David Scot Lynd v. Northwood MHC, L.P. D/B/A Northwood ( 2008 )

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-08-077-CV

DAVID SCOT LYND APPELLANT

V.

NORTHWOOD MHC, L.P. D/B/A NORTHWOOD APPELLEE

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FROM THE 158 th DISTRICT COURT OF  DENTON COUNTY

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MEMORANDUM OPINION ^{(footnote: 1)} AND JUDGMENT

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On May 7, 2008, this court issued an order affirming the trial court’s order sustaining a contest to appellant’s affidavit of inability to pay because, after reviewing the record from the trial court’s hearing on the contest, we concluded that the trial court did not abuse its discretion because the evidence supported the trial court’s order sustaining the contest.  Appellant subsequently filed a motion for rehearing that was denied without opinion on May 22, 2008.   On June 10, 2008, we notified appellant, in accordance with rule of appellate procedure 42.3(c), that we would dismiss this appeal unless the $175 filing fee was paid on or before June 20, 2008.   See Tex. R. App. P. 42.3(c).  Appellant has not paid the $175 filing fee. ^{(footnote: 2)}   See Tex. R. App. P. 5, 12.1(b).

Because appellant has failed to comply with a requirement of the rules of appellate procedure and the Texas Supreme Court’s order of August 28, 2007, ^{(footnote: 3)} we dismiss the appeal.   See Tex. R. App. P . 42.3(c), 43.2(f).

Appellant shall pay all costs of this appeal, for which let execution issue.   See Tex. R. App. P. 43.4.

PER CURIAM

PANEL D:  CAYCE, C.J.; LIVINGSTON and DAUPHINOT, JJ.

DELIVERED:  June 26, 2008

FOOTNOTES

1:

See Tex. R. App. P. 47.4.

2:

Recently, appellant submitted to the trial court an “updated affidavit of indigency” arguing that because he testifies in the affidavit that he is currently receiving governmental entitlement, pursuant to Texas Rule of Civil Procedure 145, he is indigent under the law and not required to pay costs of appeal.   See Tex. R. Civ. P. 145.  He asserts that “proof of governmental entitlement, in affidavit, is and does constitute payment, and or payment arrangements for any and all fees, required for the appeal[.]”  Without addressing the improper procedure undertaken by appellant to put an amended affidavit before the court, or the merits of his assertion, while testimony that a person is on public assistance establishes a prima facie case of indigence, this prima facie showing may be rebutted by evidence that he is not dependent on the assistance or that other funds are available.   Griffin Indus., Inc. v. Thirteenth Court of Appeals, 934 S.W.2d 349, 351 (Tex. 1996).  The test for indigence is whether the party would be able to pay costs “if he really wanted to and made a good faith effort to do so.”   Id.  

3:

See Supreme Court of Tex., Order Regarding Fees Charged in Civil Cases in the Supreme Court and the Courts of Appeals and Before the Judicial Panel on Multidistrict Litigation , Misc. Docket No. 07-9138 (Aug. 28, 2007) (listing fees in courts of appeals).