ADAM R. MILLER, Appellant v. COLONIAL LLOYDS and INSURANCE CLAIMS OF THE SOUTH, INC., Appellees

AFFIRM and Opinion Filed July 1, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-00121-CV
............................
ADAM R. MILLER, Appellant
V.
COLONIAL LLOYDS and INSURANCE
CLAIMS OF THE SOUTH, INC., Appellees
 
.............................................................
On Appeal from the 134 Judicial District Court
Dallas County, Texas
Trial Court Cause No. 06-06286-G
.............................................................
MEMORANDUM OPINION
Before Justices O'Neill, Richter and Lang
Opinion By Justice O'Neill
        
        This case involves the dismissal of Adam Miller's lawsuit after Colonial Lloyds and Insurance Claims of the South, Inc (“Insurance Companies”) successfully contested Mr. Miller's Affidavit of Inability to Pay Costs (“Affidavit”). Representing himself, Mr. Miller raises four issues. We construe his first issue to contend that violations of federal and state due process and equal protection provisions constitute reversible error.   See Footnote 1  In his second issue, he argues that the trial court was wrong when it granted the Insurance Companies' contest to the Affidavit and dismissed his case.   See Footnote 2  Mr. Miller's third issue contends that the trial court used the wrong evidentiary standard when it granted the contest to his Affidavit.   See Footnote 3  We construe Mr. Miller's fourth issue to complain about his treatment as a pro se party.   See Footnote 4  Finding no reversible error, we affirm the trial court's judgment.
 
Background
 
        On July 4, 2004, Mr. Miller's house was damaged by a fire. Dissatisfied with the Insurance Companies' response to his claim under his homeowner's insurance policy, he filed suit against them and a third party, George Drain Services, that he alleges was the adjuster engaged to process his claim. George Drain Services was never served and never appeared in this case. In lieu of paying a filing fee, Mr. Miller filed his Affidavit stating, in pertinent part, he had “no wages or salary from employment since suffering a disabling injury that ended [his] employment in 1999” and that “[his] only income is a worker's compensation check that [he] receive[s] in the amount of $1447.” The Insurance Companies contested the Affidavit on three bases: (1) it did not comply with Texas Rule of Civil Procedure 145; (2) its allegation of poverty was false; and (3) Mr. Miller's unemployment status was voluntary.
        The contest was heard on November 13, 2006. Mr. Miller testified that:
a.
 
He was thirty-five years old, had previously worked in customer service and as an armored guard, and had taken college-level courses; b.
 
In September, 2000, he was released to return to “light duty” work, and in August 2006, he was released to secure “full duty” employment;
 
c.
 
For six years, from 2000 to the day of the hearing in November 2006, he could not find a job;
 
d.
 
His monthly worker's compensation payment constituted supplemental income benefits which would have been “adjusted” if he got a job;
 
e.
 
He had received PEL grants of $2,000 to $2,500 to attend Cedar Valley College, a Dallas County Community College, even though the tuition and books cost only $ 368;
 
f.
 
When his house burned, the Insurance Companies had forwarded $ 71,000 to his mortgage company which then disbursed at least $26,000 to repair the house, of which $21,000 was advanced by a check payable to him and his contractor. He admitted he had received at least $5,000 separately from his mortgage company and had filed an unresolved lawsuit against the contractor about the $21,000 check;
 
g.
 
After the fire, he bought another house where he was living; and
 
h.
 
The Texas Department of Assistive and Rehabilitative Services had advanced funds for (1) him to obtain “a significant amount of tools” to further his training as a motorcycle mechanic; and (2) at least one mortgage payment on his new house.
 
The trial court sustained the Insurance Companies' contest and dismissed the case.
 
