Opinion
NO. 14-15-00386-CV
01-21-2016
RONKE OLLEY AND JEFF OLLEY, Appellant v. VALPLACE HOUSTON I-10 WEST TEXAS LP, COMMONLY KNOWN AS VALUE PLACE HOTEL, Appellee
On Appeal from the 190th District Court Harris County, Texas
Trial Court Cause No. 2014-29959
SUPPLEMENTAL ORDER
This order supplements our order of January 11, 2016, denying appellants' motion challenging the trial court's order sustaining a challenge to their affidavit of indigence.
Appellants applied to the trial court to proceed as indigent in this appeal. See Tex. R. App. P. 20.1(a)(2). The Harris County District Clerk ("the County") filed a contest to their affidavit regarding indigence. See Tex. R. App. P. 20.1(e)(1). After an oral hearing, the trial court sustained the contest. Appellants timely filed a motion in this court challenging the trial court's order sustaining the contest. See Tex. R. App. P. 20.1(j).
PROCEDURAL BACKGROUND
This is the second time appellants have challenged an order by the trial court sustaining a contest to their affidavit of indigence. They first filed a motion challenging the trial court's indigence ruling in May 2015. On May 29, we denied their motion because their affidavit did not contain all facts required under Tex. R. App. P. 20.1(b). They filed a motion for rehearing, to which they attached an amended affidavit of indigence. We denied their motion for rehearing but referred the amended affidavit to the trial court. We later abated the appeal to afford appellants the opportunity to cure their amended affidavit within fifteen days. See Tex. R. App. P. 20.1(c)(3). The proceedings in the trial court during the abatement period are the subject of appellant's current motion.
Appellants filed second and third amended affidavits signed by Jeff Olley ("Jeff") on December 4 and 7, respectively. They did not file any affidavit signed by Ronke Olley ("Ronke"). The County filed a contest to Jeff's affidavits on December 9.
The trial court held an oral hearing on the district clerk's contest on Friday, December 18. The County and Ronke, acting pro se, appeared at the hearing. Jeff did not appear. According to Ronke, Jeff was working. The County objected to Jeff's absence and moved to dismiss, which the trial court denied. The County requested the opportunity to cross examine Jeff. Ronke said Jeff would be working during the morning of December 21 but would attend a hearing in the afternoon. In open court after the December 18 hearing began, the trial court ordered the hearing to continue on December 21 so Jeff could appear.
The County and Jeff, acting pro se, both appeared for the December 21 hearing. Jeff testified.
Following the hearing, the trial court signed an order sustaining the contest to Jeff's affidavit, detailing the reasons for that ruling. The trial court issued no ruling regarding Ronke because she filed no affidavit of indigence.
On January 5, 2016, the trial court signed an amended order. That order was filed in this court as part of a third supplemental clerk's record on January 11, 2016. Rule 20.1 does not provide for amendment of the order after a motion challenging the order has been filed. See Tex. R. App. P. 20.1(i). Therefore, we do not consider the amended order.
ANALYSIS
I. Legal Standards
When a contest is sustained and a review of the ruling is sought, the question is whether an examination of the record 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 Griffin Indus. v. Thirteenth Court of Appeals, 934 S.W.2d 349, 351 (Tex. 1996); Pinchback v. Hockless, 164 S.W.2d 19, 20 (Tex. 1942). To show a clear abuse of discretion, the appellant must show that, under the circumstances of the case, the facts and law permit the trial court to make but one decision. See Cronen v. Smith, 812 S.W.2d 69, 70 (Tex. App.—Houston [1st Dist.] 1991, orig. proceeding).
The court reporter did not file a record of the indigence hearing. See Tex. R. App. P. 20.1(j)(3) (stating that the court reporter, without charge, "must prepare, certify, and file . . . the reporter's record of the indigence hearing, if any, and the hearing on the contest"). Jeff does not argue that (a) he is unable to present his appeal without a transcript therefrom; or (b) his motion should be granted simply because there is no reporter's record on file. Nevertheless, our dissenting colleague would grant Jeff's motion because there is no reporter's record on file. The plain "if any" language of Rule 20 contemplates that there may not be a record of the indigence hearing. And, we note by contrast that nothing in the plain language of the rule suggests that the indigence facts are deemed true in the absence of a reporter's record though the Rule contemplates the deeming of facts for other procedural failings. See e.g. Tex. R. App. P. 20(i)(4) (noting that unless the trial court timely signs an order sustaining the contest, "the affidavit's allegations will be deemed true . . ."). We therefore conclude that the absence of a reporter's record does not deem the indigence facts true. Further, where, as here, the complaints by appellant are purely procedural, we should not adopt an interpretation of Rule 20 that requires granting a motion simply because there is no reporter's record on file.
