Marion Kaye Harvey, et al. v. Nationwide Lloyds Insurance Company--Appeal from 166th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-06-00016-CV

Marion Kay HARVEY and Joan Adele Gardiner,

Appellants

v.

NATIONWIDE LLOYDS INSURANCE COMPANY,

Appellee (1)
From the 166th Judicial District Court, Bexar County , Texas

Trial Court No. 2002-CI-13255

Honorable David A. Berchelmann, Jr., Judge Presiding (2)

PER CURIAM

Sitting: Sandee Bryan Marion , Justice

Phylis J. Speedlin , Justice

Rebecca Simmons , Justice

Delivered and Filed: September 27, 2006

AFFIRMING ORDER SUSTAINING CONTESTS TO AFFIDAVITS OF INDIGENCE

This is an appeal from the trial court's order sustaining two contests to the affidavits of indigence filed by appellants. Because we conclude the trial court did not err in determining the appeal was frivolous, we affirm.

FRIVOLOUS APPEAL

Both the court reporter and the appellee filed a contest to appellants' affidavits of indigence. Judge Barbara Nellermoe presided over the contest hearing. Before hearing all the testimony regarding appellants' financial status and before appellants were allowed to offer their financial documents into evidence, Judge Nellermoe ruled she was unable to find that the appeal was not frivolous; thus, appellants were required to pay for the record. See Tex. Civ. Prac. & Rem. Code Ann. 13.003(a) (Vernon 2002). Appellants assert Judge Nellermoe abused her discretion in denying their request for a free record.

A proceeding is frivolous when it lacks an arguable basis either in law or in fact. De La Vega v. Taco Cabana, Inc., 974 S.W.2d 152, 154 (Tex. App.--San Antonio, 1998, no pet.) (en banc). A trial court's ruling under this section will be reversed on appeal only if the trial court abuses its discretion. Id. In the underlying litigation, appellants sued appellee and Gerloff Company, Inc. However, the jury found that appellant Marion Kay Harvey proximately caused the occurrences in question and attributed 100% of the damages caused to Harvey. Judge Martha Tanner, who presided over the trial, rendered a take-nothing judgment against appellants. In their motion for new trial, appellants raised a number of complaints, including that Judge Tanner erred in excluding the testimony of their expert, Robert Lampkin. At the hearing on the contests, appellants explained Lampkin "would tell us how the insurance company should have handled the case from the beginning. He's been in the business for almost his entire life, and he knew the steps to follow which Nationwide did not take. So they got him disqualified through [voir dire]."

Because this court could not determine from a review of the transcript from the contest hearing whether appellants' complaint regarding the exclusion of their witness lacked an arguable basis either in law or in fact, we ordered the trial court reporter to file a supplemental record of those portions of the trial transcript pertaining to the objections to appellants' expert. Our subsequent review of that record reveals the appellants offered Lampkin to testify about: (1) the location of mold inside appellants' house, (2) the scope of the work that should have been done to remediate any water damage to appellants' house, and (3) the cost of such remediation. The trial court allowed Lampkin to testify about the scope of remediation, but it did not allow him to testify about costs.

Lampkin's testimony on the proper method of remediation went to the issue of liability, while his excluded testimony on the cost of a proper remediation went to the issue of damages. The jury found Harvey proximately caused the occurrences in question. Therefore, even if Judge Tanner erred in excluding Lampkin's testimony on costs, the error was rendered harmless based upon the jury's finding on liability. Thus, appellants' appeal from Judge Tanner's ruling limiting Lampkin's testimony had no basis in law or in fact. Accordingly, Judge Nellermoe did not err in concluding appellants' appeal was frivolous, and that appellants were required to pay for the record.CONCLUSION

We affirm the trial court's order sustaining the contest to appellants' affidavits of inability to pay court costs. Appellants must file, within fifteen days of the date of this opinion, evidence that they have made appropriate arrangements for payment of (1) the clerk's record and the reporter's record on appeal and (2) the $125 fee that was due when this appeal was filed. Failure to make such a showing shall result in the dismissal of this appeal for failure to prosecute. See Tex. R. App. P. 37.3(b), 42.3(b).

PER CURIAM

1. Although appellants' notice of appeal names Gerloff Company, Inc. in the style, appellants stated on the record at the hearing on the contest to their affidavits of indigence that they are appealing the judgment in favor of Nationwide Lloyds Insurance Company only and they are not prosecuting an appeal against Gerloff Company, Inc.

2. The Honorable Barbara H. Nellermoe, presiding judge of the 45th Judicial District Court of Bexar County, presided over the hearing on the contest to appellants' affidavits of indigence and signed the order sustaining the contest that is at issue in this appeal.