Opinion
NO. 14-17-00384-CV
01-23-2018
MIDTOWN PARK DEVELOPMENT LTD, PAUL T. YOUNG AND HORIZON 2003, LLC, Appellants v. LOUIS F. GOZA, Appellee
On Appeal from the 212th District Court Galveston County, Texas
Trial Court Cause No. 14-CV-0010
ORDER
This is an appeal from a judgment signed February 6, 2017. On May 10, 2017, appellant filed Statement of Inability to Afford Payment of Court Costs or an Appeal Bond (Statement of Inability) on the form approved by the Supreme Court. See Tex. R. Civ. P. 145(b). On July 25, 2017, Jennifer Hall, the official court reporter for the 212th District Court filed a contest. See Tex. R. Civ. P. 145(f)(3). On December 1, 2017, after a hearing, the trial court signed an order sustaining the contest and issued findings of fact and conclusions of law. See Tex. R. Civ. P. 145(f)(6), (7).
After timely requesting and receiving an extension of time, appellant filed a motion with this court requesting that we review the trial court's order sustaining the contest to his affidavit of indigence on December 27, 2017. See Tex. R. Civ. P. 145(g).
When a contest is sustained and a review of the ruling is sought, the question is whether an examination of the record as a whole establishes that the trial court abused its discretion. See Jones v. Duggan, 943 S.W.2d 90, 93 (Tex. App.—Houston [1st Dist.] 1997, orig. proceeding). In ruling on the merits of the evidence at the trial court level, the test for determining entitlement to proceed in forma pauperis is whether the preponderance of the evidence shows that the appellant would be unable to pay the costs of appeal, if he really wanted to and made a good faith effort to do so. See Higgins v. Randall County Sheriff's Office, 257 S.W.3d 684, 686 (Tex. 2008).
The burden of proof at the hearing on the contest to the affidavit is on the declarant. See Tex. R. Civ. P. 145(f)(5). During the hearing, appellant testified he owns a 2003 Ford Truck which is not in good condition. On his Statement of Inability, appellant valued the truck at $4,000. He testified he owns a home, which is not paid for, and is in foreclosure proceedings. When asked about any jewelry appellant owns, he testified he owns a watch.
Appellant testified he does not work due to a workplace injury in 1994. He stated he has been under workers compensation in New Jersey. Appellant stated he is not currently receiving workers benefits but had received sporadic benefit payments in the late 1990's into the early 2000's and again in 2009. Appellant stated he has no income and lives at the benevolence of his brother and his family. He stated his family gives him "whatever money he needs to pay whatever bills." Appellant testified he hired two separate lawyers for different proceedings related to the foreclosure. On his Statement of Inability he included amounts owed to the two lawyers as debts. The trial court took judicial notice of its file which includes appellant's Statement of Inability.
We find the trial court abused its discretion in denying appellant's request to proceed without the advance payment of costs. Therefore, appellant is declared indigent for purposes of appeal and the record will be provided without prepayment of costs. See Tex. R. Civ. P. 145(c). Accordingly, we issue the following order.
Jennifer Hall, official court reporter for the 212th District Court is ordered to file a complete reporter's record in this appeal on or before February 22, 2018. Appellants' briefs will be due 30 days after the complete record has been filed. See Tex. R. App. P. 38.6(a).
PER CURIAM Panel consists of Justices Christopher, Donovan, and Jewell.