Opinion
01-22-00917-CV
10-10-2023
Juanita De Luna v. Buc-ee's, Ltd.
149th District Court of Brazoria County Appellate case number: 01-22-00917-CV
ORDER OF ABATEMENTApril L. Farris Judge
This is an appeal from the trial court's final summary judgment granting appellee Buc-ee's, Ltd.'s no-evidence motion for summary judgment and ordering that appellant Juanita De Luna take nothing on her claims against Buc-ee's. The appellate record indicates that Buc-ee's summary judgment motion and De Luna's response thereto both attached-as each party's summary judgment Exhibit 4-a video recording from a Buc-ee's store surveillance camera (hereinafter, "Exhibit 4-the video recording"). However, Exhibit 4-the video recording is not included in the appellate record. On September 26, 2023, the Clerk of this Court directed the trial court clerk to file a supplemental clerk's record containing De Luna's Exhibit 4-the video recording. See Tex. R. App. P. 34.5(c)(1). The trial court clerk sent the Clerk of this Court a flash drive supposedly containing Exhibit 4-the video recording, but the flash drive is empty and does not contain Exhibit 4-the video recording.
It is the appellant's duty to present this Court with a complete record on appeal, and we may not consider evidence that is not formally included in the record on appeal. Huston v. United Parcel Serv., Inc., 434 S.W.3d 630, 636 (Tex. App.-Houston [1st Dist.] 2014, pet. denied) ("The appellant bears the burden to bring forward on appeal a sufficient record to show the error committed by the trial court."); Dauz v. Valdez, 571 S.W.3d 795, 811 (Tex. App.-Houston [1st Dist.] 2018, no pet.) ("We cannot consider documents outside the record" on appeal). De Luna filed a written designation requesting that the trial court clerk specifically include "Exhibit 4 - Flashdrive" in the appellate record. See Tex. R. App. P. 34.5(b)(1), (2). Nevertheless, without formal inclusion of Exhibit 4-the video recording in the appellate record, we cannot consider it.
Accordingly, we abate the appeal and remand the cause to the trial court for further proceedings. The trial court shall conduct a hearing at which each party's counsel shall be present. Each party's counsel shall bring to the hearing a copy of the party's respective Exhibit 4-the video recording.
We direct the trial court to:
(1) Make findings regarding:
(a) Whether Buc-ee's timely submitted Exhibit 4-the video recording with its summary judgment motion;
(b)Whether De Luna timely submitted Exhibit 4-the video recording with her summary judgment response; and
(c) Whether Exhibit 4-the video recording was properly before the court when the court entered final summary judgment;
(2) Make findings regarding whether the trial court's records currently contain Exhibit 4-the video recording;
(3) If Exhibit 4-the video recording is in the court's records, the trial court shall direct the trial court clerk to immediately file Exhibit 4-the video recording in this Court; and
(4) If Exhibit 4-the video recording is not in the court's records, the trial court shall proceed under Rule of Appellate Procedure 34.5(e) as follows:
(a) Make findings regarding whether Exhibit 4-the video recording has been lost or destroyed;
(b) Determine whether the parties can, "by written stipulation, deliver a copy of [Exhibit 4-the video recording] to the trial court clerk" for inclusion in a supplemental clerk's record;
(c) If the parties can so agree, the trial court shall order the parties to, by written stipulation, deliver Exhibit 4-the video recording to the trial court clerk within 3 days of the hearing; and
(d) If the parties cannot so agree, the trial court "must . . . determine what constitutes an accurate copy of [Exhibit 4-the video recording] and order it to be included in" a supplemental clerk's record; and
(e) The trial court shall direct the trial court clerk to immediately file a supplemental clerk's record containing Exhibit 4-the video recording in this Court. See Tex. R. App. P. 34.5(e).
(5) The trial court reasonably may extend any deadline in this order sua sponte or on either party's motion showing good cause.
The trial court's court coordinator shall set the hearing for a date no later than 14 days from the date of this order. A court reporter shall transcribe the hearing, and the court reporter is directed to file a reporter's record no later than 10 days after the date of the hearing. See Tex. R. App. P. 34.6(a), (d). The trial court clerk is directed to file a supplemental clerk's record containing the trial court's findings, orders, and Exhibit 4-the video recording no later than 5 days after the date of the hearing. See Tex. R. App. P. 34.5(c)(1), (3).
The appeal is abated, treated as a closed case, and removed from this Court's active docket. The appeal will be reinstated on this Court's active docket when the trial court clerk files the supplemental clerk's record and the court reporter files the reporter's record.
It is so ORDERED.