Opinion
05-22-01341-CV
06-05-2023
SCOTT KEMP FAUSETT, Appellant v. KERRY JON WARREN, Appellee
On Appeal from the 255th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-20-00632
ORDER
BILL PEDERSEN, III JUSTICE
Before the Court is appellant's May 24, 2023 unopposed motion to abate the appeal, order the court reporter to complete the reporter's record, and extend the deadline for the opening brief. As relevant to the motion, the record before the Court and the Court's case management system reflect that appellant requested preparation of the reporter's record on December 15, 2022, on the same day the appeal was filed. Specifically, appellant requested transcription of a hearing held May 21, 2022 and the two-day trial proceedings that began September 12, 2022.
On May 4, 2023, after receiving four extensions, court reporter LaToya Young, the trial court's official reporter, filed the record. The record, however, does not include the transcript of the May 2022 hearing or the transcript of the day the case was called to trial, September 12. Additionally, as detailed in appellant's motion, the record omits the testimony of four trial witnesses, jumps from the middle of the direct examination of appellant to the parties closing and resting their cases, omits appellant's closing arguments and counsel exchanges with the trial court after the jury returned its verdict, and contains numerous spelling and word choice mistakes. Although counsel for appellant contacted Ms. Young concerning the defects in the record and Ms. Young represented multiple times over a three week period that she would file a corrected record, the record has not been filed to date.
We note this is not the first record Ms. Young has filed that has been late, incomplete, and riddled with mistakes. Over the past three years, the Court has issued orders in several different appeals concerning records for which Ms. Young has been responsible. Given the Court's history with Ms. Young and the state of the record she has filed in this appeal, we GRANT the motion, STRIKE the May 4th record, SUSPEND the briefing deadline, and ORDER the trial court to conduct a hearing, no later than June 26, 2023, to determine whether the record of the proceedings requested can be properly and fully transcribed. If the record can be properly and fully transcribed, the trial court shall appoint a deputy reporter who can prepare and file the record no later than July 7, 2023. Ms. Young shall be present at the hearing and, to the extent that the record can be properly and fully transcribed, shall have with her, so that she can deliver to the deputy reporter then and there, all notes, exhibits, records, and any other materials necessary for preparation of the record.
If the record cannot be properly and fully transcribed, the trial court shall determine if the portion that cannot be transcribed is necessary to the appeal's resolution. If the portion that cannot be transcribed is necessary to the appeal's resolution, the trial court shall then determine whether that portion can be replaced by agreement of the parties.
The trial court shall make written findings, and the findings shall be filed in a supplemental clerk's record no later than June 30, 2023. A reporter's record of the hearing shall also be filed no later than June 30, 2023.
We DIRECT the Clerk of the Court to send a copy of this order to the Honorable Vonda Bailey, Presiding Judge of the 255th Judicial District Court; Dallas County District Clerk Felicia Pitre; Ms. Young; and the parties.
We ABATE the appeal to allow the trial court an opportunity to comply with this order. The appeal will be reinstated no later than July 10, 2023.