Kristofer Thomas Kastner v. Martin & Drought, Inc. f/k/a Martin, Drought & Torres, Inc.; Gerald T. Drought and Dain A. Dreyer--Appeal from 224th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-07-00342-CV
Kristofer T. KASTNER,
Appellant
v.

MARTIN & DROUGHT, INC. f/k/a Martin, Drought & Torres, Inc.,

Gerald T. Drought, and Dain A. Dryer,

Appellees
From the 224th Judicial District Court, Bexar County, Texas
Trial Court No. 2006-CI-13335
Honorable Peter Sakai, Judge Presiding

Opinion by: Karen Angelini, Justice

 

Sitting: Karen Angelini, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

 

Delivered and Filed: October 31, 2007

 

AFFIRMED

Kristofer T. Kastner challenges the trial court's order sustaining the contests filed to his affidavit of indigence. We affirm the trial court's order.

A party may proceed on appeal without advance payment of costs if (1) he files an affidavit of indigence in compliance with Texas Rule of Appellate Procedure 20.1, (2) his claim of indigence is not contested or the contest is not sustained, and (3) he timely files a notice of appeal. See Tex. R. App. P. 20.1(a)(1)-(3). The affidavit must identify the party filing it and must state what amount of costs, if any, the party can pay. Id. 20.1(b). It must also contain complete information about the following:

(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 inability 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 courts costs.

Id.

The trial court clerk, the court reporter, or any party may challenge the claim of indigence by filing a contest to the affidavit. Id. 20.1(e). If a contest is filed, the party who filed the affidavit of indigence must prove the affidavit's allegations. Id. 20.1(g). 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.) (quoting Allred v. Lowry, 597 S.W.2d 353, 355 (Tex. 1980)). On appeal, we review the trial court's decision for abuse of discretion. In re Smith, 70 S.W.3d 167, 168 (Tex. App.--San Antonio 2001, no pet.); Arevalo, 983 S.W.2d at 804.

Here, Kastner's affidavit of indigence states that he earns approximately $360 per week as a telephone appointment setter at Admiral Services and has no other source of income. He has about $100 in cash. He has tried to obtain small loans twice from his bank and has been denied both times. According to the affidavit, his automobile is "wrecked beyond repair," and he "will be forced to sign the title over to the storage yard for payment of fees." He owns about $3000 to $7000 in personal property, including clothes, furniture, and a personal computer. His "educational degrees are worth approximately $75,000 to $125,000." He rents a room for $400 per month. He pays approximately $75 per month in utilities and $75 to $125 per month "for food." He pays approximately $70 per month for transportation, including bus fair and "gas for rides from [his] roommate." He pays $49 per month to rent a storage locker for his furniture. And, he owes "in excess of $89,500 for [his] student loans." Finally, Kastner's affidavit states that he receives "Harris County Hospital District benefits due to [his] income."

After Kastner filed his affidavit of indigence, the official court reporters and the opposing parties filed contests to his affidavit. The trial court then held a hearing on the contests and, after hearing evidence, entered an order sustaining the contests. See id. 20.1(i). Kastner appeals the trial court's order sustaining the contests. Without ordering briefing by the parties, we now review the trial court's order for abuse of discretion.

At the hearing, the court reporters argued that according to Kastner's affidavit he earns approximately $360 per week, making his annual income $18,720, which because he has no dependents is above the poverty line. That is, pursuant to the United States Department of Health and Human Resources Poverty Guidelines for 2007, (1) a person without dependents is poverty-stricken if his annual income is less than $10,210 per year. Thus, the court reporters argued that because Kastner's income is above $10,210, he is not poverty-stricken and not entitled to proceed without paying costs.

The court reporters also argued that because Kastner is a law-school graduate, he is underemployed and has the ability to earn more money to pay for his court costs.

Appellees then argued that according to Kastner's affidavit he has $721 per month in disposable income that he could use to pay court costs. Appellees also argued that Kastner was underemployed as a telemarketer and that according to his pay stubs he is "barely working thirty hours per week."

Kastner then argued that his weekly income of $360 was a pre-tax figure. According to Kastner, after taxes, he earns about $270 per week or $1,080 per month. Thus, he has about $300 per month in disposable income.

