Ronke Olley and Jeff Olley v. ValPlace Houston I-10 West Texas LP, Commonly Known as Value Place Hotel ( 2015 )

Motion Denied and Order filed May 29, 2015
In The
Fourteenth Court of Appeals
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NO. 14-15-00386-CV
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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
ORDER
This is an appeal from a judgment signed March 9, 2015. Appellants filed
their notice of appeal and an affidavit of indigence on April 27, 2015. On May 5,
2015, the Harris County District Clerk filed a contest to appellants’ affidavit of
inability to pay costs and a notice of hearing by submission, scheduling its contest
on the docket for May 11, 2015. The Harris County District Clerk certified service
of these pleadings on appellants by certified mail. On May 11, 2015, the trial court
signed an order reflecting that (1) appellants were notified,1 (2) the court had
considered the evidence and argument of counsel, and (3) the contest is sustained.
On May 19, 2015, appellants filed a motion with this court requesting that
we review the trial court’s order sustaining the contest to his affidavit of indigence.
See Tex. R. App. P. 20.1(j)(1).
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 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 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;
1
Although appellants urge that they were provided insufficient notice of the submission of the contest, they did not
present this complaint to the trial court at any time. Therefore, that issue is not preserved for our review. See Rios v.
Texas Bank, 948 S.W.2d 30, 33 (Tex. App.—Houston [14th Dist.] 1997, no writ).
(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).
Here, the affidavit does not contain all the facts required under rule 20.1(b).
The affidavit is silent as to appellants’ cash on hand, other assets, monthly
expenses, and ability to obtain a loan. A trial court would not abuse its discretion if
it found those facts were necessary to show that the party is unable to pay the costs
of appeal if he really wanted to and made a good faith effort to do so. See
Pinchback, 164 S.W.2d at 20. A trial court does not abuse its discretion in
sustaining a contest to indigence where the affidavit is substantively incomplete.
See Johnson v. Harris County, 257 S.W.3d 730, 731 (Tex. App.—Houston [14th
Dist.] 2004, no pet.).
Accordingly, we find the trial court did not abuse its discretion in denying
appellants’ request to proceed without the payment of costs.
Therefore, appellants’ motion is DENIED. 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 provides this court with proof of payment for the
record within fifteen days of the date of this order, we will dismiss the appeal for
want of prosecution. See Tex. R. App. P. 37.3(b).
PER CURIAM