David A. Berry v. Federal National Mortgage Association AKA Fannie Mae

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON

ORDER

Appellate case name: David A. Berry v. Federal National Mortgage Association aka
Fannie Mae

Appellate case number: 01-14-00781-CV

Trial court case number: 1049661

Trial court: County Civil Court at Law No. 4 of Harris County

On September 16, 2014, appellant, David A. Berry, filed an affidavit of indigence
in the trial court. See TEX. R. APP. P. 20.1(a)(2)(A). On September 24, 2014, the trial
court clerk filed the clerk’s record on indigence. According to the clerk’s record, the trial
court timely sustained the county clerk’s contest to appellant’s affidavit of indigence on
September 23, 2014. See id. 20.1(e)(1), (i)(4). Also on September 24, 2014, the trial
court clerk issued a second letter of assignment to this Court from the above-mentioned
trial court cause number, containing a “Notice of Appeal of Judgment and Order
Sustaining Contest to Pauper’s Oath,” which was filed by appellant in the trial court on
September 24, 2014.
Under Texas Rule of Appellate Procedure 20.1(j)(1), a party claiming indigence
may seek review of a trial court order sustaining a contest to his or her affidavit of
indigence by filing a motion challenging the order in the appellate court. See id.
20.1(j)(1) (stating that party may seek review of trial court’s order “by filing a motion
challenging the order with the appellate court”).
Here, appellant filed a notice of appeal, in which he specifically states that he
“request[s] an appeal;” appellant did not file a motion. Further, and more importantly,
appellant filed his notice in the trial court, not with this Court as required by Rule
20.1(j)(1). See id. (requiring motion be filed “with the appellate court”).
Under Texas Rule of Appellate Procedure 20.1(j)(4), a motion challenging a trial
court’s order sustaining a contest to an affidavit of indigence is granted by operation of
law unless the appellate court denies the motion within 10 days after it is filed. Id.
20.1(j)(4). Because appellant’s notice of appeal was filed as a notice and because it was
filed in the trial court, the filing provided no notice to this Court of the need to consider
and rule on a motion challenging the trial court’s order within 10 days of the filing of
such a motion. Consequently, consideration of such an improperly filed notice, which
comes to the appellate court’s attention through a letter of assignment issued by the trial
court clerk, would encourage appellants to improperly file their Rule 20.1(j) motions in
an effort to have their motions be granted by operation of law. Accordingly, we will not
construe appellant’s “Notice of Appeal” as a motion challenging the trial court’s order
sustaining the county clerk’s contest to appellant’s affidavit of indigence pursuant to
Texas Rule of Appellate Procedure 20.1(j).
Because appellant has not established indigence, it is ORDERED that appellant
pay the appellate filing fee to this Court within 14 days of the date of this order, or the
appeal will be dismissed. See TEX. R. APP. P. 5 (requiring payment of fees in civil cases
unless indigent), 42.3 (allowing involuntary dismissal of case).
It is further ORDERED that, by no later than November 17, 2014, appellant file
with this Court proof that he has paid or made arrangements to pay for the preparation of
the clerk’s record, or the appeal will be dismissed. See TEX. R. APP. P. 34.5(a),
35.3(a)(2), 37.3(b).
It is so ORDERED.

Judge’s signature: /s/ Sherry Radack
 Acting individually  Acting for the Court

Date: October 14, 2014