When asked why he is barely working thirty hours per week, Kastner claimed that with respect to this case he has had to attend court hearings and prepare motions and briefs, which has in turn caused him to work less. The trial court, however, was unsympathetic: "So why should that be held against the taxpayers? I am having difficulty - I am having difficulty understanding because that goes right to the argument of underemployment." Kastner claimed that he was unable to both work forty hours and prepare his legal documents. When the trial court pointed out that first-year associates are able to "work around the clock," Kastner replied,

Yes, but they work in a law office. They don't work as a telemarketer or as a salesman, and it really . . . working in a law - in a law library or a law office is significantly less strenuous than working as a telemarketer. I literally talk on the phone for eight and a half hours. That's one of the reasons why my voice is raspy right now. . . . The point is that I have been working at night. There - it would have been absolutely impossible for me to deprive myself of the sleep and still perform adequately to - you - you have to keep in mind, this is - this is the practice of law. I am a doctor of law. You are a judge. He is a doctor of law. She is a doctor of law. The standards to produce a quality motion for summary judgment or response to a motion for summary judgment are significantly higher than they are in other professions. You wouldn't tell a - a medical doctor that he should work at night to support himself while he was trying to perform surgeries or perform - or see patients. You would say, "Concentrate on what it is." And it is the same kind of thing with law.

 

The trial court, however, had "difficulty" believing that it was impossible for Kastner to "put in a full day's work and write [his] brief and adequately represent [himself]." In response, Kastner argued that working on this case took time, which in turn lowered his income:

Kastner: [Working on the case] lowers my income, and it goes directly to the piece of evidence that says that Kris Kastner only worked thirteen hours one week. Kris Kastner only works thirty hours on average. The reason why Kris Kastner has these checks that are so low and the reason why they're not thirty-six to forty hour weeks based on - based on us being released from work is because I have been in San Antonio on hearings, on a lot of them.

 

Court: But it appears that is a choice you made. That goes directly to the assertion that you're underemployed. It is - for lack of a better term, you're totally committed to your lawsuit.

 

Kastner: Well, you know, I do have a right to file the lawsuit. Texas -

 

Court: No doubt. No doubt. I am not disputing your right to take this to the highest court that you're entitled to.

 

Kastner: And, obviously, if I don't want my case thrown out for a variety of reasons, I have to spend the time that is necessary to adequately rep -

 

Court: And spend the money.

 

Kastner: Correct.

 

Court: And you have got - at least - at least on the record, there is some discretionary income in order for you to take care of your costs.

After Kastner completed his argument to the trial court, the court reporters contesting Kastner's affidavit testified. Court reporter Bob Hogan testified that he reported a hearing on February 20, 2007, and that the approximate cost of preparing the reporter's record for that hearing is $100. Court reporter Judy Stewart reported on the summary judgment hearing and testified that the approximate cost of preparing the reporter's record for that hearing is $450 to $500.

Further, the estimated cost of preparing the clerk's record is $950.

In closing argument, Kastner emphasized his student loans total $89,738.49. However, as noted by the trial court, Kastner's payments have been deferred, and he has not made any payments this year.

In reviewing this record, we find no abuse of discretion by the trial court. There is evidence that Kastner, a law school graduate, is voluntarily underemployed and could earn more money if he so desired. See Baughman v. Baughman, 65 S.W.3d 309, 316 (Tex. App.--Waco 2001, pet. denied) (finding sufficient evidence in the record to support the trial court's finding appellant's unemployment was voluntary and that he would be able to pay the costs, or some part thereof, if he really wanted to and made a good faith effort to do so). Further, there is evidence that Kastner, in his present job, is working on average thirty-hours per week; thus, he could work more hours to earn the money to pay for the records if he so desired. Finally, there is evidence that Kastner does have disposable income every month from which he could make payments for the records. Therefore, there is evidence to support the trial court's finding that Kastner could pay the costs of appeal if he "really wanted to and made a good faith effort to do so." Arevalo, 983 S.W.2d at 804.

Because the trial court did not abuse its discretion, we affirm its order sustaining the contests to Kastner's affidavit. Therefore, Kastner is not entitled to proceed in this appeal without advance payments of costs and the filing fee.

Karen Angelini, Justice

 

1. These guidelines printed in the Federal Register were admitted in evidence without objection.