4th district (
04-08-00779-CV, ___ SW3d ___, 03-11-09, pet. denied July 2009)


No. 04-08-00779-CV

Kristofer Thomas KASTNER,



MARTIN & DROUGHT, P.C. f/k/a Martin, Drought, Inc. and f/k/a Martin,

Drought & Torres, Inc., Gerald T. Drought, and Dain A. Dreyer,


From the 57th Judicial District Court, Bexar County, Texas

Trial Court No. 08-CI-12370

Honorable Michael Peden, Judge Presiding

Interlocutory Opinion on Appeal of Order

Sustaining Contests to Affidavit of Inability to Pay Costs

Opinion by: Steven C. Hilbig, Justice

Sitting: Catherine Stone, Chief Justice

Steven C. Hilbig, Justice

Marialyn Barnard, Justice

Delivered and Filed: March 11, 2009


Kristofer Thomas Kastner challenges the trial court's order sustaining the contests filed to his affidavit of
inability to pay costs and finding his appeal frivolous. We affirm the trial court's order.

Kastner filed a notice of appeal from the trial court's order granting a take nothing summary judgment and a
severance in favor of appellees Martin & Drought, P.C. f/k/a Martin, Drought, Inc. and f/k/a Martin, Drought &
Torres, Inc., Gerald T. Drought, and Dain A. Dreyer. Kastner filed a late affidavit of inability to pay costs in this
court and a motion for extension of time to file the affidavit. We granted the motion to extend time to file the
affidavit and entered an order requiring the trial court clerk to file the affidavit. See Higgins v. Randall County
Sheriff's Office, 193 S.W.2d 898, 899-900 (Tex. 2006).

After the affidavit was filed in the trial court, appellees, the trial court clerk, and the court reporter filed
contests to Kastner's affidavit of inability to pay. Appellees also asked the trial court to deny Kastner a free
record on the ground that his appeal is frivolous. See Tex. Civ. Prac. & Rem. Code Ann. § 13.003(a)(2)(A)
(Vernon 2002) (stating indigent appellant entitled to free record if appeal is not frivolous). Following a hearing,
the trial court sustained the contests and found Kastner's appeal frivolous. Kastner appealed the trial court's
order on indigency. We therefore ordered the parties to file briefs on the indigency and frivolity issues. Briefs
were filed by Kastner and appellees.

Generally, a party may proceed on appeal without advance payment of costs if (1) he files an affidavit of
indigence in compliance with rule 20.1 of the Texas Rules of Appellate Procedure, (2) his claim of indigence is
not contested or any contest is not sustained, and (3) he files a timely notice of appeal. See Tex. R. App. P.
20.1(a). The affidavit of indigence must identify the party filing it and state what amount of costs, if any the
party can pay. R. 20.1(b). It must also contain the information mandated by rule 20.1(b). Id. The trial court
clerk, the court reporter, or any party may challenge the claim of indigence by filing a contest to the affidavit.
R. 20.1(e). If a contest is filed, the party who filed the affidavit must prove the allegations in the affidavit. R.
20.1(g). In the trial court, the test for determining indigence is whether the applicant shows, by a
preponderance of the evidence, that he would be unable to pay the appellate costs, or a part thereof, "if he
really wanted to and made a good faith effort to do so[.]" Higgins v. Randall County Sheriff's Office, 257
S.W.3d 684, 686 (Tex. 2008) (quoting Pinchback v. Hockless, 139 Tex. 536, 164 S.W.2d 19, 20 (1942)). On
appeal, we review the trial court's decision for abuse of discretion. In re Smith, 70 S.W.3d 167, 168 (Tex.
App.-San Antonio 2001, no pet.); but see Baughman v. Baughman, 65 S.W.3d 309, 316 n.5 (Tex. App.-Waco
2001, pet. denied) (holding standards for reviewing sufficiency of evidence should be used to review trial
court's ruling on indigency).

Kastner filed an affidavit and a response to the contests, each with attachments. Kastner did not appear at the
hearing - his request to appear telephonically was denied. The evidence presented by Kastner shows he
earns approximately $1,440 gross and $1,280 net as a "telephone appointment setter" with Admiral Service of
Houston, Texas. He asserts he has no other source of income and does not contend he receives any public
entitlements. He claims he sometimes earns less if is he unable to work a full 40-hour-week because of
"hurricanes, natural disasters and . . . court hearings." He states he has about $54 in cash and has personal
property worth less than $3,000. Kastner avers he has no car and spends approximately $978 monthly for
various expenses, including rent, storage fees, food, transportation, haircuts, payments to the State of Texas,
office supplies, and expenses to prosecute pending lawsuits. He presented evidence of the costs accrued in
this matter, which he claims have reached more than $1,871. He swears he owes approximately $98,700,
which includes student loans in the amount of $95,000, $2,400 for a computer, $300 for bank overdraft
charges, and $1,000 for credit cards. He admits his academic degrees are worth $150,000, "but are not
saleable." He swears he has attempted to obtain bank loans, but was denied, and was denied "credit of $1700
for a root canal." He states that he spends nights and weekends to prosecute this suit and "other litigation" in
which also he appears pro se. He admits that he "pay[s] the associated fees and expenses for each of these
cases" and that these cases "consume additional resources." He states he is single and has no dependents.

