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Harrell v. Godinich

Court of Appeals of Texas, First District

December 5, 2017

ARTIS CHARLES HARRELL, Appellant
v.
JEROME GODINICH JR., Appellee

         On Appeal from the 190th District Court Harris County, Texas, Trial Court Case No. 2014-63129

          Panel consists of Justices Jennings, Bland, and Brown.

          MEMORANDUM OPINION ON REHEARING

          Terry Jennings Justice.

         Appellant, Artis Charles Harrell, appearing as a pro se inmate, has filed a motion for rehearing of our October 19, 2017 opinion and judgment. We deny Harrell's motion for rehearing, withdraw our opinion and judgment of October 19, 2017, and issue the following opinion and new judgment in their stead.

         Harrell challenges the trial court's judgment dismissing his suit against appellee, Jerome Godinich Jr., for breach of fiduciary duty. In two issues, Harrell contends that the trial court erred in sustaining the Harris County District Clerk's contest to his affidavit of indigence[1] and dismissing his suit with prejudice.

         We modify the trial court's judgment and affirm as modified.

         Background

         In his amended petition, Harrell, an inmate of the Texas Department of Criminal Justice Institutional Division, alleged that Godinich, his former criminal defense attorney, breached his fiduciary duty by "refus[ing] to give Harrell" "the entire contents of his . . . client files" and "conceal[ing] exculpatory evidence from Harrell while [Godinich] represented [him] at [a] [p]reliminary [a]ssigned [a]ppearance and bond hearing and [two] [m]otion to [s]uppress [e]vidence hearing[s]." According to Harrell, Godinich's breach of his fiduciary duty "placed [him] at a disadvantage in other pending legal matters" and caused "severe emotional and mental distress."

         Harrell attached to his original petition, filed on October 27, 2014, an application to proceed in forma pauperis/affidavit of indigence, declaring that he is unable to pay the costs and fees associated with the proceedings and is "entitled to [the] relief" sought in his petition. Harrell further stated:

(1) I am not employed nor do I earn any income because I am an inmate of the Texas Department of Corrections; (2) I do not have a spouse; (3) I own no real or personal property; (4) I hold no cash nor any amounts on deposits; (5) I have no assests [sic]; (6) I have no dependents; (7) I have no debts; (8) I have no monthly expenses; (9) I do not have the ability to obtain a loan for court costs or fees; (10) No attorney is providing free legal services; and (11) No attorney has agreed to pay for advance court costs.

         Harrell also attached to his original petition an "[a]ffidavit [r]elating [t]o [p]revious [f]ilings, " stating that in January 2006, he brought suit against several defendants for "wrongful termination of [a] lease agreement."[2] And he attached to his original petition "a current six (6) month history of [his] inmate trust account."[3]

         On January 8, 2015, Harrell filed a Request for a Jury Trial and Oath of Inability to Pay Cost, asserting that he is unable to pay the fee for a jury trial. Harrell attached to his request an Application for Inability to Pay Cost for Jury Fee, declaring that he is unable to pay the costs and fees associated with the proceedings and is "entitled to [r]elief." Harrell stated that within the previous twelve months, he had not received "any money" from a "[b]usiness, profession[, ] or [through] self-employment, " nor had he received any money from "[r]ent payments, interests[, ] or dividen[d]s, " "[p]ensions, annuities[, ] or life insurance, " "[g]ifts or inheritances, " or "[a]ny other source." He does not "own cash" or have any "money in a checking or savings account" or his "prison[] account, " and he does not own "any real estate, stocks, bonds, notes, or other valuable property." He does, however, receive $30 "a month" from his mother. Harrell attached to his application, "[a] [c]urrent [s]ix (6) [m]onth [h]istory [o]f [his] [i]nmate [t]rust [a]ccount."

         On December 4, 2015, the Harris County District Clerk filed a contest to Harrell's affidavit of indigence, asserting that he did not comply with the pertinent requirements.[4]

         On December 14, 2015, Harrell, in response to the district clerk's contest, filed a Supplemental Affidavit of Indigence, declaring that he is the plaintiff in this case, unable to pay the costs and fees associated with the proceedings, and "entitled to [the] relief" sought in his petition. He further stated:

(1) Unrelated to the instant case, I previously filed a suit for breach of contract; (2) In the previous suit[, ] . . . [t]he corporate defendants breach[ed] our contract by not giving me the required notice before terminating the lease agreement; (3) The case [was]: Conversion, Cause Number 2006-02867, District Court 189th, Artis Charles Harrell vs. Branch Brinson, et al., and the case was resolved by summary judgment[;] (4) The document that reflect[s] [my] inmate trust fund account during the six months preceeding [sic] the date upon which the instant claims w[ere] filed is on file already as to demonstrate the previous filings.

         In his Supplemental Affidavit of Indigence, Harrell also "object[ed]" to the district clerk's contest to his affidavit of indigence, arguing that the trial court should not sustain the contest because he "is an inmate incarcerated in the Texas Department of Criminal Justice and does not earn any money, and his affidavit was filed in good faith." And Harrell asserted that his claims are meritorious, he is "able to maintain []his suit, " and it is "probable" that he will "succeed at trial on all claims."

         After a hearing, the trial court, on December 17, 2015, signed a Judgment and Order Sustaining Contest to Pauper's Oath. In its order, the trial court sustained the district clerk's contest to Harrell's affidavit of indigence, enjoined any further proceedings in the case until Harrell paid $355 in filing fees and other incurred costs, and ordered Harrell to pay the required fees and costs by January 4, 2016, noting that if he failed to do so, his suit would be dismissed without prejudice and a judgment would be entered against him in the amount of $355.

         On April 11, 2016, the trial court signed its Final Judgment, stating that it had previously entered a Judgment and Order Sustaining Contest to Pauper's Oath in which it ordered Harrell "to pay in full all filing fees in the amount of $355[] plus any and all costs incurred in the process of th[e] case before January 4, 2016." After then finding that Harrell had "failed to comply with the [c]ourt's [previous] [o]rder, " it entered ...


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