i i i i i i



### MEM ORA ND UM OP INION No
. 04 -0 8- 00 77 9- CV Kr ist of e r T ho ma s K

AST NE R , Appellant
v . MARTIN & DROUG HT, P.C. f/k/a Mar tin, Droug ht, I nc. and f

/k/a Martin, Droug ht & Tor

res, Inc., Ge rald T. Dr oug ht, and Dain A. D rey er,

Appellee s Fr om the 57th J udicial District Court, Be x ar County , Texas

Trial Court No. 08-CI -12370 Honora ble Michae l Peden, J udg e Presiding 

### I NTERLOCUTORY 

### O P INI ON ON 

### A PPEAL OF 

### O RDER 

### S US TAINI NG 

### C ONTES TS TO 

### A FFI DA VIT OF 

### I NABILI TY TO 

### P AY 

### C OS TS Opinion by : Steven C. Hilbig, Just ice Sitt ing: Catherine Stone, Chief Justice

Steven C. Hilbig, Just ice Marialy n Ba rnar d, J ustice Deliver ed and F iled: March 11, 2009 ORDER SUSTAI

NI NG CONTESTS TO AF FI DAVI T OF I NAB I L I TY TO PAY COSTS AND FI NDI NG APPEALFRI VOL OUS AFF I RMED Kr ist of e r T ho ma s K a stn e r ch a lle ng e s the tr ia l court ’s or de r sus ta ini ng the c on te sts fi le d to his a ffidavit of inability to pa y costs and finding his a

ppeal frivolous. We a ffirm the t ri al co u rt’s order
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- 2- Kastner filed a notice of appe al from the trial court’s order g ranting a take nothing summary judgme nt and a se vera

nce in f avor of appellee s Martin & Droug ht, P.C. f/k/a Martin, Droug ht, I nc. and f/k/a Ma

rtin, Droug ht & Tor

res, Inc., Ge rald T. Dr oug ht, and Dain A. Dre y er. Kastner filed a late af fidavit of inability

to p ay costs in this court and a motion for e x tension of time to file the aff idavit. We gr anted the motion t o extend time to file the aff idavit and enter ed an or der r equiring the trial court cler

k to file t he af

fidavit. See H

iggins v. Randall Count

y Sheriff’s Office , 193 S.W .2d 898, 899-900 (Te x . 2006). After the af fidavit was f

iled in the trial court, a

ppellees, the trial court c lerk, an d t h e cour t repor ter filed contests to Kastner ’s affidavit of i nability to pay . Appellee s also asked the trial court to deny Kastner a free rec ord on t he g round that his appea l is frivolous. See T EX . C IV . P R AC . & R EM . C ODE ANN . § 13 .0 03 (a )( 2) (A ) ( Ve rn on 20 02 ) ( statin g ind igent a pp e lla nt e nti tle d to fr e e re c or d if appe al i s n o t frivolous ). F ollowing a hear ing, the trial court sustained the contests and f ound Kastn er ’s appeal frivolous. Ka stner appe aled the tr ial court’s or der on indig ency . We theref ore order ed the pa

rties to file brief

s on the indige ncy and frivolity issues. Br iefs wer e filed by Kastner
and a pp e lle e s. Gene rally , a par

ty may proce ed on appe al without advanc e pay ment of costs if ( 1 ) h e files an af fidavit of indig ence in compliance with rule 20.1 of the Texas Rules of Appellate Proc edure , (2 ) h is c la im of ind ig e nc e is no t c on te ste d or any c on te st is no t su sta ine d, and (3 ) h e fi le s a tim e ly notice of a

ppeal. See T EX . R. A PP . P. 2 0. 1( a ). Th e aff ida vit of ind ig e nc e mus t id e nti fy

the pa rt y fi lin g it and state wh a t a mou nt of c os ts, if any the pa rt y c an p ay . R. 20.1(b). I t must also contain the information mandate d by

rule 20.1(b)
. Id. The trial c ourt cler k, the cour

t reporte r, or any party

may
c ha lle ng e the c la im of ind ig e nc e by fi lin g a c on te st t o th e a ff

ida vit . R. 20.1(e)
. I f a contest is filed,04
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- 3- the par ty who filed the a ffidavit must prove the a lleg ations in the aff idavit. R. 20.1( g ). I n the trial court, the te st for deter

mining indige nce is w hether the applica

nt shows, by

a pre pondera

nce of the evidenc e, that he w ould be unable to pay the appellate costs, or a part thereof, “ if he re ally wanted to and made a

