a-p-winter-v-musket-corporation-loves-country-stores-inc-hugh-eric ( 1994 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-94-035-CV



A. P. WINTER,

APPELLANT

vs.





MUSKET CORPORATION; LOVE'S COUNTRY STORES, INC.; HUGH ERIC MEADE; AMERI SUITES HOTEL; SUITEMARK, INC. D/B/A AMERI SUITES HOTEL; RUST/HARRIS, INC; AMERI SUITES, INC.; RHF, LTD.; AND RH, LTD.,

APPELLEES

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT

NO. 92-14749-A, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING

PER CURIAM

Appellant A. P. Winter seeks to appeal from a judgment of the district court of Travis County rendered in his suit against appellees Musket Corporation; Love's Country Stores, Inc.; Hugh Eric Meade; Ameri Suites Hotel; Suitemark, Inc. d/b/a Ameri Suites Hotel; Rust Harris, Inc.; Ameri Suites, Inc.; RHF, Ltd.; and RH, Ltd. Winter timely filed an affidavit of inability to pay the costs of appeal ⁽¹⁾ on December 20, 1993. See Tex. R. App. P. 40(a)(3), 41(a)(1). Because Winter did not comply with the notice requirements of Texas Rule of Appellate Procedure 40(a)(3)(B), he is unable to prosecute the appeal without paying costs. We will dismiss the appeal for want of jurisdiction.

On receipt of the transcript, the Clerk of this Court notified the parties, by letter dated January 26, 1994, that a review of the transcript raised several questions about this Court's jurisdiction over the appeal. See Tex. R. App. P. 60(a)(2). The first of these questions concerned the absence of a signed, written order in response to the contests to Winter's affidavit of inability to pay. Musket Corporation and Love's Country Stores, Inc. (collectively "Musket") and Meade timely filed contests to Winter's affidavit on December 29 and 30, 1993. See Tex. R. App. P. 40(a)(3)(C).

Texas Rule of Appellate Procedure 40(a)(3)(C) requires a trial court to rule on a contest to an affidavit of inability to pay the costs of appeal within ten days after the contest is filed or within the period of time as extended by a timely, written order of the court. Ramirez v. Packer, 807 S.W.2d 728, 729 (Tex. 1991). The ten-day period within which to sign either an order sustaining or overruling the contests or an order extending the time began to run on December 29, the date on which Musket filed the first contest. Id.; Lovall v. West, 859 S.W.2d 544, 545 (Tex. App.--Houston [1st Dist.] 1993, orig. proceeding). Although Musket filed a motion to extend the time for a hearing on the contests, the trial court did not rule on the motion and did not extend the time within which to hold a hearing and sign an order. ⁽²⁾

The trial court did hold a hearing on January 6, within the Rule 40(a)(3)(C) time limits. The trial court did not, however, sign a written order until January 13, more than ten days after Musket filed its contest. The court was then bound to accept the allegations of the affidavit as true. Ramirez, 807 S.W.2d at 729. The trial court's oral ruling at the January 6 hearing was insufficient. Only a signed, written order is effective. Modern Living, Inc. v. Alworth, 730 S.W.2d 444, 446 (Tex. App.--Beaumont 1987, orig. proceeding); Shaffer v. U.S. Cos., 704 S.W.2d 411, 412 (Tex. App.--Dallas 1985, no writ). Consequently, the trial court order of January 13 was ineffective to sustain the contests to Winter's affidavit of inability to pay the costs of appeal. See Ramirez, 807 S.W.2d at 729; Shaffer, 704 S.W.2d at 412.

Nevertheless, Winter may not prosecute his appeal without paying costs. See Wheeler v. Baum, 764 S.W.2d 565, 566 (Tex. App.--Houston [1st Dist.] 1988, orig. proceeding); Fellowship Missionary Baptist Church, Inc. v. Sigel, 749 S.W.2d 186, 188 (Tex. App.--Dallas 1988, no writ). Texas Rule of Appellate Procedure 40(a)(3)(B) provides, "The appellant . . . shall give notice of the filing of the affidavit . . . to the court reporter of the court where the case was tried within two days after filing; otherwise, he shall not be able to prosecute the appeal without paying the costs or giving security therefor." (Emphasis added). See Jones v. Stayman, 747 S.W.2d 369, 369-70 (Tex. 1987); Wheeler, 764 S.W.2d at 566.

