Ali Yazdchi v. Kenneth Mingledorff AKA Mingledorff Law Firm ( 2018 )

Affirmed and Memorandum Opinion filed December 20, 2018.
In The
Fourteenth Court of Appeals
NO. 14-17-00462-CV
ALI YAZDCHI, Appellant
V.
KENNETH MINGLEDORFF AKA MINGLEDORFF LAW FIRM, Appellee
On Appeal from the 215th District Court
Harris County, Texas
Trial Court Cause No. 2014-66361
MEMORANDUM OPINION
In July 2016, the district clerk contested appellant Ali Yazdchi’s affidavit of
indigence under Rule 145 of the Texas Rules of Civil Procedure. The trial court
sustained the contest and ordered Yazdchi to pay the $360 filing fee. When Yazdchi
failed to pay the filing fee, the trial court dismissed Yazdchi’s suit for want of
prosecution. In a single multifarious issue, Yazdchi contends that the trial court erred
because (1) the clerk’s contest was filed more than ten days after Yazdchi filed his
affidavit, and (2) the court failed to reinstate the case after Yazdchi paid the $360
filing fee.
I. No Ten-Day Deadline
Yazdchi contends that the trial court erred by sustaining the clerk’s contest
because the contest was filed more than ten days after Yazdchi filed his affidavit of
indigence. Yazdchi relies on the former version of Rule 20.1 of the Texas Rules of
Appellate Procedure, which concerned indigency status on appeal. See Tex. R. App.
P. 20.1, 71 Tex. B.J. 289–90 (2008, amended 2016). The former Rule 20.1 required
an appellant to file an affidavit of indigence with or before the notice of appeal, and
“[t]he prior filing of an affidavit of indigence in the trial court pursuant to Rule 145
[of the Texas Rules of Civil Procedure did] not meet the requirements of this rule,
which require[d] a separate affidavit and proof of current indigence.” Tex. R. App.
P. 20.1(d)(1), 71 Tex. B.J. 289. The clerk was required to contest this appellate
affidavit within ten days of the filing of the affidavit. See Tex. R. App. P. 20.1(f), 71
Tex. B.J. 290. Absent a timely contest, indigence on appeal was presumed and
mandatory. See Morris v. Aguilar, 369 S.W.3d 168, 170–71 (Tex. 2012).
Appellant cites no authority, however, for the proposition that former Rule
20.1 applied to a clerk’s contest of an affidavit of indigence filed under the former
Rule 145 of the Texas Rules of Civil Procedure. Under the former rules, the affidavit
of indigence for purposes of Rule 145 did not carry forward to the appeal. See Tex.
R. App. P. 20.1(d)(1), 71 Tex. B.J. 289. And, Rule 145 did not explicitly require the
clerk to contest an affidavit of indigence in the trial court within ten days. See Tex.
R. Civ. P. 145, 68 Tex. B.J. 854 (2005, amended 2016).
Accordingly, the trial court did not err by considering the clerk’s contest
although it was filed more than ten days after Yazdchi filed his affidavit of indigence.
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II. Untimely and Unverified Motion to Reinstate
Yazdchi also asks this court to reinstate his case because he ultimately paid
the $360 filing fee. More than thirty days after the trial court’s order of dismissal,
Yazdchi filed an unverified motion to reinstate, attaching a receipt to show his
payment of the filing fee to the clerk.
Generally, a motion to reinstate following a dismissal for want of prosecution
must be verified and filed within thirty days of the trial court’s order. See Tex. R.
Civ. P. 165a(3). A trial court abuses its discretion if it grants an unverified motion
to reinstate filed more than thirty days after the order of dismissal. See McConnell
v. May, 800 S.W.2d 194, 194 (Tex. 1990) (per curiam). See generally Young v. Di
Ferrante, 553 S.W.3d 125 (Tex. App.—Houston [14th Dist.] 2018, pet. filed).
Accordingly, the trial court did not err by failing to reinstate the case based
on Yazdchi’s untimely and unverified motion.
III. Conclusion
Having overruled Yazdchi’s issue, we affirm the trial court’s judgment.
/s/ Ken Wise
Justice
Panel consists of Justices Busby, Brown, and Wise.
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