g ood faith ef

fort to do so[.] ” Higgins v. Randall County Sheriff’s Office , 257 S.W .3d 6 8 4 , 6 8 6 (T ex . 2 0 0 8 ) ( qu o t i n g Pi nc hb ac k v . H oc k le ss , 13 9 T ex. 536, 164 S .W.2d 19, 20 (1942)). On appe al, we revie w the trial court’s decision for abuse of discretion. In re Sm ith , 70 S.W .3d 167, 16 8 ( Te x. Ap p. –Sa

n A nto nio 20 01 , n o p e t.) ; but see Baughman v . Baughman , 65 S.W .3d 309, 316 n.5 (Tex. App.–Waco 2001, pet. denie d) (holding standards for reviewing sufficie ncy of evide nce should be used to re view trial c ourt’s ruling on indige ncy ). Ka stn e r f ile d an a ff ida vit and a re sp on se to the c on te sts , e a c h w itha tta c hme nts . K a stn e r d id not appea r at the he aring– his r equest to a ppear telephonica lly

was de nied. The e vidence prese nted by Kastner shows he ea

rns approximately

$1,440 g ross and $1,280 ne t as a “ telephone a ppointment setter” with Admiral Service of Houston, Texas. He a sserts he has no othe r sourc e of inc ome and does not contend he rec eives a ny public entitl em en t s . He c laims he sometimes ear ns less if is he unable to wor

k a full 40-hour- wee k beca use of “ hurrica

nes, natura l disasters and . . . c ourt hea ring s.” He state s he has a

bout $54 in c ash and has persona l pr operty worth less than $3,000. Kastner aver s h e h as n o ca r a n d

s p en d s ap p ro x i m at el y

$ 9 7 8 m o n t h l y fo r va ri o u s ex p en s es , i n cl u d i n g re n t , s t o ra ge fe e s, fo od , tr ans po rt atio n, ha ir c uts , p ay me nts to t he State of Te xas, of

fi c e su pp lie s, and

e xpe ns e s to prosec ute pendinglawsui ts. He pre sented e vidence of the c osts accr ued in this matter, which he claims have rea ched more than $1,871. He swe ars he owes a pproxi mately

$98,700, which includes student loans in the amount of $95,000, $2,400 for a computer, $300 for bank overdr aft c harg es, and $1,000 for c redit ca

rds. He a dmits hi s aca demic deg ree s are worth $150,000, “but a re not sale able.”04
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1 ... U pon r equ es t , t h e t r i al cou r t t ook ju di ci al not i ce of t h e Fe der al R eg i s t er prov i s i on s et t i n g f or t h t h e 2008 p o v e rty g u id e line fo r a sing le p e rs o n w ith n o d e p e n d e n ts.

- 4- He swe ars he has attempted to obtain ba nk loans, but was denie d, and wa s denied “ cre dit of $1700 for a root ca nal.” He states that he spe nds nights and w eeke nds to prosecute this suit and “othe r litigation” i n which also he appea rs pro se. H e admits that he “ pay [s] the associated fe es and expenses for e ach of these case s” and that these c ases “ consume a dditional resourc es.” H e states he is single a nd has no depe ndents. At the hea

ring in response to Ka s t n er’ s claims in his affidavit and doc umentation, the contesting court off

icials submitt ed a c opy

of the F eder al Reg ister demonstratingthe 2008 fe dera l poverty g uideline for a single person without de pendents wa s $10,400. 1 They then showed that by Ka stn e r’ s ow n state me nts , his inc ome – g ro ss or ne t – e xce e ds the g uid e lin e . Th e c ourt of fi c ia ls a lso po int e d o ut t

hat K a stn e r a dmi ts that whe n he do e s not wo rk a 40 -h our- we e k, it is some tim e s d ue to court he aring s and that he is unable to make more money b ec au s e h e has to spend all of his spare time working on this lawsuit as well as the other s he has f iled and for

which he a

ppear s pro se. Appellee s pointed out that the current sui t is the s econd suit by Kastner ag ainst them in which he cla ims they

committed leg al malpra cti ce and breac hed their f iduciary duty to him when they
re pr e se nte d h im b e fo re the Te xas B oa rd of L e g a l E xami ne rs , w hic h h a d d e nie d Ka stn e r a law l ic e ns e beca use of his criminal hi story and chemical dependenc y . See Kastner v . Martin & Drought, Inc. , No. 04-07-00342- CV, 2009 WL 260601, at *1 (Te x . App.–San Antonio Fe b. 4, 2009, no pet. h.) (mem. op.). Appe llees ar g ued Ka stner filed a n aff idavit of ind ige nce in the f irst suit, which was essentially