The burden of proof on the contest to the affidavit is on the party claiming indigence. See Tex. R. App. P. 20.1(g). Rule 20.1(b) identifies 12 types of information required in an affidavit of indigence: (1) nature and amount of the party's income; (2) income of the party's spouse; (3) real and personal property owned; (4) cash the party holds and amounts he may withdraw; (5) other assets; (6) number and relationship of dependents; (7) nature and amount of debts; (8) nature and amount of monthly expenses; (9) the party's ability to obtain a loan for court costs; (10) whether an attorney is providing free legal services to the party without a contingent fee; (11) whether an attorney has agreed to pay or advance court costs; and (12) where applicable, the party's lack of skill or access to equipment to prepare the appendix on appeal. See Tex. R. App. P. 20.1(b)(1)-(12).
II. Appellants Did Not Show an Abuse of Discretion
A. Ronke did not file an affidavit of indigence
Appellants suggest Ronke "joined" Jeff's affidavit. They cite Tex. R. Civ. P. 40(a), which governs permissive joinder of parties in a civil action. That rule does not address affidavits.
An affidavit is "a statement in writing of a fact or facts signed by the party making it, sworn to before an officer authorized to administer oaths, and officially certified to by the officer under his seal of office." Tex. Gov't Code Ann. § 312.011(1). Jeff signed both the second and third amended affidavit. Ronke did not sign either one.
Ronke did not file an amended affidavit as permitted by our November 20, 2015 order. Therefore, the ruling applicable to her is our May 29, 2015 order upholding the trial court's finding that Ronke is not indigent and is not entitled to proceed without advance payment of costs.
We now turn to our review of the trial court's ruling with respect to Jeff.
B. Conduct and testimony at the hearing
The County examined Jeff regarding his affidavit of indigence. According to the trial court:
Jeff Olley was argumentative and evasive throughout much of the examination by the County. He objected and at times refused to answer questions on relevant matters. He refused to answer questions despite instructions from the Court to answer the question. In particular, Mr. Jeff Olley's answers to questions concerning his employment, his living arrangements and his debts were evasive and incomplete.
The trial court provided examples of his evasive and incomplete answers:
Jeff Olley testified that he and his wife both have college degrees but he could not remember when or where they attended college or what they studied. He acknowledged that he works 6 days a week at Nissan in a position related to customer service but refused to provide more specific information. Jeff Olley testified that he and his wife own cell phones although he failed to disclose that information in his Affidavit. Insufficient documentary backup supported the Affidavit of Jeff Olley. For example, in his affidavit he claims $6700.00 in credit card debt. No documentation identifying the credit cards or of the alleged debt was attached. In response to questions at the hearing concerning these debts, he could not identify the cards which carry the debt or what amount of debt was owed on each card.
Finally, the trial court concluded Jeff Olley had not sustained his burden to prove he was entitled to proceed as indigent:
Overall Mr. Olley's testimony was not credible. His argumentative and incomplete responses, combined with his refusal to answer certain questions cast suspicion over the reliability of his claimed foundation to proceed as a pauper. His lack of candor was troubling and raised questions on the veracity of his statements in the Affidavit and on the stand. Jeff Olley's argumentative and nonconforming responses thwarted the County's efforts to determine the accuracy of Olley's statements made under oath in support of his request to proceed as a pauper.
Based upon the record, the Court sustains the Contest to the Pauper Affidavit for Jeff Olley. There being no affidavit filed in favor of Appellant Ronke Olley, the court issues no ruling on her status.
C. Appellants' arguments
Appellants do not challenge the trial court's ruling substantively. They do not dispute the trial court's finding that Jeff's testimony was not credible or that Jeff's affidavits were not sufficiently supported by documentary evidence. Rather, they raise alleged procedural defects in the indigence proceeding below.
1. No notice of abatement order
Appellants first complain that this court did not notify them of our November 20, 2015 abatement order, as required by Tex. R. App. P. 12.6. They say they discovered the order on this court's website, but they do not say when they discovered it. Appellants assert they did not have fifteen days the cure their affidavit, the amount of time they were entitled to under our order.
Appellants are correct that this court did not send notice of our November 20 order. However, they were not harmed by our not sending notice. Our order required them to amend their affidavit within fifteen days. Fifteen days after November 20 was Saturday, December 5, which meant their amended affidavit was due on Monday, December 7. See Tex. R. App. P. 4.1(a) (if deadline to file document falls on a Saturday, Sunday, or legal holiday, deadline is extended to end of next day that is not a Saturday, Sunday, or legal holiday). Appellants filed Jeff's second amended affidavit before the deadline, on December 4, and filed his third amended affidavit on the deadline, December 7.
