Opinion
01-22-00878-CV
05-16-2023
Awad O. Mustafa v. Texas Workforce Commission, Brian Daniel, Aron S. Demerson, Julian Alvarez, "S. Sunday," "P. Payne," Ofelia de Leon, HTS Services, Inc., Tarek Morsi, Misel Repak, Mahmoud Hassan, Shafi Mohamed, and Yewande "Wendy" Adelaja
Trial court: 80th District Court of Harris County No. 2022-54542
ORDER
Amparo Guerra, Judge
Appellant, Awad O. Mustafa, proceeding pro se, has appealed from three trial court orders, including: (1) a November 15, 2022 order granting the plea to the jurisdiction and motion for summary judgment of appellees HTS Services, Inc., Tarek Morsi, Misel Repak, Mahmoud Hassan, Shafi Mohamed, and Yewande "Wendy" Adelaja (the "HTS parties"), (2) a November 15, 2022 order granting the plea to the jurisdiction of appellee, the Texas Workforce Commission, and "all named parties," which includes appellees Brian Daniel, Aron S. Demerson, Julian Alvarez, "S. Sunday," "P. Payne," and Ofelia de Leon (collectively, the "TWC parties"), and (3) the December 14, 2022 Final Judgment.
The clerk's record was filed on January 18, 2023 and the reporter's record was filed on January 29, 2023. Supplemental clerk's records were filed on February 22, 2023 and April 17, 2023. Appellant filed his appellant's brief with the Clerk of this Court on April 21, 2023. Along with his brief, appellant submitted two compact discs (CDs) which he stated contained exhibits which had not been submitted by the trial court clerk as a part of the clerk's record.
On April 20, 2023, appellant filed a document titled "Court Clerk[']s Failure to supplement Correct Record Notice of Intent to Use Alternative Correct Record." Appellant requested that this Court consider, as a part of the appellate record, approximately 300 pages of documents included with the filing, as well as the items included on the CDs submitted by appellant to the Court. In this filing, appellant stated that he made several requests with the trial court clerk to supplement the clerk's record with the items included on the CDs, but the trial court clerk failed to do so.
Appellant's filing was construed as a motion to consider the items included on the CDs as a part of the appellate record and denied by the Court on April 27, 2023. See McCann v. Spencer Plantation Invs., Ltd., No. 01-16-00098-CV, 2017 WL 769895, at *4 n.5 (Tex. App.-Houston [1st Dist.] Feb. 28, 2017, pet. denied) (mem. op.) (concluding that attachment of documents as exhibits or appendices to appellate brief does not constitute formal inclusion of such documents in record for appeal, and Court may not consider matters outside of the record in its review).
On April 27, 2023, appellant filed a "Motion to Reconsider the Court's Order of April 27, 2023." In this motion, appellant requested that the Court reconsider its order because it is appellant's "intent to use the [a]lternative [c]orrect [r]ecord he requested under the authority of Rule 34.5(C) and Rule 34.6(c) of [the] Texas Rules of Appellate Procedure on March 16, 2023, which the [t]rial [c]ourt [c]lerk failed to supplement and erred by filing a wrong record [on April] 17, 2023." Appellant further noted that "the intent of using the filed record is to clarify the facts and provide significant aid" to the Court "in their decision making." Appellant requests that the Court reconsider its April 27, 2023 order and "allow and have the [alternative correct record] filed by . . . [a]ppellant on April 20, 2023, to be included in the record of this appeal."
On May 8, 2023, appellant filed an "Emergency Motion for Temporary Relief/Emergency Request for Ruling on Motion to Reconsider." In this motion, appellant states that "there will be irreparable damages to" the briefing in this appeal if the Court denies appellant the "use of the [a]lternative [c]orrect [r]ecord which contains the entire [f]acts of the case."
As noted in our April 27, 2023 order, documents that are attached to a brief do not become a part of the appellate record. See McCann, 2017 WL 769895, at *4 n.5. We further note that this Court is not responsible for the filing of the clerk's record. See Tex. R. App. P. 35.3(a). However, where a party believes an item has been omitted from the clerk's record, that party may request that the trial court clerk "prepare, certify, and file in the appellate court a supplement containing the missing item." See Tex. R. App. P. 34.5(c)(1).
Appellant's specific request to this Court, that we consider items included on the CDs as a part of the appellate record, is outside the scope of this Court's authority under the Texas Rules of Appellate Procedure. However, nothing in this order prevents appellant, or any party, from requesting that the clerk's record be supplemented. And, to the extent a supplemental clerk's record is properly filed with this Court, any documents included in any supplemental clerk's record will become a part of the appellate record and will be considered by the Court. See Tex. R. App. P. 34.5(c)(3).
Accordingly, appellant's motion for reconsideration of the Court's April 27, 2023 order and emergency motion for temporary relief and emergency request for ruling on motion to reconsider are denied.
It is so ORDERED.