Opinion
No. 10-04-00331-CV
Opinion delivered and filed January 5, 2005.
Appeal from the 19th District Court, McLennan County, Texas, Trial Court # 2004-1982-4.
Appeal dismissed.
Kenneth F. Weaver, Pro Se, Waco, TX, for Appellant/Relator.
Karen Ann Ditsch, Stewart Associates, P.C., Suwanee, GA, for Appellee/Respondent.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA, (Chief Justice GRAY dissenting).
MEMORANDUM OPINION
The trial court granted a no-answer default judgment in favor of Credigy Receivables, Inc. Kenneth Weaver filed a notice of appeal. Thereafter, the district clerk advised the trial court that Weaver had filed an answer before the court signed the judgment. Accordingly, the court entered an order on its own motion setting the default judgment aside and granting Weaver a new trial.
Weaver has now filed a motion to dismiss this appeal. Credigy Receivables has not filed a response to the motion. Weaver also requests that this Court forego the $125 filing fee for the appeal and the $10 filing fee for the motion to dismiss because the appeal would not have been necessary at this juncture but for the district clerk's misplacement of his answer to the suit. We will grant this request in part.
Weaver paid the filing fee for the dismissal motion, and we will not refund that fee. We will not, however, require Weaver to pay the $125 filing fee. Nor will that fee be assessed in the judgment. See TEX. R. APP. P. 43.4, 43.6; cf. 7th Day Adventist School v. Escamilla, 760 S.W.2d 785, 785-86 (Tex.App.-Corpus Christi 1988, no writ) (taxing costs against appellees because they did not offer to enter agreed order setting aside default judgment until after appellant perfected appeal).
Weaver's motion to dismiss is granted, and the appeal is dismissed. See TEX. R. APP. P. 42.1(a)(1).
DISSENTING OPINION
We have no record that supports the grounds for dismissal and non-payment of the filing fee used by the Court. We have no rule or statutory authority upon which to grant the motion to waive the filing fee as is done by the Court.
There are, however, two proper bases upon which this appeal could be dismissed without collecting the filing fee. The first is the most obvious. Weaver has failed to pay the statutorily required filing fee. On this basis alone we have dismissed cases in the past. Daftarian v. S.B., No. 10-02-00100-CV, 2004 Tex. App. LEXIS 4340 (Tex.App.-Waco May 12, 2004, no pet.) (mem. op.). It is a proper basis the Court has chosen not to use in this case.
Additionally, as a second proper basis for dismissal, Weaver failed to respond to a request from the Clerk of this Court to provide proof of service of the notice of appeal. This, too, is a proper basis for the dismissal of an appeal. TEX. R. APP. P. 42.3(c); Swanson v. City of Waco, No. 10-04-00293-CV, 2004 Tex. App. LEXIS 9811 (Tex.App.-Waco Nov. 3, 2004, no pet.) (mem. op.); see also Peiskee v. City of Hearne, No. 10-02-00218-CV, 2004 Tex. App. LEXIS 9344 (Tex.App.-Waco Oct. 20, 2004, no pet.) (mem. op.) (appellant failed to respond to a letter from the Clerk). This basis, too, the Court has chosen not to use in this case.
So why does the Court avoid two valid ways to get to the result, not collecting the filing fee and dismissal of the appeal, by use of a method with neither statutory nor record support? I only ask the question — I have no answer.
As for me, I find no equity in waiving the payment of the filing fee as the Court is doing. In the only case cited by the Court, the fee was paid and, as cost, it was assessed on disposition of the appeal against the party that caused the appeal to be brought. 7th Day Adventist School v. Escamilla, 760 S.W.2d 785 (Tex.App.-Corpus Christi 1988, no writ). The plaintiff in 7th Day arbitrarily refused to agree to a new trial when it was clear that the defendant was entitled to one.
Here, there is no record upon which we can evaluate any of the equities. If I were to look to the attachments filed with the unsworn motion, as the Court has unashamedly done though we consistently say we cannot, I would hold that any equities run against Weaver. I can find no indication that the answer that Weaver asserts was lost by the clerk, which itself appears to be a total fabrication by Weaver, was ever served on the opposing party as required by the Rules of Civil Procedure. TEX. R. CIV. P. 21, 21a. As such, Credigy Receivables had no reason to know an answer had been filed timely; and thus, Credigy Receivables incurred the legal expense of obtaining a default judgment. This was Weaver's fault. Why should he not have to pay the filing fee?
And unlike 7th Day, in which the plaintiff refused to agree to a motion for new trial, it does not appear that Weaver even filed a motion for new trial. All Weaver did in this case was file a notice of appeal. Our records indicate that the notice of appeal was not served on Credigy Receivables. The Clerk requested proof of service before proceeding to process this appeal. See TEX. R. APP. P. 9.5(d). Proof of service was never received. We did, however, receive a motion to dismiss. One could assume, a rather dangerous thing to do in litigation, that upon learning that an answer had been filed, though not served, Credigy Receivables did not oppose an order granting a new trial. Thus, there is no equity in not requiring Weaver to pay the filing fee.
Many good people will review this dissenting opinion and wonder, "why?" Why would I spend a good portion of my Christmas holiday worrying about this case and writing this opinion. The answer is very complex and would fill a tremendous number of pages. But in summary, it is because we are a nation of laws, not of men. We depend upon compliance with the rule of law to bring order from chaos, consistency of result for all persons, and predictability in the result of the manner in which we conduct our daily affairs. As a nation of laws, the whims of those in power are supposed to yield to the application of the rules.
If I yield on not enforcing a "little rule," how can you count on me to "properly" draw the line deciding how big the rule must be before I will enforce it and how much easier will it be to accept something wrong next time because it, too, is easier or more expedient? As a free society, our primary protection against the power of the government is to rely upon the judicial branch to enforce the rules that the people have agreed to have their conduct governed by, and, to the very best of our human frailty, see that the rule is enforced equally in every situation to which it applies. That is implicit in the oath that I took because there were no qualifiers. It was not that I would enforce the important provisions of the constitution or the big statutes or rules.
The statute and rule says that Weaver owes a filing fee. It has not been paid. I would deny his motion to waive the filing fee.
If Weaver refuses to pay the filing fee after the denial of the motion, I would dismiss the appeal for that failure. I cannot join in what the Court does, so I must dissent.