Due to clerical error, notice of this order was not generated by the court's computer system. The appellee, trial court, district clerk, and court reporter were not sent notice, either. --------
This court's not sending notice of our November 20 order is not a basis for reversing the trial court's ruling on indigence. See Tex. R. App. P. 44.1(a) (judgment may not be reversed based on error unless error probably caused the rendition of an improper judgment or probably prevented appellant from properly presenting his case to the court of appeals).
2. Trial court did not sign order extending hearing
Next, appellants complain that the trial court did not sign an order extending the hearing to December 21, and that it conducted the hearing on December 21 over their objection. Texas Rule of Appellate Procedure 20.1(i)(2)(A) provides:
(2) Time for Hearing. The trial court must either conduct a hearing or sign an order extending the time to conduct a hearing:
Tex. R. App. P. 20.1(i)(2)(A).(A) within 10 days after the contest was filed, if initially filed in the trial court
The County filed its contest on December 9. Ten days after December 9 was Saturday, December 19. The trial court began the hearing on December 18, a date within the requisite 10-day period. Just as with appellant's deadline to file their amended affidavits, because the deadline to conduct the hearing fell on a Saturday, the deadline was extended to Monday, December 21. See Tex. R. App. P. 4.1(a). The hearing was concluded on December 21. The trial court complied with Tex. R. App. P. 20.1(i)(2)(A).
Furthermore, Jeff did not appear for the December 18. As a result, he may not complain that the hearing was continued for the purpose of securing his attendance. See Ex parte Miller, 604 S.W.2d 324, 325 (Tex. Civ. App.—Dallas 1980, no writ) ("By not appearing when ordered to appear, relator waived any right to complain of the trial court's action in rescheduling the hearing for another date [and] going forward with the hearing at that time . . . ."). The trial court would have been within its discretion to sustain the County's contest on December 18 on the ground that appellants failed to satisfy their burden of proof. See Tex. R. App. P. 20.1(g)(1) (noting that "[i]f a contest is filed, the party who filed the affidavit of indigence must prove the affidavit's allegations"). Instead the court elected to give appellants a second chance to prove they were entitled to proceed as indigent. That second chance occurred on December 21. Appellants cannot benefit from a delay they caused. See Tittizer v. Union Gas Corp., 171 S.W.3d 857, 862 (Tex. 2005) (under invited error doctrine, "a party cannot complain of appeal that the trial court took a specific action that the complaining party requested").
3. Hearing conducted over appellants' objections
Appellants assert the trial court erred in conducting the hearing on December 21 over their objection. Appellants direct us to "Plaintiffs Objection to Hearing of Dec 21st 2015" filed late in the afternoon of December 21, following the hearing. That objection was not filed before or at the time of the hearing. The trial court could not have abused its discretion in holding a hearing despite an objection that had not been filed.
Even if appellants had lodged their objection before the hearing began, we would still find no abuse of discretion by the trial court in overruling their objection. As discussed above, the trial court's decision to continue the hearing on December 21 resulted from Jeff's failure to appear at the December 18 hearing.
4. Ronke was removed from courtroom
Finally, appellants contend the trial court abused its discretion by ordering Ronke removed from the courtroom. Ronke attempted to act as counsel for Jeff, but the trial court told her she was not permitted to represent Jeff. She continued to interrupt the hearing to make objections and repeatedly attempted to act as Jeff's counsel. After a number of warnings, the trial court ordered Ronke removed from the courtroom.
A party may represent himself or may be represented by a lawyer. Tex. R. Civ. P. 7. Ronke is not a lawyer, so she may not represent Jeff as counsel. Second, after she was told she may not represent Jeff, she continued to make objections. The trial court warned her several times before ordering her removed from the courtroom. A trial judge may properly intervene to maintain control in the courtroom. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001); Porras v. Jefferson, 409 S.W.3d 804, 807 (Tex. App.—Houston [14th Dist.] 2013, no pet.). We hold the trial court did not abuse its discretion in removing Ronke from the courtroom.
CONCLUSION AND ORDER
Because appellants have failed to show the trial court abused its discretion in sustaining the County's contest to Jeff's affidavit of indigence, we deny their motion. Accordingly, we order as follows.
1. Appellants are directed to pay or make arrangements to pay for the record in this appeal. See Tex. R. App. P. 35.3(a)(2). Unless appellants provide this court with proof of payment for the record by February 5, 2016, we will dismiss the appeal for want of prosecution. See Tex. R. App. P. 37.3(b).
2. Appellants are also ordered to pay the filing fee in the amount of $195.00 to the clerk of this court on or before February 5, 2016.See Tex. R. App. P. 5. If appellants fail to timely pay the filing fee in accordance with this order, the appeal will be dismissed.
/s/ Sharon McCally
Justice Panel consists of Justices Boyce, McCally, and Donovan (Donovan, J. dissenting).