Latanya Ann Wilson v. Ditech Financial, LLC

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-21-00100-CV

Latanya Ann Wilson, Appellant

v.

Ditech Financial, LLC, Appellee

FROM THE COUNTY COURT OF FAYETTE COUNTY NO. 3779, THE HONORABLE JOE WEBER, JUDGE PRESIDING

ORDER AND MEMORANDUM OPINION

PER CURIAM

In February 2021, the trial court issued its judgment ordering that Latanya Ann

Wilson and other occupants vacate a home in Schulenburg, Texas, and further ordering that

Ditech Financial, LLC, would be entitled to obtain a writ of possession granting it possession of

the property if Wilson and the other occupants did not vacate within two weeks. The judgment

also required Wilson to pay attorney’s fees, post-judgment interest, and court costs. After the

trial court issued its judgment, Wilson filed a notice of appeal. A few days later, the trial court

issued an order requiring Wilson to pay a bond to pursue her appeal. See Tex. Civ. Prac. & Rem.

Code § 52.006; Tex. R. App. P. 24.2. In response, Wilson filed a statement of inability to afford

payment of court costs or an appeal bond. After reviewing the statement, the trial court issued an

order striking Wilson’s statement. Rule 145 of the Texas Rules of Civil Procedure exempts a party from paying

courts costs if the party files a statement of inability to afford payment of court costs unless

certain procedural requirements have been met. Tex. R. Civ. P. 145(f). First, “[t]he declarant

must not be required to pay costs without an oral evidentiary hearing” and must be given notice

of the hearing. Id. R. 145(f)(1). In addition, any “order requiring the declarant to pay costs must

be supported by detailed findings that the declarant can afford to pay costs.” Id. R. 145(f)(2).

Further, any “order requiring the declarant to pay costs must state in conspicuous type: ‘You may

challenge this order by filing a motion in the court of appeals within 10 days after the date this

order is signed. See Texas Rule of Civil Procedure 145.’” Id. R. 145(f)(4).

In this case, Wilson filed a statement of inability to pay as contemplated by Rule

145. See id. R. 145(b). However, the record before this Court indicates that the trial court did

not hold an evidentiary hearing or provide Wilson with the requisite notice before issuing

its order striking her statement. Additionally, the trial court’s order did not include the

admonishment informing Wilson that she had a right to appeal the order and specifying the

deadline for filing the appeal. See id. R. 145(f).

Accordingly, we abate this appeal and remand this cause to the trial court to hold

the requisite evidentiary hearing to determine whether Wilson is unable to pay. See id. The trial

court must give the parties at least ten days’ notice of the hearing. Following the hearing, the

trial court is directed to enter an order providing that Wilson is not required to pay court costs or

the appeal bond, pay the part of the court costs and appeal bond that she can afford to pay, or pay

all the court costs and the appeal bond. If the trial court orders Wilson to pay some or all the

court costs and the appeal bond, the trial court is further directed to include in its order detailed

findings supporting its ruling and the admonishment listed above. A reporter’s record of the

2 hearing shall be prepared and filed in the record of this appeal, and the trial court shall prepare a

supplemental clerk’s record containing its order. The reporter’s record and supplemental clerk’s

record must be filed by July 20, 2021. The appeal will be reinstated when the records are filed.

See Gonzalez v. Park, No. 07-16-00305-CV, 2016 WL 4742244, at *1-2 (Tex. App.—Amarillo

Sept. 9, 2016, order).

It is so ordered on June 11, 2021.

Before Chief Justice Byrne, Justices Baker and Smith

Abated and Remanded

Filed: June 11, 2021