Date: 07-07-2011

Case Style: Darlene C. Balistreri-Amrhein v. AHI & Inspector Aaon D. Miller

Case Number: 05-09-01377-CV

Judge: Elizabeth Lang-Miers

Court: Texas Court of Appeals, Fifth District on appeal from the 296th Judicial District Court of Collin County

Plaintiff's Attorney: Darlene C. Amrhein, pro se

Defendant's Attorney: J. Kent Newsom, Barry H. Fanning, Rick W. Hightower, Carl Adams, Pamela W. Montgomery, Richard M. Abernathy, and Justin Health Jenkins

Description: Darlene Balistreri-Amrhein and her father Anthony Balistreri seek to proceed in these appeals without advance payment of costs. Pursuant to Texas Rule of Appellate Procedure 20.1, Balistreri- Amrhein sought relief from the trial court first, but the trial court denied relief. See Tex. R. App. P. 20.1. The issue before us is whether the trial court abused its discretion in denying relief when the evidence showed Balistreri-Amrhein owned “free and clear” a home appraised at over $550,000 and a 2007 GMC car. We conclude it did not and deny Balistreri-Amrhein's and Balistreri's request to proceed in these appeals without advance payment of costs.

Background

Balistreri-Amrhein and Balistreri, appearing pro se, jointly sued appellees and others in 2008 for breach of contract, fraud, and other causes of action stemming from the purchase of a house. Balistreri-Amrhein's and Balistreri's claims against AHI and inspector Aaron D. Miller were dismissed and severed from the remaining claims in August 2009. Balistreri-Amrhein and Balistreri timely appealed the dismissal, and the appeal was docketed as appellate cause number 05-09-01377- CV (“the AHI appeal”). Four months later, Balistreri-Amrhein's claims were severed from Balistreri's claims. From this severance order, two appeals resulted-Balistreri's appeal of the severance order and Balistreri-Amrhein's appeal of her subsequently dismissed claims. Balistreri's appeal was docketed as appellate cause number 05-10-00611-CV and has been dismissed. See Balistreri v. Remax Realty, 05-10-00611-CV, 2011 WL 149984 (Tex. App.-Dallas Jan. 19, 2011, no pet.) (not designated for publication). Balistreri-Amrhein's appeal of her subsequently dismissed claims was docketed as appellate cause number 05-10-01347-CV (“the Remax appeal”). See Footnote 1

Pursuant to appellate rule 20.1, Balistreri-Amrhein filed her affidavit of indigence with the trial court in the AHI appeal in April 2010 and in the Remax appeal in October 2010. See id. 20.1(a)(2). Although Balistreri filed an affidavit in his appeal of the severance order, he did not file an affidavit in the AHI appeal.

Balistreri-Amrhein's affidavit in the AHI appeal reflected Balistreri-Amrhein was sixty-three years old at the time and disabled. Her monthly income consisted of social security disability benefits and a retirement pension. Her assets consisted of the house, the car, a $14,000 account to cover her ailing father's “[b]urial expenses and transportation costs,” and a savings account with a nominal sum on deposit. Her monthly expenses included utilities, “daily care” and “transportation,” insurance premiums and co-pays, medications, estimated property taxes, food, payments on credit card debt, and homeowners' association dues. These expenses exceeded her income by about $2,000. Balistreri-Amrhein's affidavit also reflected she had filed bankruptcy in December 2009, she owed approximately $56,000 in medical bills, and her credit card debt approximated $75,000. She asserted in her affidavit that she was unable to borrow money or obtain a loan because of “poor credit history, credit scoring, [and] bankruptcies” and could not work because of her age and health.

The court reporter contested the affidavit, and the trial court held a hearing. See id. 20.1(e),(i). At the hearing, Balistreri-Amrhein testified as to the statements in her affidavit and added that she had been “found indigent” in this Court “in 2008/2009” and in the Texas Supreme Court in early 2010. She further testified that her house was appraised at $550,000 by the county, although it was “worth less than that,” and that the credit card debt was “with [her] father.” Upon the trial court's questioning, she testified she owed nothing on the house and explained she thought she was nonetheless indigent because “that's not cash flow . . . expendable cash.” She also argued the home was “homestead” and needed over $20,000 in repairs which she could not afford. Balistreri-Amrhein testified she was guardian to her eighty-five year old father, and although she had voluntarily dismissed her bankruptcy, she could not get a loan because her credit scores were low as a result of the bankruptcy and debt. On cross-examination, and over her objection, Balistreri-Amrhein testified that her father had a monthly income of $2075 and “a couple of medical annuities.” She also testified that she owed nothing on her car, had not attempted to obtain an equity loan on her home, and had received from another party to the lawsuit a $15,000 settlement payment which she used “on the home” and to pay property taxes. In closing, she stated she was cash poor and could not pay the costs of the appeal. She also stated that she depended on her father's income and that her father “ha[d] a $19,000 IRS tax lien against him.” The trial court sustained the contest.