Discussion
 
        Mr. Miller questions the validity of the trial court's dismissal of his case under Texas Civil Practices and Remedies Code Section 13.001 and provisions of federal and state constitutional law.
We are mindful that when a case may be decided on a non-constitutional ground, we should rest our decision on that ground and not wade into ancillary constitutional questions. VanDevender v. Woods, 222 S.W.3d 430, 432-33 (Tex. 2007) (citing In re B.L.D., 113 S.W.3d 340, 349 (Tex. 2003) ("As a rule, we only decide constitutional questions when we cannot resolve issues on nonconstitutional grounds.")). Accordingly, we will first address Mr. Miller's second and third issues which we construe to state that the trial court erred when it sustained the contest and dismissed his case pursuant to Texas Civil Practice and Remedies Code section 13.001(a)(1). Tex. Civ. Prac. & Rem. Code Ann. § 13.001(a)(1) (Vernon 2002).
        The standard of review for a dismissal of a suit under Section 13.001 is whether the trial court abused its discretion. Black v. Jackson, 82 S.W.3d 44, 49-50 (Tex. App. -Tyler 2002, orig. proceeding [mand. denied]). On an abuse of discretion challenge, we are not free to substitute our own judgment for the trial court's judgment. Bowie Memorial Hospital v. Wright, 79 S.W.3d 48, 52 (Tex.2002). We can only find an abuse of discretion if the trial court "acts in an arbitrary or capricious manner without reference to any guiding rules or principles." Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex.1998). The court's decision must be "so arbitrary and unreasonable as to amount to a clear and prejudicial error of law." BMC Software Belg. N.V. v. Marchand, 83 S.W.3d 789, 801 (Tex. 2002). Applying these principles, we must determine whether the trial court's application of Section 13.001 constitutes an abuse of discretion.
        Section 13.001(a)(1) provides that a trial court may dismiss an indigent plaintiff's cause of action if the court finds “the allegation of poverty in the affidavit is false.” Tex. Civ. Prac. & Rem. Code Ann. § 13.001(a)(1) (Vernon 2002); see also Mitchell v. Berry et al., No. 05-06-01328, 2007 WL 4111923, at *4 (Tex.App.-Dallas November 20, 2007, pet. struck). A trial court can consider a number of factors when determining the validity of a challenge to an indigency affidavit. Baughman v. Baughman, 65 S.W.3d 309, 315-16 (Tex.App.-Waco 2001, pet. denied). Some of these factors include whether the litigant is dependent upon public charity afforded through various welfare programs, the litigant's employment history, and whether the litigant cannot secure a bona fide loan to pay the costs. Id. (citing Goffney v. Lowry 554 S.W.2d 157, 159 (Tex. 1977)).
        Having reviewed Mr. Miller's testimony, we cannot conclude that the trial court abused its discretion. Mr. Miller admitted, without objection, he was healthy and educated, had received thousands of dollars in addition to his monthly workers' compensation payments, had purchased a house, and had acquired a “significant amount of tools.” We overrule issues two and three. We need not address Mr. Miller's first and fourth issues.
 
Conclusion
 
        We affirm the trial court's judgment.
 
 
                                                          
                                                          MICHAEL J. O'NEILL
                                                          JUSTICE
 
070121F.P05
 
Footnote 1 Whether under due process and equal protection provisions of Texas Constitution (Article I Section 19) and federal constitution (5th and 7th Amendments as applied through the 14th Amendment), the court by its failure to hold fact finding hearings on September 8, 2006 (no hearing or briefing issues of default liability) and November 16, 2006 (no findings of fact) as well as December 18, 2006 (no hearing on special exceptions) abused its discretion, commiting [sic] reversible error?
Footnote 2 Whether through a misapplication of Rule 13.001, Tex. Civ. Prac. And Rem. Code, along with a misapplication of existing precedent for contesting the [Affidavit] under Rule 145, Tex.R. Civ. Pro., the court imposed a heightened burden of proof that a plaintiff unable to pay costs must meet, resulting in an unconstitutional judgment of dismissal of the entire case based on presumptions that pro se cases lack merit for that whole class of litigants.
Footnote 3 Whether on a contest of affidavit of inability to pay, the court is required to apply the Supreme Court of Texas standard for review, namely “preponderance of the evidence” standard to Defendants' contest so that to sustain for Defendants without findings of fact to assist the appellate court is clear error if decision is by letter ruling of a decision made on a later date with no transcript of fact findings and is contrary to evidence presented at the first hearing?
Footnote 4 Whether Texas Rules of Evidence and Procedure apply equally with no special advantages given the party represented by an attorney, and if not so applied, would constitute reverse discrimination against the pro se indigent party ?