Opinion
No. 05-11-01378-CV
05-16-2012
MICHAEL COYNE, Appellant v. ALLSTATE INSURANCE CO., ET AL., Appellee
AFFIRM and Opinion Filed May 16, 2012
On Appeal from the County Court at Law No. 2
Dallas County, Texas
Trial Court Cause No. CC-09-06609-B
MEMORANDUM OPINION
Before Chief Justice Wright and Justices Francis and Lang-Miers
Opinion By Chief Justice Wright
Before the Court is the motion of appellant Michael Coyne requesting appellate review of the trial court's order sustaining the contest to his affidavit of indigence. The trial court held a hearing on the contest and signed an order sustaining the contest on April 5, 2012. In reviewing a trial court's order sustaining a contest to an affidavit of indigence, our task is to determine whether the court abused its discretion. See Jackson v. Tex. Bd. of Pardons & Paroles, 178 S.W.3d 272, 275 (Tex.App.-Houston [1st Dist.] 2005, no pet.). The trial court abuses its discretion when it acts without reference to any guiding rules or principles; the facts and law permit only one decision, which is the opposite of the trial court's decision; and the trial court's ruling is so arbitrary and unreasonable as to be clearly wrong. Arevalo v. Millan, 983 S.W.2d 803, 804 (Tex.App.-Houston [1st Dist.] 1998, no pet.) (en banc). As the fact-finder, the trial court is the sole judge of the credibility of the witnesses and evidence. See Prince v. American Bank of Texas, 359 S.W.3d 380, 382 (Tex. App.-Dallas 2012, no pet.). The test for indigence is whether the appellant shows by a preponderance of the evidence that he would be unable to pay the costs of appeal if he “really wanted to and made a good faith effort [to] do so.” Arevalo, 983 S.W.2d at 804 (quoting Allred v. Lowry, 597 S.W.2d 353, 355 (Tex.1980)). A trial court can consider a number of factors when determining the validity of a challenge to an affidavit of indigence. Some of these factors include whether the litigant is dependent upon public charity afforded through various welfare programs, Goffney v. Lowry, 554 S.W.2d 157 at 159- 60 (Tex.1977); the litigant's credit rating, Pinchback v. Hockless, 139 Tex. 536, 164 S.W.2d 19 at 19 (1942); the value of the litigant's claim and whether it could afford the basis for security of a loan, Wallgren v. Martin, 700 S.W.2d 28, 30 (Tex.App.-Dallas 1985, orig. proceeding); the litigant's employment history, Goffney, 554 S.W.2d at 160; and that the litigant cannot secure a bona fide loan to pay the costs, Pinchback, 164 S.W.2d at 20. In his affidavit, appellant stated that he is single, unemployed, and does not receive any government assistance. He owns no property. He stated that he had $14.72 in a checking account and that he owed American Express approximately $2,780. Appellant did not list any expenses.
At the hearing on the contest, appellant testified similarly to what is stated in his affidavit. He said the person he lives with in California pays all the bills. He does not receive any public assistance or unemployment benefits. His debt to American Express had increased to over $3,000. He stated that he has maxed out that credit card. Appellant testified that each time he has come to Dallas for this case, his second cousin has purchased a plane ticket for him. He says family and friends cannot afford to help him anymore. Appellant did not provide any information about his employment history or any efforts on his part to obtain a job. He did not testify that he had made any attempt to obtain a loan to cover the costs of the appeal. Under the circumstances outlined above, we conclude the record does not show a good faith effort on appellant's part to pay for the record. We conclude the trial court did not abuse its discretion in sustaining the contest to appellant's affidavit of indigence. Accordingly, we affirm the trial court's order.
CAROLYN WRIGHT
CHIEF JUSTICE
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