At the hearing in response to Kastner's claims in his affidavit and documentation, the contesting court officials
submitted a copy of the Federal Register demonstrating the 2008 federal poverty guideline for a single person
without dependents was $10,400. (1) They then showed that by Kastner's own statements, his income - gross
or net - exceeds the guideline. The court officials also pointed out that Kastner admits that when he does not
work a 40-hour-week, it is sometimes due to court hearings and that he is unable to make more money
because he has to spend all of his spare time working on this lawsuit as well as the others he has filed and for
which he appears pro se.

Appellees pointed out that the current suit is the second suit by Kastner against them in which he claims they
committed legal malpractice and breached their fiduciary duty to him when they represented him before the
Texas Board of Legal Examiners, which had denied Kastner a law license because of his criminal history and
chemical dependency. See Kastner v. Martin & Drought, Inc., No. 04-07-00342-CV, 2009 WL 260601, at *1
(Tex. App.-San Antonio Feb. 4, 2009, no pet. h.) (mem. op.). Appellees argued Kastner filed an affidavit of
indigence in the first suit, which was essentially the same as the one currently before the court, and indigency
status was denied by the trial court. That order was affirmed by this court. See Kastner v. Martin & Drought,
Inc., No. 04-07-00342-CV, 2007 WL 3171378 (Tex. App.-San Antonio Oct. 31, 2007, pet. denied) (mem. op.).
They also argued that Kastner is intentionally underemployed - he admittedly has college and law degrees,
but he works as a telephone appointment setter for $9.25 an hour and often does not work full-time at that job.
Appellees also pointed out the myriad of lawsuits that Kastner has filed and is currently pursuing.

In reviewing the record and considering the arguments in the briefs, we find no abuse of discretion by the trial
court. There is evidence that Kastner, a college and law school graduate, earns more than the applicable
federal poverty guideline and that he could earn more if he desired. Accordingly, there is evidence that
Kastner could pay the costs of appeal "if he really wanted to and made a good faith effort to do so[.]" See
Higgins, 257 S.W.3d at 686 (quoting Pinchback, 164 S.W.2d at 20).

In addition to contesting the affidavit of indigence, appellees filed a separate motion alleging Kastner's current
appeal is frivolous and therefore he is not entitled to proceed without payment of costs. See Tex. Civ. Prac. &
Rem. Code Ann. § 13.003(a)(2)(A) (Vernon 2002). Appellees' frivolity claim is based on their contention that
the current suit is nothing more than the refiling of the first suit Kastner filed against them in 2006, which he
lost on summary judgment and appealed to this court. (2) According to appellees' evidence, the only
difference is the addition of another law firm as a defendant. In support of their contention, appellees
presented a copy of their motion for summary judgment, which was based on res judicata, and the trial court's
order granting their motion. Appellees also presented evidence to the trial court showing that two other suits
filed by Kastner in federal court had been dismissed as frivolous, as well as evidence that Kastner had filed
suits in other courts relating to this same matter.

We ordered Kastner to address the issue of frivolity in his brief. Our order stated, in pertinent part:

It is therefore ORDERED that appellant file a brief, limited to the issue of the trial court's ruling on his affidavit
of inability to pay costs, including the trial court's determination that appellant's appeal is frivolous no later
than fifteen days from the date of this order.

(emphasis added) However, Kastner did not present any argument regarding the finding by the trial court that
his appeal is frivolous. Rather, he merely stated in his brief that his affidavit of inability to pay costs was not
frivolous. There is nothing in the record or the briefs that would warrant our finding an abuse of discretion by
the trial court with regard to its finding the appeal frivolous.

Because the trial court did not abuse its discretion, we affirm its order sustaining the contests and finding
Kastner's appeal frivolous. Kastner is therefore not entitled to proceed in this appeal without advance
payments of costs, including payment of the filing fee.

Steven C. Hilbig, Justice

1. Upon request, the trial court took judicial notice of the Federal Register provision setting forth the 2008
poverty guideline for a single person with no dependents.

2. While the issue of indigency and frivolity was pending in this current appeal, Kastner's appeal in the first suit
he filed against appellees was decided against him in this court. See Kastner, 2009 WL 260601, at *1, *6.