the same a s the one c urre ntly befor e the court, and indige ncy status was denied by the trial court. T h at o rder was a ffirme d by this court. See Kastner v. Martin & Drought, Inc ., No. 04-07- 00342-CV, 2007 WL 3171378 (Tex. App.–San Antonio Oct. 31, 2007, pet. denie d) (mem. op.).04
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2 ... W hil e the issue o f

i nd i ge nc y and f

rivo l i t y was p en d i ng i n thi s curre nt ap p ea l , K astne r’ s ap p ea l i n the fi rst su it h e fi le d a g a ins t ap p e llee s w a s d e c id e d a g a ins t him in this c o u rt. See Ka s t ner , 2 0 0 9 W L 2 6 0 6 0 1 , at *1 , *6
.

- 5- They also argued that Ka stner is intentionally undere mploy ed – he admitt edly has college and law deg ree s, but he works a s a telephone appointment setter f or $9.25 an hour

and often does not work fu ll- tim e a t th a t jo b. Ap pe lle e s als o poin te d out the my ri a d of laws uit s tha t Ka stn e r h a s f ile d a nd is
curr ently pursuing
. I n revie wi n g th e r e c o r d

an d c o n s id e r in g th e ar g u me n ts in th e b r ie f s , w e f in d n o a b u s e of discretion by

the trial cour

t. There is e vidence that Kastner , a colleg e and la w school g raduate, ea

rns more than the applicable fede ral pove rty g uideline and that he could earn more if he desire d. Acc ording ly , there is e vidence that Kastner could pay

the costs of a

ppeal “ if he re ally

wanted to a

nd made a g ood faith ef

fort to do so[.] ” See H

iggins , 2 5 7 S
. W
. 3 d at 6 8 6 (q u o t i n g Pinchback , 164 S.W .2d at 20). I n addition to contesting the aff idavit of indige nce, a

ppellees f iled a separ ate motion alleg ing Kastner ’s cur

rent a ppeal is fr ivolous and there fore he is not entitled to procee d without pay ment of
co s t s . See T EX . C IV . P R AC . & R EM . C ODE ANN . § 1 3
. 0 0 3 ( a ) ( 2 ) ( A ) ( V e r n o n2 0 0 2 )
. A pp e lle e s’ frivolity claim is based on their

contention that the cur

rent suit is nothing more tha n the re filing of the first suit Kastner f

iled ag ainst them in 2006, which he lost on summary judgme nt and appe aled to t his c ourt
. 2 Acc ording to a ppellees’ evidenc e, the only differ ence is the addition of another law firm as a defe ndant. I n support of t heir contention, appellee s prese nted a c opy of their motion for
su mma ry jud g me nt, wh ic h w a s b a se d o n r e s ju dic a ta , a nd the tr ia l c ourt ’s or de r g ra nti ngthe ir motion. Appellees also pre sented e vidence to t h e t ri al cour t showing that two other suits filed by Kastner in fede ral court had been dismiss ed as frivolous, as well as evidenc e that Kastner had filed suits in ot her c ourts relating to this same matter
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- 6- We ordere d Kastner

to addre ss the issue of fr ivolity in his brief. Our order stated, i n pertinent pa rt : I t is therefor e ORDERED that a ppellant file a

brief, limited to the issue of the trial co u rt’s ruling on his affidavit of inability to pay costs, in c lu di ng t he t r ia l c o ur t ’s de te r m ina ti on th at appe lla nt ’s appe al is fr ivo lou s no later tha n fiftee n day s from the date of

this order. (empha sis added) Howeve r, Kastner di d not prese nt any argument reg ardingthe finding by the trial
c ourt that hi s a pp e a l is fr ivo lou s. Ra the r, he me re ly state d in his bri e f that his af fi davit of ina bil ity to pay costs was not f

rivolous. There is nothing in the rec ord or the br iefs that would wa rra nt our finding an abuse of discre tion by the trial cour

t with reg ard to its finding the appe al frivolous. B e c a us e the tr ia l c ourt

did no t a bu se its dis c re tio n, we a ff

ir m its or de r s us ta ini ngthe c on te sts and finding Kastner ’s appea l f rivolous. Kastner is the ref ore not e ntitled to proce ed in t h i s ap p eal without advance pay

ments of costs, including pay ment of the filing fee
. Steven C. Hilbig, Just ice