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concluding that although trial court held hearing and orally sustained contest within 10-day period, "a written order was necessary," and order sustaining contest signed after 10-day period was untimely
Summary of this case from Hopkins v. OttOpinion
No. 05-11-00151-CV
Opinion issued July 22, 2011.
On Appeal from the County Court at Law No. 5, Dallas County, Texas, Trial Court Cause No. CC-10-00839-E.
Before Chief Justice WRIGHT and Justices O'NEILL and LANG-MIERS.
MEMORANDUM OPINION ON MOTION FOR REHEARING OF ORDER SUSTAINING CONTEST TO AFFIDAVIT OF INDIGENCE
Before the Court is N. S. Muthukumar's motion challenging the trial court's order sustaining the contest to his affidavit of indigence. See Tex. R. App. P. 20.1. Santa Rosa Apartments has filed a response and argues (1) we lack jurisdiction to consider the motion because Muthukumar did not file a separate notice of appeal from that order; and (2) the trial court did not abuse its discretion in sustaining the contest. We conclude we have jurisdiction and further conclude the court erred in its ruling. We grant the motion and reverse the order.
Background
This case involves competing breach of lease agreement claims. Muthukumar sued Santa Rosa in February 2010 asserting Santa Rosa had failed to make certain repairs to his apartment. Santa Rosa counterclaimed and asserted Muthukumar had damaged the apartment "beyond normal wear." The case was tried to the court, which rendered a take-nothing judgment against Muthukumar on his claim and in favor of Santa Rosa on Santa Rosa's claim. Muthukumar timely filed his notice of appeal in the trial court on February 8, 2011, along with his affidavit contending he could not pay court costs. The trial court clerk filed a contest to the affidavit on February 10, 2011. Six days later, the trial court held a hearing and orally sustained the contest. The court signed the order reflecting its ruling February 28, 2011.
Jurisdiction
Because our jurisdiction is fundamental and never presumed, we must, as a threshold matter, determine whether we have jurisdiction to determine the propriety of the trial court's order. See Brashear v. Victoria Gardens of McKinney, L.L.C., 302 S.W.3d 542, 546 (Tex. App.-Dallas 2009, no pet.); K S Interests, Inc. v. Tex. Am. Bank/Dallas, 749 S.W.2d 887, 890 (Tex. App.-Dallas 1988, writ denied). Our jurisdiction over appeals is established exclusively by constitutional and statutory enactments. Beckham Grp., P.C. v. Snyder, 315 S.W.3d 244, 245 (Tex. App.-Dallas 2010, no pet.). Subject to a few mostly statutory exceptions, an appeal may only be taken from a final judgment or order disposing of all parties and claims in the record. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001).
To invoke our jurisdiction, a party must file a notice of appeal. See Tex. R. App. P. 25.1(b). Unless a party specifically limits the scope of the appeal, the filing of a notice of appeal from a final judgment invokes our jurisdiction over all parties to the judgment and all parts of the case. Id.; Webb v. Jorns, 488 S.W.2d 407, 409 (Tex. 1972).
Prior to 1997, we did not have jurisdiction in civil cases to review on appeal orders sustaining a contest to an affidavit of indigence; mandamus was the only avenue for review of such orders. See In re Arroyo, 988 S.W.2d 737, 738 (Tex. 1998) (orig. proceeding) (per curiam). In In re Arroyo, however, the Texas Supreme Court determined that mandamus would no longer lie under such circumstances because an adequate remedy on appeal existed under the then new rules of appellate procedure. Id. at 739.
Although the rules do not specifically outline the procedure for obtaining appellate review of a trial court's order on indigency, see Tex. R. App. P. 20.1, and the court did not elaborate in its opinion, we construed Arroyo as allowing a party to challenge an indigency ruling as part of his appeal of the judgment on the merits. See In re B.J.M., 997 S.W.2d 626, 626 (Tex. App.-Dallas 1998, no pet.); accord Thomas v. Olympus/Nelson Prop. Mgmt., 97 S.W.3d 350, 351 (Tex. App.-Houston [14th Dist.] 2003, no pet.) ("The Texas Supreme Court has determined that, under the amended rules of appellate procedure, an indigent party may obtain the record pertaining to the trial court's ruling sustaining the contest to his affidavit of indigence and challenge that ruling as part of his appeal, instead of by mandamus review as was done previously.") (citing Arroyo, 988 S.W.2d at 738-39). In In re B.J.M., we considered a petition for writ of mandamus that was pending when Arroyo issued. B.J.M., 997 S.W.2d at 626. In the petition, B.J.M. challenged the trial court's order sustaining a contest to the affidavit of indigence he had filed in connection with his appeal of the trial court's order adjudicating him a child engaged in delinquent conduct. Id. at 626-27. Noting the supreme court stated in Arroyo that a court of appeals should, on motion or its own initiative, order the clerk and court reporter to file the portion of the record necessary to review an indigency order, we treated the petition as a motion in B.J.M.'s appeal of the order of adjudication and did not require a separate notice of appeal. Id. at 627 (citing Arroyo, 988 S.W.2d at 739).
