21 22 23 24 21 22 23 24 v. << (2012)

Court of Appeals of Texas, Waco.

On February 3, after consideration of Appellant's motion for continuance and on its own motion in light of inclement weather, the probate court continued the hearing on Appellant's affidavit of indigence until February 8, 2011, at 9:30 a.m., “with a trial on the merits to be held shortly thereafter unless one of [Appellant's] motions for continuance is granted.”  Also on February 3, Appellant filed a second motion for continuance stating that her doctor had scheduled her for surgery on February 8. She also asserted that she would be unable to hire new representation because “[n]o one will accept employment at this stage of the case.” On the morning of the February 8 hearing, Appellant filed a supplemental motion for continuance, asserting that she was at that time in the hospital awaiting surgery.  The probate court held the hearing as scheduled, first addressing Appellant's affidavit of indigence.  Brownrigg argued that Appellant's affidavit was defective on its face because Appellant stated in the affidavit that she had an income of $84,000 a year and her listed expenses, such as Internet and cable, cell phone, and twice-a-month travel to and from Arlington, Texas, were optional expenses.  Brownrigg stated that Appellant did not have a constitutional right to Internet or cell phone service or to travel a certain number of times.  Brownrigg also stated that she claimed a homestead in a condominium that she was renting out at an amount that was less than her asserted costs for the unit.  The probate court found that Appellant was not indigent and stated that Appellant's pleadings “either by operation of law or by my finding as of this moment, are all stricken.” The probate court then proceeded to hear the application for guardianship.  Brownrigg called Denise Buchan, the court visitor program manager, and Jennifer Cross, a guardianship specialist with TDADS, to testify.  At the conclusion of the hearing, the probate court granted the application for guardianship and appointed TDADS as permanent guardian of the person of Bryan.  Appellant filed a motion for new trial.  She asserted that she had been unavailable for trial on February 8 for health reasons and that the evidence was legally insufficient to support the probate court's order.  She further asserted that the probate court erred by ordering her to pay $10,000 in costs and for ordering it be paid by January 31.  The probate court denied the motion, and Appellant filed this appeal. Analysis Appellant lists fifteen questions in her “Issues Presented” section, but some of the “issues” are abstract questions or are fact questions rather than legal issues or points.3  Furthermore, some of the issues are not argued or even referenced elsewhere in Appellant's brief.  We shall address the issues that are discussed either in the arguments section of her brief or in her statement of facts.4  Appellant's second, fourth, seventh, eighth, ninth, eleventh, and twelfth issues are waived as inadequately briefed.5 In 6 7 Appellant's first and fifth issues, she argues that the probate court erred by denying her motion for continuance because the court knew that she was undergoing a medical procedure at the time of trial and therefore should have granted the continuance.  A trial court does not abuse its discretion by denying a motion for continuance simply because a party is unable to be present at trial.6  A party must show both a reasonable excuse for not being present and that the party was prejudiced by his or her absence.7 Illness can constitute a reasonable excuse,8 but no evidence before the probate court suggested that 9 10 8 Appellant did not know of the hearing date when she scheduled her surgery or that Appellant's medical procedure was due to an emergency and could not be rescheduled.  Appellant provided the court with a letter from her doctor, dated February 2, 2011, stating that Appellant's surgery had been scheduled for February 8, but nothing in the letter suggested that the surgery was an emergency that could not be postponed until after the hearing.  Furthermore, the letter did not meet the requirements of an affidavit 9 and did not show or suggest that Appellant could not be present at the hearing without endangering her health.10 Furthermore, even if Appellant's apparent choice to have surgery on the day of the hearing constituted an illness excusing her presence, she does not make any argument about how she was prejudiced by her absence.  Appellant did not argue in the probate court and does not argue in this court about what evidence she would have submitted at the hearing had she been there or any objections to evidence she would have made, or how she was otherwise prejudiced by not being present.  And we note that the probate court took notice of Bryan's expressed preference to have his mother made his guardian, and Bryan's attorney ad litem cross-examined Buchan about why she did not recommend that Appellant be made Bryan's guardian and objected to the admission of some of Brownrigg's evidence.  Appellant does not argue what more she would have or could have done if she had been present. Appellant also asserts that her attorney “abandoned her essentially hours before the final hearing.”  But in fact her attorneys' motions to withdraw, filed on January 14, 2011, were granted on January 21 and 26, considerably more than “hours” before the February 8 hearing date.  And if Appellant wished to rely on the absence of counsel to establish grounds for a continuance, she needed to show that her failure to be represented at trial was not due to her own fault or negligence.11  She made no such showing.  We overrule Appellant's first and fifth issues. Appellant argues in her third issue that the probate court's denial of her motion for continuance on the ground that she did not present “detailed medical affidavits and records” was a violation of her constitutional right to privacy.  Appellant has not pointed this court to any place in the record that shows that the probate court denied her motion for continuance on the ground that she refused to provide detailed medical affidavits and records.  She does direct the court to a page from the reporter's record showing that the probate court stated that the hearing would proceed without her as scheduled because Appellant had “been given proper notice” and “the Court has not received anything that would constitute good cause in the form of any kind of official medical information that she indeed is scheduled for surgery.”  But this remark does not indicate that the probate court ordered her to provide detailed medical records in violation of a constitutional right to privacy or that the court denied her motion because of her refusal to comply.  