Balistreri-Amrhein's affidavit in the Remax appeal listed an additional $38,000 in medical debt and additional monthly expenses of $275. In this affidavit, she stated the appraised value of the house had been reduced, but she did not state the amount, and argued her house, as homestead, and her car were both protected against a forced sale. See Tex. Const. Art. XVI, § 50 (homestead exempt from seizure to satisfy creditor's claims); Tex. Prop. Code Ann. §§ 41.001(a) (same), 42.001(a), 42.002(a) (same - personal property) (West 2000 & West Supp. 2010). The trial court construed this affidavit as a motion for rehearing and denied the motion.

Following each of the court's orders, Balistreri-Amrhein and Balistreri filed with the trial court and this Court numerous documents and motions challenging the orders and urging indigency status. Included among those documents were bank letters denying them each personal loans in the amount of $9900; correspondence from the IRS concerning the tax lien; and updated affidavits of Balistreri-Amrhein showing a decrease in the appraised value of the house to $482,000, additional needed home repairs, the car was valued at $7,000 but needed repairs, increased monthly expenses, and personal property valued also at approximately $7,000. Also included was an affidavit of Balistreri showing that he had personal property valued at $600 and covered the “deficiencies over . . . . Balistreri-Amrhein's income for our needs, our care & our serious medical conditions.” See Footnote 2 Republican Title, First American Title, and Newland Communities responded to the latest motions and opposed the requested relief. So that we could determine the motions, we ordered the trial court clerk and court reporter to file that portion of the record necessary to review the orders sustaining the contest and denying the motion for rehearing. See In re Arroyo, 988 S.W.2d 737, 739 (Tex. 1998) (per curiam). Both complied.

Standard of Review and Applicable Law

A party unable to pay appellate court costs may proceed without advance payment of costs by filing an affidavit of indigence detailing such information as the party's income, assets, debts, monthly expenses, and ability to obtain a loan for court costs. See Tex. R. App. P. 20.1(a)(2),(b). The clerk, court reporter, or any party may challenge the affidavit by filing a contest within ten days of the filing of the affidavit. Id. 20.1(e). If no contest is filed, the affidavit's allegations are deemed true, and the party seeking to appeal as indigent is allowed to proceed without advance payment of costs. Id. 20.1(f). If a contest is filed, the burden is on the party seeking indigent status to prove indigence by a preponderance of the evidence. Id. 20.1(g); Higgins v. Randall County Sheriff's Office, 257 S.W.3d 684, 686 (Tex. 2008). A party is entitled to proceed without advanced payment of costs if “the record as a whole show[s] by a preponderance of the evidence that the [party] would be unable to pay the costs, or a part thereof, or give security therefor, if he really wanted to and made a good-faith effort to do so[.]” Higgins, 257 S.W.3d at 686 (quoting Pinchback v. Hockless, 164 S.W.2d 19, 20 (Tex. 1942)).

We review a trial court's order sustaining a contest to an affidavit of indigence for abuse of discretion. Basaldua v. Hadden, 298 S.W.3d 238, 241 (Tex. App.-San Antonio 2009, no pet.) (Per curiam). We will conclude the trial court abused its discretion if it acted without reference to any guiding rules or principles or in an arbitrary and unreasonable manner. Id. Discussion

Before addressing the propriety of the trial court's orders, we note that, upon Balistreri- Amrhein and Balistreri's unopposed motion, these two appeals are being consolidated by separate order issued concurrently with this opinion. Accordingly, we consider Balistreri-Amrhein's affidavits in the AHI and Remax appeals as a single request to proceed without advance payment of costs rather than separate, discrete requests.

