Opinion
07-22-00314-CV
03-22-2023
JANA SHEPHERD, APPELLANT v. HELEN PAINTER & CO., CATHERINE TAYLOR, AMY DEFOREST, YOUNGER RANCH, LLC, SCOTT REAL ESTATE, INC., AND SHILA MANLEY, APPELLEES
On Appeal from the 348th District Court Tarrant County, Texas Trial Court No. 348-295290-17, Honorable Megan Fahey, Presiding
Before QUINN, C.J., and PARKER and YARBROUGH, JJ.
ORDER
Per Curiam
Pending before the court is Jana Shepherd's appeal from two orders. The first is an order granting the court reporter's motion to require payment of costs, dated December 22, 2022, and signed by the Honorable Megan Fahey, 348th District Court. The second is a December 28, 2022 order summarily denying Shepherd's December 20, 2022 motion to recuse Judge Fahey. The latter order was signed by the Honorable David L. Evans, regional administrative judge. We affirm.
Because this matter was transferred from the Second Court of Appeals, we apply its precedent when it conflicts with that of the Seventh Court of Appeals. TEX. R. APP. P. 41.3.
Our analysis begins with the order summarily denying Shepherd's motion to recuse. Helen Painter &Co., Catherine Taylor, Amy Deforest, Younger Ranch, LLC, Scott Real Estate and Shila Manley (Painter) moved to dismiss Shepherd's appeal from it for want of jurisdiction. Allegedly, there is no final judgment. They are mistaken.
We note that the December 20 motion was Shepherd's third attempt to recuse Judge Fahey. Her two earlier efforts were denied, as was the third. We caution litigants against using motions to recuse as arrows in the quiver of trial tactics, especially when the substance of those motions involves little more than disagreement with a court's ruling. TEX. R. CIV. P. 18a(a)(3) (providing that a motion to recuse a judge may not be based solely on the judge's rulings in the case).
The denial of a motion to recuse is appealable only for abuse of discretion from the final judgment. TEX. R. CIV. P. 18a((j)(1)(A). A final judgment was entered in this cause. It consisted of the amended summary judgment dismissing Shepherd's claims against Painter. The effort to recuse Judge Fahey now before us occurred in conjunction with Shepherd's appeal from that final judgment. That is, she endeavored to bar the judge from ruling on her request to proceed informa pauperis. So, the appeal from the recusal order is part and parcel of the appeal from the final judgment. Thus, we deny the motion to dismiss.
Next, a litigant who does not follow the rule governing motions to recuse waives the right to complain of the trial court's failure to recuse. In re Marriage of Samford, 173 S.W.3d 887, 890 (Tex. App.-Texarkana Sept. 27, 2005, pet. denied); Spigener v. Wallis, 80 S.W.3d 174, 180 (Tex. App.-Waco 2002, no pet.). Per that rule, a motion to recuse must be filed as soon as practicable but no later than the 10th day before the date set for trial or other hearing. TEX. R. CIV. P. 18a(b)(1); In re Marriage of Samford, 173 S.W.3d at 890. Here, Shepherd moved to recuse Judge Fahey one day before the scheduled December 21 hearing. In doing so, she failed to abide by the dictates of Rule 18a(b)(1). Thus, she waived her opportunity to complain of Judge Fahey's proceeding with and ultimately ruling upon the reporter's challenge.
Next, we address the order granting the reporter's challenge. The court reporter questioned Shepherd's representation that she (Shepherd) lacked the ability to pay costs associated with garnering the appellate record. The trial court initially heard that challenge on November 16, 2022. Appearing were Shepherd and the court reporter. Both presented evidence and argument. Having questions about Shepherd's credibility and the tenor of her evidence, the trial court continued the proceeding until December 7, 2022. It did so to afford Shepherd opportunity to gather additional evidence.
Shortly before December 7th, Shepherd filed the second of her three motions to recuse Judge Fahey. The judge assigned to hear the matter did so on December 14, 2022, and denied the motion. That freed Judge Fahey to resume hearing the reporter's challenge. The court scheduled the hearing for and convened it on December 21, 2022, despite Shepherd's effort to postpone it. Allegedly, she wanted to present the testimony of a witness from a legal aid society, and the witness purportedly was unavailable.
The December 21 hearing, which Shepherd did not attend, resulted in Judge Fahey's granting the reporter's challenge. The court's December 21, 2022 written order manifesting that decision included findings. Those findings referenced Shepherd's 1) ownership of a $600 deposit within the court's registry, 2) payment of over $168,000 in attorney's fees, 3) ownership of a credit union account containing over $191,000 in 2017, 4) failure to produce documents supporting her contention that the aforementioned $168,000 fee payment came from the $191,000 account balance, and 5) willingness to hire someone to transcribe the hearing to be held on the reporter's challenge. Evidence appears of record supporting each finding.
