must pay the costs of the action.TEX. R. CIV. P. 145.
Contrary to appellants' interpretation of rule 145, the plain language of the rule says nothing about proceeding on appeal after a contest is sustained. It does, however, prohibit appellants from going forward with their suit without leave of court. Here, the trial court did not grant such leave; rather, following a hearing at which appellants were afforded the opportunity to develop evidence to show they were unable to afford costs, the trial court sustained the contest and ordered appellants to pay the costs incurred within ten days or the case would be dismissed without further notice. Appellants did not pay. We conclude the trial court did not abuse its discretion by dismissing the case for failure to pay costs. See Ringer v. Kimball, 274 S.W.3d 865, 867 (Tex. App.—Fort Worth 2008, no pet.) (explaining trial court has authority to dismiss case under inherent power to maintain and control docket when plaintiff fails to prosecute case with due diligence).
Finally, appellants complain the trial court abused its discretion by preventing them from adducing Davis's testimony to show "the contest of their indigency was frivolous, and amounted to the county paying an attorney thousands of dollars to obtain a $283 filing fee."
We review a trial court's decision to exclude evidence for an abuse of discretion. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000); Carbonara v. Tex. Stadium Corp., 244 S.W.3d 651, 655 (Tex. App.—Dallas 2008, no pet.). We must uphold the court's evidentiary ruling if there is any legitimate basis for it. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998); Carbonara, 244 S.W.3d at 655. Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. TEX. R. EVID. 401.
The issue at the contest hearing was whether appellants were able to afford costs, not how much the county was paying to contest the affidavit. Thus, we conclude the evidence was irrelevant to the issue before the court. We overrule issues three through six.
In their second issue, appellants argue the trial court erred by denying their motion to show authority, which was directed at Davis's authority to represent the district clerk at the contest hearing. They claim only the Collin County Criminal District Attorney, a named defendant in this lawsuit, was statutorily authorized to represent the clerk at the contest hearing. As legal authority, appellants generally set out a portion of government code section 44.143, which addresses the duties of the Collin County Criminal District Attorney, and a second statute (government code section 45.201) regarding the duties of a county attorney in Harris County. They then conclude, without any substantive analysis, that representing the district clerk is a "primary duty" of the DA to be "carried out without any additional fee or compensation other than that paid by the County." Appellants fail to acknowledge or address the implied power of a commissioners court to hire outside counsel to assist it or other officials carrying out their responsibilities so long as it does not infringe on the statutory duties of other officials. See Guynes v. Galveston Cty., 861 S.W.2d 861, 863 (Tex. 1993) (explaining commissioners court has implied powers to accomplish "legitimate directives" and one such power is contracting with attorneys).
Texas Rule of Appellate Procedure 38.1(i) requires an appellant's brief to contain a clear and concise argument for the contentions made with appropriate citations to authorities and to the record. TEX. R. APP. P. 38.1(i). Because appellant have offered no substantive analysis to support their issue, we conclude the issue is inadequately briefed. We overrule the second issue. We affirm the trial court's order dismissing appellants' suit.
/Molly Francis/
MOLLY FRANCIS
JUSTICE
150237F.P05
JUDGMENT
On Appeal from the 416th Judicial District Court, Collin County, Texas
Trial Court Cause No. 416-00043-2014.
Opinion delivered by Justice Francis; Justices Lang-Miers and Myers participating.
In accordance with this Court's opinion of this date, the trial court's order of dismissal is AFFIRMED.
It is ORDERED that appellees THE STATE OF TEXAS: COLLIN COUNTY DISTRICT ATTORNEY GREG WILLIS, CITY OF PLANO, TEXAS, THOMAS MUELENBECK, MARK ISRAELSON, BRUCE GLASSCOCK, SCOTT NEUMEYER, GREGORY RUSHIN, PETE GABRIEL, DOUGLAS ANGLE, RICHARD PEREZ, COURTNEY PERO, EARNEST OLDHAM, GLENN KALETTA, EDDIE DELEON, JOSEPH CLAGGETT, JENNIFER DAY, JAMAL MURPHY, PAUL MCNULTY, AND CHAD BEOUGHER, ALL INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES, recover their costs of this appeal from appellants JAY SANDON COOPER AND TERESA WARD COOPER. Judgment entered March 9, 2016.