Myra B. Burton v. Cheryl Bridges--Appeal from 57th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00137-CV
Myra B. BURTON,
Appellant
v.
Cheryl BRIDGES,
Appellee
From the 57th Judicial District Court, Bexar County, Texas
Trial Court No. 2001-CI-11560
Honorable Pat Boone, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: November 5, 2003

AFFIRMED

Myra B. Burton ("Burton") appeals the trial court's order dismissing her lawsuit pursuant to section 13.001 of the Texas Civil Practice and Remedies Code. We affirm the trial court's order.

Burton sued Cheryl Bridges, her former landlord, asserting that Bridges failed to include numerous items of property in the list Bridges made when she seized Burton's property to enforce her landlord's lien. Burton filed an affidavit of inability stating she was unable to pay costs in connection with her lawsuit. Bridges filed a motion to dismiss, asserting that: (1) Burton's allegation of poverty in her affidavit was false; and (2) the action was frivolous or malicious. After a hearing, the trial court granted the motion to dismiss without stating a basis for its ruling.

Section 13.001 of the Code permits a trial court to dismiss an action in which an affidavit of inability is filed if the trial court finds: (1) the allegation of poverty is false; or (2) the action is frivolous or malicious. See Tex. Civ. Prac. & Rem. Code Ann. 13.001(a) (Vernon 2002). In determining whether an action is frivolous or malicious, the trial court may consider whether the claim has no arguable basis in law or in fact. Id. at 13.001(b)(2).

A trial court's order dismissing a cause of action pursuant to section 13.001 is reviewed under an abuse of discretion standard. Black v. Jackson, 82 S.W.3d 44, 49 (Tex. App.--Tyler 2002, no pet.); Jones v. CGU Ins. Co., 78 S.W.3d 626, 628 (Tex. App.--Austin 2002, no pet.). No reporter's record of the hearing held by the trial court has been filed. (1) A judge is presumed to have acted within his discretion unless the record discloses to the contrary. Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex. 1987); American Paging of Texas, Inc. v. El Paso Paging, Inc., 9 S.W.3d 237, 240 (Tex. App.--El Paso 1999, pet. denied). Without a reporter's record, we must presume that evidence was presented at the hearing to show that the allegation of poverty in Burton's affidavit was false or that Burton's claim had no arguable basis in fact. See Pritts v. Pritts, No. 03-01-00079-CV, 2002 WL 437275, at *2 (Tex. App.--Austin 2002, no pet.) (not designated for publication) (assuming evidence supported trial court's dismissal of claims under section 13.001 in the absence of a reporter's record). Accordingly, the trial court did not abuse its discretion in dismissing Burton's lawsuit, and the trial court's order is affirmed.

Alma L. L pez, Chief Justice

1. Burton does not make any complaint in her brief about the absence of the reporter's record.