Mikell Kelly v. JPMorgan Chase

Opinion

Order AFFIRMED and Opinion Filed September 16, 2015.

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-15-01024-CV

MIKELL KELLY, Appellant V. JPMORGAN CHASE BANK, N.A., Appellee

On Appeal from the County Court at Law No. 2 Dallas County, Texas Trial Court Cause No. CC-15-03540-B

MEMORANDUM OPINION Before Justices Lang-Miers, Brown, and Stoddart Opinion by Justice Brown Before the Court is appellant’s “Motion to Dismiss Payment of Court Fee Objection

Texas Rules of Evidence Rule 103” which we construe as a request to review the trial court’s

order sustaining the contest to his affidavit of indigence. The trial court held a hearing on the

contest and signed an order sustaining the contest on September 2, 2015.

In reviewing a trial court’s order sustaining a contest to an affidavit of indigence, our task

is to determine whether the court abused its discretion. See Jackson v. Tex. Bd. of Pardons &

Paroles, 178 S.W.3d 272, 275 (Tex. App.—Houston [1st Dist.] 2005, no pet.). The trial court

abuses its discretion when it acts without reference to any guiding rules or principles; the facts

and law permit only one decision, which is the opposite of the trial court’s decision; and the trial

court’s ruling is so arbitrary and unreasonable as to be clearly wrong. See Arevalo v. Millan, 983

S.W.2d 803, 804 (Tex. App.—Houston [1st Dist.] 1998, no pet.) (en banc). Unless incarcerated or presumed indigent in accordance with Texas Rule of Appellate

Procedure 20.1(a)(3), the party who filed the affidavit of indigence must prove the affidavit’s

allegations. See TEX. R. APP. P. 20.1(g)(1), (2). The reporter’s record shows that appellant failed

to appear at the hearing or otherwise prove the affidavit’s allegations, and nothing before us

suggests appellant was incarcerated at the time or presumed indigent under rule 20.1(a)(3).

Because appellant failed to appear at the hearing, he did not sustain his burden of proving

the allegations in his affidavit. For this reason, we conclude the trial court did not abuse its

discretion in sustaining the contest. See TEX. R. APP. P. 20.1(g)(1). We affirm the trial court’s

order.

/Ada Brown/ ADA BROWN JUSTICE

151024F.P05

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