Opinion
09-23-00208-CV
09-28-2023
LATOSHA DIGGLES, Appellant v. TEXAS FARMERS INSURANCE COMPANY, Appellee
On Appeal from the 136th District Court Jefferson County, Texas Trial Cause No. E203884.
Before Horton, Johnson and Wright, JJ.
ORDER
PER CURIAM
For reasons we explain below, we abate this appeal and remand the case to the trial court.
We abate the appeal so that the trial court may determine if the appellant is entitled to a free record of the trial court proceedings that can then be filed on appeal.
Appellant, Latosha Diggles, filed notices of appeal from Trial Court Cause Number E203844. See Tex.R.App.P. 25.1(a). Upon receiving copies of the notices of appeal from the trial court clerk, the Clerk of the Court of Appeals docketed Appeal Number 09-23-00208-CV. See id. 12.1(c). On July 14, 2023, Diggles filed a statement of inability to afford payment of costs with the appellate court. See id. 20.1. Diggles did not file a statement of inability to pay costs with the trial court. See Tex. R. Civ. P. 145. On July 24, 2023, Diggles filed a Motion to Stay Distribution of Interpleaded Funds Pending Completion of All Appeals, but she failed to explain why she did not seek to supersede the judgment or the appealable order. See Tex.R.App.P. 24.
Diggles filed four notices of appeal from Trial Court Cause Number E203884: (1) a notice of appeal filed on June 28, 2023 from a Clarification Order on Order On Motion To Recuse After Hearing; (2) a notice of appeal filed on June 28, 2023, from a Clarification Order On Motion For Continuance, which was signed by the Regional Presiding Judge on June 1, 2023; (3) a notice of appeal filed on July 3, 2023, from a Proposed Order Granting Defendant Texas Farmers Insurance Company's Second Motion To Interplead Funds, signed on June 28, 2023; and (4) a notice of appeal filed on July 3, 2023, from an Order On Intervenor's Motion For Summary Judgment, signed by the trial court on June, 30, 2023. It is possible that one or more of the notices of appeal concern matters that were severed into a separate cause number, but Diggles has not responded to our request for information relating to such matters.
On August 1, 2023, the District Clerk informed the appellate court that Diggles was not declared indigent in the trial court and therefore she is not entitled to a copy of the clerk's record without paying the fee for the clerk's record. See id. 35.3(a)(2). We notified the parties that the appeal would be dismissed for want of prosecution unless by September 1, 2023, we received either proof that satisfactory arrangements have been made to pay the fee for the clerk's record, or a motion which states the facts relied upon to reasonably explain the need for additional time to file the clerk's record. See id. 37.3(b). Diggles argues on appeal that she is not required to file a copy of the clerk's record on appeal.
On August 4, 2023, we requested a response regarding whether Diggles is appealing the judgment that was severed into Trial Court Cause Number 23DCCV0665, or if she is attempting to appeal the interlocutory orders in Trial Court Cause Number E203884. We requested a response regarding whether Cause Number E203884 has proceeded to final judgment, and if it has not, we asked the appellant to identify the statute that she is relying upon to establish appellate jurisdiction of an accelerated appeal of any interlocutory orders. A response was due August 21, 2023. Appellant filed a Request to Stay Appeals Court Proceedings Pending Outcome of All Federal Court Proceedings and a Request to Take Judicial Notice of the Truth of Documents and Sources Identified, but neither request identified a final judgment or appealable interlocutory order signed by the trial court in Trial Cause Number E203884. Diggles has not explained to this Court whether she intended to appeal a judgment in Trial Cause Number 23DCCV0665. The presence or absence of jurisdiction over this appeal is a matter that has not yet been determined by the appellate court. We note that on June 30, 2023, the trial court severed Intervenor's partial judgment against Diggles into a separate action, Trial Cause Number 23DCCV0665, styled Latosha Diggles v. Lindsay Law Firm, PLLC d/b/a Lindsay, Lindsay & Parsons, and on August 31, 2023, the trial court severed the judgment pertaining to Texas Farmers Insurance Company into Trial Cause Number 23DCCV0665, styled Latosha Diggles v. Texas Farmers Insurance Company. It is not clear whether the trial court intended to sever both actions into the same trial cause number.
On August 7, 2023, Appellant filed a Request to Stay Appeals Court Proceedings Pending Outcome of All Federal Court Proceedings. Diggles indicates she has filed civil rights claims in federal court against her former attorneys, as well as against two attorneys representing Texas Farmers Insurance Company, and also against the Jefferson County District Clerk's Office, as well as claims against two District Court Judges. Diggles does not contend that Trial Cause Number E203844 has been removed to federal court.
"Fees charged for preparation of the appellate record are governed by Texas Rule of Civil Procedure 145." Id. 20.1(a). Under Rule 145, payment of costs are not required if the party cannot afford payment of court costs, including the fees charges by the clerk or court reporter for preparation of the appellate record. The party who cannot afford payment of costs must file a Statement of Inability to Afford Payment of Court Costs in a form as approved by the Texas Supreme Court or another sworn document containing the same information. See Tex.R.Civ.P. 145 (a), (b).
This Court has the authority to abate the appeal and remand the cause to the trial court for a determination of Appellant's ability to afford payment of court costs under Rule 145 of the Texas Rules of Civil Procedure. See id. 145. If the appellant wishes to have the record furnished to her free of charge, she must file a Statement of Inability to Afford Payment of Court Costs and supporting documentation in the trial court. Id. If Appellant files a Statement with the trial court, the trial court should comply with Rule 145, including but not limited to the notice, hearing, and requirements of Order as outlined in Rule 145(f), (g), &(h). If Appellant requests preparation of a reporter's record, the trial court shall designate the portions to be transcribed. See id. 145(i).
Any documents filed and orders signed pursuant to Rule 145 shall be forwarded to this Court for filing as a supplemental record no later than October 30, 2023. If the trial court has not made a determination under Rule 145 by the end of the 30 days, the parties and the trial court shall file a status report informing this Court of the status of the Rule 145 determination and shall inform this Court whether additional time is needed for a determination under Rule 145. The appeal will be reinstated without further order of this Court when the supplemental record pertaining to the trial court's Rule 145 determination is filed with this Court.