Other evidence revealed that Shepherd owned a home valued at $148,000 with an equity approximating $38,000. She omitted the abode and its equity from her application to appeal without paying costs. Indeed, through the application she declared "under penalty of perjury" that the "total value of property" owned by her was only $10,551.86, which sum obviously omits her home. Through the same document she also averred to having a monthly income of $2,100, monthly expenses of $1,911, $1,130 in cash, and a checking account with a $621 balance. Finally, the cost of the reporter's record which Shepherd sought to avoid was $826.
One seeking leave to proceed free of paying costs has the burden to prove he or she lacked the ability to pay them. In re R.J., No. 02-16-00445-CV, 2017 Tex.App. LEXIS 4567, at *3 (Tex. App.-Fort Worth May 18, 2017, no pet.) (mem. op.). "The central inquiry . . . 'is not merely whether [the declarant] can pay costs, but whether [the declarant] can afford to pay costs' and still pay for 'basic essentials, like housing or food.'" Id. at *4. This is not an all or nothing proposition, however. In other words, the query is not restricted to deciding whether the declarant can pay all the costs at one time. This is so because the trial court may order payment of only a part of them or may order the debt be paid through installments. Id. at *3. And, we review the trial court's answer to that inquiry under the standard of abused discretion. Id. at *3-4.
Considering the record before us, we cannot say the trial court abused its discretion when granting the reporter's challenge. First, it, as the sole fact finder, was entitled to assess Shepherd's credibility and reject her testimony as incredible. Farrar v. State, No. 07-12-00177-CR, 2012 Tex.App. LEXIS 8729, at *4-5 (Tex. App.-Amarillo Oct. 16, 2012, no pet.) (mem. op.). And, we would be bound by that choice. The court characterized her testimony and evidence as contradictory and voiced concern about Shepherd's credibility at the November hearing. We similarly note contradictions or omissions undermining her argument. One consists of her omission of a $148,000 parcel of realty (having a $38,000 equity) from her application to proceed free of costs. Another consists of her representation to one trial court in a verified pleading that she owned a particular rental property while denying to Judge Fahey that she owned it. Simply put, the trial court had basis to disbelieve her testimony about lacking the ability to pay costs.
Also of note is the $191,000 in her credit union account. Though she said $168,000 in attorney's fees were paid from it, Shepherd proffered no independent evidence (such as account statements) illustrating that the remaining $23,000 was gone. Instead, the sole financial records she offered pertained to a different account at a different financial entity. And, despite the trial court's offering her opportunity to gather both those missing records and any other evidence thought relevant, she did not.
Nor can we ignore the $600 on deposit within the court's registry. Shepherd professed ignorance of the sum. If such ignorance were to be believed, one can hardly say the deposit was part of the assets she thought necessary to her daily survival. And, given the amount, it would cover more than a majority of the reporter's $826 bill.
Our view of the record also indicates that Shepherd placed great weight upon a local legal aid society's purported decision to view her as eligible for free legal assistance. See TEX. R. CIV. P. 145(d)(3) (stating that certain attachments demonstrate a prima facie inability to pay costs, such as evidence that the declarant applied for free legal services and the entity determined he or she to be financially eligible but nevertheless declined representation). That formed much of her argument at the November hearing. Yet, that evidence was deemed hearsay by the trial court and excluded at that November hearing. Shepherd did not attack that ruling.
Instead, she questioned the trial court's decision to proceed with the December 21 hearing despite having told the court an employee of the legal aid society (Amy Allen) was unavailable. Reading the written missive through which she made that argument as a motion to continue, it was defective. Not only did it lack a supporting affidavit, nothing indicates that the parties consented to the request or that continuance was mandated by operation of law. See TEX. R. CIV. P. 251 (stating that no continuance shall be granted except for sufficient cause supported by affidavit, consent of the parties, or operation of law). So, Shepherd waived any complaint she had about the trial court's opting to proceed without hearing from the legal aid society witness.
She entitled her missive "Plaintiff's Response to Judge Fahey's Rehearing on Motion to Require Payment of Costs."
Nor do we accept Shepherd's suggestion that the testimony of Amy Allen was otherwise before the court. She believes this to be true because the person spoke at the December 14 recusal hearing. Yet, the latter proceeding dealt with recusal, not the payment of court costs. Furthermore, the presiding judge was not Judge Fahey but rather another jurist tapped to rule on Shepard's recusal motion. Though Shepherd attended the recusal hearing, she presented nothing at Judge Fahey's subsequent December 21 hearing, given her absence from same. And, because our review is restricted to evidence admitted by the trial court, Beckstrand v. State, No. 02-13-00399-CR, 2015 Tex.App. LEXIS 9600, at *23 (Tex. App.-Fort Worth Sept. 10, 2015, no pet.) (mem. op., not designated for publication), the information to which Shepard alludes in her brief which allegedly triggers the application of Rule 145(d)(3) is beyond our consideration.
In sum, our review of the record fails to reveal that the trial court abused its discretion when granting the court reporter's challenge to the application to proceed free of costs. Thus, we affirm the order granting the challenge. We also deny the motion to dismiss her appeal of the recusal order.