Ali Yazdchi d/b/a Al Auto v. Allstate Insurance Company; Bayou City Auction Pool, Inc.; Crown Rite Enterprises; Government Employees Insurance Company; Matthew Groner d/b/a Matthew's Auto Sales; Ahmad Hassanzael d/b/a Pameer Autos; Hung Pham d/b/a Long's Auto Sales; et al.--Appeal from 61st District Court of Harris County

Opinion to: SJR TGT SN TJ EVK ERA GCH LCH JB

Opinion issued October 12, 2006

 

 

In The

Court of Appeals

For The

First District of Texas

 

NO. 01-05-00327-CV

 

AL AUTO A.K.A. ALI YAZDCHI, Appellant

V.

TRAVELERS INSURANCE COMPANY, HUNG PHAM D/B/A LONG S AUTO SALES, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, BAYOU CITY AUCTION POOL, INC., STANMAR MOTORS, TEAM FLEET FINANCING CORP., GEICO, CROWN RITE ENTERPRISES, AHMAD HASSANZAEL D/B/A PAMEER AUTOS, ROBERT S AUTO SALES, INC., MATTHEW GRONER D/B/A MATTHEWS AUTO SALES, WINSTON WILMOT D/B/A W. WILMOT & SONS, ABDEL SAMEY D/B/A HARBORSIDE AUTO SALES, AND ALLSTATE INSURANCE COMPANY, Appellees

 

 

On Appeal from the 61st District Court

Harris County, Texas

Trial Court Cause No. 2003-38272

 

 

 

MEMORANDUM OPINION

  Appellant, Al Auto a.k.a. Ali Yazdchi ( Yazdchi ), challenges the trial court s denial of his request to proceed on appeal without advance payment of costs pursuant to Texas Rule of Appellate Procedure 20.1. We conclude that the trial court did not abuse its discretion and therefore affirm.

Background

The trial court rendered a take-nothing judgment in favor of appellees Travelers Insurance Company ( Travelers ), State Farm Mutual Automobile Insurance Company ( State Farm ), GEICO, Allstate Insurance Company ( Allstate ), Hung Pham d/b/a Long s Auto Sales ( Long s ), Bayou City Auction Pool, Inc. ( Bayou City ), and Matthew Groner d/b/a Matthews Auto Sales ( Matthews ), after a jury found that they did not engage in any false, misleading, or deceptive act or practice, and that Yazdchi s suit was groundless or brought in bad faith or for the purpose of harassment.[1] After the trial court denied his motion for new trial, Yazdchi filed a notice of appeal on March 29, 2005, along with an affidavit of indigence from his father, Habibolah Yazdchi ( Habibolah ). The Harris County District Clerk, Travelers, State Farm, Bayou City, and Matthews timely contested Yazdchi s request for a free record on appeal. See Tex. R. App. P. 20.1(e). Following a hearing, the trial court sustained the contests, finding that Yazdchi is able to pay the costs of appeal or any part thereof, or to give security therefor.

Yazdchi filed a second affidavit of indigence this time his own on May 6, 2005. The Harris County District Clerk, State Farm, Travelers, Bayou City, and Matthews again timely contested the affidavit. Following a hearing, the trial court sustained the contests.

After Yazdchi filed notices of appeal from both orders, we directed the trial court clerk to file a partial record containing those pleadings pertinent to the trial court s rulings on the affidavits of indigence. See In re Arroyo, 988 S.W.2d 737, 739 (Tex. 1998). We also directed the court reporter to file a reporter s record from the hearings on the contests. See id. We have received the relevant portions of the record.

