Opinion
No. 04-04-00039-CV
Delivered and Filed: July 7, 2004.
Appeal from the 218th Judicial District Court, Karnes County, Texas, Trial Court No. 00-04-00076-Cvk, Honorable Ron Carr, Judge Presiding.
Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Sarah B. DUNCAN, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Michael Kennedy sued Patricia Brysch alleging that she denied him access to the courts by refusing to forward his notice of appeal in another case to the appellate court. Brysch moved for summary judgment based on an earlier opinion from this court. See Kennedy v. Brysch, No. 04-02-00563-CV, 2003 WL 1823394 (Tex. App.-San Antonio Apr. 9, 2003, no pet.). In that opinion, we reversed a judgment granted in favor of Brysch because she failed to establish her right to summary judgment as a matter of law based on the ground she asserted. Id. We noted, however, that the appeal in the other case was perfected, and Brysch's failure to forward a copy of the notice (separate and apart from the clerk's record) did not impair Kennedy's right of access to the courts. Id.
On remand, Brysch moved for summary judgment on the basis that Kennedy's appeal was perfected; therefore, her actions did not deny Kennedy access to the courts as a matter of law. Kennedy filed a cross-motion for summary judgment, asserting that he was denied access to the courts by Brysch's refusal to forward the notice of appeal to the appellate court. The trial court granted Brysch's motion and dismissed Kennedy's claim against her.
As we noted in our earlier opinion, "the Texas Rules of Appellate Procedure require the clerk to file a copy of a notice of appeal in the appellate court only as a part of the clerk's record in a civil case." Id. (comparing Tex.R.App.P. 34.5 with Tex.R.App.P. 25.2(c)). Under the rules, Kennedy is responsible for providing a copy of his notice of appeal to this court. See Tex.R.App.P. 25.1(e). In addition, Kennedy is responsible for filing a docketing statement in this court. See Tex.R.App.P. 32.1. Therefore, Kennedy's failure to comply with these filing requirements has prevented this court from considering his appeal, not the actions taken by Brysch. Accordingly, the trial court's judgment is affirmed.
The procedural history of this case has put this court on notice that a notice of appeal was filed in trial court cause number 98-07-00114-CVK. Brysch's motion states that the trial court's order in the other case was entered on May 25, 1999, and Kennedy filed a notice of appeal on June 1, 1999. When a notice of appeal is filed, the trial court clerk generally is required to file a clerk's record in this court within sixty days after the judgment is signed. See Tex.R.App.P. 35.1. If a record is not timely filed, the appellate clerk must send notice to the official responsible for preparing it, stating that the record is late and requesting that the record be filed within thirty days. See Tex.R.App.P. 37.3(a). In view of the forgoing, the clerk of this court is ordered to send notice to the official responsible for preparing the clerk's record in trial court cause number 98-07-00114-CVK, stating that the record is late and requesting that the record be filed within thirty days.