Marilyn Stewart v. the City of San Antonio

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-13-00720-CV

Marilyn STEWART, Appellant

v. The City of San The CITY OF SAN ANTONIO, Appellee

From the 45th Judicial District Court, Bexar County, Texas Trial Court No. 2012-CI-09344 The Honorable Cathleen M. Stryker, Judge Presiding

Sitting: Catherine Stone, Chief Justice Karen Angelini, Justice Sandee Bryan Marion, Justice

Delivered and Filed: April 30, 2014

ORDER FINDING APPEAL FRIVOLOUS AFFIRMED

Marilyn Stewart appeals the trial court’s order finding her appeal to be frivolous. Because

we conclude the trial court did not err in determining the appeal is frivolous, we affirm the trial

court’s order.

BACKGROUND

This appeal arises from a decision of the City of San Antonio Building Standards Board,

finding that a residential property owned by Ruby Bell is a public nuisance requiring abatement

by demolition. Bell filed a writ of certiorari in the district court and the City of San Antonio filed 04-13-00720-CV

a counter-claim requesting that the property be found to be a public nuisance and seeking an

injunction ordering demolition. The City joined Stewart as a defendant after discovering that she

held a lien on the property for approximately $550,000. The trial court granted the requested

injunctive relief, finding the property to be a public nuisance, ordering demolition within thirty

days, and ordering that “[n]othing in this judgment shall limit the City’s right to bring contempt

proceedings to enforce present or future violations of the above ordinances.”

Proceeding pro se, Stewart filed an appeal and an affidavit of indigency. The City timely

contested the affidavit, arguing that Stewart was not entitled to a free trial record because her

appeal was frivolous. This court abated the appeal to the trial court for a hearing on the contest.

At the hearing, counsel representing the Bexar County District Clerk and court reporters joined

the City in contesting the affidavit. Stewart announced she was not ready because she did not have

tax records to support her indigence. The trial court permitted arguments on whether the appeal

was frivolous but did not address Stewart’s indigent status. The trial court then entered an order

finding that the appeal was frivolous because Stewart had no grounds for appeal.

DISCUSSION

An indigent appellant is entitled to a free trial record unless the trial court finds that the

appeal is frivolous. TEX. CIV. PRAC. & REM. CODE. ANN. 13.003(a)(2)(A) (West 2002). An appeal

is frivolous when it “lacks an arguable basis either in law or in fact.” De La Vega v. Taco Cabana,

Inc., 974 S.W.2d 152, 154 (Tex. App.—San Antonio 1998, no pet.) (en banc). Additionally, an

appeal may be considered frivolous when it presents no “substantial question for appellate review.”

TEX. CIV. PRAC. & REM. CODE. ANN. § 13.003(b) (West 2002). We review a trial court’s finding

that an appeal is frivolous under Section 13.003 for an abuse of discretion. In re A.V., 350 S.W.3d

317, 320 (Tex. App.—San Antonio 2011, no pet.). A trial court abuses its discretion if it acts

arbitrarily, unreasonably, or without reference to guiding rules and principles. Id. -2- 04-13-00720-CV

Stewart argues that her appeal is not frivolous because she raises the following issues: (1)

she inherited an ownership interest in the property from her father; (2) she cannot afford to pay the

judgment; (3) the injunction threatens her with contempt charges if she does not comply; and (4)

she was not given adequate notice that the contest hearing would concern the frivolity of her

appeal.

None of these issues raises a “substantial question for appellate review.” TEX. CIV. PRAC.

& REM. CODE. ANN. § 13.003(b) (West 2002). Most critically, Stewart does not challenge the trial

court’s finding that the property is a public nuisance. Rather, she contends the trial court erred in

not considering evidence supporting her ownership interest in the property. Whether Stewart

inherited an ownership interest in the property, however, does not present a substantial question

for appellate review. At most, it would clearly establish Stewart’s standing to challenge the trial

court’s judgment, an issue the City does not dispute. Stewart’s argument that she cannot afford

the demolition is not a legal basis for appeal, and the trial court’s judgment does not assess civil

penalties, court costs, or attorney’s fees against her. Likewise, Stewart has not articulated a legal

basis for challenging her potential liability for any future contempt charges. Lastly, the record

establishes that Stewart was given ample notice that the contest hearing would concern the frivolity

of the appeal, both in the City’s motion to contest the affidavit and in this court’s order of

November 6, 2013.

CONCLUSION

Accordingly, Stewart’s appellate arguments lack an arguable basis both in law and in fact.

The trial court did not abuse its discretion in finding that the appeal is frivolous and Stewart is not

entitled to a free trial record for her appeal. The trial court’s order is affirmed. Stewart must file,

within fifteen days of the date of this opinion, evidence that she has made appropriate arrangements

for payment of the clerk’s record and the reporter’s record for this appeal. Failure to make such a -3- 04-13-00720-CV

showing shall result in the dismissal of this appeal for want of prosecution. See TEX. R. APP. P.

37.3(b), 42.3(b).

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