Analysis

Texas Rule of Appellate Procedure 20.1

Rule 20.1 governs affidavits of indigence. See Tex. R. App. P. 20.1. It allows a party to proceed on appeal without advance payment of costs if (1) the party files an affidavit of indigence in compliance with the rule, (2) either the claim of indigence is not contested or the contest is not sustained, and (3) the party timely files a notice of appeal. Tex. R. App. P. 20.1(a)(1) (3). The affidavit must identify the party filing it, state the amount of costs the party can pay, if any, and contain complete information about the party s financial condition. Tex. R. App. P. 20.1(b). Specifically, the affidavit must include:

(1) the nature and amount of the party s current employment income, government-entitlement income, and other income;

(2) the income of the party s spouse and whether that income is available to the party;

(3) real and personal property the party owns;

(4) cash the party holds and amounts on deposit that the party may withdraw;

(5) the party s other assets;

(6) the number and relationship to the party of any dependents;

(7) the nature and amount of the party s debts;

(8) the nature and amount of the party s 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; and

(11) whether an attorney has agreed to pay or advance court costs.

Tex. R. App. P. 20.1(b)(1) (11). The appellant must file the affidavit of indigence in the trial court with or before the notice of appeal. Tex. R. App. P. 20.1(c)(1).

Standard of Review

An affidavit of indigence may be contested by the district clerk, the court reporter, or any interested party. Tex. R. App. P. 20.1(e). When, as here, there is a contest, the appellant must prove his indigence. Tex. R. App. P. 20.1(g); Griffin Indus., Inc. v. Thirteenth Court of Appeals, 934 S.W.2d 349, 351 (Tex. 1996); Jackson v. Tex. Bd. of Pardons & Paroles, 178 S.W.3d 272, 275 (Tex. App. Houston [1st Dist.] 2005, no pet.). At the trial court level, the test for indigence is whether the appellant shows by a preponderance of the evidence that he would be unable to pay the costs of appeal if he really wanted to and made a good faith effort [to] do so. Arevalo v. Millan, 983 S.W.2d 803, 804 (Tex. App. Houston [1st Dist.] 1998, no pet.) (en banc) (quoting Allred v. Lowry, 597 S.W.2d 353, 355 (Tex. 1980)). If the trial court sustains the contest, we must determine whether the court abused its discretion. Cronen v. Smith, 812 S.W.2d 69, 70 (Tex. App. Houston [1st Dist.] 1991, orig. proceeding). The trial court abuses its discretion when it acts without reference to any guiding rules or principles; the facts and law permit only one decision, which is the opposite of the trial court s decision; and the trial court s ruling is so arbitrary and unreasonable as to be clearly wrong. Arevalo, 983 S.W.2d at 804.

Habibolah s Affidavit of Indigence

The first affidavit Yazdchi filed in the trial court is not his own rather, it details the financial condition of, and is sworn to by, Habibolah, his father. The trial court, however, must consider only the [party] s personal financial condition, not those of his parents, other relatives, friends, or employers. Rodgers v. Mitchell, 83 S.W.3d 815, 818 (Tex. App. Texarkana 2002, no pet.); see also In re K.C.A., 36 S.W.3d 501, 503 (Tex. 2000) ( Rule 20.1 . . . requires that the party must provide the information by affidavit. ). As Habibolah is not a party to the underlying lawsuit, we conclude that the trial court did not abuse its discretion in sustaining the contests to his affidavit of indigence.

Yazdchi s Affidavit of Indigence

Nearly a month after the trial court sustained the contests to Habibolah s affidavit, Yazdchi filed his own affidavit of indigence. This affidavit, however, was untimely. An appellant must file his affidavit of indigence in the trial court with or before the notice of appeal. Tex. R. App. P. 20.1(c)(1); see Ford v. Whitehead, 2 S.W.3d 304, 306 (Tex. App. San Antonio 1999, no pet.) ( Rule 20.1(c) strictly requires that an appellant file an affidavit of indigency with or before the notice of appeal. ). Yazdchi filed his notice of appeal on March 29, but did not file his affidavit of indigence until May 6. Nor did he request an extension of time to file his affidavit within 15 days after the deadline, as permitted by Rule 20.1(c)(3). Tex. R. App. P. 20.1(c)(3). When, as here, neither the affidavit of indigence nor the motion for extension of time (if any) is timely filed, the trial court does not abuse its discretion by sustaining a contest.[2] Mikkilineni v. City of Houston, 4 S.W.3d 298, 299 (Tex. App. Houston [1st Dist.] 1999, pet. denied); Ford, 2 S.W.3d at 306.