The record before us reflects that at the time of the hearing on the contest and at the rehearing Balistreri-Amrhein had significant monthly expenses and debt and limited monthly income. She could not work because of poor health and was dependent on her elderly father's income. She asserted she could not obtain a loan because of a poor credit rating and her bankruptcy filing. At the same time, however, she owned “free and clear” a three-year old car and a home appraised at $550,000. She had also received a $15,000 settlement payment from a party to the suit. Although she asserted she could not afford the costs of the appeal, she did not produce any evidence as to the actual cost, and when asked if she had tried to obtain an equity loan, she replied she had not. Balistreri-Amrhein had the burden of proving her indigency by a preponderance of the evidence. On the record before us, we conclude she failed to meet her burden and she could pay the costs, or give security for the costs, if she “really wanted to and made a good-faith effort to do so.” While the house may be worth less than the appraised value and the house and car may be exempt from execution under the Texas Constitution and property code, they are still assets from which Balistreri- Amrhein could secure the necessary funds for the costs of the appeal. See Pinchback, 164 S.W. at 20 (“if [a party] owns an automobile or truck or other valuable property, although exempt from execution, which he could mortgage or otherwise dispose of and thereby secure the necessary funds without depriving himself and his family of the necessities of life, he should be required to pay the costs, or give security therefor.”); see also White v. Bayless, 40 S.W.3d 574, 576 (Tex. App.-San Antonio 2001, pet. denied) (per curiam) (no abuse of discretion in sustaining contest where party had given up stock ownership and note, had personal property valued at $5350 but its location was unknown, and court unsure party had made “real attempt” to find that property; “failing to pursue and use assets that could be used to provide funds for paying for the appellate record evidence the opposite of a good-faith effort.”). The trial court did not abuse its discretion in sustaining the contest and denying the motion for rehearing.

In concluding Balistreri-Amrhein failed to meet her burden and the trial court did not abuse its discretion, we necessarily reject Balistreri-Amrhein and Balistreri's arguments in their challenge to the court's orders. In addition to reurging the argument made in the affidavit in the Remax appeal that the homestead and car were both protected against a forced sale, they also argue the trial court (a) violated Texas Rule of Civil Procedure 145 when it considered, during the hearing on the contest, Balistreri's financial state and Balistreri-Amrhein's social security disability income; and (b) lacked jurisdiction to consider the affidavits and contest due to the bankruptcy filing. See Footnote 3 Texas Rule of Civil Procedure 145, however, governs affidavits of indigency at the trial court level; it does not apply to appellate proceedings. See Tex. R. Civ. P. 145; see also Baughman v. Baughman, 65 S.W.3d 309, 312 (Tex. App.-Waco 2001, pet. denied). And, while a bankruptcy proceeding stays a suit against the debtor thereby precluding the trial court and parties from moving forward on the suit, it does not stay a suit, such as this one, filed by the debtor. See 11 U.S.C. § 362(a)(1) (2004 & Supp. 2010); McGregor v. Rich, 941 S.W.2d 74, 79 n.1 (Tex. 1997) (per curiam); see also Dickinson v. Dickinson, 324 S.W.3d 653, 656 (Tex. App.-Fort Worth 2010, no pet.). Nothing in the record shows the trial court abated the case upon the filing of bankruptcy or otherwise lacked jurisdiction to proceed in this case.

Although our scope of review in determining the propriety of the trial court's orders is limited to the evidence before the court at the time of its ruling, we have considered in the interest of justice the additional documents filed following the court's orders. These documents reflect Balistreri-Amrhein's and Balistreri's unsuccessful efforts to obtain a personal loan, the tax lien against Balistreri, and that Balistreri's income is used to pay those expenses Balistreri-Amrhein cannot pay. They also show, however, that Balistreri-Amrhein owns personal property valued at $7,000-an additional source from which the necessary funds, or security, for the costs of the appeal could be secured.

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See: http://www.5thcoa.courts.state.tx.us/files/05/recent/091377F.HTM

Outcome: We conclude the trial court did not abuse its discretion in sustaining the contest and denying the motion for rehearing, and affirm the orders. We further conclude that none of the additional documents filed by Balistreri-Amrhein and Balistreri following the court's orders support a different result. Accordingly, we deny their request to proceed in these appeals without advance payment of costs.

Plaintiff's Experts:

Defendant's Experts:

Comments: