In Re Lydia Sosa, Relator--Appeal from 131st Judicial District Court of Bexar County

CONCURRING OPINION
No. 04-97-00975-CV
IN RE Lydia SOSA
Original Mandamus Proceeding(1)

Opinion by: Tom Rickhoff, Justice

Concurring opinion by: Phil Hardberger, Chief Justice

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Paul W. Green, Justice

Delivered and Filed: September 30, 1998

I agree that Griffin Industries, Inc. v. Thirteenth Court of Appeals, 934 S.W.2d 349 (Tex. 1996), controls this mandamus petition, and, therefore, I concur with the majority opinion. I do so with great reluctance.

In this case, an experienced, responsible trial judge made a decision that a party, who was still represented by trial counsel after a trial on the merits, was not entitled to a free appeal. I submit this is a reasonable ruling. If the public is required to foot the bill in such cases, trial counsel will be greatly tempted to roll the dice and file useless and frivolous appeals in a desperate effort to obtain a reversal. Why not appeal? After all, it is on the house, and Texas courts have been historically reluctant to sanction the filing of frivolous appeals. See David Lopez, Why Texas Courts Are Defenseless Against Frivolous Appeals: A Historical Analysis with Proposals for Reform, 48 Baylor L. Rev. 51 (1996).

Sosa had her day in court: she was entitled to and had a jury trial. She was represented by able counsel, who represented her, as is the custom, on a contingency fee. Unfortunately, she lost, but that is necessarily one of two possible results in a jury trial. Her attorney, after assessing the evidence and the law, made a decision that her appeal was not worth pursuing, considering the usual and customary costs of appeal. This is not an unusual event. Indeed, it is a process that happens each time a case brought under a contingency fee arrangement is lost.

Every lawyer is motivated to appeal upon receiving an adverse jury verdict. Much money and time, not to mention emotional energy, has been invested in the case by the end of a jury trial. It is difficult to abandon the case at that point. When a decision not to appeal is made, the attorney recognizes that the case simply does not have sufficient merit to warrant further expenditures. In the face of such a decision, is it wise for the courts to say: "Don't worry; we'll have the taxpayers pay for everything."? Not in the estimation of the trial judge in this case, and not in mine.

The rationale of providing a free record for indigent appeals is to prevent an indigent person from being denied any rights that a person with means has. This is commendable and is an integral part of the democratic process. But a client who has made a contingency fee arrangement with an attorney is not without recourse. The contingency fee contract turns the solo client and her attorney into a partnership. Each has contributed something to the partnership, and each will be paid at the same time. It is the glory of the contingency system that a client, indigent or otherwise, with a meritorious claim, can be fully equal to the largest defendant.

Sosa has a lawyer that she has retained under a contingency fee arrangement. That lawyer is not indigent, nor lacking in energy or knowledge. I cannot believe that it is good policy in this situation to say to a potential appellant that if your attorney-partner will not pay the costs of appeal, the public will be ordered to do so. If this were the law of the land, why would any lawyer pay the costs of appeal? Get the taxpayers to do it. Granted, there must be a showing of indigence on the part of the client, but this is not hard to do in the case of injured wage-earners. The average person, unable to work because of an injury, is soon indigent. Indigents are represented every day in courts throughout the state, at every level, by attorneys who are partners in that injury by reason of a contingency fee contract. I am not at all comfortable in leaving the decision of who pays the costs of the appeal to the discretion of the attorney, who stands to gain from a favorable appellate decision. That is what happened in this case. It is little wonder that the trial court reacted as it did.

In Griffin, the Court stated that the appellate rules provide protection to the court reporters because costs can be assessed against a losing party. If the indigent appellant is the losing party, however, he or she cannot be ordered to pay costs. Peterson v. Reyna, 920 S.W.2d 288, 288 (Tex. 1996). And in cases in which an attorney refuses to pay costs in violation of a contractual obligation to do so or in a manner inconsistent with his or her prior practice of advancing such costs, the attorney must not be too confident in the chances of the appeal succeeding. Even if an appeal is determined to be frivolous, the Texas Rules of Appellate Procedure do not expressly authorize sanctions against the attorney, and many courts would be unlikely to impose such sanctions in the absence of such express authority except in the most egregious of situations. See Johnson v. Johnson, 948 S.W.2d 835, 840 (Tex. App.--San Antonio 1997, no writ); see generally David Lopez, Why Texas Courts Are Defenseless Against Frivolous Appeals: A Historical Analysis with Proposals for Reform, 48 Baylor L. Rev. 51 (1996).

Until the Supreme Court provides a better means to counter this abuse of the appellate process, trial judges, court reporters, and the attorneys for the parties who prevail at trial need to be cognizant that section 13.003 of the Texas Civil Practice and Remedies Code provides some relief. Under this section, a trial judge may deny a free clerk's record and free reporter's record if the trial judge finds: (A) the appeal is frivolous; or (B) the clerk's record or reporter's record is not necessary to decide the issue presented by the appeal. See Tex. Civ. Prac. & Rem. Code Ann. 13.003 (Vernon Supp. 1998). A trial judge's ruling under this section will only be reversed on appeal if the trial court abuses its discretion. De La Vega v. Taco Cabana, Inc, No. 04-94-00835-CV, 1998 WL 164448, at *1 (Tex. App.--San Antonio, Apr. 8, 1998, no pet. h.). In view of Griffin, section 13.003 provides the only means by which we can slow the abuse of the appellate process at this time.

PHIL HARDBERGER,

CHIEF JUSTICE

PUBLISH

1. This mandamus proceeding arises from Lydia Sosa v. George Cardenas, No. 95-CI-02170, in the 73rd Judicial District Court, Honorably Andy Mireles, Judge Presiding.

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