Ullja Kuntze v. Sandra Cowan ( 2018 )

IN THE
TENTH COURT OF APPEALS
No. 10-17-00228-CV
ULLJA KUNTZE,
Appellant
v.
SANDRA COWAN,
Appellee
From the 335th District Court
Burleson County, Texas
Trial Court No. 26,129
ORDER
Sandra Cowan filed suit against Ullja Kuntze.
On March 27, 2017 the trial court granted a turnover order for the enforcement of
a prior judgment in favor of Cowan against Kuntze. After Kuntze filed a motion to
reconsider, which was denied on April 3, 2017, and a motion to modify the judgment,
which was denied on June 12, 2017, Kuntze filed a notice of appeal on June 29, 2017.
On July 25, 2017 the trial court signed an order which determined “Kuntze is Not
indigent.” In reliance on the order, the preparation and filing of the record in this
proceeding has awaited appellate review of that ruling.
Kuntze filed a motion contesting the trial court’s determination that she is not
unable to afford to pay court cost.1 Kuntze contends the trial court erred in both the
procedure for making the determination as well as on the merits of the
determination. We agree with Kuntze.
The trial court had not received a motion challenging Kuntze’s Motion for
Declaration of Indigency and Affidavit of Indigency by any party, attorney, the clerk, the
court reporter, or the trial court. See TEX. R. CIV. P. 145(f). Moreover, there was no
evidentiary hearing at which additional evidence could have been received. Id. (f)(5).
Accordingly, the trial court had no basis upon which to determine that Kuntze was not
unable to afford to pay court cost.
Accordingly, Kuntze motion is granted to the extent the trial court’s order
determining that Kuntze is not unable to afford court cost is set aside and the trial court
clerk and the trial court reporter are ORDERED to prepare and file with this Court’s Clerk
the clerk’s record, pursuant to Texas Rule of Appellate Procedure 34.5, and reporter’s
record, pursuant to Texas Rule of Appellate Procedure 34.6. The clerk’s and reporter’s
records necessary for a review of the trial court’s judgment rendered on March 27, 2017
are due within 30 days of the date of this order.
PER CURIAM
1
By a prior order, the motion was “moved” to another proceeding (10-17-00244-CV). But because it
contained other motions, a copy of it was retained in this proceeding. The motion challenging the trial
court’s order regarding the inability to pay court cost, or not, is reinstated in this proceeding.
Kuntze v. Cowan Page 2
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Order issued and filed August 29, 2018
Publish
Kuntze v. Cowan Page 3