Rather, the context in which the probate court made the statement after discussion with the attorneys present at the hearing shows that the probate court proceeded in Appellant's absence because it believed that she had adequate notice of the hearing and that, rather than her absence being caused by an emergency, Appellant had chosen to schedule her surgery for that day.  Accordingly, we overrule Appellant's third issue. In Appellant's tenth issue, she argues that the probate court abused its discretion when it denied her affidavit of indigence.  She contends that her affidavit of indigence was uncontradicted.  We agree that although her affidavit of indigence was contested, her affidavit was uncontradicted.  But this argument does not help Appellant because not only did Brownrigg not contradict the figures set out in Appellant's affidavit, he relied on them to argue that Appellant was not indigent.  In other words, Appellant's uncontradicted affidavit of indigence established that she was in fact not indigent.  The probate court agreed with Brownrigg, finding that Appellant was not indigent “because she has [an] admitted income of $7,000 per month, and the expenses described in [her affidavit of indigence] are elective, discretionary expenditures of disposable income.” A party who is unable to afford costs may file an affidavit of indigence in lieu of paying or giving security for costs.12  Rule 145 of the rules of civil procedure defines a “party who is unable to afford costs” as a person who either (1) is “presently receiving a governmental entitlement based on indigency” or (2) “has no ability to pay costs.” 13 14 15 12 13  Appellant made no assertion that she is receiving a government entitlement based on indigency.  To otherwise show that she had no ability to pay costs, Appellant had the burden to establish by a preponderance of the evidence that she would be unable to pay the costs or give security for them if she really wanted to and if she made a good-faith effort to do so.14  In determining whether a party has the ability to pay costs, a court must look to the facts as a whole.15 Appellant asserted in her affidavit that she has a monthly income of $7,000.  She claimed expenses of $6,754 a month, but a number of these expenses are, as Brownrigg pointed out, optional.  For example, Appellant asserted that she pays $924 a month for personal travel between McAllen and Dallas, $168 a month for a cell phone service plan, and $180 a month for cable and Internet service.  Appellant was able to obtain loans for both her vehicle and for her condominium.16  Thus, Appellant's own affidavit shows that she is not indigent.  Appellant points to no other evidence in the record to establish her indigency.17  Considering the record, we cannot say that the probate court abused its discretion 18 by sustaining Brownrigg's contest to Appellant's assertion of indigence. Appellant asserts that Brownrigg's statements about her condominium and her right to a cell phone and Internet service were unsworn and therefore not competent evidence.  But Brownrigg's statements were argument, not evidence.  He merely made those statements in arguing that, on its face, the affidavit was defective. Appellant further argues that Brownrigg did not establish that he was competent to opine about the real estate market.  But Brownrigg did not offer an opinion about the real estate market.  Instead, he simply pointed out that Appellant's own affidavit showed that she was renting out her condominium at an amount that did not cover the expenses that she listed for the unit.  Thus, Appellant's affidavit on its face shows that she is renting out her condominium at a loss, just as Brownrigg stated to the probate court. Appellant also argues that Brownrigg implied that she was voluntarily spending $10,000 a month on Internet and cell phone service rather than depositing $10,000 into the registry of the court.  A review of the record shows that Brownrigg made no such argument, expressly or by implication.  He merely pointed out that Appellant had listed expenses for Internet service and cell phone service and argued that these expenses were optional.  We overrule Appellant's tenth issue. In Appellant's sixth issue, she argues that the probate court erred by not permitting her to make the required $10,000 deposit or in failing to provide her sufficient time in which to do so.  But Appellant has not directed this court to any place in the record showing that the probate court refused to allow her to pay the $10,000 security for costs before striking her pleadings.  And although Appellant claims she was not given sufficient time to provide the security for costs, the record does not support her complaint. Rule 143 of the rules of civil procedure provides that if a probate court orders a party to provide security for costs and the party fails to comply “on or before twenty (20) days after notice that such rule has been entered,” then that party's claims for affirmative relief “shall be dismissed.” 19  The probate court signed the order requiring 20 19 Appellant to provide security for $10,000 in costs on January 11, 2011, and her then-attorney approved it as to form, indicating that he at least had knowledge of the order.  And Appellant does not claim that she did not receive notice of the order.  The probate court dismissed her petition for failure to provide the security on February 8, 2011, more than twenty days after the date that the probate court signed its order and that Appellant's attorney approved it as to form.  By rule, the probate court provided Appellant sufficient time to provide the required security.  Appellant did not ask the probate court for additional time to provide the security.20  Nor did Appellant provide the probate court with any reason why she could not provide security within that time other than her affidavit of indigence, and this court has held that the probate court properly dismissed that affidavit.  Finally, Appellant made no argument to the probate court (and makes none in this court) about why she needed more time.  Accordingly, we overrule this issue. In Appellant's thirteenth issue, she asserts that the probate court abused its discretion by basing its decision on no evidence.  In her fourteenth issue, she argues that the probate court abused its discretion by basing its decision on insufficient evidence. The nearest kin of an unmarried proposed ward is entitled to the guardianship if that person is eligible.21  But the probate code also requires the probate court to appoint a guardian for a person other than a minor “according to the circumstances and considering the best interests of the ward.” 22  The code further provides that a person may not be appointed guardian if that person is found unsuitable by the court.23  Thus, if the evidence supported the probate court's finding that 24 21 22 23 Appellant was not suitable as Bryan's guardian or that Appellant's appointment as Bryan's guardian of the person was not in his best interest, the probate court did not abuse its discretion by finding that she was not eligible to serve.24

NO. 02–11–00181–CV

Decided: May 10, 2012