Galvan v. United States Fire Insurance Co.

ON JURISDICTION OF THE APPEAL REYNOLDS, Chief Justice. Alejandro Galvan has attempted to appeal from the take-nothing judgment rendered in his action to recover workers’ compensation benefits from United States Fire Insurance Company, the insurance carrier for Galvan’s employer. Because the trial court adjudged that Galvan is entitled to appeal without paying costs of appeal or giving security therefor on an incorrect theory, we abate the appeal to afford Galvan the opportunity to establish in the trial court his right to appeal. Galvan suffered the take-nothing judgment, rendered 6 November 1980, when he failed to persuade the jury by a preponderance of the evidence that he sustained an injury. At the time Galvan filed his motion for new trial on 12 November 1980, he also filed an affidavit of his inability to pay the costs of appeal, or any part thereof, or to give security therefor. On the same day, the clerk of the district court, acting through her chief deputy, filed a contest, verified by oath, to Galvan’s affidavit of forma pauperis without certifying that notice thereof was given to Galvan. The following day, the insurance carrier filed its unsworn denial that Galvan was entitled to proceed in the cause or the appeal thereof as a pauper. Notice of this opposition to Galvan’s affidavit was given to him on the same day. The court set a hearing on the matters relating to Galvan’s motion for new trial and pauper’s affidavit for 25 November 1980. On that date, the carrier again filed its opposition to Galvan’s affidavit of forma pauperis. This contest, identical in language to the carrier’s earlier filing except for the date, was verified by affidavit. Notice to Galvan was certified. Later, on 9 December 1980, the court heard the matters previously set for hearing and signed two orders. By one order, the court overruled the motion for new trial; by the other order, the court adjudged and decreed that Plaintiff’s [Galvan’s] Affidavit of inability to pay costs of appeal, filed pursuant to Rule 355, Texas Rules of Civil Procedure, be, and is hereby, granted for the reason that a properly verified contest was not filed within the ten-day period (emphasis added); ... Thereafter, Galvan initiated this appeal in forma pauperis to complain of the jury’s failure to find that he received either an injury or an injury to his arm. We are confronted with the threshold question whether we may exercise jurisdic [211] tion over the merits of the appeal. The insurance carrier proposes, and Galvan opposes, the dismissal of the appeal for lack of jurisdiction. The carrier’s proposal stems from its position that Galvan did not qualify to appeal in forma pauperis because, notwithstanding the court’s ruling, Galvan’s affidavit was timely contested, both by the clerk and the carrier, as a matter of law, and Galvan failed to offer any proof of the allegations in his affidavit. To the contrary, Galvan argues he has the right to appeal in forma pauperis without proving his allegations because no proper contest was timely made to his affidavit; or, alternatively, if his affidavit was properly contested, the court was entitled to judicially notice from the trial evidence his inability to pay costs of appeal, or any part thereof, or to give security therefor. However, we conclude that the threshold question is and will remain premature until the ascertainment of jurisdictional facts in the trial court. Rule 3551 authorizes an appeal without the payment of any costs thereof or the giving of security therefor by one who actually is unable to do so. The rule, which has been amended from time to time,2 is applied from the effective date of its amended form to control the steps taken subsequent thereto in pending litigation. See Hoppe v. Hughes, 577 S.W.2d 773, 775 (Tex.Civ.App.—Amarillo 1979, writ ref’d n. r. e.). At all times material to the appellate action taken in this cause, the rule read: (a) When the appellant is unable to pay the costs of appeal or give security therefor, he shall be entitled to prosecute an appeal by filing with the clerk his affidavit stating that he is unable to pay the costs of appeal or any part thereof, or to give security therefor. (b) The appellant or his attorney shall forthwith give notice of the filing of such affidavit to the opposing party or his attorney. (c) Any interested officer of the court or party to the suit, may, by sworn pleading, contest the affidavit within ten days after the giving of such notice whereupon the court trying the ease (if in session) or (if not in session) the judge of the court or county judge of the county in which the case is pending shall set the contest for hearing, and the clerk shall give the respective parties notice of such setting. (d) Upon such hearing the burden of proof shall rest upon the appellant to sustain the allegations of his affidavit. (e) Where no contest if (sic) filed in the allotted time the allegations of the affidavit shall be taken as true. (f) Where the appellant is able to pay or give security for a part of the costs of appeal he shall be required to make such payment or give such security (one or both) to the extent of his ability. Accordingly, when Galvan filed his affidavit, it became subject to contest by the insurance carrier, Rule 355(c), and by the district clerk, McCartney v. Mead, 541 S.W.2d 202, 204 (Tex.Civ.App.—Houston [1st Dist.] 1976, no writ), or by her deputy. Hannah v. Walker, 409 S.W.2d 949, 950 (Tex.Civ.App.—Dallas 1966, mand. overr.). Thus, the clerk’s opposition, filed the same day, was a timely contest, Rule 355(c), unless it is vulnerable to Galvan’s complaints of lack of notice and the absence of an “affidavit.” It avails Galvan nothing to complain that the clerk did not give him notice of her timely filed opposition to his affidavit. The rule has no requirement for notice of the filing of a contest, Rule 355(c), the absence of which invokes the general rule that each party is required to take notice of all pleadings filed in the cause.3 Stark v. Dodd, 76 S.W.2d 865, 867 (Tex.Civ.App.