Baughman v. Baughman

• Decision Date: 05 December 2001
• Docket Number: No. 10-01-101-CV.,10-01-101-CV.
• Citation: 65 S.W.3d 309
• Parties: Jon Stuart BAUGHMAN, Appellant, v. Tonya R. BAUGHMAN, Appellee, and In the Interest of D.B., A Child.
• Court: Texas Court of Appeals

65 S.W.3d 309

Jon Stuart BAUGHMAN, Appellant, v. Tonya R. BAUGHMAN, Appellee, and In the Interest of D.B., A Child.

No. 10-01-101-CV.

Court of Appeals of Texas, Waco.

December 5, 2001.

Jon Stuart Baughman, Waco, pro se.

Galen B. Edwards, Kevin E. Perry, Waco, for appellee.

Before Chief Justice DAVIS, Justice VANCE, and Justice GRAY.

OPINION

TOM GRAY, Justice.

Can an appellant who is voluntarily unemployed be considered indigent, thus requiring the clerk and court reporter to provide a free appellate record? We hold that voluntary unemployment does not make an appellant indigent.

BACKGROUND

This is an appeal of an indigency contest. Jon Baughman filed two affidavits of inability to pay cost (indigency affidavits) attempting to pursue an appeal without having to pay court cost. Primarily he seeks to be excused from having to pay for the reporter's record and the clerk's record. His former wife, Tonya Baughman, and the court reporter for the underlying suit each filed contest to the second affidavit. The trial court sustained the contest in a written order, holding that Jon "is not indigent" and that he "is capable of paying for the Clerk's records as well as the Court Reporter's records on this case." Jon filed a notice of appeal from the order sustaining the contest.

OUR JURISDICTION

The process of filing a mandamus proceeding to review the trial court's ruling on indigency contest is no longer utilized. There is now an adequate remedy by appeal. In Re Arroyo, 988 S.W.2d 737 (Tex.1998). In Nelson v. State, we held that a separate notice of appeal is required to appeal the denial of indigency for purposes of obtaining a free record in a criminal proceeding. Nelson v. State, 6 S.W.3d 722 (Tex.App.-Waco, 1999, order). We had not previously held that a separate notice of appeal was necessary to appeal a determination of indigency in either criminal or civil proceedings. In Nelson, we stated "in the interest of justice, we will apply this holding prospectively to those determinations of indigency made after the date of this order." The indigency hearing in this case was determined after our decision in Nelson.

We find no reason to make a distinction in the process to complain about the trial court's order regarding the request for a free record in criminal cases as compared to civil cases. Accordingly, we hold that to appeal the trial court's order regarding the contest of an indigency affidavit, whether it is sustained or overruled, the complaining party must file a notice of appeal as to that order. Because Jon filed a notice of appeal from the order sustaining the indigency contest separate from the notice of appeal on the merits of the proceeding—which has been abated pending the determination of this appeal—we have jurisdiction of this appeal of the indigency contest.

THE ISSUES

Jon's pro se brief poses numerous "Questions Submitted for Consideration." Most of the questions are phrased without reference to any specific action taken by the trial court and without reference to a request, objection, or motion made to the trial court.¹ Additionally, some of the questions are in the abstract, without reference to the facts of this case.² To properly present an issue, complaint must be made about an adverse ruling of the trial court in response to a specific request, objection, or motion. Tex.R.App. P. 33.1(a). Further, we do not have jurisdiction to render advisory opinions on abstract questions of law. Texas Ass'n of Business v. Texas Air Control Board, 852 S.W.2d 440, 444 (Tex.1993).

We give appellants some latitude in briefing requirements. Tex.R.App. P. 38.9. But the rules of evidence and procedure are applicable to pro se litigants the same as a litigant represented by an attorney, otherwise an advantage is given to a party not represented by an attorney. Holt v. F.F. Enterprises, 990 S.W.2d 756, 759 (Tex.App.-Amarillo 1998, pet. denied). After reviewing the questions listed in Jon's brief and the arguments made thereunder, we have identified what could properly be characterized as two issues. First, that the trial court erred in denying Jon a free appellate record based upon the first indigency affidavit because no contest was filed in response to it. Second, that the trial court erred in sustaining the contest to the second indigency affidavit, thereby denying Jon a free record for appeal, because the evidence established Jon's indigency as a matter of law. Fairly included in consideration of this second issue is an objection to the consideration of hearsay testimony and a complaint that the trial court's order does not include the necessary findings to sustain the contest to his affidavit. We will address these two issues, including the subissues, as necessary for the disposition of this appeal.