In arguing Muthukumar was required to file a notice of appeal separate from the notice challenging the judgment on the merits in order to obtain review of the order sustaining the contest, Santa Rosa relies on opinions from our sister courts in Texarkana and Waco. In Rodgers v. Mitchell and Baughman v. Baughman, the Texarkana and Waco courts, respectively, concluded that a separate notice of appeal was necessary to invoke their jurisdiction to review an indigency ruling in civil cases. See Rodgers v. Mitchell, 83 S.W.3d 815, 817-18 (Tex. App.-Texarkana 2002, no pet.); Baughman v. Baughman, 65 S.W.3d 309 (Tex. App.-Waco 2001, pet. denied). These cases relied on Nelson v. State, a Waco case in which the court compared a challenge to the denial of a request for free record in a criminal case with a challenge to a ruling on a request for bond pending appeal. See 6 S.W.3d 722,723-24, 725-26 (Tex. App.-Waco 1999, order), overruled on other grounds by, Duncan v. State, 158 S.W.3d 606 (Tex. App.-Waco 2005, order) (per curiam). Noting that a separate notice of appeal is required to challenge a bond ruling, the court concluded that a separate notice of appeal is also required when a party desires to appeal from an order denying a free record. Id. at 725-26. Later, the court recognized that the comparison to bond proceedings was misplaced because the Texas Code of Criminal Procedure specifically authorizes a separate appeal of a bond ruling but makes no provision for appeals of indigency determinations. See Duncan, 158 S.W.3d at 606-07. Nonetheless, the court "continue[d] to believe a separate notice of appeal was required to challenge indigency rulings in both criminal and civil cases. Id. at 607 (criminal); see In re S.T., 239 S.W.3d 452, 454 (Tex. App.-Waco 2007, order) (per curiam) (civil). Requiring a separate notice of appeal in civil cases, however, ignores settled law that a notice of appeal from a final judgment brings forth the entire case. See Webb, 488 S.W.2d at 409; Basaldua v. Hadden, 298 S.W.3d 238, 239 (Tex. App.-San Antonio 2009, no pet.) (per curiam) (quoting In re Gary, No. 07-01-00466-CV, 2002 WL 1806800 (Tex. App.-Amarillo Aug. 7, 2002, order) (not designated for publication) (Quinn, J., concurring)). It also ignores settled law that a notice of appeal can only be filed from a final judgment or statutorily authorized interlocutory order. See Lehmann, 39 S.W.3d at 195.
Here, Muthukumar invoked our jurisdiction by filing a notice of appeal from the trial court's final judgment. The filing of the notice of appeal invoked our jurisdiction not just over the final judgment but the entire case, including the order sustaining the contest. See Basaldua, 298 S.W.3d at 239 (quoting Gary, No. 07-01-00466-CV); Thomas, 97 S.W.3d at 351; B.J.M., 997 S.W.2d at 626. We reject Santa Rosa's argument to the contrary.
Order on Contest
Having concluded we have jurisdiction to determine the motion, we turn now to the merits of the motion. A party unable to pay appellate court costs may proceed without advance payment of costs by filing in the trial court an affidavit of indigence detailing such information as the party's income, assets, debts, monthly expenses, and ability to obtain a loan for court costs. See id. 20.1(a)(2), (b). The clerk, court reporter, or any party may challenge the affidavit by filing a contest within ten days of the filing of the affidavit. Id. 20.1(e). If a contest is filed, the trial court has ten days from the filing of the contest to sign an order either sustaining the contest or extending the time for hearing it. Id. 20.1(i)(2); In re G.C., 22 S.W.3d 932, 933 (Tex. 2000). If the trial court fails to do either within the ten day period, the allegations in the affidavit are deemed true, and the party is allowed to proceed on appeal without prepayment of costs. Tex. R. App. P. 20.1(i)(4); G.C., 22 S.W.3d at 933.
We review a trial court's order sustaining a contest to an affidavit of indigence for abuse of discretion. Basaldua, 298 S.W.3d at 241. We will conclude the trial court abused its discretion if it acted without reference to any guiding rules or principles or in an arbitrary and unreasonable manner. Id. Here, Muthukumar filed his affidavit on February 8, 2011. The trial court clerk timely filed his contest on February 10, 2011 giving the trial court until February 20, 2011 to sign an order either sustaining the contest or extending the time for hearing the contest. See Tex. R. App. P. 20.1(i)(2), (4). The trial court held a hearing on February 16, 2011, within the ten day period, and orally sustained the contest. The court, however, did not sign the order sustaining the contest until February 28, 2011, outside the ten day period. Although the trial court orally sustained the contest within the ten-day period, a written order was necessary. See B.J.M., 997 S.W.2d at 627. Because the court signed the order sustaining the contest outside the permissible time frame, we conclude the court abused its discretion in sustaining the contest. The allegations in Muthukumar's affidavit are deemed true, and Muthukumar is allowed to proceed without prepayment of costs. Tex. R. App. P. 20.1(i)(4); G.C., 22 S.W.3d at 933. We grant Muthukumar's motion and reverse the trial court's order sustaining the contest.