Nor did the trial court abuse its discretion in finding that Yazdchi is able to pay the costs of appeal. During trial, the court heard evidence that Yazdchi owns his residence, drives a late-model Lexus, and received hundreds of thousands of dollars in a settlement with the State. Though Yazdchi makes a blanket assertion in his affidavit that he has spent all the money that [he] was supposed to get and received in settlement on his father s and brother s medical expenses, he does not mention anything in the affidavit about his current income, his vehicle,[3] his residence, or his ability to obtain a loan, as required by Rule 20.1(b). See Tex. R. App. P. 20.1(b) (stating that affidavit must contain complete information about eleven separate aspects of financial status, including, among other things, nature and amount of party s current income, real and personal property party owns, and party s ability to obtain loan). Under these circumstances, we cannot say the trial court abused its discretion in sustaining the contests to Yazdchi s affidavit of indigence and denying him a free record on appeal. See Thomas v. Olympus/Nelson Prop. Mgmt., 97 S.W.3d 350, 352 53 (Tex. App. Houston [14th Dist.] 2003, no pet.) (per curiam) (holding that trial court did not abuse its discretion in sustaining contests to affidavit of indigence where appellant failed to state nature and amount of current income, whether he had personal property that he could use to pay for record, and whether he would be able to obtain loan); In re Smith, 70 S.W.3d 167, 169 (Tex. App. San Antonio 2001, no pet.) (holding that trial court did not abuse its discretion in sustaining contest to affidavit of indigence where evidence at trial showed that appellant, among other things, lived in town house and was purposefully unemployed); Arevalo, 983 S.W.2d at 805 (holding that trial court did not abuse its discretion in denying appellant free record on appeal where appellant s affidavit of indigency did not reveal the existence of her most valuable property, the Toyota and the jewelry ).

Conclusion

We conclude that the trial court did not abuse its discretion in sustaining the contests to the affidavits of indigence and denying Yazdchi a free record on appeal. We therefore affirm the orders of the trial court and order Yazdchi to pay for, or make arrangements to pay for, the record in this appeal. See Tex. R. App. P. 35.3. Unless Yazdchi provides the court with proof of payment for the record within fifteen days of the date of this opinion, we will dismiss the appeal. See Tex. R. App. P. 37.3(b), 42.3(c); Arroyo, 988 S.W.2d at 738 39.

Jane Bland

Justice

Panel consists of Chief Justice Radack and Justices Alcala and Bland.

 

[1] The trial court granted summary judgment in favor of Travelers, State Farm, GEICO, and Allstate; thus, the jury s findings pertain to Long s, Bayou City, and Matthews.

[2] We note that the Texas Supreme Court recently cautioned in Higgins v. Randall County Sheriff s Office that the court of appeals could dismiss the appeal for noncompliance [with Rule 20.1(c)] only after allowing Higgins a reasonable time to correct this defect. 193 S.W.3d 898, 899 (Tex. 2006) (per curiam). Higgins is distinguishable, however, because in that case there was no contest; rather, five days after Higgins filed his untimely affidavit of indigence and before any party had the opportunity to contest it, the appeals court dismissed the appeal for failure to pay the required filing fee. See id. (noting that affidavit of indigence discharges filing-fee requirement unless contest to it is sustained), rev g No. 07-05-00004-CV, 2005 WL 148764 (Tex. App. Amarillo Jan. 19, 2005) (per curiam). In contrast, the trial court in the instant case heard the contests to Yazdchi s affidavit of indigence and ultimately sustained them not only because the affidavit was untimely, but also because, as we discuss below, Yazdchi is able to pay the costs of appeal.

[3] During the indigence hearing, Yazdchi asserted that his Lexus, which th[e trial] court already recognize[d a]s worthless, was [a] total loss from Travelers. The trial court, however, granted summary judgment in favor of Travelers, and nothing in the record indicates a finding by the trial court as to the value of the car.