THE FIRST DOCUMENT

The first document filed by Jon is entitled an "AFFIDAVIT OF INABILITY." It was filed on December 27, 2000. It specifically cites Texas Rule of Civil Procedure 145. Tex.R. Civ. P. 145. The affidavit recites that it is "essential in securing my right for a New Trial, and or to Appeal." The affidavit was not contested by anyone. Rule 145 does not require the individual filing the affidavit to serve it on anyone, apparently because the rule contemplates that it will be filed at the time that the original petition is filed with the trial court clerk and served with the petition on the defendant. Notwithstanding that this document was filed by the defendant, Jon, at a time when Jon knew the plaintiff, Tonya, was represented by an attorney, it was not served on any other party. See TEX.R. CIV. P. 21 and 21a.

Rule 145 of the Texas Rules of Civil Procedure does not apply to the cost of the appellate record. The text of the rule indicates that it relates to traditional trial court cost, and not cost on appeal. Holt v F.F. Enterprises, 990 S.W.2d 756, 758 (Tex. App.-Amarillo 1998, pet. denied). The rule provides: "In lieu of filing security for costs of an original action, a party who is unable to afford said costs shall file an affidavit as herein described." Tex.R. Civ. P. 145. By use of the term "original action" we believe the purpose of the rule is established to be for cost in courts of original jurisdiction, or de novo appeals, and not appeals to the courts of appeals. This interpretation of the rule is confirmed by the comments to the 1988 amendments. The comment states: "The purpose of this rule is to allow indigents to file suit and have citation issued based solely on an affidavit of indigency filed with the suit." TEX.R. CIV. P. 145 (Comment to 1988 change).

Additionally, there are specific rules that deal with obtaining a free record on appeal. See Tex.R.App. P. 20 and Tex. Civ. Prac. Rem.Code Chapter 13. Allowing an affidavit under Rule 145 to relate forward to cost on appeal would deny other parties, the trial court clerk and the court reporter, their right to contest Jon's indigent status. White v. Schiwetz, 793 S.W.2d 278, 281 (Tex.App.-Corpus Christi 1990, no writ); see also Holt v. F.F. Enterprises, 990 S.W.2d 756, 758 (Tex.App.-Amarillo 1998, pet. denied).

Accordingly, the trial court did not err in denying Jon a free appellate record on the basis of the first indigency affidavit filed by Jon.

THE SECOND DOCUMENT

On February 28, 2001, Jon filed a second document which he also contends entitles him to a free appellate record.³ This document is entitled "APPELLANT, JON STUART BAUGHMAN'S REQUEST PRO-SE, FOR FREE APPELATE RECORD" and attached to it is a copy of the "AFFIDAVIT OF INABILITY" previously filed on December 27, 2000. A hearing was held on the motion and a written order signed sustaining the contest within the required time period. Tex.R.App. P. 20.1(i)(2)-(4); see In Re VanDeWater, 966 S.W.2d 730, 733-734 (Tex.App.-San Antonio 1998, original proceeding).

The order, in its entirety is as follows:

On the 21st day of March 2001 the Court was presented with evidence concerning Jon Stuart Baughman's allegation of indigence. The Court heard the evidence and finds that Jon Stuart Baughman is capable of paying for the Clerk's records as well as the Court Reporter's records on this case. The Court further finds that Jon Stuart Baughman is not indigent. The Court therefore Sustains the Contest. IT IS THEREFORE ORDERED that Jon Baughman is not indigent, his affidavit of indigence is Denied, and the contest of his affidavit of inability is Sustained.

Signed on the 21 st day of March 2001.

At the hearing, Jon presented his uncontroverted testimony that he had nothing of value, was unemployed, owed over $70,000 in debts and was unable to borrow any money. He also made reference to his size as preventing him from working. He also testified that he had an inherited medical condition that caused disks in his spine to degenerate, a condition that he testified prevented him from working. Finally, he testified about an on-the-job injury, for which he had received maximum benefits but was pursuing a claim for additional compensation.

Tonya and the Court Reporter both testified that Jon was educated, including some college education, had been gainfully employed in the past at various occupations, and that Jon was capable of holding down a job. This same evidence had also been brought out during cross examination of Jon.

THE HEARSAY SUBISSUE

Jon complains that the court reporter had no personal knowledge of his educational and employment history and that it was inadmissible hearsay and thus would not support the trial court's order. The court reporter stated that her testimony was based entirely upon her recollection of the testimony she had recorded during the course of the trial. Jon also complains that the testimony of Tonya was also hearsay. Specifically, Jon objected to Tonya's testimony about a medical diagnosis of Jon's mental condition.

Regarding Tonya's testimony, the trial court agreed with Jon that the testimony was hearsay but allowed the testimony into...