The transcript includes a document titled "Declaration of Service by Mail" that states that the affidavit was served on persons named on an attached list. The list does not include the court reporter. In her affidavit submitted with Musket's letter of February 10, 1994, the court reporter states that she did not receive any notice of the filing of the initial or amended affidavit. Winter has not addressed the notice question in response to this Court's inquiries, but has filed a motion requesting an extension of time to file a statement of facts. See Dodson v. Stevens Transp., 776 S.W.2d 800, 802 (Tex. App.--Dallas 1989, no writ) (failure to notify court reporter irrelevant if appellant to appeal without statement of facts and does not request preparation of statement of facts); Sanders v. Texas Employers Ins. Ass'n, 775 S.W.2d 762, 763 (Tex. App.--El Paso 1989, no writ) (lack of notice to court reporter will not destroy jurisdiction in appeal from summary judgment in which statement of facts not necessary on appeal).

The notice provision of Rule 40(a)(3)(B) is mandatory; the failure to give notice to the court reporter precludes a party from prosecuting an appeal without paying or giving security or the costs of appeal. Matlock v. Allstate Ins. Co., 729 S.W.2d 960 (Tex. App.--Corpus Christi, no writ); Bantuelle v. Renfroe, 620 S.W.2d 635, 637 (Tex. App.--Dallas 1981, no writ). Winter may not, therefore, prosecute his appeal without filing a cost bond or making a cash deposit with the district clerk of Travis County.

Winter ⁽³⁾ did make a cash deposit with the district clerk of Travis County on January 18, 1994, within ten days of the trial-court order sustaining the contests to his affidavit. See Tex. R. App. P. 41(a)(2); Shaffer, 704 S.W.2d at 412. Winter may not, however, rely on the certificate of cash deposit to perfect his appeal. Wheeler, 764 S.W.2d at 566; Sigel, 749 S.W.2d at 189. Because the trial court signed the order sustaining the contests to the affidavit untimely, the affidavit was sustained as a matter of law. Nevertheless, Winter is unable to prosecute the appeal without paying the costs of appeal because he did not comply with the notice provision of Texas Rule of Appellate Procedure 40(a)(3)(B). Under these circumstances, the cash deposit would perfect an appeal only if filed within the time in which to perfect an appeal. Because Winter made the cash deposit more than thirty days after the trial court signed a final judgment, the deposit is untimely. Tex. R. App. P. 41(a)(1). We are, therefore, without jurisdiction over the appeal. Davies v. Massey, 561 S.W.2d 799, 801 (Tex. 1978); Willis v. Texas Dept. of Corrections, 834 S.W.2d 953 (Tex. App.--Tyler 1992, no writ).

Winter has filed several motions in the appeal: (1) a motion for an extension of time to submit statements of fact, (2) a motion for an extension of time within which to file his brief, (3) a motion for a disciplinary hearing and order for declaratory relief, and (4) a motion for fact findings regarding the parties settlement. Because we are without jurisdiction over the appeal, we dismiss each of these motions. We overrule, however, his motion seeking to have trial counsel pay costs.

The appeal is dismissed for want of jurisdiction.

Before Justices Powers, Aboussie and Jones

Appeal Dismissed for Want of Jurisdiction

Filed: April 20, 1994

Do Not Publish

1. ¹ Winter filed his affidavit "In Support of the Claim of Exemption of a Surety Bond/Fee as a Pauper upon the Notice of Motion and Motion for Appeal of Judgment" on December 20, 1993, and filed an amended affidavit on January 7, 1994. We will refer to the affidavits as affidavits of inability to pay the costs of appeal. See Tex. R. App. P. 40(a)(3).

2. ² Musket responded to this Court's letters of January 26, 1994, and February 7, 1994, by letter dated February 10, 1994. Attached to that letter is the affidavit of Musket's counsel stating facts regarding the hearing on the contests. Because no party has controverted the affidavit, we will consider its recitation of the facts as true. See generally Tex. Gov't Code Ann. § 22.220(c) (West 1988) (court of appeals may ascertain matters of fact necessary to proper exercise of jurisdiction); Tex. R. App. P. 19(d).

3. ³ The certificate of cash deposit states that "the Appellant, A. P. Winter, Marion Winter, James Winter, and Kimberly Winter" made a cash deposit in the amount of $1000. Because only A. P. Winter timely filed an affidavit of inability to pay the costs of appeal, the record shows no basis on which any party other than A. P. Winter may have perfected an appeal pursuant to Texas Rule of Appellate Procedure 41(a)(2). If Marion Winter, James Winter, and Kimberly Winter are considered to have perfected an appeal based on the erroneous certificate of cash deposit, the appeal of theses three appellants is dismissed for want of jurisdiction. See Tex. R. App. P. 41(a)(1).