Kristofer Thomas Kastner v. Martin, Drought and Torres, Inc. ( 2009 )

i i i i i i
MEMORANDUM OPINION
No. 04-08-00779-CV
Kristofer Thomas KASTNER,
Appellant
v.
MARTIN & DROUGHT, P.C. f/k/a Martin, Drought, Inc. and f/k/a Martin,
Drought & Torres, Inc., Gerald T. Drought & Dain A. Dreyer,
Appellees
From the 57th Judicial District Court, Bexar County, Texas
Trial Court No. 2008-CI-12370
Honorable Michael Peden, Judge Presiding
PER CURIAM
Sitting: Catherine Stone, Chief Justice
Steven C. Hilbig, Justice
Marialyn Barnard, Justice
Delivered and Filed: April 8, 2009
MOTION FOR EXTENSION OF TIME TO PAY FILING FEE DENIED AND APPEAL
DISMISSED
When appellant Kristofer Thomas Kastner filed this appeal, he was required to pay a $175.00
filing fee. See TEX . GOV ’T CODE ANN . §§ 51.207(b)(1), 51.941(a) (Vernon 2005); id. §§ 51.208,
51.0051 (Vernon Supp. 2008); TEXAS SUPREME COURT ORDER REGARDING FEES CHARGED IN CIVIL
CASES IN THE SUPREME COURT AND THE COURTS OF APPEALS AND BEFORE THE JUDICIAL PANEL ON
04-08-00779-CV
MULTIDISTRICT LITIGATION (Misc. Docket No. 07-9138, Aug. 28, 2007) § B.1.(a). Appellant did
not pay the required filing fee. Instead, on November 12, 2008, appellant filed an untimely affidavit
of inability to pay costs and a motion to extend time to file the affidavit. We granted the motion to
extend time to file the affidavit and entered an order requiring the trial court clerk to file the
affidavit. See Higgins v. Randall County Sheriff's Office, 193 S.W.3d 898, 899-900 (Tex. 2006).
After the affidavit was filed in the trial court, appellees, the trial court clerk, and the court reporter
filed contests to appellant’s affidavit of inability to pay. See TEX . R. APP . P. 20.1(e). Appellees also
asked the trial court to find the appeal frivolous. Following a hearing, the trial court sustained the
contests and found the appeal frivolous. Appellant appealed the indigency order and we ordered
appellant and appellees to file briefs, which they did.
After reviewing the briefs, we held the trial court did not abuse its discretion in sustaining
the contests, finding there was evidence appellant could pay the costs of appeal “if he really wanted
to and made a good faith effort to do so[.]” Kastner v. Martin & Drought, P.C., No. 04-08-00779-
CV, 2009 WL 618698, at *3 (Tex. App.–San Antonio Mar. 11, 2009, no pet. h.) (mem. op.)
(interlocutory opinion on appeal of order sustaining contests to affidavit of inability to pay costs)
(citing Higgins v. Randall County Sheriff’s Office, 257 S.W.3d 684, 686 (Tex. 2008) (quoting
Pinchback v. Hockless, 139 Tex. 536, 164 S.W.2d 19, 20 (1942)). We also held there was no abuse
in finding the appeal frivolous. Accordingly, we affirmed the order sustaining the contests and
finding the appeal frivolous and held appellant “was not entitled to proceed in this appeal without
advance payment of costs, including payment of the filing fee.” Kastner, 2009 WL 618698, at *3.
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04-08-00779-CV
On the same day we issued our interlocutory opinion on indigency and frivolity, we also
issued an order in which we ordered appellant “to pay the filing fee of $175.00 to this court on or
before March 26, 2009,” or risk dismissal for want of prosecution. See TEX . R. APP . P. 42.3. Rather
than paying the filing fee, appellant filed a motion to extend time to pay the filing fee. In his motion,
and contrary to the trial court’s finding and this court’s interlocutory opinion, appellant still insists
he “has no means of paying the $175 filing fee.” He does not provide the court with any information
or a date by which he might be able to provide payment, nor did he provide even a partial payment.
The filing fee has not been paid and appellant has provided no excuse for non-payment other
than his inability to pay, which has already been rejected by this court. We therefore deny
appellant’s motion for extension of time to pay the filing fee, and order this appeal dismissed for
want of prosecution. We further order appellant to bear all costs of this appeal.
PER CURIAM
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