—Beaumont 1934, no writ). Separate notice that a con [212] test has been filed, albeit a proper action, serves no vital function inasmuch as notice of the contest is imparted by the mandatory requirement for notice of the setting of a contest for hearing. Rule 355(c). No more availing is Galvan’s assertion that the clerk’s contest was a nullity on the rationalization that the instrument was not a “sworn pleading” in the absence of an “affidavit.” The clerk’s contest was verified by oath. Rule 355 is silent as to the form of a traverse of an affidavit of inability to pay costs of appeal or to give security therefor; so, for a contesting instrument to have probative force, it is only necessary that it be verified by oath. Slay v. Burnett Trust, 143 Tex. 621, 187 S.W.2d 377, 382 (1945). Thus, the clerk’s timely filed “sworn pleading” was a proper contest of Galvan’s affidavit, Rule 355(c), and the court erred in ruling otherwise.4 Given the contest, the rule imposed on Galvan the burden to sustain the allegations of his affidavit. Rule 355(d). To discharge the burden, Galvan had to persuade the trial court by a preponderance of the evidence that, even though he wanted to pay the costs of appeal and had made good-faith efforts to do so, he still was unable to pay the costs, or any part thereof, or to give security for the costs. Pinchback v. Hockless, 139 Tex. 536, 164 S.W.2d 19, 20 (1942). Coneededly, no proof of the allegations in Galvan’s affidavit was received by the trial court at the 9 December 1980 hearing. In lieu thereof, Galvan urges that a preponderance of the trial evidence shows his inability to pay any costs of appeal and, consequently, the trial court was entitled to take judicial notice of the evidence without conducting another evidentiary hearing in ruling on the contest. Nevertheless, this situation is not'one agreeable to the principle of judicial notice, 1 R. Ray, Texas Law of Evidence § 151 (3d ed. 1980); and, aside from that reality, it is clear that Galvan did not request the court to, and the court did not, take judicial notice of the trial evidence in making its ruling. In these circumstances, this Court should not, and will not, resort to the doctrine of judicial notice, Id. at § 155, particularly where Rule 355 commits the trial court to initially determine the contest. Absent proof of the allegations in Galvan’s affidavit, the carrier submits there is no alternative to sustaining the contest, King v. Payne, 156 Tex. 105, 292 S.W.2d 331, 336 (1956), and dismissing the appeal for lack of appellate jurisdiction. Winn v. Federal Land Bank of Houston, 164 S.W.2d 864, 866 (Tex.Civ.App.—Galveston 1942, writ ref’d). Yet, the record is silent as to whether Galvan was prepared to offer proof of his allegations and was deprived of the opportunity by the court’s erroneous ruling of no contest. However, a silent record should not be determinative of an appeal in forma pauperis. See Smirl v. Globe Laboratories, 144 Tex. 41, 188 S.W.2d 676, 677 (1945). In an appropriate situation, this Court has the power, suitably exercised, to ascertain such matters of fact as may be necessary in the proper exercise of its jurisdiction. Rule 434 provides, among other things, that if the erroneous action or failure or refusal of the trial judge to act shall prevent the proper presentation of a cause to the Court of ... Appeals, and be such as may be corrected by the judge of the trial court, then ... the appellate court shall direct the said judge to correct [213] the error, and thereafter the Court of . .. Appeals shall proceed as if such erroneous action or failure to act had not occurred. Hence, where it is possible, as here, to afford the opportunity to establish the right to appeal, the opportunity should be provided in order that the cause may be disposed of on its merits. Accord, Smirl v. Globe Laboratories, supra, 188 S.W.2d at 677-78. Therefore, we abate the appeal until the trial court can determine the contest and the appellate record is supplemented to show the result thereof. In this connection, it should be noted that Rule 355(e) was amended, effective 1 January 1981, to provide that if no ruling is made on the contest within ten days after its filing, the allegations of the affidavit shall be taken as true. Recently, we noted in Guetersloh Grain, Inc. v. Wright, 618 S.W.2d 135, 136 (Tex.Civ.App.—Amarillo 1981, no writ), that the rule’s time limit is mandatory rather than directory. Accordingly, it being now determined that a proper contest was filed to Galvan’s affidavit, the trial court is directed to schedule a hearing on the contest within ten days after the receipt of this opinion. Following the hearing, the clerk of the trial court is directed to prepare and submit a supplemental transcript containing the new matters bearing on Galvan’s right to appeal. This Court then will be able to determine the extent of its jurisdiction over the appeal. Footnotes [1] All references to rules are to the Texas Rules of Civil Procedure. [2] The latest amendment of the rule was effective 1 January 1981. [3] Despite the general rule of notice, it was indicated on submission that the parties were not, and assumingly the trial court was not, aware of the clerk’s contest until the appellate, record was prepared. [4] Having determined that the clerk contested Galvan’s affidavit, it becomes unnecessary for us to decide whether the affidavit also was contested by the insurance carrier. In this connection, we informationally record that Galvan argues, and apparently the trial court concluded, that because the carrier did not file a sworn pleading within ten days after Galvan gave notice of the filing of his affidavit, the carrier did not timely contest the affidavit. See, e.g., Coleman v. Long, 407 S.W.2d 279, 281 (Tex.Civ.App.—Dallas 1966, no writ). Oppositely, the carrier argues, inter alia, that its verified contest became timely when Galvan’s affidavit, prematurely filed under the provisions of Rule 356(b), is deemed to have been filed, by the command of Rule 306c, on the date of, but subsequent to, the overruling of Galvan’s motion for new trial, on which date the carrier’s verified contest was on file.