Opinion
No. 10-17-00225-CV No. 10-17-00245-CV
10-18-2017
ULLJA KUNTZE, Appellant v. SANDRA COWAN AND WILLIAM E. FASON, Appellees And EX PARTE ULLJA KUNTZE
From the 21st District Court Burleson County, Texas
Trial Court No. 28,904
Original Proceeding
ORDER QUESTIONING COURT'S JURISDICTION IN AN ORIGINAL PROCEEDING AND STAYING APPEAL
OVERVIEW
This order relates to two proceedings, a direct appeal and an original proceeding. The direct appeal is Kuntze v. Cowan and Fason, 10-17-00225-CV, and the original proceeding is Ex parte Kuntze, 10-17-00245-CV (Kuntze 2). 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
In the direct appeal, appellant, Ullja Kuntze, appeals a trial court's dismissal of her suit. 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 original suit was filed on April 10, 2017. Kuntze filed an affidavit of indigence at the time she filed suit. Also on April 10, 2017, 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."
During the course of the trial court proceeding, both defendants filed motions to dismiss the claims against them pursuant to Rule 91a. See TEX. R. CIV. P. 91a (Dismissal of Baseless Causes of Action). The trial court signed two separate orders, one which granted the motion of each defendant, which dismissed all of Kuntze's claims 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. 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 a second affidavit of indigence, the first having been filed on the date the suit was filed.
The trial court coordinator sent a notice to the parties on July 25, 2017, setting this motion for hearing on July 31, 2017. But on July 25, 2017, in another proceeding, the trial court signed a written order that "finds and declares that Ullja Kuntze is not indigent."
This other proceeding was a collection suit by Cowan seeking the turnover of a house owned by Kuntze. The judgment in that proceeding ordered the turnover of the house, and Kuntze appealed that judgment. After she filed a notice of appeal and received the same type of filing-fee-due letter from the Clerk of this Court, Kuntze filed the same type of motion-to-determine-her-indigence in that trial court proceeding. That direct appeal is docketed as Kuntze v. Cowan, 10-17-00228-CV, and the original proceeding reviewing the trial court's ruling on the motion to determine indigence filed therein is docketed as Ex parte Kuntze, 10-17-00244-CV (Kuntze 1). However, in addition to filing the motion to determine indigence, Kuntze also filed a setting request. On the setting request, Kuntze marked "Ruling Without Hearing" for the type of setting requested. The trial court obliged and ruled on the motion within a few hours of it having been filed.
For a more complete discussion of the facts and orders related to these other proceedings see Kuntze v. Cowan and Ex parte Kuntze, Nos. 10-17-00228-CV and 10-17-00244-CV (Tex. App.—Waco Oct. 18, 2017, order).
After the trial court's ruling, which denied Kuntze's motion to be determined indigent in the other proceeding, Kuntze notified the court coordinator by email on July 26, 2017, that there was no need to have the live hearing on July 31, 2017. She suggested that if the trial court had already made up his mind about her status as not being indigent, she needed to know that ruling so that she could decide how to proceed; or if the trial court decided to reconsider that ruling, it would be helpful to her ability to appeal.
The trial court made a docket entry the same day as the email, July 26, 2017. The docket entry states: "Review of case & Ms. Kuntze's E Mail. Ms. Kuntze is not indigent." A copy of the docket entry appears to have been filed by the trial court clerk. On July 27, 2017, Kuntze filed a second notice of appeal which indicated her desire to appeal the July 26, 2017 docket entry in which the trial court determined 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, 10-17-00245-CV (Kuntze 2).
We will address at a future date the nature of this original proceeding.
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. As noted above, Kuntze filed an affidavit of indigence in the trial court proceeding at the time she filed suit and was determined to be indigent by the trial court on that very same date.
We have 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 refer herein 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 cost. TEX. R. CIV. P. 145(e). These changes to the rule suggest more than a change in semantics.
We also must note that Kuntze's notice of appeal of the dismissals did not comply with Rule 20.1 because it did not inform the Clerk of this Court that Kuntze had filed an affidavit related to her inability to pay court cost in the trial court and had been determined by the trial court to be indigent. See TEX. R. APP. P. 20.1(b)(1). Thus, the Clerk of this Court had no way to know that Kuntze had already been determined to be indigent and sent a letter informing Kuntze of the appellate court filing fees due for the direct appeal. Rather than filing with this Court an amended notice of appeal that complied with Rule 20.1, Kuntze filed the motion to be determined indigent in the trial court as mentioned above. The trial court then held an in-chambers hearing and made a docket entry of his ruling.
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
But first, because it appears we do not have a written order, only a docket entry, denying the motion which asserts Kuntze is unable to pay court cost, we must question our jurisdiction in the original proceeding, Ex parte Kuntze 2; 10-17-00245-CV. Without a written order to review the trial court's ruling on the issue of whether Kuntze has the financial ability to pay court cost, we question whether we have jurisdiction to consider the issues raised in this proceeding. See TEX. R. APP. P. 26.1. This is necessarily the first step because if we do not have jurisdiction in the original proceeding we must dismiss it.
Accordingly, pursuant to Rules 42.3 and 44.3 of the Texas Rules of Appellate Procedure, this case is subject to dismissal unless, within 14 days from the date of this Order, Kuntze files a response showing grounds for continuing the appeal. See TEX. R. APP. P. 42.3; 44.3. Cowan, Fason, the trial court judge, the trial court reporter, or the trial court clerk may also respond within the same time frame. See TEX. R. CIV. P. 145(f) (persons who may file motions to contest the declarant's statement). Additionally, the failure by Kuntze to respond at all as ordered will result in the dismissal of this proceeding without further notification for failure to comply with an Order from the Court. See TEX. R. APP. P. 42.3(c).
ORDER STAYING DIRECT APPEAL
Second, because we have determined Kuntze invoked our jurisdiction in the direct appeal, but because we cannot proceed to conduct our review of that proceeding without the record and appropriate briefing, and because the payment for preparation of the record will depend upon the disposition of the original proceeding, we will stay the direct appeal until we resolve the original proceeding.
Accordingly it is ORDERED that the direct appeal, Kuntze v. Cowan and Fason, 10-17-00225-CV, 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- 17-00445-CV (Kuntze 2). 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 to review the trial court's ruling which is the subject of the original proceeding, we will take the next step necessary in the original proceeding, which will be to obtain the record necessary to conduct that review.
It is so ordered.
PER CURIAM Before Chief Justice Gray, Justice Davis, and Justice Scoggins
Order issued and filed October 18, 2017