Mariann Bacharach v. Eufemia Garcia

NUMBER 13-14-00693-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

MARIANN BACHARACH, Appellant,

v.

EUFEMIA GARCIA, Appellee.

On appeal from the 389th District Court
of Hidalgo County, Texas.

ORDER

Before Chief Justice Valdez and Justices Rodriguez and Garza
Per Curiam

In the underlying case, appellee Eufemia Garcia sued appellant Mariann

Bacharach for, among other causes of action, libel and slander. Proceeding pro se in

the trial court and now on appeal, appellant filed a motion to dismiss under chapter 27 of

the Texas Civil Practice and Remedies Code (Texas's anti-SLAPP statute), alleging that
appellee's lawsuit was in response to appellant's exercise of her right to free speech.

See TEX. CIV. PRAC. & REM. CODE ANN. § 27.003 (West, Westlaw through 2013 3d C.S.).

The trial court denied appellant's motion to dismiss on October 16, 2014, and appellant

filed her notice of appeal in the trial court on November 12, 2014. See id. §27.008(b)

(West, Westlaw through 2013 3d C.S.); see also KTRK Television, Inc. v. Robinson, 409

S.W.3d 682, 688 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) (holding that "section

27.008 permits an interlocutory appeal from the trial court's written order denying a motion

to dismiss under" chapter 27); San Jacinto Title Servs. of Corpus Christi, LLC. v. Kingsley

Properties, LP, No. 13-12-00352-CV, 2013 WL 1786632, at *5 (Tex. App.—Corpus Christi

Apr. 25, 2013, pet. denied) (same).

On December 15, 2014, appellant filed an affidavit of indigency in the trial court,

describing her income, receipt of government food assistance, debt, expenses, and

current employment status. See TEX. R. APP. P. 20.1(a)(2), (b). Appellee filed a motion

to contest appellant's affidavit of indigency on December 23, 2014, arguing that the

affidavit was untimely and that appellant had sufficient income and other resources to pay

for the costs of her appeal. On January 5, 2015, appellant filed an unsworn declaration,

refuting the assertions about her financial situation in appellee's contest. See TEX. CIV.

PRAC. & REM. CODE ANN. § 132.001(a) (West, Westlaw through 2013 3d C.S.) (". . . [A]n

unsworn declaration may be used in lieu of a written sworn declaration, verification,

certification, oath, or affidavit required by statute or required by a rule, order, or

requirement adopted as provided by law.").

On January 8, 2015, the trial court held a hearing on appellee's contest. Appellant

did not appear at the hearing. In granting appellee's contest and denying appellant

indigent status, the trial court made the following statement:
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 The Court's going to find that Mrs. Bacharach has to establish her
indigency. She is not here to establish her indigency; therefore, there is no
evidence before this Court that she is indigent. The contest of her affidavit
and the parties here who are contesting her affidavit do have the right to
question Mrs. Bacharach as to her as indigency, so therefore since she is
not here, I'm going to grant their contest and consider defendant's—I've
considered the defendant's affidavit of indigency. I'm going to find that her
affidavit of indigency is denied.

The trial court issued its written order denying appellant's affidavit of indigency the same

day. No findings of fact were requested or filed. Appellant then filed a motion to

challenge the trial court's ruling on indigency with this Court. See TEX. R. APP. P.

20.1(j)(1).

"When a trial court sustains a contest to an affidavit of indigence, we review the

trial court's ruling under an abuse of discretion standard." Few v. Few, 271 S.W.3d 341,

345 (Tex. App.—El Paso 2008, pet. denied); see also Roblin v. Briggs, No. 13-09-00475-

CV, 2010 WL 4264793, at *2 (Tex. App.—Corpus Christi Oct. 28, 2010, no pet.)

(mem. op.). "A trial court abuses its discretion when its action is arbitrary or

unreasonable or without reference to any guiding rules or principles." Few, 271 S.W.3d

at 345; see also Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42

(Tex. 1985).

Here, we do not believe the trial court abused its discretion in sustaining appellee's

contest to appellant's affidavit of indigency because appellant's affidavit was untimely. 1

1 We note that the trial court appears to have granted appellee's contest on the ground that
appellant failed to appear at the hearing and present evidence. But appellant's unsworn declaration filed
subsequent to appellee's contest was some evidence from which the trial court could have addressed the
merits. See TEX. CIV. PRAC. & REM. CODE ANN. § 132.001(a) (West, Westlaw through 2013 3d C.S.).
Nonetheless, because appellant's affidavit was untimely, see TEX. R. APP. P. 20.1(c)(1), and because we
must affirm the trial court's order if it is supported by any legal basis evidenced in the record, In re W.E.R.,
669 S.W.2d 716, 717 (Tex. 1984) ("Where findings of fact and conclusions of law are not properly requested
and none are filed, the judgment of the trial court must be affirmed if it can be upheld on any legal theory
that finds support in the evidence."), we do not reach the propriety of the trial court's stated basis for ruling
as it did.
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"'Rule 20.1(c) strictly requires that an appellant file an affidavit of indigency with or before

the notice of appeal.'" Few, 271, S.W.3d at 346 (quoting Ford v. Whitehead, 2 S.W.3d

304, 306 (Tex. App.–San Antonio 1999, no pet.)); see Kindle v. United Servs. Auto. Ass'n,

357 S.W.3d 377, 380 (Tex. App.—Texarkana 2011, pet. denied) ("Where a litigant fails

to timely file an affidavit of indigency pursuant to Rule 20.1, the trial court does not abuse

its discretion in finding that the litigant is not indigent."). Although appellant filed her

notice of appeal on November 12, 2014, she did not file her affidavit of indigency until

over a month later on December 15, 2014. Thus, because appellant's affidavit was not

timely, we cannot conclude the trial court's ruling was arbitrary or unreasonable or without

reference to any guiding rules or principles.

The Court, having fully examined and considered the available appellate record

regarding the indigence matter, is of the opinion that the trial court properly granted

appellee's contest to appellant's affidavit of indigency. Appellant's motion to challenge

the trial court's ruling on indigency is therefore DENIED. Because appellant did not

establish indigency, she is not entitled to a free appellate record. See TEX. R. APP. P.

20.1(k). We order that the remainder of the appellate record not already filed with the

Court be filed within thirty days of this order.

PER CURIAM

Delivered and filed the 27th
day of January, 2015.

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